Surprise!

Supreme Court says federal law protects LGBTQ workers from discrimination

Happening now.

Gorsuch and Roberts hand the liberals a surprise win on LGBT rights.

Federal civil rights law protects gay, lesbian and transgender workers, the Supreme Court ruled Monday.

The landmark ruling will extend protections to millions of workers nationwide and is a defeat for the Trump administration, which argued that Title VII of the Civil Rights Act that bars discrimination based on sex did not extend to claims of gender identity and sexual orientation.

The 6-3 opinion was written by Justice Neil Gorsuch and joined by Chief Justice John Roberts and the court's four liberal justices.

This outcome is all the more odd as the government's reading of the portion of the law prohibiting discrimination based on sex as prohibiting only discrimination against an employee or job applicant on account of being male or not being male, or on account of being female or not being female - is surely correct as a fair reading of the actual wording of the thing, understood as it normally would have been at the time of adoption, and indeed as it normally would be understood even today.

That fact, generally urged by conservatives, is nevertheless flatly denied by liberals.

(Don't you love it when liberals piously insist everyone is entitled to his own opinions but not his own facts?

Or when they with equal piety - but still falsely - protest that alternative facts are not facts but untruths?)

So Gorsuch and Roberts?

Neil Gorsuch, one of the Trump appointees, wrote the sweeping decision that extended federal employment protections to gay and transgender workers.

He is proving to be more of an ideological wildcard than many on the left expected.

Chief Justice John Roberts, another Republican-appointed justice who has at times defied predictions, joined to give the ruling a comfortable 6-to-3 margin.

Both are sure to face an uproar from conservatives quarters.

It's difficult to overstate the significance of the decision. 

While the court is establishing a long history of decisions expanding gay rights, this is the first time it spoke directly about the legal protections for transgender individuals.

That the ruling comes out just days after the Trump administration announced it was removing transgender health-insurance protections only puts the issue in stark relief.

Transgender rights is becoming a political battlefield, and a majority of the Supreme Court just announced which side it's on.

Update later that same day.

MSNBC reports Gorsuch wrote that though protection of homosexuals and trans people was doubtless not the intention of the congress that passed the Civil Rights Act of 1964 that doesn't matter because according to the meaning of the words discrimination on account of sex covers discrimination on account of sexual orientation or trans status.

CNN

"An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids," Gorsuch wrote.

"There is simply no escaping the role intent plays here: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking," the opinion read.

. . . .

But the ruling was also sharply criticized by the conservative Judicial Crisis Network, whose president issued a blistering statement about Gorsuch, who replaced the late Justice Antonin Scalia.


"Justice Scalia would be disappointed that his successor has bungled textualism so badly today, for the sake of appealing to college campuses and editorial boards," said Carrie Severino, a former clerk of Justice Clarence Thomas. 

"This was not judging, this was legislating -- a brute force attack on our constitutional system."

So Gorsuch simply drank the liberal Kool-Aid on the language of the statute.

Alito and Thomas call bullshit.

Kavanaugh is not impressed, either.

Surely a novelty is the spectacle of a conservative judge so egregiously violating his own alleged principles not in order to reach a result required by conservative ideology - as Scalia himself so often did - but to reach one condemned by it and required instead by liberal ideology.

Reading "We the People"

EC does advert to rulings concerning the 2nd Amendment.

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

EC writes that before Heller no Supreme Court had ever stricken down any law for violating this amendment.

"The Court", he says, "always ruled that the Second Amendment was about a right to have guns for the purpose of militia service" (page 8).

Heller struck down a DC ordinance prohibiting private ownership or possession of handguns, 5 conservatives vs four liberals.

Two years later the same majority held the 2nd protects a fundamental right against state and local governments, too, in McDonald.
.
Scalia went there, to incorporation of the 2nd.

Scalia articulates the position of the court that the part of the text before the comma is merely "prefatory" and only the part after it is "operative".

That part, read fairly, says without qualification that the right of the people to keep and bear arms shall not be infringed.

EC regards the claim that the first part is merely prefatory as arbitrary and in any event cites this case as part of his argument that conservatives only insist upon judicial restraint when it is liberals they want to restrain, and denounce judicial activism when it is liberal judicial activism.

