Snow Jobs - Literal and Figurative (Or How Much Did Murkowski, Sullivan, And Young Get To Give Away Internet Privacy?)

The Literal Snow Job

There were about 10 inches of fresh snow yesterday in Anchorage.  Here's our backyard.

And here's our mountain ash tree in front after a gust of wind.

The Figurative Snow Job

The Verge compiled a table of contributions from telecom companies to US senators and representatives who voted 'yes' yesterday to grant them the right to sell people's internet browsing information without permission and without anonymizing it.    The got the data from Follow the Money.

You can see the whole list at the Verge link.  I'm just looking at our Alaskan senators and member of congress.


Senators
Murkowski, Lisa Republican AK $66,250

Sullivan, Daniel Republican AK $10,550

Member of Congress
Young, Don Republican AK 1st $28,650

The Joint Resolution 34 passed in the senate 50 (all Republicans) to 48 (all Democrats) with two Republicans absent.  Going through the contributions, Sen. Murkowski was the 21st highest recipient among the Republicans.  (They didn't list how much Democrats got from these companies.)  Sen. Sullivan received the 3rd lowest amount, which could indicate his lack of influence or that they know his vote is locked anyway.  I'd note that one senator received $0 - the newly appointed Sen. Strange from Alabama taking Sen. Sessions seat after his appointment to Attorney General.

Rep. Young got the 65th highest amount among the Republicans who voted for the bill, which puts him in the top 30%.   There were 215 Republicans who voted for the bill, 15 Republicans who voted against it, and 205 Democrats who voted against it.  Six Republicans and three Democrats did not vote.  

The 15 Republicans who voted against the bill are the interesting group.  Here's the list (From GovTrack):

Vote	Party	Representative	District
Nay	R	Brooks, Mo	AL 5th
Nay	R	McClintock, Tom	CA 4th
Nay	R	Coffman, Mike	CO 6th
Nay	R	Yoder, Kevin	KS 3rd
Nay	R	Graves, Garret	LA 6th

Vote	Party	Representative	District
Nay	R	Amash, Justin	MI 3rd
Nay	R	Zeldin, Lee	NY 1st
Nay	R	Faso, John	NY 19th
Nay	R	Stefanik, Elise	NY 21st
Nay	R	Jones, Walter	NC 3rd

Vote	Party	Representative	District
Nay	R	Davidson, Warren	OH 8th
Nay	R	Sanford, Mark	SC 1st
Nay	R	Duncan, John	TN 2nd
Nay	R	Herrera Beutler, Jaime	WA 3rd
Nay	R	Reichert, David	WA 8th

Note:  I did NOT go back and double check the amounts each candidate received.  I did spend a little time on the Follow The Money website, but I wasn't sure how to duplicate the search they did.  There are a number of variables that could probably change the amounts.  Thus, I also couldn't check to see how much the Republicans and Democrats who voted against the resolution received from the same groups.

Additional more:  Several people have started lucrative crowdsourcing pages to get and publish the private browsing of all the members of the US Congress.  But Techcruncher and others say this isn't likely to happen.  They say that non-anonymized data is NOT available, plus private purchaser can't just come in and buy the data unless the ISP agrees.  The Freedom of Information Act only covers the federal government, not private companies.  And after giving millions to members of congress to get this done, they aren't likely to turn around and stab them in the back.

Who Will Be Trump's Woodward and Bernstein?

Image from Simon & Schuster

This might be a good time for folks to get a copy of All The President's Men  Carl Bernstein and Bob
Woodward's book on their investigation of Watergate.  It gives sense of how long it took from when the burglary happened (June 17, 1972) until Nixon resigned (August 8, 1974) and what all happened in between.  It chronicles how these two reporters had to fight skepticism, how their editor had to protect them, and how public opinion slowly came around.

The details will be different, the timing will be different, but the same forces will be (are) in tension:

• president versus the media;  
• the pressure to publish now versus the risk of losing credibility because there isn't enough publishable evidence;  
• people's belief systems versus facts that challenge those beliefs; 
• the pressure on the Republicans to protect their president and their power versus doing what's right for  the country.  

Some details are eerily similar.

