#fascinating highligh

[zeref96]

Why do you think uenoyama deserves better /gen (no hating i just stumbled on your account)

well, because he is the only one trying for this relationship to work out, he is always there for mafuyu, he was there for him when he couldn't sing, he is always trying to be patient with him, encouraging him to be better and have confident in himself, trying to support him when he doesn't know mafuyu's past and be there for him, he is always for mafuyu but we never see mafuyu trying in the relationship (those panels don't exist in the manga), the only time ueno asked for something mafuyu completely ignored him and started to avoid him while ueno was trying to communicate with him and understand him and instead of going to uenoyama he goes to another person and the fact that he never told ueno anything about his past and uenoyama had to find out about it through hiiragi speaks everything, he could at least told him that something happen before but he wasn't ready to tell him but mafuyu doesn't even do that, he acts like he never cares or that he is supposedly in a relationship with someone, uenoyama is more of a caretaker than a boyfriend at this point because he is always giving to mafuyu but he never reciprocates or try for his new relationship, always trapped in the memory of yuki and his sadness or wandering in his own mind, so yeah uenoyama deserves better, we don't even have a lot of mafuyama panels in the manga acting like lovers but we have a lot mafuyuki, it's like Kizu doesn't want people to forget about yuki and see uenoyama as mafuyu's lover and I wouldn't have minded the mafuyuki scenes if she gave us a lot of scenes for mafuyama as lovers, the manga ended with a copy paste scene from mafuyuki because even at the end she didn't want the readers to forget that yuki was mafuyu's lover, people were comparing the two scenes instead of appreciating mafuyu "moving on" with ueno, and that doesn't address the fact that she never gave uenoyama a storyline while even the support cast got one but used him as a support character for everyone and a therapist for mafuyu and his friends, she used ueno in the last arc to highligh yuki as a "fascinating person" instead of highlighting ueno, she centered the supposed mafuyama arc in a mafuyuki arc again, it's like she rewrote the first arc again but changed the fonts because she didn't want to write uenoyama or give him the spotlight, this is why we got a lot of traumaporn readers that like yuki more, she always manages to center ueno's storylines around yuki, even when the readers got in the page that he was feeling the shadow of that man and feeling insecure the given fandom acted obtuse and was calling him names because mafuyu was sad and kizu instead of developing that she went back about how yuki is this great person on a pedestal, it's like she doesn't want people to root for ueno as a person or mafuyu's lover because she doesn't want ueno to overshadow yuki her favorite character.

I don't have a lot of expectations for the new series because the synopsis says it all, "I've traveled 3650 dawns to see you again." it's been ten years and we're still gonna have a yuki panel even, so we supposedly moved on for the third time again.

[presiding]

I love "the monster in the hull" fic so much and I'm excited for updates!!

Every Emily and Billie interaction are golden and your writing is really pleasant to read; it makes me soo happy!

More focus on Billie in fan content is always great <3

I really adore how you write her, it feels so thought out in the best way

Also not sure how to say it right but i like that you address the way Emily lived before the coup *especially* through Billie's eyes...DH2 really lacked it, sadly (i won't comment on how Arkane handled monarchy & consequences but i hope that what I've said makes at least some sense)

Aaaa <3 thank you so much! It's really lovely getting comments about my work & I never quite know what to say or how to properly express my gratitude, but it means a lot!

Re: "the way Emily lived before the coup" I agree - that makes perfect sense and it's SO fascinating to me, and it was something I really wanted to tackle! I hope you don't mind me having a ramble about this on your ask?

Emily's privileges & her maturity arc are something I've been thinking about a lot with regards to the fic but also broadly :D

Emily's privileges

*grits teeth* Monarchy/politics aside, *unclenches jaw*

I think the game made an interesting choice (/genuine) by drawing attention to Emily's privilege & her struggle with the pressures of leadership. Both Sokolov & Meagan comment on it, and Emily herself makes comments (paraphrase: "I can feel my perspective shifting") but it's a shame there was no follow through. You can FEEL the critique of the Empire in the bones of the story but... it's swept under the rug.

Maturity arc?

The clueless comments from Emily feels like they could be part of a maturity arc, rather than a critique of power/privilege. BUT. A maturity arc is... a choice... for Emily, specifically for a female videogame protagonist.