(He says liberals do the opposite).

I mention all this to point out that the conditional view of the text as a legitimate originalist reading seems not to have been considered by anyone, though it fits quite nicely with liberal values as it makes the amendment entirely inoperative.

So to speak.

Reading "We the People"

The Fourteenth Amendment and originalism.

Recall that Scalia frequently insists on the narrowest, text-only version of originalism, but in practise sometimes allows the supposed aims of the framers, authors, ratifiers, or whoever to play a decisive role, and sometimes the expectations of such persons as regards how their work would or would not be read.

No honest originalist reading can depart from or ignore these, nor can any honest decision defy these.

To escape the cage of originalism there is only recourse to Article V.

Recall, too, that he does not accept incorporation as being available to anyone in that cage, though lately some have floated arguments to the contrary concerning the framers aims and expectations regarding the privileges or immunities clause of the 14th Amendment.

Early in his book, EC alludes to a number of issues concerning the equal protection clause of this amendment. 

No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.

These include the questions (1) who is to be protected equally, (2) from what are they to be protected, and (3) with whose protection is theirs is to be compared.

As to (1), leaving aside anything fishy in your 18th Century dictionary of American English and consulting only the meanings of the word, it is as clear as one could wish that the clause protects everybody.

And as to (3), again adverting to the bare text, is appears the protection of each is to be compared to that of everyone and anyone else.

Putting it together in a nutshell, all are to be protected equally. No one may be discriminated against as regards protection from whatever it is that they are to be protected from.

But EC cites a WAPO report of an interview in California Lawyer in which Scalia claims (as EC reports) that the clause does not protect women because the framers of the amendment never meant to protect them.

There is no indication why we should believe that.

Elsewhere EC points out that while it is pretty certain the framers of the clause at least meant to guarantee equal protection to the freedmen, it is abundantly likely they meant also to guarantee their descendants in perpetuity.

As for myself, I think that if those groups were the only ones they meant to guarantee protection they would not have chosen the universal language of the clause.

As to (2), again adverting to the bare text, it appears we may suppose that the clause is to assure equality of protection against anything law protects people from.

And that would include, say, crimes, violations of contracts, and the like.

Crimes such as lynching, raping, arson, robbery, kidnapping, bullwhipping, and torture – pretty much the entire repertoire of the followers and heirs of Nathan Bedford Forest would be covered.

Elsewhere he alludes to the argument that, since the same congress that passed the 14th Amendment also imposed segregation on the DC schools, they clearly did not aim at protecting anyone from that, and would have expected it not to be read as offering such protection.

He point outs that the unanimous court that ruled in Brown against the constitutionality of segregation was perfectly aware this was not an aim of the framers, and contrary to their likely expectations.

I note that Brown appears to prohibit, via the equal protection clause, not merely unequal protection by the law, but more broadly unequal treatment at the hands of state governments.

Recall that Brown held that separate is never in fact equal, and that segregation of the races imposes an indelible and undeniable stigma, a brand of inferiority and unworthiness, on the people of one race.

That is very far from equal treatment at the hands of the state.

In this way the decision goes beyond the original meaning as well as the aims and expectations of the framers.

Since that time various laws and courts have shifted the ground a little more taking the equal protection clause to require or anyway license governments to ensure equality of treatment (or non-discrimination) by employers, service providers, schools, and so on.

It’s become a quite large and complicated part of the law, based on readings of the clause far from and in some ways even contrary to any or all of the text as originally meant, the aims of the framers, and the expectations of the framers.

And all of that in service to the liberal value of equality and defiance of the strictures of originalism.

But EC also cites a case not based on the 14th Amendment as an instance of judges departing that far from anything originalism could countenance, in furtherance of liberal values and direct opposition to the conservative values served expressly by the text and contrary to anything credibly ascribed to the framers as relevant aims and expectations.

In Home Building and Loan v. Blaisdell (1934) the Court upheld a Minnesota law prohibiting foreclosure of farm mortgages, despite Article 1, Section 10 (EC wrongly cites Section 9) of the constitution.

