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I cannot wait for oral arguments before the Supreme Court on Presidential immunity.

If even one conservative justice entertains the idea that the President cannot be prosecuted for acts done while in office, I would love to see the prosecutor bring up the hypothetical example of a sitting President disagreeing with SCOTUS rulings and sending in Seal team 6 to kill Supreme Court justices who rule against him. Nothing to be done about if the president is immune from the law while in office. I want the justices to face what their decision would really mean if they are willing to entertain the absurd.

Now, someone will bring up the fact that a sitting president can be impeached and that should be the way to deal with a lawbreaking president. This ignores the fact that Seal team 6 can also be used on any congressmen and Senators who are open to impeaching a sitting President. It also means that a president who is in his last few days in office can go down to the treasury department and have pallets full of 100-dollar bills shipped directly to his home. He can sell state secrets to the highest foreign bidder. He can kill whomever he wanted to. He is leaving office, might as well do whatever he wants since he cannot be prosecuted for any of it.

It is all absurd and dumb.

In a sane world with a Supreme Court that actually respected rule of law we know Trump's immunity claim doesn't even get a hearing. The Appellate Court ruling is left to stand. But even getting a hearing, in a sane world the Appellate Court ruling is upheld by a 9-0 vote***. However, while I am fairly confident the Appellate ruling will easily be upheld, I really wonder if one of the SCOTUS loonies like Thomas or Alito actually dissents. I mean dissenting from something so obvious is crazy, but it is Thomas and Alito we are talking about.


*** In a sane world, the Appellate Court ruling would be upheld by an 8-0 vote because Thomas should by any standard recuse himself from the case since he has a clear conflict of interest (his wife could realistically be called upon to testify in the trial against Trump), but we are not in a sane world and Thomas likely does not recuse himself.

If even one conservative justice entertains the idea that the President cannot be prosecuted for acts done while in office, I would love to see the prosecutor bring up the hypothetical example of a sitting President disagreeing with SCOTUS rulings and sending in Seal team 6 to kill Supreme Court justices who rule against him.

Seems unlikely a conservative justice would entertain a categorical prohibition on Presidents being prosecuted for acts while in office. But I think they will have some pointed questions about whether some acts of a President deserve criminal immunity.

Clearly if Congress passes a law that says a President cannot meet with a foreign head of state without prior Congressional approval, that would violate the Constitution, and the President would ignore it without a moment's thought. Let someone try to bring a challenge to enforce it. But if that law makes a violation a felony, so that the President might walk out of office into a criminal prosecution....well, that might be different story.

The Court is almost certainly not going to be concerned with Presidential acts that are clearly and unambiguously unjustified. They're going to be concerned about Presidential acts that are of a type and nature that the President routinely conducts today, but might theoretically be subject to criminal prosecution - either by deliberate targeting by Congress or (more likely) some of the very broad criminal statutes that a creative prosecutor might bend to suit. No President is going to order a Seal Team 6 assassination thinking that any ruling will immunize them from it. The concern would be that when a President faces a decision whether to ask the DOJ to prioritize fighting fentanyl dealers or white collar crime, or whether to withdraw from a treaty governing money laundering, that when some donor or contributor or whomever is found to have benefited from it that the President might face some amorphous conspiracy charge - so that the President starts second-guessing all their actions that are in spheres that might race that specter.

IOW, if the Court overrules the lower courts, it will not be because they think Seal Team 6 is free for assassinations. It will be because they've decided that the answer on immunity is neither "always nor "never," but "it depends."

The only case in which reasonable people MIGHT disagree on the justification for limited Presidential immunity involves military decisions as Commander in Chief that impact Americans. The classic case would be drone strikes ordered by a President that kill an American citizen. This issue came up during the Obama Administration when a drone strike aimed at someone else also killed a sixteen year old American born teenager who was in the same area after being taken there by his father who was acting for al-Qaeda and had been taken out two weeks prior in another drone strike.

The legal issue in that scenario is whether the US President can essentially order the killing of an American in a foreign country because they are alleged to be acting with enemies of the US against the US and US forces.

