We have been told that the internet would be able to replace traditional print media, but experience suggests we have yet to realize that future. Web-based writers largely are concerned with reactions and opinions, and actual reportage appears have to decreased across the board, with foreign and local beats particularly suffering.

One outlet, Grand Rapids’ The Rapidian, is advancing the news media banner in the twenty-first century, though, and it is doing so through a hyperlocal, citizen-driven approach. The idea is to have a community’s members conduct actual reporting and create original content tied to the issues affecting that community and the happenings within it. The online-only newspaper seeks to capture the diversity of happenings and perspectives across the community’s varying neighborhoods– indeed, The Rapidian organizes content both by subject area and place-rooted bureaus– in a rigorous manner by providing training from experienced journalists and writers. This journalistic training, in turn, deepens residents’ connections to their community by providing them with tools to become more engaged community members.

It is easy to see why Grand Rapidians would want to support The Rapidian, a deeply engaged news source that is growing and developing along with a revitalized city that is doing the same thing, particularly when the city’s familiar news source, The Grand Rapids Press, is doing the opposite. (To its credit, MLive, the media group that now operates what remains of The Press and a number of other, formerly independent Michigan newspapers, has been a public, financial supporter of The Rapidian.)

It also should be easy to see why those who do not live in Grand Rapids nevertheless should want to support The Rapidian. Few communities currently have a dynamic, locally focused outlet like The Rapidian, but many, I suspect, would like and benefit from one of their own. The long-term solution, of course, is for members of these communities to create their own hyperlocal news source. (Anyone involved* with The Rapidian certainly would emphasize the “long-term” nature of that solution, I suspect.) The short-term solution is for members of these communities to support The Rapidian. The Rapidian is a national leader in this concept and a possible model for hyperlocal news media in other communities, and as such, its continued success makes it more likely that communities outside Grand Rapids will be able to follow its lead and develop their own versions. Thus, no matter where you live, if you have an interest in participatory locally focused news and media that works in the twenty-first century, you have an interest in supporting The Rapidian. You can do so here today.

* Disclosure: I am a former member of the board of directors of the Grand Rapids Community Media Center, the umbrella media organization that serves the city through numerous channels, and of which The Rapidian is a part.

It was with some excitement, then, that I discovered Neil DeGrassse Tyson, the apparent heir to Sagan’s throne as an astrophysicist with a desire to share his passion for cosmology with the general public. Tyson has appeared on programs like The Daily Show, is active on twitter, and generally has made himself a presence in popular culture.

Whether it reflects Tyson’s own personality or is illustrative of the tone of our general, popular conversation, Tyson’s message began to take on a more aggressive stance in defense and furtherance of “science.” I imagine he, like many, believes that “science” is “under attack” from people such as climate change skeptics and those who want Intelligent Design integrated into school curricula. While there is nothing wrong with this general effort, and the following is not a defense of climate change skepticism or the corporate contrivance that is Intelligent Design, Tyson’s approach sometimes leads him to make neat statements that play well in popular media (and not inconceivably are designed for that purpose), but that merit further examination.

Perhaps the most popular example:

By engaging in a modern political debate, Tyson has misstated the fundamental nature of science. In short, “science” is only “true” to the extent it accurately describes the observed world.

Science is not a collection of unassailable “true facts,” but a set of methods for the processing and categorizing of observations. Science is something that is done, not something that is true. At its base, science is an overtly and expressly technical and communal way of telling a story. Mythology is engaged in the same storytelling endeavor. It simply uses different methods.

There is commonality in the limits of science and mythology as well, and, returning to Tyson’s remark, pictured above, what science tells us about unobserved events in the past is no more “true” than mythology addressing the same topic. Both are telling stories, even if, for many, the story science tells may be more convincing for a number of reasons. Persuasiveness and truth are not the same thing, however.

During oral arguments, Justice Antonin Scalia and Ted Olson, the lawyer representing the Proposition 8 challengers, had the following exchange:

JUSTICE SCALIA: I’m curious, when -­ when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. When do you think it became
unconstitutional? Has it always been unconstitutional? . . .

MR. OLSON: It was constitutional when we -­as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that -­

JUSTICE SCALIA: I see. When did that happen? When did that happen?

MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.

(Emphasis added.) The full transcript from yesterday’s oral arguments is available here.