No state shall . . . pass any law . . . impairing the obligation of contracts.

The words, the aims, and the expectations of the framers were that exactly such laws were to be forbidden by this clause.

But the country was in the depth of the Great Depression, and exceptional times call for exceptional measures, the court explained.

EC approves, and so do I.

The usual suspects do not.

BTW.

EC at one point says, judging by the likely aims and/or expectations of the framers, ratifiers, voters, of whoever, and though the use of masculine pronouns, given the grammatical conventions in play, is not decisive, no woman can be president.

I think he is right about those aims and expectations, and right that those aims and expectations commit any honest originalist to insist the constitution does not allow women to hold that office.

Don't like it?

Go get a suitable amendment passed.

It is worth thinking about that understanding the First Amendment to protect forms of expression and media other than audible speech heard in person and live and anything producible by an 18th Century press takes us out of the cage of originalism.

So does taking that amendment to protect freedom of association.

So do the extensions of the right to privacy (or disestablishment, as you will) to insulate much of our sex lives from control by laws imposing traditional Christian sexual morality.

So does regarding a warrant as needed in case the police want access to GPS data tracking someone's movements (that is neither a search nor a seizure of that person or his effects, and whatever corporate entity has such records is not the suspect in such a case).

So do the Air Force and paper currency.

So does a lot of the invisible ink constitution, which, according to EC, is where we have to look for constitutional warrant for Judicial Review of federal laws and executive actions.

A huge body of what can be constitutional only outside the cage of originalism would never be challenged by any sane conservative, not even one claiming to be an originalist.

Again, BTW.

EC refers to an early case of his in which a person was sentenced under California's three time loser law to life with no possibility of parole for 50 years for shoplifting $153 worth of video tapes.

The defendant had no history of violent crime and no one in the history of the US had ever been sentenced to life for shoplifting before.

That sentence was appealed to the Supremes as contrary to the 8th Amendment exclusion of cruel and unusual punishments.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

5-4, conservatives vs. liberals, the court said the sentence was fine.

Since the punishment was egregiously both cruel and unusual and no argument is cited referring to the aims or expectations of the Framers, ratifiers, or whoever, EC opines they just wanted to send a strong law and order, get tough with crime message.

And when you read of this and think of the slap on the wrist that career criminal, Paul Manafort, got for a lifetime of much worse and much more numerous crimes you cannot possibly avoid disgust with the classism rampant in law enforcement from the ground up.

California voters later changed the law to require that the third strike had to be for a serious or violent crime, and the fellow was released.

Reading "We the People"

Picador pb, 2018, by Erwin Chemerinsky.

Fascinating, amusing, information rich, but very poorly edited.

Subtitle: A Progressive Reading of the Constitution for the Twenty-First Century.

I've read to the end of Chapter 2.

Gorsuch's originalism is apparently much like Scalia's.

The book came out late enough for EC to know Chump would name another, but too soon to know it was Kavanaugh.

EC several times defines "originalism", most commonly as insisting a provision of the constitution be read according to the meaning of its words as they would have been understood by an adequately informed reader at the time of adoption.

Departures from such meaning can only be licensed, Scalia insists, by a constitutional amendment.

Scalia in his writings rejected recourse to intentions in the sense of aims or purposes, and expectations as to how provisions would or would not be read or understood, of relevant persons regarding a provision (Framers, authors, ratifiers, voters, or whoever), and heaped contempt upon incorporation.

EC joyfully recounts numerous of his decisions in which he crucially relies on these.

And others in which he flagrantly departs from or flatly contradicts anything remotely like the original meanings of the actual words, sometimes in such cases appealing to aims or expectations as decisive.

And others yet in which he departs conspicuously from all these factors: original meanings, aims, and expectations.

Of course what Scalia never departs from is commitment to reading the text in accordance with conservative ideology in service to conservative values and conservative goals.

EC's point is that originalism is a hoax and a smokescreen, a pretense of objective and value free judging behind which conservatives provide readings and rulings infused with conservative values in service to conservative preferences.

Most of the time what originalism requires we do can't be done, anyway, and mostly when it can it shouldn't.

