What is the Judicial Doctrine of Originalism?

The following are excerpts from the Statement of Lawrence B. Solum, Carmack Waterhouse Professor of  Law at Georgetown University Law Center, given at the Senate Hearings on the nomination of Neil Gorsuch to the United States Supreme Court. [Bracketed and italicized text is added by me and is not part of Professor Solum’s statement]

What is Originalism?

Judge Gorsuch is an originalist and a textualist, but what does that mean? The core of originalism is a very simple idea. In constitutional cases, the United States Supreme Court should consider itself bound by the original public meaning of the constitutional text.

Judge Gorsuch believes that the meaning of the constitutional text is its public meaning—the ordinary or plain meaning the words had to the public at the time each provision of the Constitution was framed and ratified. If the words employed are technical, the technical meaning must be accessible to the public. [i.e., at the time the words were written]

The original public meaning of the text is the meaning that the words had then—and not necessarily the meaning that they have today. For example, Article Four of the Constitution refers to “domestic violence” but in the Eighteenth Century that phrase did not refer to spousal abuse. It referred to riots and insurrections within a state. When we interpret Article Four, we should understand the words as they were used at the time the Constitution was written. What is called “linguistic drift” is not a valid method of constitutional amendment.

The Supreme Court today should consider itself bound by the text. The Court does not and should not have the power to amend the text on a case-by-case basis. It should decide constitutional cases in a way that is consistent with the original public meaning of the text.

Originalist judges do not believe that they have the power to impose their own values on the nation by invoking the idea of a “living constitution.” Instead, they believe that the proper mechanism for changing the Constitution is by amendment through the process provided in Article Five—as has been done twenty-seven times. [As George Mason University economist Walter E. Williams has said, “Would you want to play poker with someone who insists that the rules of the game be “living?”]

[In the next part of his statement Professor Solum dispells the many myths that have been associated with Originalism. He argues that originalism is not the same as original intent. It matters little what those who wrote the words of the Constitution intended, because it is a tricky business for us to even know what they intended nor whether they all intended the same thing. It is the words they used and public understanding of those words at that moment that matters. This is how courts construe contracts, not by what the parties may have meant to say, but by what they actually did say in their contract. Professor Solum dispels the myth that originalism is inconsistent with changing circumstances, or that it is inconsistent with prior precedent. He acknowledges that originalism would gradually move the law away from prior cases that are inconsistent with the text of the Constitution. That is a feature and not a bug of originalism.]

Originalism is in the Mainstream of American Jurisprudence

Is originalism somehow outside the mainstream of American jurisprudence? The answer to that question is an emphatic “no.” The idea that judges are bound by the constitutional text is very much in the mainstream of American legal thought.

…giving judges the power to override the Constitution and impose their own vision of constitutional law is dangerous for everyone.

The Case for Originalism

Originalism is the simple and highly intuitive idea that the Justices of the Supreme Court are bound by the constitutional text. The Justices, like all federal judges and the members of this Senate, take an oath to perform their duties under the Constitution of the United States. There are good reasons for the obligation of constitutional fidelity represented by the oath.

First and foremost is the rule of law. John Adams is famous for insisting on the “rule of law and not of men.”1 The commitment to the original meaning of the constitutional text is the best way to ensure that the awesome power entrusted to our Supreme Court—the power to have the ultimate say in constitutional cases and declare that statutes passed by Congress are unconstitutional—is the rule of constitutional law and not the rule of the men and women appointed to the Court.

What is the alternative? Living constitutionalists believe that the Supreme Court has the power to amend the Constitution by judicial fiat. [Citizens and their lawyers should be able to discern the likely outcome of a case before a court soley on the basis of the law and the original public meaning of the written words. They should not be required to study each judge’s personal politics, whims, or eccentricities to gain perspective on the strength or weakness of their case.] 


There is much more in Professor Solum’s statement. You might want to bookmark it so you can read the whole thing when time permits.

The future of conservatism in America

Now that “liberals,” who are and always have been leftists, are trying to change their title to “progressive”, maybe conservatives can take back the name “liberal.”  Classical liberalism, the old time liberalism, is essentially what conservatives mean to describe themselves today.

From David Boaz, 25 years later, is it still the Hayek Century?