She's been reigning 14 years by the events of Dishonored 2! Even if a lot of that time she was too young to be taking the reigns, still, she's not new to it, and you would think that Corvo was keeping her grounded. There was no comparable arc for Corvo - his failures in his own game was being framed by forces far larger than he, and trusting when he should not. As another comparison, Daud was slipping, yes, but he was slipping in a noir film antihero way - ie. becoming better as a person - and that was well explored.

By adding the 'Emily is a bad Empress' hints but then never going into detail, and you end up with a woman whose character is scrutinised from an unfair angle by the audience (contrast with Corvo). It feels like the weight of having any privileges, within the context of the Dishonored series, is borne entirely by Emily Kaldwin. But as you rightly say, it's not handled well, so the audience just associates the concept of privilege with her (derogatory).

It brings to mind the Boyle sisters - compared to other marks in the game, in Dishonored 1, their only crime was being manipulated by the Regent, but they were dealt arguably the worst punishment the series really offers. Harsh, right? It's not like other characters don't also have wealth & political power & could be abused. Maybe Emily's ongoing clueless comments is an attempt from the writers to be self-aware (knowing that disempowerment is a running theme but Emily is well-off), but that self-awareness only shoots Emily in the foot.

It's a running theme I have in monster in the hull - I want to kind of explore that like, yeah, Emily never really chose this life for herself, same as the Outsider. That doesn't *negate* her privileges, but informs them. It would be like viewing the Outsider primarily as a victim (as DotO kinda suggests), when realistically he's still the master of his own fate (and everyone elses, same as Emily).

What Dishonored 2 did well

There is an aspect in which the game did follow through, but it's easy to overlook: the importance of recurring characters like Lucia Pastor. Dishonored 2's ending spends a decent amount of time highlighting the new Serkonan advisors ("the city's wisest citizens survived" as the Outsider narrates) and blames them for bringing about peace & prosperity.

A generous read would be that the game acknowledges that Emily the Just & Clever learns that her perspective & intelligence alone was not nearly enough to bring about the change her Empire needs to thrive. This insight gained from her time in Karnaca was what shaped her, and giving more power & more voice to the wise people she rules over, was what ultimately earned her the titles Just & Clever. But... that wasn't really surfaced, hey.

Glad you mentioned because Emily's indifference as a leader is a detail that I love, particularly in the context of her own material/political privileges... even though I know it's why people don't like her. In saying that, the overall picture frustrates me!

Let me know your thoughts this is an interesting topic, love this game :)

[the-black-bulls]

Hey! Can I ask why you think Rhya's human host is an Adlai? Thanks!

Hey there! I was hoping for someone to ask me this haha... it took me forever to answer this though, sorry about that.

Before I go any further, trigger warning: mention of suicide.

I'm gonna be honest and say that my reasons behind this theory are mostly personal - I like the elves, Rhya is my favorite out of the main elves, Gauche's elf, Droit, is my favorite out of the side elves... this is their first meeting after the massacre, they high-fived - and I've been fascinated about their friendship ever since, coming up with theories and scenarios to highligh it (yes the bulls aren't the only people I stan; elves are my second beloveds).

Very self-indulgent of me. I know. But aren't we all? People do that shit with their ships, I can do it with friends ¯\_(���)_/¯

Anyways I didn't truly consider this theory until fast forward later when I came across this interesting piece of info about the human Rhya reincarnated into:

(Tabata's Q&As in Volume 25)

Pretty interesting, right? There's not that many named characters in the manga who are fallen nobles/aristocrats, the Adlai House is the only name whose members were referred as Disgraced.

Here is the thing though, I've seen many people interpreted what I believed the "Fall" of House Adlai as simply a case of Gauche and Marie's parents getting murdered and betrayed by their relatives of the same family and the results only caused harm to their children and that's about it. I don't think it's the case, not with how Damnatio victimized Marie during Asta's trial by exposing her ruined nobility and ties to House Adlai with the implication of it being a sensible excuse to execute her. I'm positive the Adlai House has been pretty much taken down completely by another aristocrat/noble family and the surname became as good as dirt afterwards, which forced all members of the family to be labelled as disgraced and ruined because there is no hope for a house with neither heads nor heirs to keep it kicking in an aristocratic world.