First, the obvious answer is that YES, a US President should have the legal right to direct military actions to eliminate a US citizen actively operating in a foreign country to kill American forces or plan deadly attacks against Americans in America. If you leave the country to plot military style attacks AGAINST the country, the right of the President to protect the rest of us trumps your "rights" as an American to a legal indictment, trial and conviction before receiving a sentence.

Second, in this specific case that was argued, the President DIDN'T order the killing of a sixteen year old by drone strike. The sixteen year-old was literally in the wrong place at the wrong time but he was THERE because his FATHER took him there before HE was killed and made no arrangement to get the son out of harm's way in the event of the father's death, an event the father knew could come at any moment given his choice of actions.

While this type of scenario MIGHT be one warranting at least CONSIDERATION of Presidential immunity, it is easy to argue that it still doesn't meet the bar for an iron-clad grant of immunity. The circumstances under which it might apply SHOULD be rare enough that the benefit of clarity of having NO pre-established Presidential immunity in such circumstances outweighs the "inconvenience" or unfairness of a President being charged with the murder of a US citizen abroad and having to defend against such a charge in a criminal court.

If there is one thing proven by politics over the last decade, it is that there is NO assumption Americans can make about the basic decency and baseline of morals of those elected to office that can be relied upon to keep actions out of gray areas. The assumption that slack can be provided to leaders because SURELY anyone elected to the Presidency wouldn't do THAT no longer applies. In the era of Trump and MAGA politics, it is absolutely clear there are legions of aspiring politicians who would interpret ANY grant of immunity, no matter how narrowly defined, as an outline of how close they can get to the line to accomplish their aims, rather than as a line they should remain MILES away from. That is not a mindset we want to encourage in the White House.


WTH

The only case in which reasonable people MIGHT disagree on the justification for limited Presidential immunity involves military decisions as Commander in Chief that impact Americans.

I don't think that's right.

Imagine an international agreement dealing with money laundering. Some agreements (not all) allow a party to withdraw unilaterally - so let's assume this money laundering agreement has that provision. So the President can decide to withdraw the U.S. from the agreement, if he chooses. Generally speaking, that's the type of foreign policy decision (and criminal justice decision) that generally lies within the discretion and judgement of the President, as head of state and head of government.

That type of decision is clearly an "official act" of the President. It's the type of decision (whether to stay in or drop out of an international agreement) that Presidents make all the time. But it's also the type of decision that can have a significant impact on a lot of criminal and financial matters, and it's not hard to imagine a scenario (albeit an uncommon one) where someone might suggest that the President's decision to pull the U.S. out of such agreement was to help someone obtain financial gain or avoid potential criminal enforcement.

For example: Biden pulls out of that agreement in 2021 (hypothetically), in 2022 FTX collapses in a paroxysm of financial misconduct and fraud charges, and in 2025 the new Trump DOJ brings charges against Biden claiming that the withdrawal from the agreement was part of a criminal conspiracy to help SBF avoid international enforcement, because SBF was (or was claiming he would be) a big political donor to the Democratic party. Biden would certainly argue that his decision whether to withdraw from the agreement is an official act, and that he should be immune from prosecution over it (the same way he would be completely immune from civil suits over it). I think that's a fairly reasonable argument for him to make.

The death of an American citizen outside our borders is out of our jurisdiction. So, in your example, the POTUS couldn't be charged with a felony. No US authority would have jurisdiction there (FBI, DC cops...nobody).

However, ordering a hit team (CIA, SEALs, etc) to take out a political rival in the US should be actionable, unless the SCOTUS rules that POTUS has immunity. Then we can expect a dictatorship to follow relatively quickly. We'll be no better than Russia, with Putin bumping off anyone he deems inconvenient.

To albaby's point, the POTUS should be second-guessing if he's that close to the line. Routine matters, such as diplomacy, military operations, etc, are one thing. Inciting riots and insurrection, or eliminating rivals, are not examples of routine matters.

I've occasionally mused that we should have a prosecutor investigating the POTUS during his tenure, and when he (or she) leaves office, if there is anything pursuable, we should have trials to see if they rise to the level of punishment. If he (or she) is "clean", they just retire. If not...

