View of Constitution

[Sestak]

I consider it to evolve somewhat, especially regarding completely new concepts and technologies. For example, I strongly believe that the Fourth Amendment applies to digital documents and records even though a perfectly strict "dictionary-literal" reading of "persons, papers, houses, and effects" would not include them - I think "papers" includes them even if the Founders were not explicitly thinking of information stored on spinning magnetic disks when they wrote it.

The constitution "evolving" against its own intent, like some claim with the second amendment, is more dubious to me.

[Sestak]

My "sort of originalism" is the same as what Prof. John Hart Ely described as "Interpretivism" (clause-bound interprevetism) in his classic book "Democracy and Distrust." Interpretivism holds that judges should interpret the words of the Constitution "with whatever interpretive help the legislative history can provide." Hugo Black was the quintessential interpretivist, Ely said.

"Justice Black and the interpretivist school have an inference, one that seems to find acceptance with friend and foe alike. Of course, they would answer, the majority can tyrannize the minority, and that is precisely the reason that in the Bill of Rights and elsewhere the Constitution designates certain rights for protection. Of course side constraints on majority rule are necessary, but as the framers wisely decided, it is saner and safer to set them down in advance of particular controversies than to develop them as we go along, in the context of the particular political problem and its accompanying passion and paranoia. It is also, the argument continues, more democratic, since the side constraints the interpretivist would enforce have been imposed by the people themselves. The noninterpretivist would have politically unaccountable judges select and define the values to be placed beyond majority control, but the interprevist takes his values from the Constitution, which means, since the Constitution was submitted for and received popular ratification, that they ultimately come from the people. Thus the judges do not check the people, the Constitution does, which means the people are ultimately checking themselves."

Bork was satisfied that "clause-bound interpretivism," in the way Ely was describing what that means, is synonymous with originalism. I also like Ely's version of "clause-bound interpretivism," and I disagree with Ely that it is "impossible" to be an adherent to that philosophy.

In your view, then, would it be constitutional with regards to the Thirteenth Amendment for a state to pass a law stating that married women are not allowed to enter legal contracts, work for pay, etc. without the permission of their husband, and also that their husbands have complete control of their earnings?

Because the Congress that passed the 13th, 14th, and 15th Amendments would tell you that those amendments would not ban such a law.

[Sestak]

My "sort of originalism" is the same as what Prof. John Hart Ely described as "Interpretivism" (clause-bound interprevetism) in his classic book "Democracy and Distrust." Interpretivism holds that judges should interpret the words of the Constitution "with whatever interpretive help the legislative history can provide." Hugo Black was the quintessential interpretivist, Ely said.

"Justice Black and the interpretivist school have an inference, one that seems to find acceptance with friend and foe alike. Of course, they would answer, the majority can tyrannize the minority, and that is precisely the reason that in the Bill of Rights and elsewhere the Constitution designates certain rights for protection. Of course side constraints on majority rule are necessary, but as the framers wisely decided, it is saner and safer to set them down in advance of particular controversies than to develop them as we go along, in the context of the particular political problem and its accompanying passion and paranoia. It is also, the argument continues, more democratic, since the side constraints the interpretivist would enforce have been imposed by the people themselves. The noninterpretivist would have politically unaccountable judges select and define the values to be placed beyond majority control, but the interprevist takes his values from the Constitution, which means, since the Constitution was submitted for and received popular ratification, that they ultimately come from the people. Thus the judges do not check the people, the Constitution does, which means the people are ultimately checking themselves."

Bork was satisfied that "clause-bound interpretivism," in the way Ely was describing what that means, is synonymous with originalism. I also like Ely's version of "clause-bound interpretivism," and I disagree with Ely that it is "impossible" to be an adherent to that philosophy.

In your view, then, would it be constitutional with regards to the Thirteenth Amendment for a state to pass a law stating that married women are not allowed to enter legal contracts, work for pay, etc. without the permission of their husband, and also that their husbands have complete control of their earnings?

Because the Congress that passed the 13th, 14th, and 15th Amendments would tell you that those amendments would not ban such a law.

That’s actually not true. Look up the married women’s property acts. Things were changing by this point, and in fact the abolitionist and women’s rights movements worked hand in hand.

The MWPI had not passed in all states by this point, and indeed it took some several more decades.


Also, there's this quote (which actually is literally on the Wikipedia page for the MWPIs:

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It was in fact the opposition, who voted to kill the amendment, who was arguing that the amendment applied to the servitude of married women.

[Sestak]

This essay by Judge Learned Hand has had a big influence on me.

http://mtweb.mtsu.edu/cewillis/Hermeneutics/Hand%20How%20Free%20is%20a%20Judge.pdf

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There is an issue with this, however. Pretty much all Congresses in the past have been strongly religious, to the point that they would have decided these things based first on their religious beliefs and only secondly on the text they had just passed. For instance, the Cowan quote below indicates Congress' belief that there was a "right of a husband to the service of his wife" that supersedes the Constitution. Any reading of "what would the legislature do" would have to include this "invisible right" as well. But this essentially would mean that each constitutional amendment also implicitly enshrines the religious beliefs of the Congress that passed it into the constitution. This, in my mind, is ridiculous.