This leads me to my theory - Rhya's human host is an Adlai. I have no reason to think otherwise since Tabata left the specific details of his origins unknown and it's always more interesting and fun to connect characters with similar background and develop canon events that happened in the past. In my theory, Human Rhya is a branch member of the Adlai House and has been surviving for years before the toll of his situation became too much to endure and, as Tabata worded it, he was this close to end it all, and I think this is kind of ironic because Rhya is one of the few characters in the series who showed suicidal thoughts. It also explains why Rhya didn't need a new body to remain in the living world like Vetto and Fana since his human host has no attachment to his own body.

One more point that is likely me reaching, but Rhya's Imitation Magic which is for sure shared with his Human Host, and Gauche's Mirror Magic are the only two magical attributes that have copying abilities, and in this series characters with blood ties tend to share similar if not identical abilities or themes, so who knows ¯\_(ツ)_/¯

My other favorite "they're related" theories are Half Brothers Henry and William, Noelle sharing blood ties to the Seabed/Underwater people from her Father's side of the family, and Half Brother and Sister Luck and...... Sally! I bet you didn't see that one coming 😛

[viatravelers]

If you’re ever in Chicago, check out Millennium Park, where you’ll find a fantastic collection of art and architecture. One of the highlights is the BP Pedestrian Bridge, a unique and stunning piece of engineering.The bridge is the sinuous flowing work of award-winning architect Frank Gehr. It is a masterpiece, possibly the most recognizable and influential style in contemporary architecture.

[quinntamsin]

*Tugs up her Kefta and rolls her wrists.* SPOILERS FOR SHADOW AND BONE SEASON 1. .

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Let's begin. I have never read the Grishverse novels, I don't tend to read young adult stories. Just aren't my thing, and most of my reading is done via fanfic because I have a budget. All of that in consideration, I did read into the series as I was watching it. Devouring as much of the plot via the wiki I was able to parse out where things were going. Now, within consideration as a Fantasy production this series has been one of the most inclusive and diverse I've seen yet. Actually casting a biracial asian actress (with she / them pronouns) for the lead was the first touch that told me the showrunner was actually paying attention to the world, but as well as trying to get an actor who portrays the coded individual the best. The Grishaverse has a lot of racial overtones with outright insults and microagressions that would never really be portrayed correctly without someone who has that background. Plus, the fact that they once again normalized a bisexual male character was amazing. Kaz and the Crows were the highligh of the series for me. It was great watching how they planned all of their heists and the contention with him and Inej over it was fantastic. Now let's get onto some of the points of contention I had with this series. First, Grishaverse does have a lot of racially coded people, and it was good to see that while they were cultural coding. They didn't have all of the naturally negative tropes we see. I preface this that I am a trans white woman, I'm not going to see this on a level BIPOC writers are going to. To me, the coding appears to be bare bones culture, but that's just from reading the piece meal info in the story. The other big contention was that Kaz, a disabled man (he has a bad leg from surviving a horrible disease), was played by a able bodied man. I don't want to go into the entire rabbit hole that is able-bodied people playing disabled characters. The fact this is still a thing is beyond irritating (I have hearing disability and I'm neuro-divergent). I will give the actor the caveat that he actually appeared to treat the disability has something that he has to live with. So many characters get their disability treated as an obstacle to overcome; a super power; or even you know a side story. The directing appeared to actually take that disabilities are factors of your life (shocker) and Kaz had to take his into account when he planned his heists. Also, I am aware that the author behind the series herself has a chronic disease. So it appears that the series is make more than a half-assed attempt to portray Kaz in a proper light. Overall, this series introduces a unique Elemental Magic system and a world that is brimming with Steampunk Goodness. The fact that its a Russian / Mongolian infused (the Shu are coded as Yuan Dynasty from their names on the Wiki) really does help. The idea that the northern enemy of Fjerda that has an entire Elite Corp of witch-hunters is even more fascinating. I plan on releasing more takes on the various character as I think about them in the Gay Canon. Inej to me was one of the breakout stars in this story as well as Mal himself. Mal and Alina are now one of my few cishet OTPs.

[a-little-ray-of-fantasy]

Julien for the character thing

Sorry this got delayed for quite some time: here we go now!

