The living Constitution

Garrett Epps’ American Epic: Reading the U. S. Constitution is a fascinating, informative, lucid, provocative, and not infrequently humorous tour through the text of the Constitution, including all twenty-seven amendments. Epps, a lawyer, professor, and correspondent for the Atlantic, isn’t uncritically reverent toward the text–he recognizes that it can be confusing, opaque, and occasionally self-contradictory, as well as containing ideas that are “repulsive.” But neither is he out to debunk it as a tool of anti-democratic elites. The Constitution binds us together as a people, and over its history it has–albeit often fitfully–expanded the reach of democratic self-government and equality before the law.

Epps takes issue with those who treat the Constitution almost as an infallible oracle that provides a single answer to every legal or political question, frequently comparing them to biblical fundamentalists. He approaches it in a more “literary” fashion, seeing the language as producing a surplus of meaning beyond what the original framers may have intended (even assuming we could always figure out what that was, which we can’t). He proposes that different kinds of reading–“scriptural, legal, lyric, and epic”–yield different meanings, none of which can lay claim to being the definitive meaning.

This doesn’t mean that Epps dispenses with legal analysis. He moves meticulously, passage by passage, teasing out possible meanings, some more plausible than others. His close reading of the text often calls into question what “everybody knows” it means, and he recognizes that different and opposed readings (of, say, the Second Amendment) can lay claim to plausibility. Where we come down will, often as not, depend on prior political and philosophical assumptions. “As a whole,” he notes, “its composition spanning two centuries, the Constitution forges a complex language, its words drawing meaning from their interrelation and the gloss of new uses.”

Actually moving through the Constitution, warts and all, and reflecting on the circumstances under which its various parts were composed, probably provides the best argument for seeing it as a “living” document that takes on new meanings in different historical circumstances. It’s not unlike how, to borrow Epps’ frequent comparison, actually reading the Bible closely often calls into question simplistic theories of inspiration or “inerrancy.” Epps’ book is an eye-opening guide to a text that “so many revere and so many fewer have read.”

HSUS and egg industry reach agreement on better treatment of laying hens

This seems like a big deal:

In an historic agreement reached today by the Humane Society of the United States (HSUS) and the United Egg Producers (UEP), these long-time adversaries will work cooperatively to enact the first-ever federal law related to the treatment of chickens. It would also be the first federal law related to the on-farm treatment of animals raised for food.
The proposed federal legislation endorsed by the HSUS and UEP would:

  • Ban barren battery cages—small, cramped cages that nearly immobilize more than 250 million birds today—and essentially phase in double the amount of space each laying hen is presently given.
  • Require environmental enrichments for birds such as perches, nesting boxes, and scratching areas for all hens.
  • Prohibit forced molting through starvation, an inhumane practice that involves withholding all food from birds for up to two weeks in order to manipulate the laying cycle. Tens of millions of hens in the country still endure this cruelty today.
  • Prohibit ammonia levels in henhouses from going above 25 parts per million.
  • Prohibit the sale of eggs and egg products in the U.S. that don’t meet these requirements.
  • Mandate that all egg cartons sold in the U.S. clearly identify the method of production; such as “Eggs from Caged Hens.”

From what I’ve read, the egg industry was motivated to reach this agreement in part because of the various state-level initiatives the HSUS had been pursuing, like Proposition 2 in California a couple of years ago. Rather than deal with a patchwork of state-level regulations, it seems they’d prefer a uniform federal standard.

In addition to the concrete improvements this should make in the lives of the millions of laying hens in the U.S., it will also be a big step to enshrine in federal law the principle that farmed animals are entitled to a certain level of humane treatment.


So, making it impossible to challenge secret government kidnappings (and possible torture) seems like it might be a way bigger deal than whether some nutjobs in Florida want to burn a Koran. Naturally, it’s gotten about 1/1000th the media coverage. Do check out this post at Lawyers, Guns & Money for some good analysis, though.

From moderate Republican to liberal icon

This New Yorker profile of Justice John Paul Stevens shows what a loss to the Supreme Court his (probably impending) retirement will be. My wife clerked for Stevens in 2007-2008, and I got to meet him on one occasion. He came across as a very gracious and obviously brilliant man. The article is also a good illustration of how far to the Right the GOP has moved in the last thirty-five years. (Stevens was considered a moderate Republican when he was appointed by President Ford.)

What’s wrong with the filibuster

The clearest case I’ve seen for why a de facto supermajority requirement for passing ordinary legislation is wrong, undemocratic, and unconstitutional.

Judicial watch

No insightful legal analyis from these quarters (I know enough lawyers to know how out of my depth I’d be), but, boy howdy, the nomination of Judge Sotomayor to the SCOTUS sure is bringing out the best in the conservative movement and the GOP, isn’t it?

Souter’s out, according to the Times

I wondered why their were all those reporters hanging around the Supreme Court when I was out running this morning. Now I know.

By (almost) any means necessary

I thought this interview with Paul Watson of the Sea Shepherd Conservation Society. They’re like Greenpeace on steroids: they do everything short of harming people to stop whalers. In fact, Watson calls Greenpeace the “Avon Ladies” of environmentalism and compares their philosophy of “bearing witness” to standing idly by while someone’s attacked:

They have this thing called “bearing witness.” That’s their approach. And I said, “You don’t walk down the street and see a kitten being stomped and do nothing, or see a woman being attacked and do nothing, or see a child being molested and do nothing. And you don’t sit there in a boat taking pictures of whales dying and do nothing.” Bearing witness, to me, is just another way of saying they’re cowards.

Watson’s tactics–though I wouldn’t necessarily endorse them–raise a question worth pondering. Most people will say that, in cases of grave injustice, it’s sometimes right, or even obligatory, to break the law. For instance, abolitionists helping slaves escape in antebellum America is regarded by most of us as not only not wrong, but extremely noble. Does preventing the hunting of whales fall into this category? Especially when there is no international authority with the wherewithal or power to prevent it?

Not bad for week one

Obama gives military’s interrogation rules to CIA (More here from NRCAT.)

Obama orders CIA prisons, Gitmo shut

Obama blocks some of Bush’s last-minute environmental decisions

More of this, please.

Fixing the imperial presidency?

Here’s an interesting piece in the new Atlantic arguing that the Founders messed up in designing the presidency and offering some suggestions for fixing it. Despite the author’s suggestion that the abuses of the last 8 years might get the public interested in this, I’m skeptical, not least because it wouldn’t serve a particular institutional or partisan interest; each party tends to like an inflated executive when its the one in charge of it. It’s possible, I suppose, that Congress could be brought to see executive reform as a way of reasserting the balance of powers between the branches, but, again, the track record doesn’t inspire much confidence.