Nixon was brought down by Republicans breaking into the Democratic National Headquarters in the Watergate complex.  The burglars were caught because an observant 24 year old security guard, Frank Wills, saw that there was tape that covered the latch and kept the door from locking.  The burglars were caught that night.  Then Woodward and Bernstein had to follow the trail that led from the burglars to the oval office.

Today an electronic burglary at the Democratic National Committee is also at the center of Trump's problems.  And as with Watergate, the thieves were identified before the election, but Trump won nevertheless.  Today, too, journalists are pursuing the question of the connection to the Oval Office.

There are significant differences between the two periods as well.   Nixon had long list of major accomplishments from the Clean Water Act, Affirmative Action, the Environmental Protection Agency, the Privacy Act, opening relations with China.  But he was being dragged down by the Vietnam War and the anti-war protests.  The break-in at the Democratic National Headquarters happened during the campaign for his second term.  In 1972, Nixon's approval ratings were at 50% after his China trip and would climb to almost 70% after the Paris Peace accords were signed in 1973.  But then his ratings began to plunge to just under 30% by the end of 1973.

Trump's big achievements include:

• failing in his immediate push to ban Muslims from the US (I'm using Trump's campaign rhetoric here, just as the judges have when they blocked the implementation.)
• failing to overturn Obamacare
• dismantling regulations whose whose ultimate impacts are yet to be known

And he comes into office far less popular.  His approval ratings according to Gallup are already at 36%, only in his third month in office.


So who will be the next Woodward and Bernstein?

By blocking key media from White House press briefings, this administration is sending them out to do real investigative reporting and the White House loses control of the agenda.  And while Trump's tweets do get significant attention, they don't set the kind of agenda those around Trump want set.

The Washington Post (Woodward and Bernstein's paper), the New York Times, The New Yorker, even the Wall Street Journal are bringing stories to print on a regular basis.

Woodward and Bernstein were blessed with a very high level informant who they dubbed Deep Throat after the first pornographic movie to be shown in regular theaters.  Their informant only outed himself thirty years later.  Woodward had cultivated him as a source in 1970 and they basically used him to confirm information they had gathered in other ways.

Image from IMDB

I suspect this time around, a lot of different reporters will be contributing important stories and things may well move faster now because social media speeds up the spread of news so dramatically.  But I'm guessing there are reporters now who, over drinks, are contemplating who will play them in the movie.

If you would rather watch the movie (with Robert Redford and Dustin Hoffman), it's available as a Netflix DVD and probably in your public library.

28 Days Into March, We Finally Get Some Snow

It's been days and days of, in the words of Dan Bern, relentless sun.  He was singing about Southern California, and we aren't complaining, but it ended during the night and we got a little more than a trace of snow.

And it's warmer.  Yesterday we were in the mid 30s (F), and this morning's clouds were accompanied by 31˚F on our home thermometer as I write.  We really hadn't been above freezing at all this month with night temps regularly in the single digits.  We were cooler than normal.  As opposed to last year when we had very little snow, warm temperatures, and I posted this picture of rain drops on March 28, 2016.

And just in case anyone reading this is thinking, "See, it's colder this year, so climate change isn't really anything to worry about,"  should listen to Neil DeGrasse Tyson in the  2 minute National Geographic video below.  

"This is what stories are, experience retold by many tongues . . ." UPDATED

"just as the inhabitants of the city were discovering the true meaning of being without shelter, even though they had always believed themselves to be experts in shelterlessness, because the city they hated and loved had always been bad at providing its inhabitants with protection against the storms of life, and had inculcated in its citizens a certain fierce loving-hating pride at their own habits of survival in spite of everything, in spite of the not-enough-money issue and the not-enough-space issue and the dog-eat-dog issue and so on;"

"protections against the storms of life" caught my attention.  We know about homelessness, because we see tired people sleeping on sidewalks, wandering around with their belongings on their backs or in shopping carts, and, in places like Anchorage, in encampments in the woods along the bike trails.

This passage made me think of people suffering all the other storms of life, the -lessnesses that are less visible.