First impression: I don’t exactly remember the first time I learned about Julian, but, if I do remember correctly, I did saw a picture of him n Tv Tropes more than two months ago (the time I actually got invested); while I did think that he looked like a character that I’d loved, it wasn’t really enough to make me say “Alright, let’s go and find out more!” (I guess it was something along the lines of “Huh, he seems kinda likable, but nothing really more”). But I did know that he seemed like one of the most popular characters in the show so I was also like “I guess that one day we shall see…”.

Impression now: Man, I’d never thought I could put the words “Goth” and “Adorably cheerful” next to each other in the same sentence but, here we are! He’s like a young vampire who’s both melodramatic and giddy… and the tendencies to find instruments of torture “Adorable” and “Delightful”. Also, he seems to love magic and tricks… All in all, the reason why he’s easily likeable is that he’s NOT a stereotypical goth guy: while he does love the macabre and spooky stuff, he often shows that he’s afraid, he’s quite happy-go-lucky, he’s friendlyand just does his own thing, even to the point of coming off as a “weirdo” (not that he minds)

Favorite moment: As of now I love the moments during “Snow-Klahoma” when he’s having fun with the snow: he’s just so happy that it kinda makes me forget that in the same episode Randy and Howard just ditch him in the ice maze, giving Evil Julian the opportunity to imprison the kid in the void… Yeah, good friends indeed (but at least Randy DID have some second thought; wish we could say the same about Howard… /: ). Also “The Tale of the Golden Doctor’s Note” is perfect to introduce his character, and “Der Monster Klub” also gave him a nice relationships with a good number of his classmates while also highlighing some of his flaws (sure, wishing that his klubers could go and enjoy their monster state while they could can be seen as companionship, but, let’s face it, Julian seems to like the feeling of power, deep down…)

Idea for a story: Since Season 3 is still less of an idea, I so wish to know how Julian’s life is now that he has come back from the void; also, he became one with Evil Julian once again: does that mean he kinda has a split personality ala Jekyll/Hyde? Or does Evil Julian manifest himself in some way (like in his dreams, like some fan fics explore)? We really need to know more!

Unpopular opinion: People tend to ship him with Theresa, or assume they are cousins; I dunno, I personally think they’re just good friends (not that I’m against those headcanons. of course! ^_^ )

Favorite relationship: Der Monster Klub shall live forever! Also, I did take notice that some times Julian clings to Randy when he’s scared or particulary excited… ^^

Favorite headcanon: Julian is autistic in my opinion, considering just how passionate he gets about what he likes (spooky stuff, magic, snow…), some of his habits (hanging upside down in lockers), forgetting steps in his card trick, the way he interacts with others (talking in a pretty dramatic flair, never afraid to be seen as eccentric by others, even loving what sets him apart)… Yeah, I think his personality becomes more fascinating if seen by this angle.

And, there you have it! ^_^

[benrleeusa]

[Randy Barnett] Kavanaugh Testimony, Part 2: Colloquy with Senator Kennedy

A Republican Senator discusses natural rights, majoriarianism, linguistic ambiguity and the difficulties of identifying original meaning

In the evening of Day 2 of the Senate Judiciary Committee Hearings, in a fascinating discussion, Senator John Kennedy of Louisiana questioned Judge Kavanaugh on inalienable natural rights and the feasibility of originalism (the last of these I highlighed in bold).

Day 2, Part V – Dialogue between Senator John Kennedy and Judge Bret Kavanaugh (43:55)

Kennedy:

Yesterday, I talked a little bit about how judges have limits on their power. And I don't know if I said it this way, but I think it's inappropriate for a federal judge to try to rewrite the Constitution every other Thursday to advance an agenda that either or his/her supporters can't get by the voters. Do you agree with that?

Kavanaugh:

Yes, of course, Senator. Judges interpret the law. They don't make the law, and that's obviously something that's repeated a lot. But it actually matters – if you keep that in mind, it matters.

Kennedy:

Judges also have another duty though. I didn't get to talk about it yesterday. Federal judges and state court judges have an obligation to protect inalienable rights even if the majority wants to take them away. That's why they call them inalienable. And I said this when Judge Gorsuch was here, if you think about it, in many cases the Bill of Rights is really not there for the high school quarterback or the prom queen. The Bill of Rights is there for the person who sees the world differently but has the right to do that. And I think that's important for a judge. Can we agree on that?

