And, the basic bones as well as the Bill of Rights have gotten us where we are today and still going. I personally get much glee from the fact that these violent, racist, antisemitic, clueless college students cling to their right of Free Speech as they chant “Death to America”. And in the end their asses will be saved my the those who wrote the Constitution — all male, all propertied, all educated and ALL PRIVILEGED.
Having read several of Mr. Jacobs's books and enjoyed them all, I'm glad to see he's still at it. It helps readers to have serious topics (religion, health, government, knowledge, etc.) approached with humor and at least some attempt at true understanding.
I used "The Year of Living Biblically" as a lesson plan for a year in senior high Sunday school class, partly because it gave us something to laugh about and partly because Mr. Jacobs, as a secular man and non-practitioner of his Jewish faith, seemed to have begun the year with about the same level of Biblical knowledge as the students. This seems about the same regarding his understanding of the Constitution (as it would be mine; having read it several times, can't claim to understand it all).
One story from TYOLB stood out for me. Mr. Jacobs accidentally trapped himself in his apartment bathroom for hours, and that was when he first learned to pray. He had to be forced into that by an unusual circumstance, and he made the best of it.
Constitutionally, we may be in a similar moment. President Biden's infirmity has us in a constitutional crisis; we know he is too weak mentally and physically -right now, not for four more years- to perform such a difficult and important job, but what are our alternatives? 25th Amendment? Try to hang in there until the election, and hope Russia, China, and North Korea are not ready to unleash havoc today? Have the DNC step up and convince his delegates to vote their consciences rather than strictly for President Biden? Convince the President to resign ASAP?
We're trapped in this moment; what good can we realize from it?
I enjoyed reading about Mr Jacobs experiences subjecting himself to different "tests", but presently straggle to understand why one would spend his life seconds (minutes, hours etc) doing it. Unless, of course, it is personal want or desire to experience something uncommon. Kind of quest. May be just my personal bias for practicality.
Otherwise, I agree with B-hanimal about the subject being rather shallow.
This is an entertaining approach to something the author obviously considers a serious topic. For someone who has chosen to write on this topic, I find much of what he says here to be a serious misunderstanding. There is no "right" to petition to become a privateer. Congress simply has the power to confer that license upon individuals. Though the Third Amendment and this privateering clause both seem dated, it isn't inconceivable they could again be pertinent. I never thought the government would react the way it did to Covid-19, but most of those powers derive from relatively ancient practices that are affirmed in the common law - I mean, we have a restriction on search and seizure, and on government takings of property, but in a "public emergency" the government can burn down your house if it wanted to (as was done to part of Honolulu during a plague epidemic in 1900). Courts have also ruled that a building can be dynamited in an effort to prevent the spread of wildfire. No one now imagines such things possible, but it is because of these things that the Supreme Court has been hesitant to restrict the government's power, even in the face of evident overreach during Covid and the corresponding free speech cases that followed.
Whether or not some of the clauses in the Constitution are pertinent to modern life, I think the author's treatment of the subject rather shallow.
“The Constitution is written. It is like a contract.”
It is “like” a contract in some respects, but strictly speaking it is not a contract(or “compact”). The sense of the constitution, which could have no clear sense of particular technological innovations, should be considered when interpreting the laws and extent of government power. The fact that John Adams and co. we’re not aware of revenge porn doesn’t make it ok for a guy to say he’s a girl and compete against girls in sports and use their bathrooms.
Piracy used to be the coolest looking graphic in military symbology (MAGTF was a close second), but Biden’s Buffoons realized their DEI hires were too stupid to understand a pictograph and changed it to an initial.
Unsolicited factoid aside, one has the right to petition for a letter of marque - one does not have the right to be granted such. One DOES have the natural right to raise the red flag and declare war on humanity, but that takes a whole other degree of courage likely beyond the reach of someone who thinks wearing a tri-corn hat makes him an originalist.
I have absolutely no idea what inviting soldiers into his home has to do with the 3rd Amendment.
Mr. Jacobs, why did you quarter soldiers? The Third Amendment gives you the right NOT to quarter them. You certainly have the right to quarter them, but that's no more part of living "constitutionally" than harvesting hay with a scythe.
Congress has the power to grant letters of marque and reprisal, but has no obligation to do so. They may decide that there is no need now that we have a more extensive navy (and I don't know if any treaties that we've signed would have contrary provisions). There's also the question of whether we have "enemies" when we're not actually at war, though I'd love to see Jacobs take on the Houthis and their sea surface drones. Probably not much money in capturing those, though.
"Quartering Soldiers" has actually come up in modern times. Congress, about 15 years ago, wanted to mandate that airlines not charge active-duty soldiers for extra baggage (with no compensation from the Government).
Actually, quartering soldiers was very popular with the typical Colonial American citizen. The British paid rent, thus it was an additional source of revenue for many families.
We should reconsider the pillory. What we need is a bit of public shaming of criminals. The leftist platform of treating them as victims of a racist society clearly isn't working.
Hello Citizens. Since this pirate excerpt doesn't really delve into my thoughts on originalism vs living constitutionalism, I'm.pasting the text of the chapter that does. The chapter is called
A COMPLETE LISTING OF ALL ARGUMENTS FOR AND AGAINST ORIGINALISM THAT EVERYONE WILL AGREE IS ABSOLUTELY DEFINITIVE AND ERROR-FREE
And I'm sure everyone will find it just that, definitive and error-free!