People walking around loveless, parentless, happyless, hopeless, balanceless, imaginationless, playfulless, friendless, purposeless, skillless, clueless, artless, peaceless, sleepless, respectless, thoughtless  . . . you can fill in your own -less conditions.

They work with us, they live next door, they are doctors, police officers, cashiers, lawyers, politicians, thieves.

These people often can't be identified by their clothing, their income, their vehicle, their education, their tattoos, their dialects.  Some of these -lesses are more detectable than others, but basically these are often invisible burdens.  When we do see symptoms, we often treat them as personal failings.

And though I've used 'they' we are all missing something in our lives.  We're lucky if our gaps don't prevent us from a bit of peace and joy as we navigate life where we happen to live.  And if we are able to accept our gaps and compensate with our other qualities.  And if we can be tolerant of and helpful to those whose gaps seriously compromise their pursuit of happiness.

It's too nice outside to stay in and take this further, but it was a thought I wanted to note before I forgot it.

The quote at the top is from pp. 169 -170 in Salman Rushdie's Two Years Eight Months And Twenty-Eight Nights, which is my book club's topic Monday night.  Rushdie is an imaginative and beautiful writer, but this one doesn't quite work for me.  It feels like there were things he wanted to say - about the state of the world, about wisdom's he's learned over his life - and then constructed a story in which to wrap those ideas.    A thought that comes to mind here - I say it that way because this is again an idea that needs more follow up - is that a good novel starts with the story and the 'lessons' are inherent in the story.  Rushdie spends way too much time constructing this alternative world and explaining all the details needed to demonstrate its plausibility.  And too often I can see the tape here or the nails there holding things together.

For all the stagecraft needed to create the illusions of a parallel world of jinns and the references to the thousand and one nights of lore (the title being another way of counting to a thousand and one), the basic conflict is between reason and emotion;  the main character - the most powerful jinn - has daddy issues.  It just seems like a lot of work for the author and for the reader to go over such familiar themes.  And because the themes are so important to the author and insuring the story doesn't have any loose strings, this reader couldn't just enjoy the adventure story.

That said, there are important insights sprinkled throughout the book and lots of interesting use of English (with a little Hindi mixed in.)   For instance, the post title comes from this sentence:

"This is what stories are, experience told by many tongues to which, sometimes, we give a single name, Homer, Valmiki, Vyasa, Scheherazade.  We, for our own part, simply call ourselves 'we.'  'We' are the creature that tells itself stories to understand what sort of creature it is."  [emphasis added]

And that is probably why Rushdie wrote this.

The quote at the top describes a time when one of the dark jinns as part of his effort to mess up human life, has detached people from gravity and they start floating off into space.

And perhaps if I were more than 2/3 of the way through the book and then read it a second or third time, I might appreciate its intricacy more.  But time and life interfere with each other.  I reserve the right to amend this post if the final pages change my perception.  And then I'll read what others have said about the book

UPDATE - Monday March 27, 2017:

In other great science fiction or fantasy, authors create whole new worlds that are rich in themselves and the audience suspends disbelief where necessary, knowing this is an imaginary world and enjoying the escape into this alternative reality.  The wisdom the authors embed in these other worlds are of those worlds and the readers can find find their own lessons for their own present world.   In Two Years . . .  Rushdie narrates from a distant earthly future about 'our ancestors' who live in the 21st century world.   The fantasy world he's created, borrowing from Persian, Arab, and Indian mythology is our world. Much of it takes place in New York City.  The lessons the readers are supposed to absorb are, at best, barely masked in jinneology.  But there are times when there isn't even a mask, such as this passage on page 240:

[A bit of prep:  'jinn parasites' are lesser jinns that must possess human (or other animal bodies) to do their destruction, thus the 'insider attack' pun]

"In the sealed containers in our restricted rooms we have preserved disturbing images of cannibal jinn parasites eating people's faces in Miami, Florida;  and executioner jinn parasites stoning women to death in desert places;  and suicide bomber jinn parasites allowing their host bodies to explode on army bases and then immediately possessing the nearest soldier and murdering more of his fellows in what is called an insider attack, which it was, but not in the conventional sense of the term;  and crazed paramilitary jinn parasites in charge of tanks in eastern Europe, shooting passenger aircraft out of the sky - but let these few images suffice."