But it's also the type of decision that can have a significant impact on a lot of criminal and financial matters, and it's not hard to imagine a scenario (albeit an uncommon one) where someone might suggest that the President's decision to pull the U.S. out of such agreement was to help someone obtain financial gain or avoid potential criminal enforcement.

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I understand the scenario and the gray area it entails but that's why I have no qualms about providing zero immunity. If someone wants to make that charge and they can get not only a prosecutor to investigate but a grand jury to indict, then so be it. I'd prefer a rule that errs on the side of being a bit onerous to an honest President than one that gives a corrupt President a larger patch of gray in which to operate corruptly and get away with something.


WTH

If someone wants to make that charge and they can get not only a prosecutor to investigate but a grand jury to indict, then so be it.

Exactly. It's one thing to accuse, it's another to get an indictment and trial. If a prosecutor can pull that off, then there's something there (i.e. the former POTUS's action) that needs to be adjudicated.

I'd prefer a rule that errs on the side of being a bit onerous to an honest President than one that gives a corrupt President a larger patch of gray in which to operate corruptly and get away with something.

But you can see why reasonable minds might disagree on that calculus.

And again, there's the problem with Congress specifically using criminal law as a bludgeon to limit Presidential authority. A law that makes it a felony for the President to pardon someone without getting the consent of the Speaker of the House would be easy to get an indictment on. The law would be unambiguous, the President's violation would be undisputed, and the constitutionality of the law is not something that either the prosecutor or the grand jury is required to consider. A civil law providing for that is very easy for the President to ignore, and there's no consequence if it actually gets upheld and he's found later to have violated it (he's immune from civil penalties and the undoing of the pardons wouldn't affect him personally). A criminal law, though, exposes him to having to mount a serious criminal defense even if its unconstitutional, and he runs the risk of spending the rest of his life in jail if a court upholds it.

There shouldn't be a power to "pardon". That is a messed-up concept. You get a trial by your peers, with competent legal representation. Do mistakes happen? Sure. But I trust that system far more than a single guy saying "nah, we can ignore the judicial system and let you go".

If Congress were to pass such a law as you suggest, it would get struck down on challenge based on the Constitutional separation of powers. I would think that would be an easy challenge as it is so basic to the framework of the Constitution.

If Congress were to pass such a law as you suggest, it would get struck down on challenge based on the Constitutional separation of powers. I would think that would be an easy challenge as it is so basic to the framework of the Constitution.

First, as we've seen time and time again, it's not always that easy procedurally to get a quick and decisive determination on Constitutional questions. Will the Court regard this as not a "case or controversy," but more a political dispute between branches? Will they determine that no cause of action exists until the criminal charges are filed? Many Presidential pardons are issued as the President is on their way out the door at the end of their last term in office - what if Congress passes this bill in December, and there just isn't time to get a final ruling before the President has to decide?

Secondly, I chose that example specifically to be an easy and obvious instance of Congressional overreach. But there are other, far more disputed areas that Congress could get involved. For example, the War Powers Act. For decades, the Executive and Congress have disputed the extent to which the President can conduct various military operations without a formal declaration of war by Congress. That conflict pits the Executive power as Commander in Chief against the Legislative power of Congress to declare war.

So what if Congress amends the War Powers Act to provide that it's a felony to violate it? Suddenly the calculus changes immensely. Now even if the President has solid (though disputed) genuine Constitutional arguments to support the scope of his authority to defend the country independently of Congress, he's facing possible - even probable - threats to his personal liberty over a Constitutional dispute between branches of government. The type of dispute that happens all the time in government (I can't remember if there's ever been a modern President that didn't lose at least one Constitutional case over the scope of his powers), but now Congress can force the President to hedge his bets by imposing the risk of criminal charges on him?

If it's against the law, and the POTUS does it, then he/she should be in fear for their personal liberty. A case like you describe might end up in SCOTUS to see of there was Congressional overreach. But, no one is above the law. Not a Representative, not a Senator, and not POTUS. Whatever the law may be.

Wasn't it Bush who had to get congressional approval to take action in Afghanistan? And he did it, and I think Obama continued to use it over a decade later. But they did it legally. If Congress were to rescind that authority, well then it is rescinded. No one should be above the law.