Kavanaugh:

Absolutely, Senator. I think the Bill of Rights protects all of us, but that includes and is most relevant for free speech of the unpopular.

Kennedy:

Right, even if the majority says "we're the majority" because we both know that sometimes the majority just means that most of the fools are on the same side. I mean, just because you're on the majority doesn't mean you're right, correct?

Kavanaugh:

Just because you're on the majority does not mean you're right is absolutely a correct proposition.

Kennedy:

That's why we have a Bill of Rights! Now I want to talk about – that's the easy part – I want to talk about how we go about making these decisions, and there's a tension there, and that has to do with the language. If I talked about the Holy Trinity doctrine, you'd know what I'm talking about, I'm sure. The Supreme Court has rejected the Holy Trinity doctrine. You talked about we're now textualists and are originalists, and you call originalism constitutional textualism, I think.

Kavanaugh:

Original public meaning, originalism, constitutional textualism – I think those describe the same thing.

Kennedy:

You start with the language, let's take a statute, with the language in the statute, and the first question you ask as a textualist: Is it ambiguous or unambiguous, correct?

Kavanaugh:

If there's a cannon of construction that is there that depends on a finding of ambiguity, that would be the question – otherwise, other than that, you would just say what is the best meaning.

Kennedy:

Yeah, you read the statute. You say: does it make sense? It either makes sense or it doesn't. How do you determine that? How ambiguous – you alluded to this, but how ambiguous does it have to be? Does it have to be 100% ambiguous? Does it have to be 51% ambiguous? Is there really any principled way to compare clarity to ambiguity? Or do some judges use it as an excuse to get to those cannons of interpretation about which they've already read in the brief to do what they want to do?

Kavanaugh:

I've said many times in my cases and talks to students that judges shouldn't be snatching ambiguity from clarity. So that's one thing. I think that goes right to your question – but to your broader question… That's one of my concerns about a few cannons of construction that depend on an initial finding of ambiguity, which sounds great in theory, which is, "Oh, if it's ambiguous, go to that cannon or this cannon or this cannon." But in practice, over twelve years, what I've found, and I've written about this, is that there's not a good way to find neutral principles on which to, in which two or three judges can agree on how ambiguous is ambiguity. And that's hard to even talk about. "Oh, I find it ambiguous," "I don't think it's ambiguous," and that is, in my view, frustrating the goal that I have of the judge as umpire—the evenhanded application of neutral principles in the rule of law. And ultimately that's concerned me because some of these cases where that's come up are big deal cases. Yet, it's dependent on this initial determination that when you unpack, and you actually sit in the judicial conference room like I do, it turns out to be very hard to apply in an evenhanded way. That's a concern I've identified.

Kennedy:

I'm with you on that. You advocate the best reading of the statute. Let's talk about that – and I want to talk about it, not in terms of the statute, but the Second Amendment. I want to talk about the Heller case. You define originalism as constitutional textualism, and the way to interpret the Constitution is to—tell me if I get this wrong now��how would a reasonable person at that time have understood the Constitution…the public knowledge.

Kavanaugh:

Right, the original public meaning. I always want to add, of course, precedent is a huge part of what we do in constitutional law, but if you're looking at the words, the original public meaning—you look at what the words mean. Sometimes the meaning changes. Often times it hasn't. But to your point, I agree.

Kennedy: It's almost an objective test.

Kavanaugh:

You're trying to make it as objective as possible. Absolutely. It is an objective test. Sometimes there's different evidence about what is the meaning of the word was…

Kennedy:

Sure, but you're not looking at intent.

Kavanaugh:

Correct. You're not looking at the subjective intent, other than to the extent that helps show…

Kennedy:

Right, we've thrown that out. Ok, if you look at the Heller case—and I'm talking about the DC v. Heller by the US Supreme Court—it wasn't a balancing case. You made that point clear at the court of appeal level. It was a text, history and tradition case. And Justice Scalia wrote the majority opinion. Justice Stevens dissented, and they both took an originalist approach. And I went back and looked. Scalia, this is what he relied on: founding era dictionaries, founding era treatises, he looked at English laws, American colonial laws, British and American historical documents, colonial era state constitutions – he looked at post-enactment commentary on the Second Amendment. And Justice Stevens, also using an originalist approach, looked at the same documents and then he added, he relied on linguistic professors, an 18th century treatise on synonymous words, and a different edition of the colonial era dictionary that Justice Scalia used. Pretty impressive. Here's my question: Doesn't the originalist approach just require a judge to be an historian? And an untrained historian at that? Wouldn't we be better off hiring a trained historian to go back and look at all of this?