(Part 1 of 5)
Over the past few months, I’ve been collecting arguments from both sides of the originalism debate. I’ve written them up in a leather-bound notebook, and I refer back to them often. In case they might help when you are discussing the Constitution with friends over some tankards of ale, here are five major objections to originalism, along with some of the responses.
OBJECTION 1
Why should we be bound by a 237-year-old piece of parchment?
The Constitution was written by smart men, this objection says, but they were smart men in 1787. They didn’t know about germ theory. They could not have foreseen the internet, much less ChatGPT, much less deep-fake revenge porn. Why should we bind ourselves to their ideas when the world is so radically different?
ORIGINALIST RESPONSE: An originalist would say that we should follow the original meaning of the Constitution because the alternative is chaos. The Constitution is written. It is like a contract. Imagine you hire a contractor and give this person a blueprint, but the contractor says, “Oh, I decided to move the sink into the bedroom because it’s a living contract.” For a society to function, you need stability, predictability, and the rule of law. If judges can just change the Constitution to suit their whims, you undermine all three requirements.
LIVING CONSTITUTIONALIST COUNTERPOINT: Actually, that blueprint metaphor is flawed, a progressive might respond. Here’s a more accurate blueprint metaphor for the Constitution, in the words of New York Times writer Ezra Klein:
Imagine I gave you the blueprint of a boat. . . . [S]o you build the boat, and then as soon as you get out on the sea, you realize, oh, there’s this or that problem, we need to make this improvement over time.
You build out new parts of the boat, you move the bathroom, you change some pieces because it’s leaking. And you sail the boat for 200 years. And then later on, some set of crewmembers say, “Actually, going forward, all repairs must be made explicitly and only based on the original blueprint. And also things we have added need to be taken away based on the blueprint.” All you’re going to get is a boat that sinks.*
OBJECTION 2
If originalism were properly applied, we’d live in a barbaric country that allowed for the flogging and branding of criminals.
One of the strongest objections to originalism comes from none other than originalist hero Justice Antonin Scalia himself. In 1988, Scalia gave a famous speech called “Originalism: The Lesser Evil.” Scalia argued that both sides—originalism and nonoriginalism—have flaws. In the end, he unsurprisingly comes out in favor of originalism, whose flaws he says are milder. But his critique of his own preferred theory is biting. Namely:
In its “undiluted form,” Scalia said, originalism would lead to barbaric laws. It is “too bitter a pill” to swallow. Consider the Eighth Amendment, which forbids “cruel and unusual punishments.” Scalia believed that the death penalty was not cruel or unusual, since it was common in 1791 and capital crimes are mentioned in the Constitution.
But it’s not just the death penalty. Public lashing and branding are also, technically, not cruel and unusual under originalism, because they weren’t cruel and unusual in 1791, Scalia said. Now imagine if Arkansas enacted a new law permitting those punishments today? No sane judge would let that law stand.
Scalia continued: Well, an originalist might respond, the founding generation meant for the phrase to evolve: “ ‘cruel and unusual’ originally meant ‘cruel and unusual for the age in question’ and not ‘cruel and unusual in 1791.’ ” Scalia finds this argument to be weak sauce. What’s the evidence the founding generation thought that the meaning should evolve? Scalia sees no convincing evidence.
If Scalia’s right, this is an enormous problem for originalism. It means that true originalism would allow people in 2024 to be flogged and branded. Which no respectable judge would allow. Which means your average originalist is not a true originalist but instead, in Scalia’s words, a “faint-hearted originalist.”
ORIGINALIST RESPONSE: Georgetown University law professor Randy Barnett gave a speech in 2011 rebutting Scalia’s fainthearted claim. Barnett said that Originalism 2.0 (the version about public meaning) can hold up to Scalia’s critique. Originalism 2.0 says that flogging is unconstitutional. This is because the public meaning in 1791 was that all cruel and unusual punishments were banned. Because we have since become aware that flogging and branding are cruel, they are therefore unconstitutional.
I'm pretty sure that a delegate at the Constitutional Convention thought the prohibition on cruel and unusual punishment was too vague, or that it shouldn't be included, specifically because he anticipated that people might one day consider flogging to be cruel and unusual. So, at least in this specific instance, I do think the Founders did anticipate that the meaning and application of the standard would change. That said, capital crime and the death penalty are specifically and unambiguously treated in the Constitution. If people want to ban the practice, fine, but the idea that it could be unconstitutional strikes me as inherently false.
Originalism is just a smoke screen to justify conservative opinions.
This critique isn’t about the merits of originalism so much as how judges have applied it. The criticism goes like this: Why do judgments from originalist justices almost always support the conservative agenda? Recent rulings from SCOTUS have been anti-abortion, anti-regulation, pro-religion, and pro–gun rights.
The situation is extremely suspicious. Isn’t originalism supposed to be a neutral, objective method? So why aren’t there more originalist decisions supporting liberal causes? Either the originalist judges are intentionally using originalism as a smoke screen to justify their conservative opinions or they are just benighted victims of confirmation bias, where they only perceive evidence that backs up their preconceptions.
ORIGINALIST RESPONSE: Originalists point out their method doesn’t always result in conservative rulings. Scalia was very proud to have ruled that burning the American flag is protected by the First Amendment despite being repulsed by the action himself. (Ironically, if my First Amendment adviser Jud Campbell is right, the original First Amendment was much more constrained and would not protect flag burning.)