Even on immigration recently. Both Trump and Biden tried to violate the law, and both got slapped-down. Because it's the law. If a prosecutor could make a case strong enough to go to trial, so be it. I want people of power second-guessing if they are treading to close to "the line".

"A law that makes it a felony for the President to pardon someone without getting the consent of the Speaker of the House would be easy to get an indictment on."

Pardoning; there's a Presidential authority that desperately needs modification.

Trump's pardoning of corrupt MAGAts stinks. There ought to be a parole board that reviews a POTUS' clemency list to discourage future acts of criminalty by guys like Rep Duncan Hunter and Chris Collins.


"Hunter pleaded guilty last year to a conspiracy charge for spending hundreds of thousands of dollars with campaign credit cards on family vacations, restaurant and bar tabs, clothes and other frivolous expenses over the course of several years, while falsely stating to his staff that the purchases were campaign-related."

Hunter only copped a plea after his wife, who was equally guilty, rolled over on him.

If a prosecutor could make a case strong enough to go to trial, so be it. I want people of power second-guessing if they are treading to close to "the line".

So how about indicting Biden on a conspiracy to commit murder charge for his role in providing weapons to the Israeli government in Gaza? Or a conspiracy to commit fraud because he supported student loan forgiveness programs that ultimately got shot down by SCOTUS? Or even Obama on a conspiracy to commit obstruction of a federal proceeding if he met with Eric Holder to discuss not acceding to GOP demands for records or testimony?

Maybe we want Presidents second-guessing themselves when their actions will clearly violate a law that was specifically intended to constrain their actions. But some criminal charges - especially criminal conspiracy charges - can encompass tons of otherwise lawful conduct if there's a potential crime anywhere by anyone.

Presidents are front and center in a lot of difficult, contested, and often disputed issues. The reason immunity for government officials exists in the first place is so that they can make difficult choices on behalf of the public without being paralyzed (or even just unduly conservative) by fear of personal liability. That's why Jack Smith would be immune from countersuit from Trump if Trump ended up being acquitted in charges - because we want prosecutors (as government officials) to be willing to prosecute wealthy powerful people without being afraid that they'll spend the rest of their lives (or resources) embroiled in personal litigation with them afterwards. We want them to be diligent about making a good faith effort to stay within the law, but to be absolutely immune once they do - rather than having to go through the ordeal of proving themselves for years after the fact.

So how about indicting Biden on a conspiracy to commit murder charge for his role in providing weapons to the Israeli government in Gaza?

I believe Congress had to approve that, as it should be. It's not like Biden had weapons laying around the East Wing and said "just send them this". If he did, then that might be actionable. But that's not what happened.

If a prosecutor can get an indictment, and then a conviction, clearly there was something there. Doesn't matter if it's Obama, or Trump. Wrong/illegal is wrong/illegal. Obstruction isn't "OK" just because a Dem did it, or just because a Rep did it. If they engaged in that behavior, they should be subject to consequences.

I don't think they should be subject to civil actions for official stuff they did while in office. For example, suing them for using eminent domain to seize land to build that stupid wall. Ranchers should be able to sue the government over that, but not the POTUS (or secretary of DHS, etc). Wrongful death would be a civil suit, and in the case of Gazans, should not be allowed against a single official in the performance of his/her duties. But they could sue the government as an entity.

Once you open that blanket immunity box, you have to get really detailed (i.e. unreasonably detailed) about what is not allowed, or else expect at some point someone to task a SEAL team to eliminate someone inconvenient to that POTUS. Because what is to stop them if they have blanket immunity? We can no longer rely on politicians to honor the unwritten/unspoken "code". If they can get away with it, they will do it.

If they are doing "right", then they have nothing to fear. Any suits won't go anywhere, as well as any attempted prosecutions.

I don't think they should be subject to civil actions for official stuff they did while in office.

Why not? The same considerations apply - if they did something wrong, they should be held accountable for their actions. As you point out, if they are doing "right," then they have nothing to fear.

Because civil suits have different standards. And anyone can sue anyone for anything, even if they just disagree (e.g. abortion policy). That should be directed at government. Criminal is another matter. It requires enough evidence for indictment, and even more evidence for an actual conviction. That's a much higher bar.

I don't think they should be subject to civil actions for official stuff they did while in office.