Scalia’s question is deceptively fundamental in nature, and it (surely unintentionally) raises a practical question about his own approach to civil rights. Summarily, his approach is to recognize as protected only those rights clearly shown to be protected within the Constitution’s text or, in some cases, in (very) long-established tradition. For him, unless a claimed right finds clear, preexisting contemplation and protection in the Constitution, the claimed right does not exist.

One practical benefit, at least to Scalia, of this approach is that it is fairly convenient to operate on the back end– that is, the time when a judge is adjudicating a claim of a right violated. Following the alleged violation, the judge simply needs to look to the Constitution to see whether the claimed right is mentioned or clearly contemplated. If not, the claimant does not have a case. If so, the judge proceeds to determine whether there was an infringement of the established right in that particular instance.

Where Scalia’s approach is problematic, though, is on the front end. While principles of democracy and separation of powers properly keep the judiciary out of the legislature’s policy-making business, the historical fallacy of approaches like Scalia’s is that there was a time in the past when policy makers purposely set forth all the rights of the citizenry. Such an exhaustive effort has never been undertaken at the federal level, yet it would appear to be a necessary precondition for Scalia’s approach to make logical sense. If policy makers never set out an exhaustive enumeration of rights, Scalia would have no such source to which to point and state authoritatively that if the claimed right was not included, it did not exist. (Scalia’s inclusion of longstanding history as, along with the Constitution, the other source of rights, conceptually undermines his position, I think, and is a topic best left for another day.)

As I explained at length here, the Constitution’s Bill of Rights is not such a document. Neither its terms nor the intent of its drafters make any claim to exhaustiveness, and the same is true of subsequent constitutional amendments.

Returning to yesterday’s oral arguments, Scalia’s question– “When did it become unconstitutional to exclude homosexual couples from marriage?”– both deeply illustrates his view of civil rights and exposes the flaw in that view. That an asserted right does not appear on a list of rights that neither is nor claims to be an exhaustive list of rights is not a fully sufficient support for the consequential position that the asserted right does not exist. See generally here.

_______________________________________________________________

Another moment during yesterday’s argument of interest, if of lesser importance, came during an exchange between Justice Elena Kagan and the attorney for the Proposition 8 defenders, Charles Cooper. From the transcript (with nonmaterial edits for clarity):

MR. COOPER: The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus,refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples.

JUSTICE KAGAN: Well, suppose a State said, Mr. Cooper, suppose a State said that, because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55. Would that be constitutional?

MR. COOPER: No, Your Honor, it would not be constitutional.

JUSTICE KAGAN: Because that’s the same State interest, I would think, you know. If you are over the age of 55, you don’t help us serve the Government’s interest in regulating procreation through marriage. So why is that different?

MR. COOPER: Your Honor, even with respect to couples over the age of 55, it is very rare that both couples — both parties to the couple are infertile, and the traditional -­-

(Laughter.)

JUSTICE KAGAN: No, really, because if the couple — I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage.

(Laughter.)

(Again, the full transcript is available here.)

The Proposition 8 defenders often resort to the natural procreation defense of the traditional definition of marriage. It is difficult to understand why they do this, though, as a tactical matter. On one hand, it is tempting because the argument points out an uncontestable biological absolute. As a legal argument, though, it is so readily attacked by hypotheticals like Kagan’s that one is left wondering it is as valuable a defensive position as it initially appears.

Section one of the Thirteenth Amendment provides:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Article V of the Constitution governs the constitutional amendment process and provides two avenues for amending the Constitution: an amendment may be proposed either 1) by two-thirds of Congress or 2) through a constitutional convention on a vote of two-thirds of the state legislatures. Ratification either is by three-fourths of the state legislatures or three-fourths of constitutional conventions in each of the states. Article V appears to leave open the possibility that Congress may prescribe other means by which an amendment may be ratified.

According to the National Archives, Congress delegated the Archives responsibility for administering the ratification process. The Archives describes a relevant part of the ratification process as follows:

When a State ratifies a proposed amendment, it sends the Archivist an original or certified copy of the State action, which is immediately conveyed to the Director of the Federal Register. The OFR examines ratification documents for facial legal sufficiency and an authenticating signature. If the documents are found to be in good order, the Director acknowledges receipt and maintains custody of them. The OFR retains these documents until an amendment is adopted or fails, and then transfers the records to the National Archives for preservation.