Kavanaugh:

Well, the Heller case was one of the rare cases where the Supreme Court was deciding the meaning of a constitutional provision without the benefit of much, if any, relevant precedent. On most of the constitutional provisions, there's been a body of cases over time interpreting the provision, and you don't have to do the kind of excavation that Justice Scalia and Justice Stevens did in that case because it's been done before. The reason, I think, why the Second Amendment posed a challenge in that case, in terms of figuring it out, is the prefatory clause in the Second Amendment, which the question was: Did that define the scope of the right indicated afterwards – the right of the people to keep and bear arms shall not be infringed? Or did the prefatory clause merely state a purpose for which the right was ratified, and, therefore, you read the right as written: the right to keep and bear arms shall not be infringed. To figure out what the prefatory clause meant, you had to figure out, as a general proposition, how legal documents at the time used prefatory clauses, and what the purposes of those were, and that required a lot of historical excavation by the two justices who had the competing positions.

Unlike the Democratic senators, Senator Kennedy was able to marshal somewhat of a critique of Judge Kavanaugh's originalism. If Kennedy, a supporter of the nominee can manage this, one would think that Democratic Senators who object to Kavanaugh's originalism could do the same. But, for whatever reason, they did not even try. Unfortunately, Kavanaugh did not directly respond to Kennedy's challenge of how judges can be historians, asserting instead the rarity with which they may have to do so given the existence of precedent.

There are answers, however. He might have contended that judges should not be doing the historical research that originalism requires. That this research should be done by constitutional scholars--inside and outside of the law schools--whose evidence and conclusions can be challenged by other scholars in advance of any litigation. Then judges can select the arguments they find most persuasive, as they do when they evaluate competing expert testimony. Indeed, in Heller both Justices Scalia and Stevens relied on outside scholarship by both historians and legal scholars for the sources they mustered in defense of their conclusions.

Furthermore, discovering and mustering such evidence is well within the competence of those with legal training. Given enough time--which judges largely lack--lawyers are quite capable of identifying the meaning communicated by a text at the time it was enacted. You rarely hear historians claim that only they can discover the original meaning of statutes. One need not be a historian to perform this task, and historians and lawyers rarely reach different conclusions when they are attempting to answer the same question: what meaning was communicated to the public by the words in the text of the Constitution. Where they do disagree, the disagreement is typically about the significance of evidence, and not about the inherent inaccessibility of meaning to anyone but a trained historian. (And if historians think they have discovered some esoteric meaning in accessible to the rest of us, it is incumbent upon them to present their discovery for our evaluation. They are scholars, after all, and not a priesthood.)

Historians are as susceptible to motivated reasoning based on their political priors as legal scholars can be. We have certainly seen this in the debate over the original meaning of the Second Amendment. Which is why the review of peers in advance of a case or controversy is so important to the identification of the original meaning of the Constitution. But the Constitution was written to be understood by the general public. Indeed, the Constitution is the command of the general public to its servants in the government. Judges, who are given power in exchange for their oaths to uphold the Constitution, are obligated to discover--if necessary with the assistance of scholars--the meaning of their instructions from the people and adhere to those instructions in good faith.

[benrleeusa]

[Randy Barnett] Kavanaugh Testimony, Part 2: Colloquy with Senator Kennedy

A Republican Senator discusses natural rights, majoriarianism, linguistic ambiguity and the difficulties of identifying original meaning

In the evening of Day 2 of the Senate Judiciary Committee Hearings, in a fascinating discussion, Senator John Kennedy of Louisiana questioned Judge Kavanaugh on inalienable natural rights and the feasibility of originalism (the last of these I highlighed in bold).

Day 2, Part V – Dialogue between Senator John Kennedy and Judge Bret Kavanaugh (43:55)

Kennedy:

Yesterday, I talked a little bit about how judges have limits on their power. And I don't know if I said it this way, but I think it's inappropriate for a federal judge to try to rewrite the Constitution every other Thursday to advance an agenda that either or his/her supporters can't get by the voters. Do you agree with that?