For me, this is rubbing it in the reader's face, assuming the reader hasn't already caught the points he's making.  But then, maybe he's making a point I'm missing altogether.

Turns out the NYTimes reviewer, Marcel Theroux, had a similar take on the book to mine.  Ursula Le Guin, who reviewed it for The Guardian, thought it worked better than I did, but had problems with the conclusion.  

Waiting For Spring

Someone pushed the pause button around the beginning of March here in Anchorage.  It should have slowly been getting warmer.  Some snowy days, but a progression toward warmer.

Since March 1 we've had blue skies, bright sun, and temperatures that ranged between a little under zero (F) and under 30˚ (F).  This is a time when it's finally ok for the days to start getting above freezing to help move the snow along.  But it hasn't happened.  But I don't remember so many days in a row with nothing but bright sun, certainly not in March.

Here's the ice crust on the snow in our front yard.  The sun melts it a bit in the day, then it freezes solid at night.

No, this dirty ice isn't in our front yard.  It's part of the berm on a much busier street.

Even the birds are getting impatient.

But the sun is much higher in the sky and we're getting nearly 6 more minutes of sunlight each day.  It will warm up!

Rushdie,Reality, Symbols, Stories, Truth, , and ACA

Salman Rushdie's Two Years Eight Months and Twenty-Eight Nights seems to have understood the 'strangeness' that we are going through.  His novel suggests jinns are reeking havoc, but as I've been struggling to bring some sense to this post on ACA, this snippet from page 111, seems to focus on the underlying story of the battle over ACA (and everything else.)

"We were all trapped in stories, she said, just as he used to say, his wavy hair, his naughty smile, his beautiful mind, each us the prisoners of our own solipsistic narrative, each family the captive of the family story, each community locked within its own tale of itself, each people the victims of their own versions of history, and there were parts of the world where the narratives collided and went to war, where there were two or more incompatible stories fighting for space on, to speak, the same page."

The ACA seems to be where the Republican and Democratic narratives collided and went to war.  There were other things that raised hackles, but this was where pride and power broke out into full scale war.

And now repealing ACA is the Confederate flag of the right, a symbol of what holds them all together, and also reveals the myth of that togetherness.  

The Republican narrative on Obamacare has mostly been symbolic:

• The Biggest Insurance Scam in History
• “because of Obamacare, Medicare is going broke.” 
• One of Worst Policy Disasters in U.S. History
•  ". . .ObamaCare is already raising costs and eliminating jobs." McConnell
• 'death panels'

Obamacare symbolized a number of things to their narratives.

• Republican power slipping away
• Runaway government intrusion and spending
• The loss of personal responsibility - the concern that the socialist state would strip people's work ethic, and the mandate forcing people to buy something they might not want
• A black president getting his way
• A rallying cry to their base

It didn't matter that Obamacare was based on Republican ideas for health care that Romney had put in place in Massachusetts.

But Congress is now . . . I wanted to say  "a fact free zone."  But that's not quite true.  There are lots of 'facts' (something that can be proven true or false*) floating around.  Then I wanted to say "a truth free zone."  But there is plenty of truth floating around too.  It's more accurate to say that there just aren't any trusted referees in congress who have the authority to  analyze and determine what is and is not true.  Each person's sees and validates what confirms his narrative.  There's no one arbiter to examine the various narratives and test them for how closely they reflect how the world actually works.

By January 2014, Politico reports the Republicans made 48 attempts to repeal Obamacare.

"It's [repealing Obamacare] pretty high on our agenda as you know," the Kentucky Republican said on Wednesday. "I would be shocked if we didn't move forward and keep our commitment to the American people."

Is Obamacare perfect?   Far from it.  Some states are down to a single insurer.  But Republicans wouldn't allow there to be competition from public insurance providers.  Because of this and other issues (like each state being a separate market) costs for some are prohibitively expensive for policies that are insurance in name only.

On the other hand, tens of millions of people are now insured who weren't insured before.  People with prior conditions can get insurance.  Children in college stay on their parents' plans until they are 26.  Mental health and addiction care is available.