A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 of 50 States). When the OFR verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution. This certification is published in the Federal Register and U.S. Statutes at Large and serves as official notice to the Congress and to the Nation that the amendment process has been completed.

Assuming these “formalities” constitute legally required steps in the amendment process, a proposed amendment does not become part of the Constitution until three-fourths of the states, acting through their legislatures or constitutional conventions, send a proper copy of their ratifying action to the Archivist.

After a vote of two-thirds of Congress, the proposed Thirteenth Amendment went to the states in 1864. Nearly two years later, when Georgia became the twenty-seventh state to ratify the amendment, the amendment was adopted and became a part of the Constitution. Mississippi did not ratify the amendment before Georgia did; in fact, it, along with other states like New Jersey, Delaware, and Kentucky, originally rejected the proposed amendment.

Over time, states that had not ratified the amendment did so, and those that initially rejected it reversed course and ratified it. Mississippi did so in 1995. As today’s story revealed, however, the Mississippi Secretary of State failed to notify the Archivist of their ratification action under the process described above, leading to the attention-grabbing statement that Mississippi had not “officially” ratified the Thirteenth Amendment and abolished slavery.

That view of this story likely is inaccurate.

First, once Georgia properly ratified the proposed amendment in 1865, the amendment became a part of the Constitution and, as such, the supreme law of the land. See U.S. Const. art. IV, s 2. The stance of the Mississippi legislature with respect to slavery was irrelevant because the Thirteenth Amendment applied in that state, just as it did in every other state, regardless of its decision on ratification.

Second, Mississippi probably did all it needed to do to “officially” ratify the Thirteenth Amendment– an act as symbolic in Mississippi as it was in every other state that decided to ratify the amendment after 1865– when three-fourths of its legislature voted for ratification in 1995. Under the Archives’ own description of the role of the notification procedure in the amendment process, the requirement for notice to the archivist would seem to be extinguished once a sufficient number of states had provided the requisite notice such that the amendment was adopted.

All Mississippi needed to ratify the Thirteenth Amendment was a three-fourths vote of its legislature. Having completed that in 1995, well after the adoption of the amendment, no further action was needed to make that ratification “official.”

As most people know, Justice Clarence Thomas is not frequently a vocal participant in oral arguments. In fact, that’s probably an understatement: before the Boyer argument, it nearly had been seven years since he last spoke in open court. Back in 2010, I wrote:

This week marks the fourth anniversary of Justice Clarence Thomas’ silence during Supreme Court oral arguments. The last time he questioned an attorney during oral arguments was in Holmes v. South Carolina, 547 U.S. 319 (2006), on February 22, 2006. Thomas had a solid reputation for sparse participation prior to the Holmes argument, and the four silent years since then have only served to solidify it. Observers, close and casual, are mixed on the significance of that silence, however.

Most people I encounter in casual conversation are immediately disparaging when it comes to Thomas, and particularly so regarding his silence. Some consider him a waste of space on the bench, and others suggest it is evidence that he is unqualified to serve on the Court, a charge that sometimes carries implications about his intelligence. Still others believe he simply is close-minded.

Perhaps I limited my survey of reactions to Thomas’ recent remark because of how I had seen him regarded in the past, or perhaps I’m just less attuned to Court-watchers today than I was three years ago (and I am), but I did not detect the same degree of disparagement I did before. More than anything, people seemed to see the happening as a sort of political novelty. Some actually called it “brilliant,” but that seems ridiculous in light of what Thomas actually “said.”

When Thomas’ name made its appearance in the transcript, the discussion at hand was about the qualifications of the criminal defendant’s counsel. Justice Antonin Scalia asked whether the defendant’s lead counsel was a Yale Law School graduate. After Scalia received an answer in the affirmative, the transcript records the following:

JUSTICE THOMAS: Well, there — see, he did not provide good counsel.

(Laughter.)

Everybody but Justice Sonia Sotomayor and possibly the arguing attorney seemed to be laughing at this point at what those in attendance agreed was a joke by Thomas, including Tom Goldstein, who wrote:

Most of the Justices were in a lighthearted mood today.  There was a lot of banter between them.  At one point, the questioning turned to whether the petitioner – a capital defendant – had “competent” counsel.  Justice Scalia made the rhetorical point that his lawyer was impressive because she had gone to Yale.  Chuckling, Justice Thomas interjected (as I heard it, imperfectly) that fact might make the lawyer “incompetent.”
…
Everyone who heard what he said recognized it was a joke.  All the Justices laughed to one degree or another.  So did the bar and gallery.