Why not? The same considerations apply - if they did something wrong, they should be held accountable for their actions. As you point out, if they are doing "right," then they have nothing to fear.

Jefferson had a view on it expressed in this letter to John B. Colvin:

Your favor of the 14th has been duly received, and I have to thank you for the many obliging things respecting myself which are said in it. If I have left in the breasts of my fellow citizens a sentiment of satisfaction with my conduct in the transaction of their business it will soften the pillow of my repose thro’ the residue of life.

The question you propose, whether circumstances do not sometimes occur which make it a duty in officers of high trust to assume authorities beyond the law, is easy of solution in principle, but sometimes embarrassing in practice. A strict observance of the written laws is doubtless one of the high duties of a good citizen: but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means. When, in the battle of Germantown, General Washington’s army was annoyed from Chew’s house, he did not hesitate to plant his cannon against it, altho’ the property of a citizen.[1] When he besieged Yorktown, he levelled the suburbs, feeling that the laws of property must be postponed to the safety of the nation. While that army was before Yorktown, the Governor of Virginia took horses, carriages, provisions and even men, by force, to enable that army to stay together till it could master the public enemy; and he was justified. A ship at sea in distress for provisions meets another having abundance, yet refusing a supply; the law of self-preservation authorizes the distressed to take a supply by force. In all these cases the unwritten laws of necessity, of self-preservation, and of the public safety control the written laws of meum and tuum.[2] Farther to exemplify the principle I will state an hypothetical case. Suppose it had been made known to the Executive of the union in the autumn of 1805, that we might have the Floridas for a reasonable sum, that that sum had not indeed been so appropriated by law, but that Congress were to meet within three weeks, and might appropriate it on the first or second day of their session.[3] Ought he, for so great an advantage to his country, to have risked himself by transcending the law, and making the purchase? The public advantage offered, in this supposed case was indeed immense: but a reverence for law, and the probability that the advantage might still be legally accomplished by a delay of only three weeks, were powerful reasons against hazarding the act.—But supposed it foreseen that a John Randolph[4] would find means to protract the proceeding on it by Congress until the ensuing spring, by which time new circumstances would change the mind of the other party. Ought the Executive, in that case, and with that foreknowledge, to have secured the good to his country, and to have trusted to their justice for the transgression of the law? I think he ought, and that the act would have been approved.—

After the affair of the Chesapeake, we thought war a very possible result.[5] Our magazines were illy provided with some necessary articles, nor had any appropriations been made for their purchase. We ventured however to provide them and to place our country in safety, and stating the case to Congress, they sanctioned the act.

To proceed to the conspiracy of Burr, and particularly to General Wilkinson’s situation in New Orleans.[6] In judging this case we are bound to consider the state of the information, correct and incorrect, which he then possessed. He expected Burr and his band from above, a British fleet from below, and he knew there was a formidable conspiracy within the city. Under these circumstances, was he justifiable[:]

1. In seizing notorious conspirators? On this there can be but two opinions; one, of the guilty and their accomplices; the other, that of all honest men.
2. In sending them to the seat of government when the written law gave them a right to trial in the territory? The danger of their rescue, of their continuing their machinations, the tardiness and weakness of the law, apathy of the judges, active patronage of the whole tribe of lawyers, unknown disposition of the juries, an hourly expectation of the enemy, salvation of the city, and of the Union itself, which would have been convulsed to its center, had that conspiracy succeeded, all these constituted a law of necessity and self-preservation, and rendered the salus populi supreme over the written law.[7]

The officer who is called to act on this superior ground, does indeed risk himself on the justice of the controlling powers of the Constitution, and his station makes it his duty to incur the risk. But those controlling powers, and his fellow citizens generally, are bound to judge according to the circumstances under which he acted. They are not to transfer the information of this place or moment to the time and place of his action: but to put themselves into his situation. We knew here that there never was danger of a British fleet from below, and that Burr’s band was crushed before it reached the Mississippi. But Gen. Wilkinson’s information was very different, and he could act on no other.