Republicans complain about mandates, but nearly every state requires car insurance.  The exceptions, from Wikipedia:

"States that do not require the vehicle owner to carry car insurance include Virginia, where an uninsured motor vehicle fee may be paid to the state; New Hampshire, and Mississippi which offers vehicle owners the option to post cash bonds (see below)."

But car insurancecom notes in 2016:

"Every state requires that you meet financial responsibility requirements through insurance, a bond or some other approved means that show you are able to pay if you cause damages to another person or property in an automobile accident.
Each state renews its laws annually, so some states that had no insurance requirements in the past now do. New Hampshire probably has the least amount of requirements -- and it still requires that you immediately show proof of financial responsibility if you've been involved in a car accident."

I'd note that Republicans dominate state legislatures and governorships.   They could end mandatory car insurance in most states if they are as opposed to mandatory insurance as they claim.  They would argue that in a car you could hurt others, whereas lack of health insurance just hurts you.  But that neglects the health hazards of infectious diseases, not to mention the long term costs to everyone of not taking care of health issues early on.  Or the fact that some people could not buy insurance even if they could afford it.

So now enough Republicans have heeded their constituents who are saying that this or that part of Obamacare needs to be kept, that before abolishing Obamacare, a Republican replacement health care law needs to be in place.

But the Freedom Caucus in the House is calling that replacement plan for what it is - Obamacare lite.

So the vote to repeal Obamacare is really just symbolic.  It is necessary, as some Republican legislators have said, to keep their promise.

I recall when I was about four years old, a dinner table dispute resulted in my threatening to throw my milk on my mother.  "Don't threaten me,"  my mother said.  To my four year old way of thinking, a threat was something you didn't carry out, like a bad promise. To avoid it being a mere threat, I had no choice but to follow through on what I had said I would do.  Even though I knew it would end badly for all involved.

I think that's sort of where we are with health care.  The Republicans have been telling us how evil it was for so long and how it had to be repealed, that now, with majorities in the House, Senate, and a Republican president, they feel they have to repeal it.  Even if they aren't really repealing it, they have to symbolically do something that they can at least say repeals it.  Except the Freedom Caucus.

The Freedom Caucus' narrative is hard to figure out.  Jim Jordan spelled out the mission statement in 2015:

 "The House Freedom Caucus gives a voice to countless Americans who feel that Washington does not represent them. We support open, accountable and limited government, the Constitution and the rule of law, and policies that promote the liberty, safety and prosperity of all Americans."

That's not exactly a narrative.  It's a set of goals.  But we don't know the underlying stories that make these goals critical for the Freedom Caucus.  This matters because, I would argue, that except for the 'limited government,' most of Bernie Sanders' supporters could wholeheartedly embrace these goals.

We aren't going to get past this conflict until people from warring narratives sit down together, preferably over a meal (or series of meals) and listen to each others' personal narratives.  Until they find out how much they (we) have in common as human beings, how much of their (our) narrative is myth, how much overlaps with their mortal enemies' narratives.   Until they see how their (our) macho conflict myths prevent any of those goals from happening.

Those people who took the trouble to vote in November were fairly evenly divided.  The president, despite his rhetoric, did not get a mandate.  He presides over a nation of people with different narratives and that has been focusing more and more on the differences between their narratives  than the similarities.  To the extent that we focus on the conflicts and on the symbols of our differences, there will be no peace for anyone.  Just temporary Pyrrhic victories.  People on both sides of this symbolic divide would do well to be curious about how their 'enemies' come to believe what they believe.

In the world that Rushdie (remember him, whose words started this post?) created, the chaos is caused by jinns, mischievous spirits from another world.  Best I can tell, our jinns, most of whose names are hidden by Citizens United, are people like the Koch brothers and Robert Mercer, and Putin, who  invest a small portion of their billions to disrupt honest debate with fake news, adding to the difficulty of sorting out what is and what is not true.



*Yes, I know truth is squishy.  Let's just use 'true' as a surrogate for 'as best we can tell that something is true, after looking at at all the evidence.'