The most interesting part is that it isn’t even clear whether Thomas intended to speak into the microphone; some had noticed him passing a note to his neighbor, Scalia, and thought the remark may have been intended to be a private one.

In any event, the context to this remark is simple and should have been immediately apparent to anyone with even a general familiarity with Thomas. He attended Yale Law School himself, so at the very least, the joke was a self-depreciating one. That’s assuming he’s softened his views toward Yale. In the past, at least, he has not been especially proud of his time in New Haven because he believed he only was accepted there due to the school’s affirmative action policy, and he somewhat famously stuck a fifteen-cent price tag on his diploma as a signal of the value he placed on his Yale degree. Some commentators noted that Thomas in fact has been warming up to Yale more recently, but any deep analysis beyond this would not appear to yield anything of great significance.

Instead of moving straight along with things, though, I think this occasion does offer a good opportunity to remember that there were good reasons for Thomas to keep his silence. Beyond the personal ones, which he has clearly set forth in his autobiography and elsewhere, it is helpful to remember that the written briefs, as Thomas has said, are “far more important” than oral arguments, which, nine times out of ten, do not change his position. Naturally, there is reason to believe that he is not the only justice who takes this view, even if he is the only one who will say it out loud.

___________________________________________________________________

Previously

Silent Justice – My full remarks on the fourth anniversary of Justice Thomas’ silence at oral arguments

The earliest exercise of eminent domain authority as we understand it today therefore could not happen until a society had developed to the point that it featured a significant group of private landowners and a sovereign that had at least some conception of limitations on its powers. Compensation, the component so central to our understanding of the exercise of eminent domain authority today, probably came along later, at least as in the nature of an explicit, formal transaction.

The Old Testament Book of Kings, divided into 1 Kings and 2 Kings, describes the approximately four hundred years of Israelite history ending roughly in 600 B.C. Chapter 21 of 1 Kings tells the story of King Ahab and Naboth, the owner of a vineyard near the king’s palace:

Some time later there was an incident involving a vineyard belonging to Naboth the Jezreelite. The vineyard was in Jezreel, close to the palace of Ahab king of Samaria. Ahab said to Naboth, “Let me have your vineyard to use for a vegetable garden, since it is close to my palace. In exchange I will give you a better vineyard or, if you prefer, I will pay you whatever it is worth.”

But Naboth replied, “The Lord forbid that I should give you the inheritance of my ancestors.”

So Ahab went home, sullen and angry because Naboth the Jezreelite had said, “I will not give you the inheritance of my ancestors.” He lay on his bed sulking and refused to eat.

1 Kings 21:1-4. Naboth’s response is the one virtually everyone gives upon first hearing that a government agency wants to take his or her property. The difference for Naboth is that his protest worked. While certain aspects of the scope of the eminent domain authority remain contested today, the government’s power of eminent domain is not subject to serious legal question. (It also is of some note that the interaction tracks modern condemnation law by beginning with an offer, rather than the simple execution of the taking, to acquire the land in exchange for equivalent property or the value of the subject property.)

Given the power dynamics of a premodern, divinely ordained monarchy, it probably is not surprising that Naboth’s bold affront to the king succeeded only temporarily. The story continues, as Ahab’s wife finds the king sulking:

His wife Jezebel came in and asked him, “Why are you so sullen? Why won’t you eat?”

He answered her, “Because I said to Naboth the Jezreelite, ‘Sell me your vineyard; or if you prefer, I will give you another vineyard in its place.’ But he said, ‘I will not give you my vineyard.’”

Jezebel his wife said, “Is this how you act as king over Israel? Get up and eat! Cheer up. I’ll get you the vineyard of Naboth the Jezreelite.”

So she wrote letters in Ahab’s name, placed his seal on them, and sent them to the elders and nobles who lived in Naboth’s city with him. In those letters she wrote:

“Proclaim a day of fasting and seat Naboth in a prominent place among the people. But seat two scoundrels opposite him and have them bring charges that he has cursed both God and the king. Then take him out and stone him to death.”