EC supports a method of interpretation according to which neither the presumed original meanings of the words, nor the aims of relevant persons regarding a provision, nor the expectations as to how it would or would not be read of relevant persons, at the time of adoption, need be controlling.

Any or all may be departed from, and he gives highly persuasive, generally liberal examples, citing cases.

More to come.

Slavery, rights, conservatives, and the constitution

Conservative Supreme Court Lies of the 19th Century—Part 2

Paul Rosenberg at Crooks & Liars has a series of stupid, insolent, and often slanderous comments on the law and conservative judges that nevertheless address interesting topics.

This is one such topic.

It is not absurd for a society committed to the notion of natural rights underlying legal ones to understand slavery as the condition of one who has no rights that the free are bound to respect.

In Seneca we find that ancient Stoics, from whose ideas our notions of natural law and natural rights descend, could justify slavery by arguing that the slave had forfeited his natural rights in some manner, or the slave owner had somehow acquired a property-right in the slave.

But moderns escaped the need to explain how black slaves from Africa had lost or forfeited their natural right to liberty by denying that anyone of their race had any such right, to begin with, that a white man was bound to respect.

Taney’s announcement that this was so in Dred Scott was no more than a statement of a moral premise upon which the enslavement of blacks by whites rested and had rested all along, though it was also a flat repudiation of the liberal universalism of the Declaration of Independence.

The notion that a man is made a slave for his own benefit was of course an egregious lie, even when Aristotle said it.

And it was also an obvious lie - hyperbole, if you will - that this view of blacks was universal or uncontested at any time up to the date of Taney's ruling, or that his ruling in Dred Scott was based fairly and frankly on the constitution, itself.

In the post below Rosenberg goes at Scalia’s originalism like a dog ripping up a newspaper, with equal reliance on truth and argument and to equally enlightening effect.

Scalia's Judicial Scam--Overview

The “simplistic pseudo-principle” Rosenberg denounces is, of course, the idea that judges should base their rulings concerning constitutionality on what the US constitution actually says.

Rehnquist reputedly said somewhere that Brown was wrongly decided, and as I understand it that is a correct conservative view.

I don’t recall whether Scalia has said anything about Brown.

In any case, this is not just one race-baiting liberal lie but several, rolled into a few sentences of pseudo-academic, pseudo-intellectual bullshit.

There can be no doubt that a major impetus for the modern conservative judicial movement is a white supremacist reaction to Brown v. Board of Education.

Rehnquist argued against it—and lied about doing so —and the lines of reaction only multiple [sic] from there on.

 Ideological practices such as “strict construction”, “originalism” and the like can only be understood historically as hegemonic devices intended to promote pseudo-objective foundations for turning back the egalitarian tide that threatens to sweep away white supremacy once and for all.

His approving quote from Lemieux is very interesting.

This is the passage as he quotes it, with my comments interspersed.

Scalia’s claim that originalism can “depoliticize” constitutional discourse is incorrect for three major reasons.

The first is that, as Richard Posner (and countless others) have noted, the choice to use originalism is itself a political choice.

The choice to “use originalism” – that is, to adhere to and enforce the actual law so far as one can – is indeed a political choice, not only when made by a justice on the Supreme Court but when made by any judge, or prosecutor, or policeman, or (come to that) President of the United States.

A surprisingly popular alternative is the choice to lie, sometimes extravagantly and with enormous social and legislative impact, about the constitution to serve one’s own ideological agenda.

Not all political choices are equal, you see.

The text of the Constitution does not require that it be interpreted by the use of any particular method.

Nor, indeed, does a text in chemistry, physics, mathematics, or history.

All the same, originalism is probably wise.

It is not, of course, surprising, that “originalism” is preferred by conservatives, as by definition it will tend to produce more reactionary outcomes over the long run.

More reactionary outcomes than lying to serve a left wing agenda by pretending the Constitution embodies the values of the most extreme variants of 21^st Century liberalism?

No doubt.

But this is not true by definition.

It is only true if departures from honesty about the constitution are generally made by liberal liars rather than others.

This is fine, and it’s perfectly appropriate for conservative presidents to take these consequences into account, but the use of “originalism” is in no way somehow innocent of politics.