Reagan and Thatcher may have admired Hayek, but he always insisted that he was a liberal, not a conservative. He titled the postscript to The Constitution of Liberty “Why I Am Not a Conservative.” He pointed out that the conservative “has no political principles which enable him to work with people whose moral values differ from his own for a political order in which both can obey their convictions. It is the recognition of such principles that permits the coexistence of different sets of values that makes it possible to build a peaceful society with a minimum of force. The acceptance of such principles means that we agree to tolerate much that we dislike.” He wanted to be part of “the party of life, the party that favors free growth and spontaneous evolution.” And I recall an interview in a French magazine in the 1980s, which I can’t find online, in which he was asked if he was part of the “new right,” and he quipped, “Je suis agnostique et divorcé.”

Even if you don’t speak French you can probably translate Hayek’s French  as “I am agnostic and divorced.”

The sort of conservative Hayek was referring to is not what we call conservative today. He was referring to the Tories in Britain, or the French and German conservatives of Europe. The establishment of the current GOP will also qualify as such a “conservative” to Hayek. Those so-called conservatives have no desire to stop the advancement of socialist institutions and theories, only to slow them down. They are the “cross the aisle” conservatives that will make deals with “progessives” to allow them to get most of what they want most of the time. Those conservatives lack the will to fight for anything so never advance any ideas for improvement of government or the lives of the people. Those are the conservatives who promise to repeal Obamacare only to propose small modifications that keep most of Obamacare in tact. That definition of conservative does not at all describe what I and others think of as a conservative in 2017 America. We are much more like the liberals that Hayek so admired. Open-minded liberty-loving devotees of freedom and limited government.  Our idea is to take care of ourselves and not to rely on a little elite bunch of self-centered crooks in Washington to run our lives for us.

Progessives are what Eric Hoffer described as “True Believers, who given the choice of whether to persuade or coerce choose the latter.” We endeavor to persuade them, they just want to coerce us.

More guns, fewer fatal gun accidents

More Firearms, More Firearms Owners, Fewer Fatal Accidents

The National Safety Council released the 2017 edition of its annual Injury Facts report this week, and it contains welcome news about firearm safety.

The number of fatal firearms accidents dropped to the lowest point ever (since 1903, when the data was first tracked). There were 489 total fatal firearm accidents nationwide – a 17% decrease from 2014. As a percent of the total number of fatal accidents, firearms accident rank very low: just 0.3% of all fatal accidents involved a firearm.

Comparing the odds between the types of fatal accidents can help put these numbers into context, and the National Safety Council puts fatal injury data in this format to make comparisons easier. The odds of a fatal firearms accident are 1 in 6,905. You are more likely to be killed by:

Poisoning (1 in 96)
A motor vehicle crash (1 in 114)
A fall (1 in 127)
Drowning (1 in 1,188)
A bicycle crash (1 in 4,486)

What makes the record low number of fatal firearms accidents even more noteworthy is that it came at a time when the number of firearms in the country was skyrocketing. The year 2015 saw the most background checks ever conducted in a single year until that point (the number was surpassed in 2016). More than 23 million NICS checks were conducted in 2015. Background checks don’t have a one-to-one correlation with firearms purchases, so we don’t know for sure how many more guns were bought in 2015 than previous years…. but we do know that the number of American gun owners was on the rise.

NICS checks result in refusals in a relatively small number of cases, possibly because people with criminal records know they are not going to pass the check and so don’t bother to try.  There have been 2.4 million gun sales blocked by NICS check since 1998, out of 257,495,166 total NICS checks since 1998. That computes to just under 1% of NICS checks result in refusal to allow the sale to proceed.

So, while we know that NICS checks don’t exactly corrolate one-to-one with gun purchases, we know that they do corrolate at least 0.99-to-one. I say “at least” because at least one gun is bought with a NICS approval to proceed, but often more than one gun is bought with one NICS check.  So we can say that since 1998 at least over 257 million new guns have been added to the free American people’s arsenal of guns. So fewer guns accidents is a pretty big deal. I looks like American gun owners are very safe and responsible with guns, to say the least.