From these examples and principles, you may see what I think on the question proposed. They do not go to the case of persons charged with petty duties, where consequences are trifling, and time allowed for a legal course, nor to authorize them to take such cases out of the written law. In these the example of overleaping the law is of greater evil than a strict adherence to its imperfect provisions. It is incumbent on those only who accept of great charges, to risk themselves on great occasions, when the safety of the nation, or some of its very high interests are at stake. An officer is bound to obey orders: yet he would be a bad one who should do it in cases for which they were not intended, and which involved the most important consequences. The line of discrimination between cases may be difficult; but the good officer is bound to draw it at his own peril, and throw himself on the justice of his country and the rectitude of his motives.

I have indulged freer views on this question on your assurances that they are for your own eye only, and that they will not get into the hands of newswriters. I met their scurrilities without concern while in pursuit of the great interests with which I was charged, but in my present retirement no duty forbids my wish for quiet.

Accept the assurances of my esteem and respect,

TH. JEFFERSON

https://teachingamericanhistory.org/document/lette...

Because civil suits have different standards. And anyone can sue anyone for anything, even if they just disagree (e.g. abortion policy). That should be directed at government. Criminal is another matter. It requires enough evidence for indictment, and even more evidence for an actual conviction. That's a much higher bar.

It's not all that high a bar. The old aphorism that a prosecutor could get a grand jury to indict a ham sandwich is still true. As with even the Trump indictments, all of these claims will not really turn on disputed issues of fact, but questions of law. The President will insist his actions were legal, and the prosecution will disagree - and the grand jury will almost certainly adopt the prosecution's theory of the law.

If SCOTUS issues an opinion that modifies the lower court decision, I think it will be because they are uncomfortable with the idea that "ordinary" official acts - exercising foreign policy, participation in international agreements, overseeing the DOJ, or the rough-and-tumble struggle with Congress in oversight activities - might end up being the source of criminal indictments.

For example, the crime of "otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so..." can cover a lot of ground. Especially since under our system of government, the Executive is intentionally placed somewhat in opposition to Congress - and vice versa. That's the whole point of checks and balances. The Executive is always trying to influence and impede certain official proceedings of Congress, especially when one or both chambers are held by the opposition. So unless the official acts taken in service of those struggles are immune, criminal liability will always turn only on the single element of "corruptly" - whether the official acts are taken for a corrupt motive. So if an opposition Congress is holding hearings on a politically damaging topic (whether pretextually for political points or legitimately on an issue the President is vulnerable on), I think SCOTUS wants to distinguish between something like bribing a witness to lie to the panel and a President trying to get the results to be more favorable to him. Both are "influencing" the proceeding, and both are arguably doing so for a 'corrupt' purpose (political gain for the President), but one is clearly outside the scope of his job description while the other is part of the normal tug-of-war with a coordinate branch.

So if an opposition Congress is holding hearings on a politically damaging topic (whether pretextually for political points or legitimately on an issue the President is vulnerable on), I think SCOTUS wants to distinguish between something like bribing a witness to lie to the panel and a President trying to get the results to be more favorable to him. Both are "influencing" the proceeding, and both are arguably doing so for a 'corrupt' purpose (political gain for the President), but one is clearly outside the scope of his job description while the other is part of the normal tug-of-war with a coordinate branch.

I think it's SCOTUS' job to artfully distinguish between crime and the normal tug-of-war between the branches. I think if we gave you a fwe days you could come up with something extremely good at clarifying the difference/ So, while apprehensive, I don't think we have to fear that SCOTUS will come up with a standard that absolves Trump to the point of competing with Dred Scott for worst opinions of all time.

I am interested in your opinion about Bruen's historical analogue test. My opinion is that it's unworkable. Even if you allow historical analogues up to and just after the Civil War, we get frozen into the mainstream laws of a past era. They seem to come up with reasons for disregarding laws they don't like, so I'm very disappointed this was put forth as a standard.

I am interested in your opinion about Bruen's historical analogue test. My opinion is that it's unworkable. Even if you allow historical analogues up to and just after the Civil War, we get frozen into the mainstream laws of a past era. They seem to come up with reasons for disregarding laws they don't like, so I'm very disappointed this was put forth as a standard.