So the elders and nobles who lived in Naboth’s city did as Jezebel directed in the letters she had written to them. They proclaimed a fast and seated Naboth in a prominent place among the people. Then two scoundrels came and sat opposite him and brought charges against Naboth before the people, saying, “Naboth has cursed both God and the king.” So they took him outside the city and stoned him to death. Then they sent word to Jezebel: “Naboth has been stoned to death.”

As soon as Jezebel heard that Naboth had been stoned to death, she said to Ahab, “Get up and take possession of the vineyard of Naboth the Jezreelite that he refused to sell you. He is no longer alive, but dead.” When Ahab heard that Naboth was dead, he got up and went down to take possession of Naboth’s vineyard.

1 Kings 21:5-16. Easy enough, it ultimately appears, for the sovereign in this case.

While some may believe that, had Naboth been aware of all of the terms of Ahab’s offer, Naboth would have seen it as one he could not refuse, others may see it as a precursor to the Lockean-American notion that a government’s deprivation of one’s life is on par with a government’s deprivation of one’s liberty or one’s property.

Jezebel earned herself a generally negative reputation for behavior like that depicted in the above-quoted story, but, at least in the case of Naboth, she may have been nothing more than a student of history. Cf. 2 Samuel 11 (telling the story of King David, Bathsheba, and Uriah).

As for Ahab (and Jezebel) and the feeling that the end result here is a deeply unjust one, there is some divine, and moderately gruesome, justice to be had. See 1 Kings 21:17-29; see also 2 Kings 9:30-36. It is unclear whether such results obtain today.

… Setting aside the notion of persuasion, the judicial posture is a useful one for approaching the world.

On the national level of the American governmental apparatus, judges usually are considered passive entities. A court cannot reach out and take or create a case that is not properly before it, nor can it concoct a set of hypothetical facts and issue a decision based on those facts. Most of the time, courts cannot even rule on arguments or contentions the parties do not raise. This detached position encourages patience and allows one to receive an orderly presentation of considerations before making a decision. And judges must make some kind of decision. Judges are passive in posture, though not in nature. At the very least, they must issue a judgment– a verdict, decision, or ruling. By convention or rule, they need to be prepared to defend their decisions verbally or in writing. This requirement of eventual and substantial action reinforces and enhances the passive phase and its attendant values. Knowledge that one must later decide focuses the passive mind and encourages patience to allow for a full understanding of the matters at hand. There is mutually reinforcing energy between listening and deciding such that nothing is mere talk, and chatter has little purpose. As usual, time is a foundational consideration: listen, then decide, then defend, and then listen again.

Resource limitations are a part of our condition. When we choose to utilize our limited resources, we want to do so effectively. This applies to mental resources as much as it does to fuel and finances. Regardless of a resource’s renewability, other limitations will constrain its expenditure or utilization. Efficacy and efficiency are the best responses to this fact of limitation, here represented by the phrase “in the real world.” Many scholars are feeding their families today because of their ability to operate (in varying degrees) detached from the real world. Ideas are important. Theory is important. That’s the point of what you are reading and will read here. The seemingly unavoidable limitations on resources demand that we root ourselves in reality, while allowing ourselves to discuss, critique, and reevaluate that reality. This is a chance to find out what happens when keeping it real goes right.

What about the questions presented? Wasn’t that where this was supposed to begin? It was, and it is. Justice Scalia and Brian Garner emphasize the primacy of questions presented because those questions shape everything that follows. I’m not exactly sure what will follow, but I have some ideas and I know you do too. It’s time to start asking questions that matter.

My goal has been to try to ask real questions, not leading or rhetorical ones, in an attempt to reveal something about what underlies our assumptions, ideas, and viewpoints. I’ve tried to at least imply a question in every post, and where I did not, my approach was to put forth a position that invited responsive comments, of which the site received many. With nearly 3,500over 9,700nearly 14,000 views in the first yeartwothree years, I think we’re off to a good start.

Thank you for your readership and feedback.

There is much to be commended about the two-party system as it exists in the U.S. today. The conglomerate, dynamic nature of the parties means that the they evolve by competing with each other to attempt to absorb new movements and the votes that come with them. (Cf. Democrats and Greens with Republicans and Tea Partiers. The question of what happens once that absorption takes place– the assimilation– is a subject for another post.) It really is not so dissimilar from multiparty, parliamentary-style democracies, the difference being that those systems wait until after an election to form a coalition government, while the American system forms would-be governing coalitions before the election.