An historical primer on the ideological subversion and demoralization of America

A 1984 interview with Yuri Bezmenov, a high ranking KGB defector. Bezmenov tries to warn America of the communist attempt at the ideological subversion, demoralization, destablization and eventual normalization of leftist propaganda, finally ending by the loss of freedom.

Venezuela: No food, no medicine, no toilet paper, and no gasoline

The end point of socialism

The country with soil so rich it will grow almost anything is out of food. The country with the largest proven oil reserves in the world is out of gasoline.

But wait, it’s also true that Venezuela has more millionaires than any other country in the world.  Trouble is, a million bolivars in your pocket are worth only about 300 American dollars on the black market for currency exchange, which is the only market there is for changing bolivars into dollars.

Paul Ryan fell for the Barzini trap

Michael Walsh:

Well, it’s not like wiser heads didn’t warn him:

And yet Paul Ryan walked straight into the Barzini trap that president Trump set for him. By insisting that the voters desired “Repeal and Replace” when in fact all anybody wanted was “Repeal, full stop,” Ryan’s inner wonk superseded his duties as the speaker of the House to ensure the votes were there for the “Replace” part of the equation. That they weren’t should be the end of his speakership.

Apparently, Ryan had been listening to the die-hard never-Trumpers too much, and actually thought he could skate on his opposition to the insurgent outsider, whose entire campaign was based on his contempt for the Permanent Bipartisan Fusion Party and apparatchiks like Ryan. Once the bright shiny penny of young GOP congressmen, Ryan blotted his copybook badly in his disappointing vice-presidential debate performance against a gibbering Joe Biden. He then played coy after House conservatives finally managed to sack former speaker John Boehner, but eventually accepted the proffered crown. During the election, he fought Trump every step of the way and lied about it.

So heading into round one of the health-care debate, there was no love lost between Trump and Ryan. Despite the fact that the House had already voted some 60 times to repeal Obamacare — which is all GOP voters had been asking for — Ryan got it into his head that what was really needed was a Republican version of Obamacare: “a better way.” And so he set about crafting the latest version of GOP me-tooism, the American Health Care Act, which was ignominiously yanked this afternoon when it was clear there were not enough votes to pass it.

If the House GOP had wanted to insult and infuriate their voters, this bill was the best way to do it. Sin in haste, repent at leisure.

Yeah, wiser heads warned him. But you get the idea that at least some in the House GOP really do want to insult and infuriate their voters.

If you’ve been reading here you know that I’ve said all along “repeal” is the comfort word for the Democrat version of government-run healthcare, “replace” is the spoiler word for the Republican version of government-run healthcare. The people and a lot of House members, such as the Freedom Caucus, don’t want either (or any) brand of government health care. Ryan could have seen that coming if he’d bothered to look.

All of Michael Walsh’s piece is worth reading.

GOP punts on their awful health care bill

Because it won’t pass the house. They promised to repeal Obamacare. If they’d just do what they promised they wouldn’t look so stupid. They’d be heros in fact. They claim that only about half of repealing Obamacare can be done with 51 votes in the Senate, and full repeal will need 60 votes. But the Democrats didn’t need 60 votes to pass it, so why are 60 votes needed to repeal it? If the situation were reversed does anyone doubt the Democrats would have already got rid of it with less than 60 votes?

They don’t understand that politics is like prisoner’s dilemma. You lose if you don’t do tit for tat. The one who cooperates when the other defaults always loses.

Trump Ultimatum — Vote on health care Friday or Obamacare stays

If the bill does not pass, the president would see it as “people in Congress breaking their promises to their constituents to repeal and replace Obamacare” even with a Republican president in the White House,” the source told NBC News.

Looks like Trump is giving up. Why is the vote so important? What they’re voting on, if they do, does not repeal Obamacare! No promise left unbroken on Obamacare repeal, and that was the big reason the GOP has been winning elections. This won’t end well for the GOP. Nor for Trump.

They must be popping corks at Obama’s house.

Gorsuch tells Feinstein that “Heller” is the “law of the land”

Pressed on Heller, Gorsuch says it’s “the law of the land”

The death of Antonin Scalia has, I think, been the ramrod of Democrat’s new boldness on getting more anti-gun legislation.  If you read the NRA daily alerts you will see that liberal Democrats in state legislatures are outdoing themselves trying to pass new draconian restrictions on citizens’ right under the 2nd Amendment.

