Re: Hight Court hears huge 2nd amendment case today
Tidewater, I enjoyed reading your response. You know your stuff in this area. A couple more questions popped up.
Sorry it took me so long to get back in touch with you.
First, aren't you on a VERY slippery slope when you get away from the statutory construction principle of (basically) "it says what it says"? What happens, for example, if as a part of a legislative compromise something just wasn't addressed, and there is no mention of that in the legislative record? Using your logic, as I understand it, it would be important to know whether the legislation would have been defeated had the matter been addressed. How would you ever know that?
My first place to look for the meaning of a piece of legislation is in the text of the statute in question. If some legislative quid pro quo was intended, but not included in the bill, then it has no legal meaning.
In 1850, Congress was debating the admission of California as a free state without having gone through the period of being an organized territory, and despite the fact that much of the state lay south of the Missouri Compromise line. There was a series of compromise measures proposed, including the admission of California as a free state in exchange for a stronger fugitive slave act and other matters, and Congress could not come to any agreement in one big compromise encompassing all. Senator Clay of Kentucky and Senator Webster worked out a compromise in which Congress passed each measure individually. The proponents of one measure just had to trust their opponents would bring up and support the quo for their quid. In the end, they did, and slavery agitation died down for a while. But if the California free state proponents had reneged on their compromise, the fugitive slave act, the pro-slavery reps would have been out of luck.
What happens if some Congressmen are just more eloquent than others, which is surely the case? If so, some legislative history is better than other, no? Should something as important as Constitutional interpretation potentially turn on something like this? Forgetting for the moment that the quality of counsel on appeal may affect this even moreso.
I’m not sure I follow you here. Eloquence of various Congressmen does not really matter as much as the intentions of the law-givers, as far as we can determine them. To understand what their intentions were, we have the verbiage of the bill (or amendment), and what the representatives at Federal and state level said they thought they were voting for.
I am at a loss to say how else we (and the courts) may legitimately proceed. If the law or Constitution means something other than what the law-givers said it meant, on what basis does one interpret the law or Constitution? Some other method of proceeding must be used, such as the judges’ preferences, the judges’ views of natural law, or what they would have done had they been legislators at the time the bill or amendment was proposed. Justice Thomas addressed this in Lawrence v. Texas. Justice Thomas said he found sodomy laws “uncommonly silly,” and if he were a Texas state legislator, he would vote to repeal the law, but he was not a Texas legislator. He was bound by the Constitution of the United States and could find nothing in that document to help the plaintiffs in this case.
What about the technology 150 years ago, or even 50 years ago? Do we really think that all legislative history is fully and accurately captured? What about contemporaneous interviews, newspaper columns, etc? How do we accoutn for them?
I think you would be surprised at how accurately proceedings of legislative bodies were recorded. The Constitution requires the proceedings of the House to be recorded and published. The Senate adopted a similar system later. I have read instances in which legislators read the recorded versions of what they said, found their comments incorrectly recorded, and then went back and corrected the record. They said, in effect, “This is important, and I do not wish posterity to misunderstand me.”
I would also consider speeches outside of Congress, journal and newspaper articles, and memoires, but obviously, these should hold less authority than speeches in Congress, where the actual voting took place, especially when they do not coincide with statements made in Congress in debating the bill or amendment.
Also, does it really matter that a law was narrowly passed? If it passed, it passed, and it seems to me to be dangerous to go back and look that closely at what people now 150 years ago might have been thinking.
True, what has been passed is passed. When it comes to interpreting, if the court cite the most progressive/radical of the legislators as giving the true meaning to the law/amendment in question, they at the very least on shaky ground. In the meaning of the XIV Amendment, loose constructionists cite John Bingham of Ohio, who said different things on different occasions.
Professor Fairman in the
Stanford Law Review of 1949 wrote a 139 page (!) journal article examining the passage of the XIV Amendment. He cited Bingham’s inconsistencies, but argues that focusing too much on Bingham is a mistake. Bingham was not a Congress of one. Instead, we should focus on the intentions of the other Congressmen who supported the amendment. They were a more moderate bunch. The XIV Amendment was adopted in response to southern states post-war infringing on the rights of the newly freedmen and President Johnson veto of the Civil Rights Act of 1866 (later passed over the President’s veto), and the Freedman’s Bureau Act (which was not passed over the President’s veto).
The Freedman’s Bureau Act stipulated “whenever any state formerly in rebellion denied on account of color the civil rights and immunities belonging to white persons, including the rights to
contract, sue, give evidence, take, hold, and convey property, and enjoy the equal benefit of laws for the security of person and estate, it should be the duty of the President to extend military protection to the persons affected by such discrimination.” The Civil Rights Act of 1866 said, “persons born in the United States and not subject to any foreign power were citizens of the United States; that such citizens, without regard to color, were entitled in every state and territory to the same right to
contract, sue, give evidence, and take, hold, and convey property, and to the equal benefit of all laws for the security of person and property, as was enjoyed by white citizens.” Fairman argues that these were the “privileges and immunities” the Congress said the States could not infringe upon. Even with this narrow definition of “privileges and immunities,” the XIV Amendment won passage in the Congress only by unconstitutionally excluding senators southern states from voting (and even one from New Jersey who was seated, then unseated after Republicans found he opposed the XIV Amendment). There were a number of northern fence-sitters who, if it had been clear that the XIV Amendment would be used to prevent a city government from erecting a nativity scene in front of town hall, or something else that radical, would probably have voted against. Stated another way, there were probably more Congressmen who agreed to the amendment because they viewed it in the limited way (i.e. it protected rights to sue, enter into contracts, testify in court, etc.) than there were those who wanted the amendment to be expansively interpreted (i.e. incorporate the Federal Bill of Rights). If the expansive interpretation had been recognized at the time as the only one the courts would later hold, the moderates might not have voted as they did.
The intent of the radical proposers and the other, more moderate members seems fairly clear. They wanted a constitutional amendment to prevent former Confederate states from taking away certain specific rights of ex-slaves and loyal white southerners. I have no doubt that Bingham of Ohio and Howard of Michigan would have liked to have had a broadly interpreted amendment, but that does not mean the more moderate supporters of the amendment agreed with them in this expansive (incorporation of the Bill of Rights) interpretation.
Once again, not intended as any sort of flame or challenge. You are challenging me on some of my tenets, and I look forwrd to your response.
No offense taken. Good questions. I look forward to reading more from the perspective of a contrary opinion, or at least someone who is skeptical.