Bohemian Waxwings Collecting Mountain Ash Berries

The Mountain Ash tree in front of our house is part of the Anchorage Bohemian Waxwing community's pantry and yesterday many dropped by to get some provisions.

There's such beautiful birds with their soft, smooth grey feathers, with a dash of cinnamon, some white, and a bit of brilliant yellow and red, highlighted with black.

I said they had red, but up to now, the only red has been the berries, but on this last shot you can see the red on the wing.

It's Called, "From Here to the Future: Transforming Anchorage/Mat-Su Transportation"

This guy will talk tonight (Wednesday, March 21) in Anchorage.

Technology + Demographics + TransportationRollin Stanley, General Manager Urban Strategy, City of CalgaryWednesday, March 22nd, 7-8:30 pmAnchorage Museum Auditorium, 625 C St, Anchorage
Suggested $10 donation

This talk is about demographic trends, the importance of empowering women to help economies, and the future of cities.  I expect tonight's talk will be a little different.  This the beginning of a series on Transportation that Alaska Common Ground is sponsoring.

Homeland Security Supporting Book Industry By Banning Electronic Devices On Planes

The title, of course, is the glass half full interpretation.

Al Jazeera, among others, reports:

"The United States is barring passengers on flights originating in eight Muslim-majority countries from carrying any electronic device bigger than a mobile phone, the Department of Homeland Security said.  . .
Laptops, e-readers, cameras, tablets, printers, electronic games and portable DVD players are affected by the ban - which applies to direct flights to the US - but they may still be stowed in the hold in checked baggage."

But I'd also expect luggage is going to take much longer to be ready to be picked up on arrival in the US as the Department of Homeland Security (DHS) can now look at people's computers without having to take them directly from the owners.  I'm sure Homeland Security has ways to open and copy the contents of people's devices without knowing the passwords.

So people will need to find ways to detect if their computers have been played with while they are separated from them, just to know whether their data has been diddled while their devices were out of their grasp. Here's a four year old post talking about how 'pros' protect their laptops. (Not very well it seems.)

Will this spawn a new industry that provided secure lockboxes to put computers in that would make it a little harder for agents to open them?

This Guardian article questions the logic of the rules.  If they can be used as explosive devices, then they would still be dangerous in cargo areas.  If it's about hacking, well, the article points out that cell phones are computers.  It offers another possibility

"US airlines have been lobbying the Trump administration to intervene in the Persian Gulf, where they have contended for years that the investments in three rapidly expanding airlines in the area – Etihad Airways, Qatar, and Emirates – constitute unfair government subsidies with which Delta, American and United cannot compete. All three Middle Eastern airlines are among the carriers affected by the electronics ban."

I guess when you are as unpredictable as our president, people will believe he would meddle with anything in any way he pleases.

I'm sticking with the idea that DHS (or some other security agency) wants access to what's on people's computers.   Is anyone going to keep track of how long it takes for luggage to get through before and after this policy goes into effect?

Will the cloud enable people to take essentially empty computers through customs and other governmental checkpoints?  But then who's protecting the cloud?

When do we declare privacy officially extinct?

And here's a Washington Post article asking similar questions.

As Neil Gorsuch Takes Center Stage, What Exactly Is Originalism About?

With the nomination of Neil Gorsuch to the Supreme Court, the issue of whether originalism is a more valid way of interpreting the constitution than the alternative, called the  'living constitution' approach is back before us.  I'm afraid I've oversold what you'll get here a bit.

After Scalia's death I spent a fair amount of time researching this and wrote a post that tried to outline the arguments as best as I could find them. You can see that post here, titled "I Think Scalia's Originalism Is Like the Intelligent Design of Constitutional Theories."

In fact, I recommend that you do look at the previous post and consider this attempt at a follow up to it, as more of a timely reintroduction to the topic and an easy way to get to the original post.