LIVING CONSTITUTIONALIST COUNTERPOINT: Yes, there are exceptions, but they are just that: exceptions. Statistically speaking, justices use originalism to justify overwhelmingly conservative opinions.
ORIGINALIST RESPONSE: Well, maybe it’s just a fact that the original meaning of the Constitution aligns better with the conservative vision of America.
OBJECTION 4
Originalism does not achieve its stated purpose, which is to restrain judges.
One of the purposes of originalism, at least at first, was to restrain judges. Conservatives were upset by the Warren court’s progressive rulings. Originalism was supposed to rein in activist judges. But the opposite has happened. Look at how much SCOTUS’s decisions are upending the lives of everyday Americans. Look at abortion access. With the Dobbs abortion opinion, SCOTUS overturned decades of established law and customs.
ORIGINALIST RESPONSE: Don’t blame SCOTUS, an originalist might say. The justices are simply trying to figure out what the Constitution really means. In fact, judicial restraint isn’t the true purpose of originalism. The true purpose is to uphold the fixed meaning of the Constitution. And if that meaning radically changes America’s direction, so be it.
What’s more, the court is not dictating national policy. It is leaving the issues—such as abortion—up to the voters in each of the states.
LIVING CONSTITUTIONALIST COUNTERPOINT: Saying that originalism leaves the issues up to voters is disingenuous. Republicans control the majority of state legislature seats in America, thanks to gerrymandering and other tactics. So sending issues to the states is not pure democracy. It is rigged toward conservative outcomes.
OBJECTION 5
The Supreme Court’s new emphasis on history and tradition is confusing, arbitrary—and not even originalist.
This objection is not referring to traditional originalism but is about Originalism 3.0, as some are calling it. This new version of originalism, which dominated SCOTUS’s 2022 term, doesn’t merely look at the original meaning of the Constitution. It also looks at what is “deeply rooted in this Nation’s history and tradition.”
For instance, in the Dobbs abortion decision, Justice Samuel Alito said that we need to look at the “history and tradition” of abortion laws in the United States. He referenced laws from the founding through the 1990s. Likewise, in the Bruen gun case, Justice Thomas arrived at his decision by looking at gun laws all the way from 1300s England through the early 1900s.
Critics on both the left and the right have said that this version of originalism isn’t even originalism. Harvard law professor Noah Feldman calls it “historicism.” As he argues in a Bloomberg article, “The would-be originalist majority betrayed originalism, turning instead to an analytic method . . . that is far from the mainstream of American jurisprudence.” Historicism makes judges into historians, a job they are unqualified to do. When judges cite the past, they cherry-pick the history that suits their politics.
Another objection is that history and tradition are not always a wise
guide to current problems. Sexism, antisemitism, and racism all have a long history and tradition.
What’s more, say critics, historicism has led to mass confusion. The lower courts are still trying to figure out the proper historical analogies to apply when ruling on gun laws. As one judge wrote, her job has turned into a “game of historical ‘Where’s Waldo.’ ” Is a spring-operated “trap gun” similar to an AR-15? What is the proper historical analogy for having a gun on a subway? As a New York Times article put it, “Cases now explore weapons bans in early saloons, novelty air rifles on the Lewis and Clark expedition, [and] concealed carry restrictions on bowie knives and eighteenth-century daggers known as ‘Arkansas toothpicks.’ ”
ORIGINALIST RESPONSE: One response is to agree with the critics. Some originalists reject this new emphasis on history and tradition and consider it a betrayal of originalism. We should go back to focusing on the original meaning, they say.
The originalists who do embrace Originalism 3.0 say it’s necessary because it answers questions that original meaning can’t. You can’t base all your decisions on the circumstances in 1789 (or whenever an amendment was passed), because the meaning from that time is not always clear. It only becomes clear in subsequent laws.
Part 3 of 5 (actually I didn't need parts 4 and 5 because I was able to fit it into 3, so this is the final part.. thanks!)
SECTION 2.
Even if you don’t like originalism, you still have to grapple with its main critique of living constitutionalism. Namely, living constitutionalism gives too much power to a group of unelected justices to interpret the Constitution willy-nilly.
There are a couple of ways progressives have responded. One strategy is to combine originalism and living constitutionalism. This tactic gives living constitutionalism an anchor in the text. The basic idea is that you look for the original meaning, but the original meaning at a higher level of generality. So you take a constitutional phrase such as “equal protection” and say it applies to all sorts of situations, such as gay marriage. I’m sure I’m missing nuances, but to me, this combined approach seems like it is just living constitutionalism by another name.
Another response is to stress living constitutionalism’s pluralism. If you are a Supreme Court justice, you should consider a whole bunch of factors when making a decision. Yes, take into account the text’s original meaning. But also consider the consequences to current society, how SCOTUS has ruled in the past, how it would affect the court’s reputation, and what the average American thinks.
The grab-bag approach doesn’t solve the problem completely. Unelected justices still have enormous power to decide our lives. And this pluralistic view won’t satisfy all—or even most—critics. But I like it because there is at least some balancing going on. A pluralistic method, I believe, would make the court less likely to go against the wishes of the majority of Americans.
Plus, it seems traditionally American to me. The Founders were big into balancing. They loved the balance of powers. They thought their health was all about the balancing of bodily humors. (They got the humors part wrong, but balancing, or homeostasis, is, in fact, important.)
I use a balance of factors when I make decisions in my daily life, a sort of board of advisers in my brain. What does logic say? What about my emotions? How will it affect me in the short term and long term? How will it impact my community? Am I setting a good example for my kids? What would my ancestors think? What will my descendants think?