The third parties that persist in a two-party system like America’s without absorption generally are of two kinds: 1) the very unpopular or 2) the fundamentally opposed to both major parties. An unpopular faction will not be absorbed because it either is merely unpopular in the numerical sense or it is unpopular in the ideological sense. An unpopular faction is unlikely to coalesce into a functional political party for a variety of practical reasons.

The second variety of third parties mentioned is all that really remains for third parties under today’s two-party system. Because the major parties cover virtually the entire spectrum of substantive interests, the only thing left for a third party is to oppose both parties at some fundamental level, and that’s what America’s two most viable third parties– the Green and Libertarian Parties– are doing. Dissecting why the Green Party persists is a subject for another post. This post, unsurprisingly, will focus on the Libertarian Party.

I’ve already written at length here about libertarianism and some of its challenges. See, e.g., here, here, and here. With next week’s presidential election looming, the immediate question is whether it makes sense to actually vote for a third-party candidate. Most Americans profess concern with the notion that their vote “count.” People most concerned that their vote doesn’t count tend to be those in states with large populations and states that heavily favor the major party other than the one they support. This year, with the broadening popularity of Libertarian Party presidential candidate Gary Johnson, some are wondering whether a vote would be a wasted vote. The unstated basis for that view is the logical assumption that Johnson will not win the election.

That is a self-fulfilling prophecy, of course. There’s no way Johnson can win if nobody votes for him, whatever their reasoning; conversely, if enough people ignored that assumption and voted for him, he would win. Still, though, that is unlikely to happen either, because there don’t appear to be enough people who would even consider supporting Johnson regardless of their expectation of his success.

I think the real underlying sentiment among voters is that they want to pick a winner. In other words, they want their votes to “count” in the sense that they want their votes to achieve something. If there’s no reasonably likely way the candidate will win or even come close, people will see a vote for that candidate as a vote that was “wasted.” The vote had no hope of achieving anything.

Johnson has embraced the “wasted vote” concept:

“Wasting your vote is voting for somebody that you don’t believe in,” an impassioned Johnson said. “That’s wasting your vote. I’m asking everybody here, I’m asking everybody watching this nationwide to waste your vote on me.”

His statement includes an important response to the “wasted vote” critique that seeks to redefine the concept: “Wasting your vote is voting for somebody you don’t believe in.” He realized he needed to add a practical goal, though, to help people see their votes as votes that would “count” in that second sense of achieving something, even if it wasn’t an outright victory for their candidate. He has done that by setting a goal of securing five percent of the popular vote nationwide, an achievement that would entitle the Libertarian Party to public campaign funding (something the major parties now have rejected, with President Barack Obama setting a record by raising over $1 billion) and a spot on the ballot in every state in the 2016 election. This is a goal the potential achievement of which Johnson believes his potential supporters will see as sufficient to consider a vote for him as one that will “count.”

Everybody likes to pick a winner, and everyone wants to be on the right side of history. Letting the perfect become the enemy of the good isn’t always practical. But maybe it’s worth reexamining our approach to voting if we find ourselves voting for a candidate other than the one we want to win the election.

Johnson may not win this election. He may not even make it to five percent of the national popular vote. (After all, the most successful third party campaign, Ralph Nader’s 2000 effort for the Green Party, only secured 2.74% of the popular vote. Right now, Johnson is polling at six percent nationwide.) What he already has done, though, is initiated a compelling discussion about reconceptualizing how Americans vote. All he needs now is five out of every one hundred voters to agree that that is a conversation that should continue.

“Come waste your [vote] with me”

As illuminated in the review and the review of the review, the difference between these two hinges on what Barnett sees as Amar’s particular conception of the “living Constitution.” Barnett writes:

Now, it makes some sense to call the meaning that is implicit in the text the “unwritten Constitution.” After all, the implicit meaning is conveyed by what the text expressly says. But by including the judicially created implementing rules under this rubric, Mr. Amar suggests this doctrine is in some way the equivalent of the original, written one, and that this law of the judges can equal if not trump the law of the Founders. This is what living constitutionalism has always been about.

