Originalism

From National Review:

There is only one proper way to faithfully interpret the Constitution. And that is to ascertain the actual meaning of the words of the text, taken in their proper social and linguistic context.

That meaning must be the objective meaning — not the reader’s subjective understanding or preferred reading. And that meaning must be the original meaning — that is, the meaning the Constitution’s words and phrases would have had to reasonably informed readers of the English language at the time they were used, in context, and accounting for any specialized usages or term-of-art phrases. Any other reading is pure anachronism, a misuse of language.

This single correct method of constitutional interpretation travels under many names. I call it “original-public-meaning textualism,” emphasizing the text and the requirement that it be taken in its known, original sense. A convenient (if imprecise) shorthand term is simply “Originalism.” It contrasts, sharply, with any of a variety of progressive theories under which the Constitution’s meaning shifts, morphs, evolves, or otherwise transmogrifies to suit the needs or circumstances of the moment — and, typically, to serve the interpreter’s desired political agenda.

There are many good arguments in favor of Originalism: It is less subject to manipulation, produces greater clarity and consistency, better preserves democratic decision-making, and frequently yields better results than any other method. All of these points are true and important.

[snip]

Title IX vs the Constitution

Some people just can’t resist putting the “Twit” in Twitter.

From Advice Goddess blog:

From Rewire (in that tweet above), Shiwali Patel reports this gem about the supposedly “fair process” under Title IX for sexual assault.

…There is no inherent conflict between ensuring a fair process for survivors and a fair process for alleged perpetrators. For the record, when we advocate that schools be trauma-informed in responding to sexual violence and that schools stop and prevent sexual harassment, we are not asking the school to take away due process rights. It’s possible to advocate for both a fair process for all students and the safety of survivors of sexual violence. Take cross-examinations, for example, where institutions could ensure a fair process by allowing parties to submit questions to each other through hearing panels or investigators, yet still protect the safety of survivors by not permitting direct questioning by the accused student.
To highlight a recent case, a federal court last month held that the University of Michigan had violated an accused student’s due process rights to a live hearing and an opportunity to question the woman who filed the complaint against him. In doing so, the court “consider[ed] the emotional harm and trauma” to survivors of being directly questioned by their rapists. It concluded that the accused student had a right to question the woman who filed the complaint, but could only do so by submitting his questions to the student resolution panel or other school administrators, who would then ask the questions on his behalf.

I’m no lawyer; I’m just somebody who follows a few lawyers on Twitter; and even I knew immediately that this was, shall we say, merde du cheval.

Several lawyers chimed in pointing this out.

My comment was:

I think Ms. Lhamon’s tweet should be construed as a waiver of the right to cross-examine should she ever be in a legal dispute.

Hate speech is free speech, Gov. Dean: Glenn Reynolds

Source: Hate speech is free speech, Gov. Dean: Glenn Reynolds

I tell my constitutional law students that there are a couple of statements that indicate that a speaker is a constitutional illiterate who can safely be ignored. One is the claim that the Constitution views black people as ⅗ the worth of white people (actually, it was all about power in Congress, with slaveowners wanting black people to count 100% toward apportionment so that slaveowners would get more seats in Congress, and abolitionists wanting them not counted at all so that slaveowners would get fewer seats in Congress; the ⅗ compromise was just that, a compromise).

The other hallmark of constitutional illiteracy is the claim that the First Amendment doesn’t protect “hate speech.” And by making that claim last week, Howard Dean, former governor of Vermont and Democratic presidential candidate, revealed himself to be a constitutional illiterate. Then, predictably, he doubled down on his ignorance.

In First Amendment law, the term “hate speech” is meaningless. All speech is equally protected whether it’s hateful or cheerful. It doesn’t matter if it’s racist, sexist or in poor taste, unless speech falls into a few very narrow categories — like “true threats,” which have to address a specific individual, or “incitement,” which must constitute an immediate and intentional encouragement to imminent lawless action — it’s protected.

The term “hate speech” was invented by people who don’t like that freedom, and who want to give the — completely false — impression that there’s a kind of speech that the First Amendment doesn’t protect because it’s hateful. What they mean by “hateful,” it seems, is really just that it’s speech they don’t agree with. Some even try to argue that since hearing disagreeable ideas is unpleasant, expressing those ideas is somehow an act of “violence.”

There are two problems with that argument. The first is that it’s idiotic: That’s never been the law, nor could it be if we give any value to free expression, because there’s no idea that somebody doesn’t disagree with. The second is that the argument is usually made by people who spend a lot of time expressing disagreeable ideas themselves, without, apparently, the least thought that if their own rules about disagreeable speech held sway, they’d probably be locked up first. (As Twitter wag IowaHawk has offered: “I’ll let you ban hate speech when you let me define it. Deal?”)

The response to Dean was merciless: First Amendment law expert Eugene Volokh responded, “No, Gov. Dean, there is no ‘hate speech’ exception to the First Amendment.” If there were, neither the Westboro Baptist Church — whose hateful speech the Supreme Court recently held protected — nor the many people referring to Trump supporters as Nazis and “deplorables” would enjoy free speech.

As Volokh writes, if people want “hate speech” to be unprotected, they’re calling for a change to the First Amendment, and it’s a big one. They should not only admit that, “they should explain just what viewpoints the government would be allowed to suppress, what viewpoints would remain protected and how judges, juries and prosecutors are supposed to distinguish the two. And claiming that hate speech is already ‘not protected by the First Amendment,’ as if one is just restating settled law, does not suffice.”

Dean then doubled down with the constitutional illiterate’s usual fallback, that you could ban “hate speech” as “fighting words” under the 1942 case of Chaplinsky v. New Hampshire, which allows a ban on “fighting words.” (Journalist Dan Gillmor commented: “Disappointing, to say the least, to see Dean digging the hole deeper on his flatly incorrect original statement.”)

But “fighting words” aren’t hate speech. Fighting words are direct, person-to-person invitations to a brawl. Expressing political or social views that people don’t like isn’t the same thing, even if people might react violently to those views.

And that’s good. If, by reacting violently to views they didn’t like, people could get the government to censor those views as “hate speech” or “fighting words,” then people would have a strong incentive to react violently to views they don’t like. Giving the angry and violent the ability to shut down other people’s speech (the term we use for this in constitutional law, Gov. Dean, is “heckler’s veto”) is a bad thing, which would leave us with a society marked by a lot more violence, a lot more censorship, and a lot less speech.

Is that really what you want? Because that’s what we’d get, if we followed the advice of constitutional illiterates.