Kavanaugh:

Yes, of course, Senator. Judges interpret the law. They don't make the law, and that's obviously something that's repeated a lot. But it actually matters – if you keep that in mind, it matters.

Kennedy:

Judges also have another duty though. I didn't get to talk about it yesterday. Federal judges and state court judges have an obligation to protect inalienable rights even if the majority wants to take them away. That's why they call them inalienable. And I said this when Judge Gorsuch was here, if you think about it, in many cases the Bill of Rights is really not there for the high school quarterback or the prom queen. The Bill of Rights is there for the person who sees the world differently but has the right to do that. And I think that's important for a judge. Can we agree on that?

Kavanaugh:

Absolutely, Senator. I think the Bill of Rights protects all of us, but that includes and is most relevant for free speech of the unpopular.

Kennedy:

Right, even if the majority says "we're the majority" because we both know that sometimes the majority just means that most of the fools are on the same side. I mean, just because you're on the majority doesn't mean you're right, correct?

Kavanaugh:

Just because you're on the majority does not mean you're right is absolutely a correct proposition.

Kennedy:

That's why we have a Bill of Rights! Now I want to talk about – that's the easy part – I want to talk about how we go about making these decisions, and there's a tension there, and that has to do with the language. If I talked about the Holy Trinity doctrine, you'd know what I'm talking about, I'm sure. The Supreme Court has rejected the Holy Trinity doctrine. You talked about we're now textualists and are originalists, and you call originalism constitutional textualism, I think.

Kavanaugh:

Original public meaning, originalism, constitutional textualism – I think those describe the same thing.

Kennedy:

You start with the language, let's take a statute, with the language in the statute, and the first question you ask as a textualist: Is it ambiguous or unambiguous, correct?

Kavanaugh:

If there's a cannon of construction that is there that depends on a finding of ambiguity, that would be the question – otherwise, other than that, you would just say what is the best meaning.

Kennedy:

Yeah, you read the statute. You say: does it make sense? It either makes sense or it doesn't. How do you determine that? How ambiguous – you alluded to this, but how ambiguous does it have to be? Does it have to be 100% ambiguous? Does it have to be 51% ambiguous? Is there really any principled way to compare clarity to ambiguity? Or do some judges use it as an excuse to get to those cannons of interpretation about which they've already read in the brief to do what they want to do?

Kavanaugh:

I've said many times in my cases and talks to students that judges shouldn't be snatching ambiguity from clarity. So that's one thing. I think that goes right to your question – but to your broader question… That's one of my concerns about a few cannons of construction that depend on an initial finding of ambiguity, which sounds great in theory, which is, "Oh, if it's ambiguous, go to that cannon or this cannon or this cannon." But in practice, over twelve years, what I've found, and I've written about this, is that there's not a good way to find neutral principles on which to, in which two or three judges can agree on how ambiguous is ambiguity. And that's hard to even talk about. "Oh, I find it ambiguous," "I don't think it's ambiguous," and that is, in my view, frustrating the goal that I have of the judge as umpire—the evenhanded application of neutral principles in the rule of law. And ultimately that's concerned me because some of these cases where that's come up are big deal cases. Yet, it's dependent on this initial determination that when you unpack, and you actually sit in the judicial conference room like I do, it turns out to be very hard to apply in an evenhanded way. That's a concern I've identified.

Kennedy:

I'm with you on that. You advocate the best reading of the statute. Let's talk about that – and I want to talk about it, not in terms of the statute, but the Second Amendment. I want to talk about the Heller case. You define originalism as constitutional textualism, and the way to interpret the Constitution is to—tell me if I get this wrong now—how would a reasonable person at that time have understood the Constitution…the public knowledge.

Kavanaugh:

Right, the original public meaning. I always want to add, of course, precedent is a huge part of what we do in constitutional law, but if you're looking at the words, the original public meaning—you look at what the words mean. Sometimes the meaning changes. Often times it hasn't. But to your point, I agree.

Kennedy: It's almost an objective test.

Kavanaugh:

You're trying to make it as objective as possible. Absolutely. It is an objective test. Sometimes there's different evidence about what is the meaning of the word was…

Kennedy:

Sure, but you're not looking at intent.