Perhaps you’ve heard of the famous essay by Isaiah Berlin titled “The Hedgehog and the Fox.” It’s based on an ancient Greek idea about two types of thinkers. A hedgehog views the world through a single lens, whether that’s Marxism or Christianity. A fox views it through multiple lenses, combining approaches and strategies. The saying goes, “The fox knows many things, but the hedgehog knows one big thing.” Originalism is a hedgehog approach. The idea is to interpret the Constitution with a single lens: the original public meaning. I prefer the fox’s worldview. I believe flexible thinking leads to better solutions and a better life. Though I do find the parable paradoxical. The very idea of dividing the world into two distinct types of people? That’s a very hedgehog idea. The fox in me doesn’t like it.
This entire piece is undermined by some clearly biased perspectives. The reason there are more conservative legislatures is because of "gerrymandering and other tactics"? Really? You're absolutely right. Every state's citizens sees San Francisco, Portland, Seattle, Detroit, and Chicago, and thinks to themselves, "THAT is EXACTLY how I want to live." This point also ignores the fact that gerrymandering is widespread in Democratic states as well, New York and Oregon being, statistically, two of the most gerrymandered states in the nation.
If you dig deeper into Berlin’s argument, and the fables that precede it (sometimes it’s a cat), it’s an argument for a principled approach to problem-solving and the hedgehog survives due to his simple and unified methodology while the fox faces a paralysis by analysis due to his plethora of disparate options… and dies.
Of course, this is America and, while the hedgehog disappeared from these shores long before Europeans arrived, the fox continues to thrive.
I would encourage you to listen to him. He is a joyful patriot who respects whatever party affiliation or view you hold. He also has a deeper insight into our founding documents than you think:
The fundamental point of conservatism toward the Constitution is: who gets to make changes to laws? Should it be the elected representatives of the people, whether laws passed by Congress & the President or amendments approved by Congress and state legislatures, or should it be unelected judges/justices? Liberals want judges and experts to apply their superior intellect to solving society's problems, regardless of the boundaries set by the Constitution (or laws; see Chevron deference, now thankfully eliminated); conservatives believe that legitimacy derives from the constitutional framework and political decisions within it. Process matters, not just the end result. If the law as written gives a bad result, it's the job of our elected representatives to change it, rather than let judges or agencies act as unaccountable, "benevolent" dictators. As Sarah Isgur puts it on the podcast Advisory Opinions, "Congress, do your job!"
By the way, it is emphatically the duty of the Supreme Court to "go against the wishes of the majority of Americans" when that majority wants to flout the Constitution. Whether it is protecting black schoolchildren in 1950s Little Rock, a Jehovah's Witness who doesn't want to say the Pledge of Allegiance, or a crisis pregnancy center in California that doesn't want to have to advertise where to go for abortions, the Constitution protects the minority from an overbearing government that has majority support, while still leaving ordinary matters of government to majority rule.
“…I had evoked what is my right, according to Article I, Section 8 of the United States Constitution.”
This highlights the silliness of your rather amusing escapade, which I hope no one takes seriously. Article 1, Section 8 doesn’t highlight any citizen rights but describes powers of Congress. Congress has the authority to issue letters of marque but it was never your “right” to apply or receive one.
While no one ca stop you from asking for a letter of marque, you have no right to be heard on the matter, which is my point. And the first amendment covers “petition the government for redress of grievances”. I’m not convinced that a request to become a pirate falls into the grievance category.
Beyond that, the author frames becoming a privateer as his “right” which it very clearly isn’t.
You many not be convinced, but the Supreme Court is. It's been a long time since that phrase was interpreted, successfully, as the right to petition. Try and keep up. He is indeed entitled to become a privateer if the letter is granted. Just as you are entitled to own a machine gun IF you pass the requirements. Boring.
There is no way that the Supreme Court would confuse the First Amendment Right to Petition for Redress of Grievances an Article 1 power for Congress to issue letters of marque and reprisal. Even if obtaining letters of marque and reprisal involves "petitioning Congress," it is not the same.
IF the letter is granted. That is not what is being suggested in my reading. What is being suggested is that he has a “right” to a letter of marque BEING granted. Two very different issues.
I enjoyed this article and applaud his tongue in cheek efforts. However, who says a letter of marque and reprisal only applies to sea-going vessels? The way things are going in space, it isn’t impossible that Congress will one day issue them to combat the same “little green men” who invaded Crimea. Blue Origin or SpaceX might be the first to ask.
History repeats itself, so best to keep an open mind.
Okay I can see the humor and it is fun read, but who knows? In the future we might need this so we can turn our high-speed ski boats into attack drones because the US no longer has enough money to support a coast guard. Maybe even capture a foreign factory trawler, hold the crew hostage and sell the fish on open market. Stranger things happen all the time. I say we should keep the original text.
And, the basic bones as well as the Bill of Rights have gotten us where we are today and still going. I personally get much glee from the fact that these violent, racist, antisemitic, clueless college students cling to their right of Free Speech as they chant “Death to America”. And in the end their asses will be saved my the those who wrote the Constitution — all male, all propertied, all educated and ALL PRIVILEGED.
Having read several of Mr. Jacobs's books and enjoyed them all, I'm glad to see he's still at it. It helps readers to have serious topics (religion, health, government, knowledge, etc.) approached with humor and at least some attempt at true understanding.