Does he mean to suggest it is appropriate for liberal presidents to intentionally appoint liars to the federal bench?

Yes, I think he does.

Rosenberg later quotes Lemieux remarking that originalism does not determine unique outcomes, as of course it does not.

But it effectively rules out the wild flights of fiction one finds crucial to liberal decisions, as both R and L agree.

Indeed, is that not their complaint?

Update.

Just to be clear, I agree Scalia has been less than frank in his work.

In one of his books he firmly adheres to interpretations of "due process" and "equal protection" that make hash out of incorporation, but in Heller and later decisions he accepted incorporation to impose the 2nd Amendment on the states without shifting the burden, as Thomas did, to the privileges or immunities clause of the 14th Amendment.

The Air Force is unconstitutional

The army and navy are each separately authorized in Article I, Section 8.

Nothing there, or anywhere, about an air force.

And what about those state national guards, eh?

The constitution says the states can keep militia.

You think the NGs are a militia?

Pshaw.

The states are denied the power to keep troops or ships of war in time of peace.

You deny the NG's are troops?

But apparently the states can have their own air forces, since any power not denied them or attributed to the general government in the constitution is legitimately theirs.

Oh, all right.

The 10th is not strictly relevant, the power in question not being undividable.

But they can have their own air forces, all the same.

If you're going to be a textualist you have to stick to the text.

Let me know when Scalia demands the US Air Force be disbanded.

Textualism

A Matter of Interpretation: Federal Courts and the Law

Scalia’s basic maxim is reasonable enough: the law is what the text actually says.

But the application to the constitutional law is of course the main point of interest.

And so, roughly, his view is this.

What the constitution forbids is what the text forbids.

What it requires or grants is what the text requires or grants.

Due allowance made for use of technical language or for changes in the meanings of words or expressions with the passage of time, of course.

But on the whole, adherence to the constitution is adherence to the text of a written and duly ratified document, authoritatively enjoined upon us by an authoritative process.

And that, he says, explains what judges are required to do when called upon to decide the constitutionality of a law or other act of government.

They are to strike down what does not comport with the text of the constitution and uphold what does so comport, he says.

And a very reasonable view that would seem to be, for an honest world of honest judges, politicians, and citizens.

But all three of those classes are such inveterate liars, frauds, and mountebanks that no child should be permitted to know anything of politics, law, or history until reaching the age of, say, forty-five.

And perhaps that is still too young.

Anyway, Scalia argues that this is what judges ought to do by appeal to the idea of democratic legitimacy.

Judges who do otherwise than adhere to the text of the law are making law, or anyway flouting it, he says.

And that it is not their proper role in a democracy.

But, unfortunately for his position, he also spends a few lines of this short book quickly demolishing the idea that law in all its detail can ordinarily be thought to express the will even of the legislators who voted for it, or the president who signed rather than vetoed it, or the portion of the public that voted for those particular officials.

And was not the constitution a small but rich package very busily containing detailed and critical individual provisions as presented to those who ratified it?

Were they not forced, as the US president regularly is, each to a simple up or down choice, take it all or leave it all, in every last detail just as it was?

And in the case of all but the most recent amendments to the thing are not the authors and ratifiers of the US constitution in any event all dead?

Meaning that those of us who are alive were not even presented with that choice to take it or leave it?

And is it not true that Article V allows only for piecemeal, minute amendment of the constitution while there is no provision at all for wholesale replacement of it?

And that the specified amendment process is cumbrous, exacting, slow, and remarkably – and intentionally – undemocratic, requiring extensive cooperation of elites across many states and much time?

And is it not also true that, though the men of Philadelphia ignored Article XIII of the then US constitution and illegally invented not only its replacement but also the process by which it would be ratified, we cannot presume Scalia would condone, let alone urge, any such thing today on any excuse whatsoever?

No to mention that such a revolt of the elites is hardly the sort of thing the people could ever be expected to arrange.

How ridiculous, then, is the claim that the text of the constitution as it stands represents the sovereign will of the people!

Everyone not a child knows what poppycock that is, and how utterly out of reach of the people, individually and collectively, is even ordinary law, let alone the constitution.