Kavanaugh:

Correct. You're not looking at the subjective intent, other than to the extent that helps show…

Kennedy:

Right, we've thrown that out. Ok, if you look at the Heller case—and I'm talking about the DC v. Heller by the US Supreme Court—it wasn't a balancing case. You made that point clear at the court of appeal level. It was a text, history and tradition case. And Justice Scalia wrote the majority opinion. Justice Stevens dissented, and they both took an originalist approach. And I went back and looked. Scalia, this is what he relied on: founding era dictionaries, founding era treatises, he looked at English laws, American colonial laws, British and American historical documents, colonial era state constitutions – he looked at post-enactment commentary on the Second Amendment. And Justice Stevens, also using an originalist approach, looked at the same documents and then he added, he relied on linguistic professors, an 18th century treatise on synonymous words, and a different edition of the colonial era dictionary that Justice Scalia used. Pretty impressive. Here's my question: Doesn't the originalist approach just require a judge to be an historian? And an untrained historian at that? Wouldn't we be better off hiring a trained historian to go back and look at all of this?

Kavanaugh:

Well, the Heller case was one of the rare cases where the Supreme Court was deciding the meaning of a constitutional provision without the benefit of much, if any, relevant precedent. On most of the constitutional provisions, there's been a body of cases over time interpreting the provision, and you don't have to do the kind of excavation that Justice Scalia and Justice Stevens did in that case because it's been done before. The reason, I think, why the Second Amendment posed a challenge in that case, in terms of figuring it out, is the prefatory clause in the Second Amendment, which the question was: Did that define the scope of the right indicated afterwards – the right of the people to keep and bear arms shall not be infringed? Or did the prefatory clause merely state a purpose for which the right was ratified, and, therefore, you read the right as written: the right to keep and bear arms shall not be infringed. To figure out what the prefatory clause meant, you had to figure out, as a general proposition, how legal documents at the time used prefatory clauses, and what the purposes of those were, and that required a lot of historical excavation by the two justices who had the competing positions.

Unlike the Democratic senators, Senator Kennedy was able to marshal somewhat of a critique of Judge Kavanaugh's originalism. If Kennedy, a supporter of the nominee can manage this, one would think that Democratic Senators who object to Kavanaugh's originalism could do the same. But, for whatever reason, they did not even try. Unfortunately, Kavanaugh did not directly respond to Kennedy's challenge of how judges can be historians, asserting instead the rarity with which they may have to do so given the existence of precedent.

There are answers, however. He might have contended that judges should not be doing the historical research that originalism requires. That this research should be done by constitutional scholars--inside and outside of the law schools--whose evidence and conclusions can be challenged by other scholars in advance of any litigation. Then judges can select the arguments they find most persuasive, as they do when they evaluate competing expert testimony. Indeed, in Heller both Justices Scalia and Stevens relied on outside scholarship by both historians and legal scholars for the sources they mustered in defense of their conclusions.

Furthermore, discovering and mustering such evidence is well within the competence of those with legal training. Given enough time--which judges largely lack--lawyers are quite capable of identifying the meaning communicated by a text at the time it was enacted. You rarely hear historians claim that only they can discover the original meaning of statutes. One need not be a historian to perform this task, and historians and lawyers rarely reach different conclusions when they are attempting to answer the same question: what meaning was communicated to the public by the words in the text of the Constitution. Where they do disagree, the disagreement is typically about the significance of evidence, and not about the inherent inaccessibility of meaning to anyone but a trained historian. (And if historians think they have discovered some esoteric meaning in accessible to the rest of us, it is incumbent upon them to present their discovery for our evaluation. They are scholars, after all, and not a priesthood.)

Historians are as susceptible to motivated reasoning based on their political priors as legal scholars can be. We have certainly seen this in the debate over the original meaning of the Second Amendment. Which is why the review of peers in advance of a case or controversy is so important to the identification of the original meaning of the Constitution. But the Constitution was written to be understood by the general public. Indeed, the Constitution is the command of the general public to its servants in the government. Judges, who are given power in exchange for their oaths to uphold the Constitution, are obligated to discover--if necessary with the assistance of scholars--the meaning of their instructions from the people and adhere to those instructions in good faith.