Mr. Amar acknowledges the problem. “Those who venture beyond the written Constitution must understand not only where to start, but also when to stop, and why,” he warns. “The unwritten Constitution should never contradict the plain meaning and central purpose . . . of an express and basic element of the written Constitution.” He adds: “The written Constitution deserves judicial fidelity, both because it is law and because, for all its flaws, it has usually been more just than the justices.” For the same reasons, he agrees that judicial precedent should not be allowed to trump or supersede the original meaning of the text. Where courts have gotten it wrong about the meaning of the text, the meaning—not the precedent—should govern. “A prior erroneous Court ruling does not properly amend the Constitution.” No matter how entrenched Jim Crow laws became after the Supreme Court upheld “separate but equal” in Plessy v. Ferguson, it was right to reverse that decision in Brown v. Board of Education.

This is all good and welcome. But Mr. Amar goes on to advocate an exception that is big enough to drive a living constitution through. “An erroneous precedent that improperly deviates from the written Constitution may in some circumstances stand,” he tells us, “if the precedent is later championed not merely by the court, but also by the people.” “When the citizenry has widely and enthusiastically embraced an erroneous precedent,” the courts may “view this precedent as sufficiently ratified by the American people so as to insulate it from judicial overruling.” When this happens, according to Mr. Amar, the erroneous precedent becomes part of America’s unwritten Constitution.

In other words, if what the judiciary is doing is popular enough, the unwritten Constitution promulgated by judges takes precedence over the written one. Despite the concession made to the written Constitution, this is really no more than a variation of living constitutionalism, one taken even further in the parts of the book where Mr. Amar contends that the unwritten Constitution also consists of numerous historical documents—like the Northwest Ordinance and the Gettysburg Address—along with institutional practices of Congress and the White House.

Amar sets out to refute this charge:

You wrongly suggest that this is my view: “If what the judiciary is doing is popular enough, the unwritten Constitution promulgated by judges takes precedence [according to Amar] over the written one.” I actually say something quite different, and far more nuanced: In the domain of unenumerated rights, popularity counts. Here is one key passage: “While a wave of new legislation would not ordinarily suffice to trump a precise and inflexible textual right, we must keep in mind that in this chapter we have been dealing with various rights that have not been specified in this way in the written Constitution. If the original judicial reason for deeming these rights to be full-fledged constitutional entitlements derived from the fact that American lawmakers generally respected these rights in practice, then such rights should lose their constitutional status if the legislative pattern changes dramatically. In this particular pocket of unwritten constitutionalism [my emphasis] what should ideally emerge is a genuine dialogue among judges, legislators, and ordinary citizens.” And here is another passage: “Thus, if the Court at time T1 gets the Constitution’s text and original understanding wrong and proclaims a right that does not in fact properly exist at time T1, and if the vast majority of Americans come to rejoice in this right, the Court at time T2 should affirm the originally erroneous precedent. The case, though wrong when decided, has become right thanks to an intervening change of fact — broad and deep popular endorsement — that the Constitution’s own text, via the Ninth and Fourteenth Amendments, endows with special significance. Note one key asymmetry: A case that construes a textual constitutional right too narrowly is different from one that construes the right too broadly. Even if both cases come to be widely embraced by the citizenry, only the rights-expanding case interacts with the text of the Ninth and Fourteenth Amendments so as to specially immunize it from subsequent reversal.”

Intelligent, thoughtful scholars like Amar and Barnett bring out the best in each other, or close to it, because they are willing to engage with each other and have an exchange that both sharpens the distinctions between the two and draws each to develop and defend his views. In this case, Amar has advanced an intriguing and creative constitutional notion. Barnett challenged it, and Amar’s response further defined the concept.

Perhaps it ultimately is too simplistic, but even high-minded conservative constitutional defenders like Barnett seem to forget a basic, mechanical objection to expansive constitutional approaches like Amar’s: they are undemocratic. Functionally, what the host of progressive, “living Constitution,” dynamic, “unwritten Constitution,” etc. approaches seek is a shortcut to or a circumvention of the constitutionally prescribed amendment process, the dangers of which should be self-evident. There probably is a reason that scholars in Barnett’s position do not rely on this fundamental objection– to which Amar’s vague appeal to the Ninth and Fourteenth Amendments looks like a grasping rejoinder– but it escapes me, especially because there does not seem to be an equally compelling response available to those in Amar’s position. (Note also that Amar’s qualification, that only those extra-Constitutional interpretations that expand rights are authoritative, is irrelevant in the face of a Federalist approach to liberty under the Constitution, in addition to being non-responsive to the fundamental, mechanical objection mentioned in this paragraph.)