The rule in Heller is that the 2nd Amendment protects the right to keep and bear all guns that are in common use. At least that, that is.  Nevertheless, Maryland has banned all AR-15 rifles, and a federal circuit court has upheld that ban.  This is a plain violation of the 2nd amendment as it was interpreted in the Supreme Court’s Heller decision which was written by Scalia. The AR-15 is the most popular rifle in America. So popular that more AR-15 rifles are legally sold to American gun enthusiasts in recent years than the number of Ford F150s, the best selling vehicle in America.

More and more states are re-writing their hunting regulations to allow AR-15 rifles to be used in hunting big game. Pennsylvania is the latest about to do so, as the contiguous state of Maryland makes it a crime to even touch one.

So I think it’s a very good sign that Neil Gorsuch set Dianne Feinstein right on the subject of Heller.

I do have one slight nitpick, however. I’m not fond of crediting judges’ decsions as creating the “law of the land.” I believe the law of the land is the U.S. Constitution and cases such as Heller are correct interpretations of it. Otherwise, the “law of the land” is to be made by the people through their elected representatives, and the proper role of judges is to correctly interpret those laws and apply them in cases that come before the court.

Stare Decisis, the legal principle of determining points in litigation according to established precedent, is a similar concept as “law of the land”, but not quite the same thing.

Is the subprime auto-loan bubble about to burst?

This comes from Real Money:The Street:

Several data points to consider:

  • Losses for subprime auto loans, annualized, were 9.1% in January, up from from 8.5% in December and 7.9% in the first month of 2016, according to S&P. The rate is the worst since January 2010 and is being fueled by worsening recoveries after borrowers default, notes S&P.
  • More than six million U.S. consumers are at least 90 days late on their car loan repayments, according to the Federal Reserve Bank of New York.
  • The U.S. finished last year with about $1.2 trillion in outstanding auto loan debt, up 9% from the previous year and 13% higher than pre-crisis peak in 2005, in inflation-adjusted terms according to DOT data.

Everything I’ve read says it’s not as bad as the subprime mortgage crisis of 2008, but quite a lot of what I’ve read thinks this is something to be concerned about, especially as interest rates rise on variable rate loans. An ever increasing number of car loans are subprime loans made to buyers with poor credit scores. It’s safe to say that a fair number of buyers are getting car loans they cannot afford.

It’s not just new cars that are being sold to people who cannot afford them.  If you have a job of some sort you can probably walk into a Harley Davidson dealership and walk out with a brand new Harley Electra Glide Ultra Classic with no money down. You’d be financing $24,149 for 72 months (6 years) and assuming a monthly payment of $417.42.

At a local motorcycle dealership for several brands of Japanese and European motocycles I found proof that a lot of Harley buyers are biting off more than they can chew. This shop is not a Harley dealer and does not sell new Harleys.  It does, however, have an enormous stock of near-new Harleys that have been repossessed. Why, I wondered, does a shop that specializes in Ducati and Kawasaki motorcycles have so many low-mileage used Harleys in on its sales floor?

The answer I got upon inquiry was that this dealer has an arrangement with one or more banks that finance new Harleys, perhaps through arrangements with the motor company itself. OK, so why aren’t Harley dealers selling these repo-ed bikes? The best answer I could get was that they don’t want used bikes competing with their new bike sales, and they probably also don’t want to put on display such a glaring example of how many new Harley buyers are defaulting on their loans. The Ducati dealer with the bank arrangement has no less than 20 used Harley’s for sale at any one time, most of them with less than 1500 miles on them.

Cars are being sold to people who have no business buying a new car in much the same way as new Harleys. The number of years to finance a car used to 3, maybe 4. Today a new car loan can be for as much at 8 years in order to make the payment low enough for financailly stretched people to think they can afford to buy.

This is a bubble that has to burst sooner of later. Something that cannot go on forever, won’t. I don’t know what it will do to the auto financial lending sector of the economy but it sure seems that some heavy losses are going to be incurred. On the bright side, there may some good deals to be had in low-mileage used cars. Just as there presently are deals in low mileage used Harleys.

Too bad I’m a Ducati guy.