I used "The Year of Living Biblically" as a lesson plan for a year in senior high Sunday school class, partly because it gave us something to laugh about and partly because Mr. Jacobs, as a secular man and non-practitioner of his Jewish faith, seemed to have begun the year with about the same level of Biblical knowledge as the students. This seems about the same regarding his understanding of the Constitution (as it would be mine; having read it several times, can't claim to understand it all).
One story from TYOLB stood out for me. Mr. Jacobs accidentally trapped himself in his apartment bathroom for hours, and that was when he first learned to pray. He had to be forced into that by an unusual circumstance, and he made the best of it.
Constitutionally, we may be in a similar moment. President Biden's infirmity has us in a constitutional crisis; we know he is too weak mentally and physically -right now, not for four more years- to perform such a difficult and important job, but what are our alternatives? 25th Amendment? Try to hang in there until the election, and hope Russia, China, and North Korea are not ready to unleash havoc today? Have the DNC step up and convince his delegates to vote their consciences rather than strictly for President Biden? Convince the President to resign ASAP?
We're trapped in this moment; what good can we realize from it?
I enjoyed reading about Mr Jacobs experiences subjecting himself to different "tests", but presently straggle to understand why one would spend his life seconds (minutes, hours etc) doing it. Unless, of course, it is personal want or desire to experience something uncommon. Kind of quest. May be just my personal bias for practicality.
Otherwise, I agree with B-hanimal about the subject being rather shallow.
"struggle to understand why one would spend his life seconds (minutes, hours etc) doing it"
He makes his living doing these things. And it seems he's genuinely interested in them.
This is an entertaining approach to something the author obviously considers a serious topic. For someone who has chosen to write on this topic, I find much of what he says here to be a serious misunderstanding. There is no "right" to petition to become a privateer. Congress simply has the power to confer that license upon individuals. Though the Third Amendment and this privateering clause both seem dated, it isn't inconceivable they could again be pertinent. I never thought the government would react the way it did to Covid-19, but most of those powers derive from relatively ancient practices that are affirmed in the common law - I mean, we have a restriction on search and seizure, and on government takings of property, but in a "public emergency" the government can burn down your house if it wanted to (as was done to part of Honolulu during a plague epidemic in 1900). Courts have also ruled that a building can be dynamited in an effort to prevent the spread of wildfire. No one now imagines such things possible, but it is because of these things that the Supreme Court has been hesitant to restrict the government's power, even in the face of evident overreach during Covid and the corresponding free speech cases that followed.
Whether or not some of the clauses in the Constitution are pertinent to modern life, I think the author's treatment of the subject rather shallow.
“The Constitution is written. It is like a contract.”
It is “like” a contract in some respects, but strictly speaking it is not a contract(or “compact”). The sense of the constitution, which could have no clear sense of particular technological innovations, should be considered when interpreting the laws and extent of government power. The fact that John Adams and co. we’re not aware of revenge porn doesn’t make it ok for a guy to say he’s a girl and compete against girls in sports and use their bathrooms.
Piracy used to be the coolest looking graphic in military symbology (MAGTF was a close second), but Biden’s Buffoons realized their DEI hires were too stupid to understand a pictograph and changed it to an initial.
Unsolicited factoid aside, one has the right to petition for a letter of marque - one does not have the right to be granted such. One DOES have the natural right to raise the red flag and declare war on humanity, but that takes a whole other degree of courage likely beyond the reach of someone who thinks wearing a tri-corn hat makes him an originalist.
I have absolutely no idea what inviting soldiers into his home has to do with the 3rd Amendment.
Pols like Khanna are few and far between. Unfortunately. "How do we do this?" Wow.
Hilarious, I love it.
Man, I totally LOVE this. had me truly LOL.
Mr. Jacobs, why did you quarter soldiers? The Third Amendment gives you the right NOT to quarter them. You certainly have the right to quarter them, but that's no more part of living "constitutionally" than harvesting hay with a scythe.
Congress has the power to grant letters of marque and reprisal, but has no obligation to do so. They may decide that there is no need now that we have a more extensive navy (and I don't know if any treaties that we've signed would have contrary provisions). There's also the question of whether we have "enemies" when we're not actually at war, though I'd love to see Jacobs take on the Houthis and their sea surface drones. Probably not much money in capturing those, though.
"Quartering Soldiers" has actually come up in modern times. Congress, about 15 years ago, wanted to mandate that airlines not charge active-duty soldiers for extra baggage (with no compensation from the Government).
Common sense. Thank you.
Quartering soldiers! I learned in school that was unconstitutional!
Actually, quartering soldiers was very popular with the typical Colonial American citizen. The British paid rent, thus it was an additional source of revenue for many families.
I was wondering why he quartered military personnel as well.
Russia is shipping their oil around the world in a fleet of unmarked tankers. Maybe he can intercept a few of those in his speedboat.
We should reconsider the pillory. What we need is a bit of public shaming of criminals. The leftist platform of treating them as victims of a racist society clearly isn't working.
At the least we could eliminate the facial masks.
Hello Citizens. Since this pirate excerpt doesn't really delve into my thoughts on originalism vs living constitutionalism, I'm.pasting the text of the chapter that does. The chapter is called
A COMPLETE LISTING OF ALL ARGUMENTS FOR AND AGAINST ORIGINALISM THAT EVERYONE WILL AGREE IS ABSOLUTELY DEFINITIVE AND ERROR-FREE
And I'm sure everyone will find it just that, definitive and error-free!