Basically, originalists argue that they are sticking to what the writers of the constitution actually wrote.  But then some, like Scalia, acknowledge you can't do it completely literally, it needs some interpretation.  Originalists themselves debate over how to interpret the constitution.  From  James E. Fleming's Living Originalism and Living Constitutionalism as Moral Readings of the American Constitution (pp.1174-1175):

There are numerous varieties of originalism, and the only thing they agree upon is their rejection of moral readings. Some of the varieties include the following. It all began with conventional “intention of the Framers” originalism.17 Then it became “intention of the ratifiers” originalism.18 Of course, we also have “original expectations and applications” originalism (what I elsewhere have called “narrow” or “concrete” originalism).19 Then came “original meaning” originalism, which was refined as “original public meaning” originalism (officially, this is now the position of Scalia and Barnett).20 Scalia himself distinguished “strong medicine” or “bitter pill” originalism from “fainthearted” originalism.21 Then came “broad” originalism (advocated by Lawrence Lessig and many others).22 Now comes “the new originalism” (so characterized by Whittington) as distinguished from “the old originalism.”23 Finally, we add “abstract” originalism (which some, including Whittington, have attributed to Dworkin).24 And we must not forget Balkin’s “method of text and principle,” a form of abstract originalism.25 Indeed, Mitchell Berman has distinguished seventy-two varieties of originalism in his tour de force, Originalism is Bunk.26

Originalists argue that originalism is more pure than the living constitution approach because it is based on the words of the constitution or the intent of the drafters, etc..  The critics of originalism challenge that assertion. The words, they say, are sometimes specific and sometimes general and those words are not clear when it comes to applying them to twentieth (and twenty-first) century dilemmas.  They beg for more guidance.  

The originalists argue that the living constitutionalists simply insert their own values to interpret the Constitution.  Living constitutionalists dispute that, saying they use the tradition of case law which considers past decisions.  There is a lively debate in the literature on the basis, say, for overturning old decisions.  

The living constitutionalists argue that even the first justices didn't simply read the text of the constitution.  Stephen M. Feldman writes in  this 2014 BYU Journal of Public Law article :

"Early judicial opinions and legal treatises reveal an eclectic or pluralist approach to constitutional interpretation; no single interpretive method dominated. Early judges and scholars invoked not only reason, but also the text, constitutional structure, framers’ intentions, original public meaning, and so on. Yet, no judge or scholar maintained that constitutional meaning should be ascertained pursuant to a reasonable-man standard."

The living constitutionalists argue that they have a long evolved set of rules about how to interpret the constitution.  I've given up trying to sum those up here, but you can look at this law review article on how that is supposedly done.  It's fascinating, but if you read it, you'll see why I decided not to try to summarize it.  Each thread seems to lead off into more and more explanations.  

The living constitutionalists even cite comments from Thomas Jefferson, in a letter, that argues that every generation should write its own constitution, that one generation cannot lock all future generations to their constitution.   They call this the Jefferson problem when they challenge the originalists.  I've got more on this in the original post.

One of the arguments living constitutionalists make is that the constitution includes both very specific language and abstract, more aspirational language.  I'm taking this a little out of context, but this quote gets to this point:

First, Balkin’s method of text and principle conceives the Constitution as embodying not only rules but also general standards and abstract principles.32 He, like Dworkin and I, rejects efforts by originalists to recast abstract principles as if they were rules (or terms of art) by interpreting them as being exhausted by their original expected applications.33 In interpreting these general standards and abstract principles, we have to make moral and political judgments concerning the best understanding of our commitments; history alone does not make these judgments for us in rule-like fashion.

That comes from Fleming again (p. 1176).

Here's a book review of  David Strauss' The Living Constitution.  Strauss is one of the authors that Fleming is addressing in his article.  The review tries to outline the arguments in somewhat simpler terms.

As you can tell, I'm a little overwhelmed by trying to sum this up.  I think the previous post on originalism does a better job of giving a holistic view of originalism.  Living constitutionalism is touched on, necessarily, in that post.  I was hoping to give a better look at and critique of the living constitution model here, but that just isn't going to happen.  Too much going on to get it done.  And given that Gorsuch is in the spotlight now, this seems a good time to post this and point you to the original post.

This all fascinates me as it fits neatly into this blog's underlying theme - how do you know what you know?  How do supreme court justices know what the constitution means and how to apply it to specific cases.  That's precisely what this debate between originalism and living constitutionalism is all about.