I am not saying Scalia is wrong to protest when judges and indeed the entire classe politique and even the citizenry as a whole egregiously and with unrelieved hypocrisy refuse both honest, conscientious adherence to the text and the responsibility to change it where it does not express their will.

But they have their reasons.

And loyalty to the text out of loyalty to a democratic legitimacy that it does not possess is just silly.

Besides, should we expect a man to be honest when he has fallen among thieves, murderers, and cutthroats?

Pshaw.

But then, the man himself is a hypocrite.

Scalia’s ruling made a reasonable degree of sense in Heller.

It is at any rate not manifestly silly to think of the DC government as a mere babysitter for congress and to think the congressional power to govern DC (Article I, Section 8 of the US constitution) is subject to the strictures of the Bill of Rights.

District of Columbia v. Heller

But then came the question of incorporation of the 2^nd Amendment.

An interesting take on D.C. v. Heller Incorporation

Tom King wrote in 2009 that some people were hot to incorporate Heller into the privileges or immunities clause of the 14^th Amendment in order to facilitate future imposition of everything in the constitution that could be viewed as granting or defending peoples' rights onto the states.

But the aim is foolish and the means are a lie.

Slaughter-House was right and that is just not what the privileges or immunities clause means.

Section 1 of the 14^th Amendment.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

To get the point, see the privileges and immunities clause of Article IV of the US constitution.

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

And then its ancestor in Article IV of the Articles of Confederation.

The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the united States, or either of them.

The point of the earlier two is to prohibit any state A from denying to citizens of any other state B (or a subset of the “free inhabitants” of B) the privileges and immunities afforded by A to its own citizens (or “free citizens”), whatever exactly they may be.

And the point of the clause of the 14^th Amendment is to prevent any state A denying to any class of citizens of the United States the privileges or immunities of any other citizens of the United States - though what exactly that would come to is even more obscure.

In any event, each clause forbids the states treating certain specified groups of people as second class citizens in some manner or other in comparison to others.

And that is all that these clauses can honestly be claimed to do.

And in particular this clause of the 14^th does not bind the states to observance of any part of the Bill of Rights or of any other restraints imposed by the constitution on the federal government.

It just flat does not say that or anything remotely like that, and I do not believe for a moment it has more than rarely, if ever, been sincerely misunderstood to mean that.

And nothing in American history or our specifically political history justifies the notion that the authors or ratifiers of the 14th intended or accomplished that particular revolution regarding the constitution, the power of the states within their own borders, or the relation between the federal and state governments.

But the Supremes did go on to incorporate the 2^nd Amendment in a followup to Heller, all the same, though only Clarence Thomas bought the privileges and immunities line, supported in an Amicus brief by CATO.

The Second Amendment, Incorporated

Scalia and the others of the majority went for the conventional eyewash about due process, though early in his book he says due process guarantees nothing but that life, liberty, and property shall not be taken otherwise than in accordance with law.

Scalia, who in this book denigrates the very idea of incorporation as balderdash.

McDonald v. Chicago

Scalia, the noble textualist, abandoned principle in service to the conservative, Republican political agenda and to service of its constituency.

Well, what a shock.

Update 04052013 at 0742 hrs EDT.

All right, Scalia's arguments that the details of law do not represent the intention of those who passed it or signed it or whatever do not undermine it's democratic authority.

It is perfectly possible for an authority to command compliance with whatever a given person or a given text commands, though the authority does not know all or even any of what that person or text will or does command.

And in such a case it is the clear intention of the authority that you obey that makes those unknown commands themselves binding.

And though the original authority had no intentions that could throw light on the meaning of the commands of the secondary authority, those of the secondary authority can very well do so.

And so on the authority of the constitution one accepts the authority of the legislature to make law.

And on the authority of the legislature one accepts the authority of . . . .

Ooops.

The constitution has authority to delegate authority to the congress.

But the congress has no authority to delegate its own authority to others.

Is it even constitutional for congress to pass into law whole monstrous volumes the contents of which are wholly, or nearly wholly, unknown to it except in the most general of terms?

Doesn't look it.

Invisible ink embedded in the legislative power?