(Part 1 of 5)
Over the past few months, I’ve been collecting arguments from both sides of the originalism debate. I’ve written them up in a leather-bound notebook, and I refer back to them often. In case they might help when you are discussing the Constitution with friends over some tankards of ale, here are five major objections to originalism, along with some of the responses.
OBJECTION 1
Why should we be bound by a 237-year-old piece of parchment?
The Constitution was written by smart men, this objection says, but they were smart men in 1787. They didn’t know about germ theory. They could not have foreseen the internet, much less ChatGPT, much less deep-fake revenge porn. Why should we bind ourselves to their ideas when the world is so radically different?
ORIGINALIST RESPONSE: An originalist would say that we should follow the original meaning of the Constitution because the alternative is chaos. The Constitution is written. It is like a contract. Imagine you hire a contractor and give this person a blueprint, but the contractor says, “Oh, I decided to move the sink into the bedroom because it’s a living contract.” For a society to function, you need stability, predictability, and the rule of law. If judges can just change the Constitution to suit their whims, you undermine all three requirements.
LIVING CONSTITUTIONALIST COUNTERPOINT: Actually, that blueprint metaphor is flawed, a progressive might respond. Here’s a more accurate blueprint metaphor for the Constitution, in the words of New York Times writer Ezra Klein:
Imagine I gave you the blueprint of a boat. . . . [S]o you build the boat, and then as soon as you get out on the sea, you realize, oh, there’s this or that problem, we need to make this improvement over time.
You build out new parts of the boat, you move the bathroom, you change some pieces because it’s leaking. And you sail the boat for 200 years. And then later on, some set of crewmembers say, “Actually, going forward, all repairs must be made explicitly and only based on the original blueprint. And also things we have added need to be taken away based on the blueprint.” All you’re going to get is a boat that sinks.*
OBJECTION 2
If originalism were properly applied, we’d live in a barbaric country that allowed for the flogging and branding of criminals.
One of the strongest objections to originalism comes from none other than originalist hero Justice Antonin Scalia himself. In 1988, Scalia gave a famous speech called “Originalism: The Lesser Evil.” Scalia argued that both sides—originalism and nonoriginalism—have flaws. In the end, he unsurprisingly comes out in favor of originalism, whose flaws he says are milder. But his critique of his own preferred theory is biting. Namely:
In its “undiluted form,” Scalia said, originalism would lead to barbaric laws. It is “too bitter a pill” to swallow. Consider the Eighth Amendment, which forbids “cruel and unusual punishments.” Scalia believed that the death penalty was not cruel or unusual, since it was common in 1791 and capital crimes are mentioned in the Constitution.
But it’s not just the death penalty. Public lashing and branding are also, technically, not cruel and unusual under originalism, because they weren’t cruel and unusual in 1791, Scalia said. Now imagine if Arkansas enacted a new law permitting those punishments today? No sane judge would let that law stand.
Scalia continued: Well, an originalist might respond, the founding generation meant for the phrase to evolve: “ ‘cruel and unusual’ originally meant ‘cruel and unusual for the age in question’ and not ‘cruel and unusual in 1791.’ ” Scalia finds this argument to be weak sauce. What’s the evidence the founding generation thought that the meaning should evolve? Scalia sees no convincing evidence.
If Scalia’s right, this is an enormous problem for originalism. It means that true originalism would allow people in 2024 to be flogged and branded. Which no respectable judge would allow. Which means your average originalist is not a true originalist but instead, in Scalia’s words, a “faint-hearted originalist.”
ORIGINALIST RESPONSE: Georgetown University law professor Randy Barnett gave a speech in 2011 rebutting Scalia’s fainthearted claim. Barnett said that Originalism 2.0 (the version about public meaning) can hold up to Scalia’s critique. Originalism 2.0 says that flogging is unconstitutional. This is because the public meaning in 1791 was that all cruel and unusual punishments were banned. Because we have since become aware that flogging and branding are cruel, they are therefore unconstitutional.
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I'm pretty sure that a delegate at the Constitutional Convention thought the prohibition on cruel and unusual punishment was too vague, or that it shouldn't be included, specifically because he anticipated that people might one day consider flogging to be cruel and unusual. So, at least in this specific instance, I do think the Founders did anticipate that the meaning and application of the standard would change. That said, capital crime and the death penalty are specifically and unambiguously treated in the Constitution. If people want to ban the practice, fine, but the idea that it could be unconstitutional strikes me as inherently false.
(Part 2 of 5)
OBJECTION 3
Originalism is just a smoke screen to justify conservative opinions.
This critique isn’t about the merits of originalism so much as how judges have applied it. The criticism goes like this: Why do judgments from originalist justices almost always support the conservative agenda? Recent rulings from SCOTUS have been anti-abortion, anti-regulation, pro-religion, and pro–gun rights.
The situation is extremely suspicious. Isn’t originalism supposed to be a neutral, objective method? So why aren’t there more originalist decisions supporting liberal causes? Either the originalist judges are intentionally using originalism as a smoke screen to justify their conservative opinions or they are just benighted victims of confirmation bias, where they only perceive evidence that backs up their preconceptions.
ORIGINALIST RESPONSE: Originalists point out their method doesn’t always result in conservative rulings. Scalia was very proud to have ruled that burning the American flag is protected by the First Amendment despite being repulsed by the action himself. (Ironically, if my First Amendment adviser Jud Campbell is right, the original First Amendment was much more constrained and would not protect flag burning.)