One of the thorny questions in law is figuring out how to interpret words, phrases, or provisions in a document (like a statute, a constitution, or a contract) when there is disagreement about what those words or provisions mean. There are lots of theories on how judges should do that, and lots of different approaches to statutory construction.

One approach is to say, we're going to try to figure out what the parties meant at the time they drafted the document. This is a very common approach with contracts, and fairly common in statutes - where the folks drafting the document and the folks agreeing to the document are pretty coextensive. So if there's an uncertain term or phrase in a contract, the courts will try to figure out what the two parties to the contract thought it meant when they wrote it.

Originalism purports to apply this to the U.S. Constitution. When trying to figure out what an uncertain term means - like the word "liberty" in the 5th Amendment - originalists counsel towards trying to figure out what the authors (the Framers) or the ratifiers (the public) back in 1791 would have thought that term meant. That should guide your approach.

To take a non-controversial question, does the First Amendment prohibition on infringing on freedom of speech mean that the government can't provide a monetary penalty for slander? There's lots of ways to approach that question - but one way to look at it is to observe that historically, there were always laws against slander that were routinely adopted, enforced, and pretty much unquestioned both before and after 1789 and 1868. That's a pretty good indication that the people who wrote the First Amendment didn't think it barred the government from prohibiting slanderous speech.

Pretty tame stuff at that level. Trying to figure out the original intent of the parties seems like it's a nice, neutral approach to construction.

Where it gets tricky is when you start making judgments about what level of generality to apply, and applying your own presumptions. For example, consider the question of what is considered "the press" in Freedom of the Press. If we ask what the Founders thought that meant, it clearly would include the literal printing press (books and newspapers and things). Does it include television or movies? Well, if "press" refers generally to forms published or broadcast mass communication, then yes; but if "press" refers specifically to printed matters, then you could answer no. The outcome you get depends on how you ask the questoin.

Similarly, we might ask what the Framers/Ratifiers in 1868 might have thought the "right to bear arms" covered (or didn't). If we look specifically at what they allowed in 1791 and 1868, you might conclude that their intent was that the "right" included all but the lightest regulation (you could have virtually any weapon that would be carried as a personal firearm, but not cannon). If you look generally at what they allowed, you might conclude that the states regulated as heavily as necessary to protect the public order (virtually all the country was rural, so widespread firearm ownership was permissible and encouraged, but in urban areas it was more heavily regulated). Or do you take the approach that what the Framers/Ratifiers meant was that civilians could have guns with a very low rate of fire (say, that of an 1860's-era repeating rifle) but not something with a higher rate of fire (like Gatling guns that were not owned by civilians) in that era?

That's why I think the Court may have some difficulties with the Bruen standard - because how you frame the "historical" question determines what answer you get, and originalism offers no "neutral" rules on which way to frame the historical question is correct.

Al Similarly, we might ask what the Framers/Ratifiers in 1868 might have thought the "right to bear arms" covered (or didn't). If we look specifically at what they allowed in 1791 and 1868, you might conclude that their intent was that the "right" included all but the lightest regulation (you could have virtually any weapon that would be carried as a personal firearm, but not cannon). If you look generally at what they allowed, you might conclude that the states regulated as heavily as necessary to protect the public order (virtually all the country was rural, so widespread firearm ownership was permissible and encouraged, but in urban areas it was more heavily regulated). Or do you take the approach that what the Framers/Ratifiers meant was that civilians could have guns with a very low rate of fire (say, that of an 1860's-era repeating rifle) but not something with a higher rate of fire (like Gatling guns that were not owned by civilians) in that era?

That's why I think the Court may have some difficulties with the Bruen standard - because how you frame the "historical" question determines what answer you get, and originalism offers no "neutral" rules on which way to frame the historical question is correct.

Thanks. Thomas seemed to have a "specific" intent when he framed the test. He disregarded any laws in the territories, and any laws that he saw as one-offs, or only a few, and laws on storage for a variety of reasons, and the types of weapons seemed to have no limit. You could have that canon or a Gatling gun. Anything getting in the way of you owning that gun could be a burden on your basic right. Scalia seemed much more reasonable and didn't want to upset the apple cart on dangerous and unusual weapons in Heller. Thomas seems want to minimize and narrow any restrictions found. Seems little room left for a functioning society.

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