LIVING CONSTITUTIONALIST COUNTERPOINT: Yes, there are exceptions, but they are just that: exceptions. Statistically speaking, justices use originalism to justify overwhelmingly conservative opinions.
ORIGINALIST RESPONSE: Well, maybe it’s just a fact that the original meaning of the Constitution aligns better with the conservative vision of America.
OBJECTION 4
Originalism does not achieve its stated purpose, which is to restrain judges.
One of the purposes of originalism, at least at first, was to restrain judges. Conservatives were upset by the Warren court’s progressive rulings. Originalism was supposed to rein in activist judges. But the opposite has happened. Look at how much SCOTUS’s decisions are upending the lives of everyday Americans. Look at abortion access. With the Dobbs abortion opinion, SCOTUS overturned decades of established law and customs.
ORIGINALIST RESPONSE: Don’t blame SCOTUS, an originalist might say. The justices are simply trying to figure out what the Constitution really means. In fact, judicial restraint isn’t the true purpose of originalism. The true purpose is to uphold the fixed meaning of the Constitution. And if that meaning radically changes America’s direction, so be it.
What’s more, the court is not dictating national policy. It is leaving the issues—such as abortion—up to the voters in each of the states.
LIVING CONSTITUTIONALIST COUNTERPOINT: Saying that originalism leaves the issues up to voters is disingenuous. Republicans control the majority of state legislature seats in America, thanks to gerrymandering and other tactics. So sending issues to the states is not pure democracy. It is rigged toward conservative outcomes.
OBJECTION 5
The Supreme Court’s new emphasis on history and tradition is confusing, arbitrary—and not even originalist.
This objection is not referring to traditional originalism but is about Originalism 3.0, as some are calling it. This new version of originalism, which dominated SCOTUS’s 2022 term, doesn’t merely look at the original meaning of the Constitution. It also looks at what is “deeply rooted in this Nation’s history and tradition.”
For instance, in the Dobbs abortion decision, Justice Samuel Alito said that we need to look at the “history and tradition” of abortion laws in the United States. He referenced laws from the founding through the 1990s. Likewise, in the Bruen gun case, Justice Thomas arrived at his decision by looking at gun laws all the way from 1300s England through the early 1900s.
Critics on both the left and the right have said that this version of originalism isn’t even originalism. Harvard law professor Noah Feldman calls it “historicism.” As he argues in a Bloomberg article, “The would-be originalist majority betrayed originalism, turning instead to an analytic method . . . that is far from the mainstream of American jurisprudence.” Historicism makes judges into historians, a job they are unqualified to do. When judges cite the past, they cherry-pick the history that suits their politics.
Another objection is that history and tradition are not always a wise
guide to current problems. Sexism, antisemitism, and racism all have a long history and tradition.
What’s more, say critics, historicism has led to mass confusion. The lower courts are still trying to figure out the proper historical analogies to apply when ruling on gun laws. As one judge wrote, her job has turned into a “game of historical ‘Where’s Waldo.’ ” Is a spring-operated “trap gun” similar to an AR-15? What is the proper historical analogy for having a gun on a subway? As a New York Times article put it, “Cases now explore weapons bans in early saloons, novelty air rifles on the Lewis and Clark expedition, [and] concealed carry restrictions on bowie knives and eighteenth-century daggers known as ‘Arkansas toothpicks.’ ”
ORIGINALIST RESPONSE: One response is to agree with the critics. Some originalists reject this new emphasis on history and tradition and consider it a betrayal of originalism. We should go back to focusing on the original meaning, they say.
The originalists who do embrace Originalism 3.0 say it’s necessary because it answers questions that original meaning can’t. You can’t base all your decisions on the circumstances in 1789 (or whenever an amendment was passed), because the meaning from that time is not always clear. It only becomes clear in subsequent laws.
Part 3 of 5 (actually I didn't need parts 4 and 5 because I was able to fit it into 3, so this is the final part.. thanks!)
SECTION 2.
Even if you don’t like originalism, you still have to grapple with its main critique of living constitutionalism. Namely, living constitutionalism gives too much power to a group of unelected justices to interpret the Constitution willy-nilly.
There are a couple of ways progressives have responded. One strategy is to combine originalism and living constitutionalism. This tactic gives living constitutionalism an anchor in the text. The basic idea is that you look for the original meaning, but the original meaning at a higher level of generality. So you take a constitutional phrase such as “equal protection” and say it applies to all sorts of situations, such as gay marriage. I’m sure I’m missing nuances, but to me, this combined approach seems like it is just living constitutionalism by another name.
Another response is to stress living constitutionalism’s pluralism. If you are a Supreme Court justice, you should consider a whole bunch of factors when making a decision. Yes, take into account the text’s original meaning. But also consider the consequences to current society, how SCOTUS has ruled in the past, how it would affect the court’s reputation, and what the average American thinks.
The grab-bag approach doesn’t solve the problem completely. Unelected justices still have enormous power to decide our lives. And this pluralistic view won’t satisfy all—or even most—critics. But I like it because there is at least some balancing going on. A pluralistic method, I believe, would make the court less likely to go against the wishes of the majority of Americans.
Plus, it seems traditionally American to me. The Founders were big into balancing. They loved the balance of powers. They thought their health was all about the balancing of bodily humors. (They got the humors part wrong, but balancing, or homeostasis, is, in fact, important.)
I use a balance of factors when I make decisions in my daily life, a sort of board of advisers in my brain. What does logic say? What about my emotions? How will it affect me in the short term and long term? How will it impact my community? Am I setting a good example for my kids? What would my ancestors think? What will my descendants think?
Perhaps you’ve heard of the famous essay by Isaiah Berlin titled “The Hedgehog and the Fox.” It’s based on an ancient Greek idea about two types of thinkers. A hedgehog views the world through a single lens, whether that’s Marxism or Christianity. A fox views it through multiple lenses, combining approaches and strategies. The saying goes, “The fox knows many things, but the hedgehog knows one big thing.” Originalism is a hedgehog approach. The idea is to interpret the Constitution with a single lens: the original public meaning. I prefer the fox’s worldview. I believe flexible thinking leads to better solutions and a better life. Though I do find the parable paradoxical. The very idea of dividing the world into two distinct types of people? That’s a very hedgehog idea. The fox in me doesn’t like it.
This entire piece is undermined by some clearly biased perspectives. The reason there are more conservative legislatures is because of "gerrymandering and other tactics"? Really? You're absolutely right. Every state's citizens sees San Francisco, Portland, Seattle, Detroit, and Chicago, and thinks to themselves, "THAT is EXACTLY how I want to live." This point also ignores the fact that gerrymandering is widespread in Democratic states as well, New York and Oregon being, statistically, two of the most gerrymandered states in the nation.
If you dig deeper into Berlin’s argument, and the fables that precede it (sometimes it’s a cat), it’s an argument for a principled approach to problem-solving and the hedgehog survives due to his simple and unified methodology while the fox faces a paralysis by analysis due to his plethora of disparate options… and dies.
Of course, this is America and, while the hedgehog disappeared from these shores long before Europeans arrived, the fox continues to thrive.
I would encourage you to listen to him. He is a joyful patriot who respects whatever party affiliation or view you hold. He also has a deeper insight into our founding documents than you think:
https://www.econtalk.org/living-with-the-constitution-with-a-j-jacobs/
https://constitutioncenter.org/news-debate/americas-town-hall-programs/living-constitutionally-insights-from-aj-jacobs-and-jeffrey-rosen
The fundamental point of conservatism toward the Constitution is: who gets to make changes to laws? Should it be the elected representatives of the people, whether laws passed by Congress & the President or amendments approved by Congress and state legislatures, or should it be unelected judges/justices? Liberals want judges and experts to apply their superior intellect to solving society's problems, regardless of the boundaries set by the Constitution (or laws; see Chevron deference, now thankfully eliminated); conservatives believe that legitimacy derives from the constitutional framework and political decisions within it. Process matters, not just the end result. If the law as written gives a bad result, it's the job of our elected representatives to change it, rather than let judges or agencies act as unaccountable, "benevolent" dictators. As Sarah Isgur puts it on the podcast Advisory Opinions, "Congress, do your job!"
By the way, it is emphatically the duty of the Supreme Court to "go against the wishes of the majority of Americans" when that majority wants to flout the Constitution. Whether it is protecting black schoolchildren in 1950s Little Rock, a Jehovah's Witness who doesn't want to say the Pledge of Allegiance, or a crisis pregnancy center in California that doesn't want to have to advertise where to go for abortions, the Constitution protects the minority from an overbearing government that has majority support, while still leaving ordinary matters of government to majority rule.
“…I had evoked what is my right, according to Article I, Section 8 of the United States Constitution.”
This highlights the silliness of your rather amusing escapade, which I hope no one takes seriously. Article 1, Section 8 doesn’t highlight any citizen rights but describes powers of Congress. Congress has the authority to issue letters of marque but it was never your “right” to apply or receive one.
Hoist by your own petard. He emphatically has the right to petition for one.
Where is that right enumerated? Or is the “right” simply implied because it is not specifically denied?
I'm fairly sure you don't grasp the nature of our Constitutional Republic. Every citizen has the right to petition Congress. First amendment.
While no one ca stop you from asking for a letter of marque, you have no right to be heard on the matter, which is my point. And the first amendment covers “petition the government for redress of grievances”. I’m not convinced that a request to become a pirate falls into the grievance category.
Beyond that, the author frames becoming a privateer as his “right” which it very clearly isn’t.
You many not be convinced, but the Supreme Court is. It's been a long time since that phrase was interpreted, successfully, as the right to petition. Try and keep up. He is indeed entitled to become a privateer if the letter is granted. Just as you are entitled to own a machine gun IF you pass the requirements. Boring.
There is no way that the Supreme Court would confuse the First Amendment Right to Petition for Redress of Grievances an Article 1 power for Congress to issue letters of marque and reprisal. Even if obtaining letters of marque and reprisal involves "petitioning Congress," it is not the same.
IF the letter is granted. That is not what is being suggested in my reading. What is being suggested is that he has a “right” to a letter of marque BEING granted. Two very different issues.
We disagree. I like it.✌️
I enjoyed this article and applaud his tongue in cheek efforts. However, who says a letter of marque and reprisal only applies to sea-going vessels? The way things are going in space, it isn’t impossible that Congress will one day issue them to combat the same “little green men” who invaded Crimea. Blue Origin or SpaceX might be the first to ask.
History repeats itself, so best to keep an open mind.
Okay I can see the humor and it is fun read, but who knows? In the future we might need this so we can turn our high-speed ski boats into attack drones because the US no longer has enough money to support a coast guard. Maybe even capture a foreign factory trawler, hold the crew hostage and sell the fish on open market. Stranger things happen all the time. I say we should keep the original text.