Balkinization  

Monday, October 14, 2013

The Anti-Partisan Principle

Gerard N. Magliocca

What makes law legitimate under our system?  The standard answer, which I'll call the "Madisonian Formula," is that all three branches must agree.  This is true for most statutes (unless they involve a non-justiciable matter) and for many Supreme Court cases, which will not go anywhere unless they receive at least some support from Congress and from the Executive Branch.

The agreement of all three branches, though, is a necessary and not always a sufficient condition for legitimacy.  For example, any law that touched on slavery required the consent of North and South prior to 1861.  While the Constitution said nothing about this, our institutions adapted to express this understanding.  There was a longstanding custom that there be an equal number of free and slave states so that the Senate would be equally balanced.  The slavery compromises in 1820 and 1850 required long and complex sectional negotiations.  When a Northern party won the White House in 1860, the South considered that cause for secession.  Indeed, one could say that Reconstruction's violation of the anti-sectional rule explains the failure of the Fourteenth and Fifteenth Amendments to transform race relations in the South.

A distinctive feature of the Obama Administration is that there seems to be an extra-constitutional principle developing that says the consent of both parties is required for legitimacy.  (There are some precedents for this, but let's leave that for another post).  The lack of bipartisanship is a crucial part of the criticism of the Affordable Care Act ("It was passed only with Democratic votes.")  An anti-partisan norm also explains why Chief Justice Roberts may have felt pressured to vote how he did in Sebelius (in other words, striking down such a law only with GOP votes would have been illegitimate.)  Indeed, when I talk to non-lawyers, I'm struck at how important they think bipartisan agreement is as compared to how unimportant it is for lawyers.  Hence my attempt in the Washington Post op-ed to translate that into a notion of "settled" law.

One final thought is that the idea of bipartisanship as essential explains the changes to the Senate filibuster.  I've railed against this and so have many others.  So why do so many people disagree?  When I ask non-lawyers, they say that they like a sixty-vote rule in the Senate because it forces the majority party to get some votes from the other party.  This is not part of "How a Bill Becomes a Law."  But it is a part of the living Constitution.  




 


Comments:

Perhaps Gerard should broaden the "non-lawyers" he talks to before he gets too settled. Gerard's:

" But it is a part of the living Constitution."

may compete with Sandy's recent posts and his apparent concerns with a "dying Constitution."

Now let's hear from Originalists (of all stripes) on the sixty-vote rule.

 

I bet a lot of "non-lawyers" aren't even aware of the filibuster.

As to bipartisanship, there was at various times a sort of consensus there or at least some overlap with some significant presence in both parties to agree. Thus, we had something know as a New England Republican on social issues. Remember them? They now are meeting at public pay phones and using land lines.

ACA is a case where some phoniness is going on where form is harped over actuality. ACA not too long ago would have been bipartisan. The content is bipartisan -- it is a compromise that some on the left don't like since they deem it too conservative. It uses a basic conservative idea, including the private insurance. A strong attempt was made to have the Rs get involved and they even did on amendments.

If it is 'illegitimate' for not being 'bipartisan,' the rule has jumped the shark. The rule requires a bit of honesty and good faith not shown by one side today. So, e.g., we have someone around here claiming the Dems want get everything they want before signing off on budget/debt matters ... as if.

BTW, reading "The Loyalty of Free Men" by Alan Barth (1951), it seemed a bit topical. That Ted Cruz-like guy they had then sounds bad.




 

As to the Living Constitution, Zechariah Chafee, had a few good lines -- "History should be a jailer to enlighten us, not a jailer to shut us up." and "All of the Constitution grows while the life of a great community changes." The Constitution "is the skeleton of a living nation," the words "for meeting the needs of our time," even if the history (as his account shows) is useful to know and understand.

There is also that old chestnut about drunks and lampposts.
 

The parties only cite to bipartisan majorities when they have one and want to further legitimize a law or when they are on the losing side of a party-line vote and are seeking to delegitimize a law. Otherwise, they could care less.

What makes a law legitimate in a democratic republic is whether the people support or oppose it.

I see no evidence that a a bipartisan majority makes an unpopular law any less unpopular. See TARP.
 

Bart, isn't what makes a law legitimate, in the first instance, whether it is lawfully enacted?

I can see, on the margins, a law being so unpopular that it is widely disobeyed. You can argue that marijuana prohibition in California is illegitimate in that way. But if the sovereign can enforce the law and punish you for violating it, that's a legitimate law, isn't it? It doesn't matter how it polls.
 

"A distinctive feature of the Obama Administration is that there seems to be an extra-constitutional principle developing that says the consent of both parties is required for legitimacy."

I suppose Mr. Magliocca means " a distinctive feature of the Obama era." Certainly the Obama administration is not embracing this extra-constitutional principle. Mr. Magliocca provides a rather convoluted interpretation of the impasse over the Affordable Care Act which normalizes the extreme behavior of the Republicans. Or rather, he concedes the precedent-shattering dimensions of the situation but obscures the role of the responsible party.

 

Dilan:

"But if the sovereign can enforce the law and punish you for violating it, that's a legitimate law, isn't it?"

Only in the most narrow legalist sense. Even the most tyrannical government can meet this low threshold.

I would argue that the only legitimate laws are those which achieve the proper purposes of government.

I subscribe to the position put forth in the Declaration of Independence - the first purpose of government is to protect our individual liberty and the government must exercise its powers with the consent of the people.

In a democratic republic, the government is supposed to enact (or at least not oppose) the will of the people. A law which does otherwise is not democratically legitimate.

Furthermore, even democratic laws can be illegitimate if they infringe upon our individual liberties.
 

Our SALADISTA's virtuous:

" ... the government must exercise its powers with the consent of the people."

and

"In a democratic republic, the government is supposed to enact (or at least not oppose) the will of the people."

does not mention whether such must be unanimous, a majority, or some other standard as to what constitutes the "consent" and the "will" of "the people" and who make up such people. Perhaps our SALADISTA may factor in justice and fairness, morality, empathy. Alas, out SALADISTA blabbers on with inanity.





 

Bart:

The problem is, all that rhetoric is fine and good, but at the end of the day, if the sovereign can still enforce it, it's legitimate.

I think you are confusing RHETORICAL legitimacy (i.e., whether someone who doesn't like a law wants to brand it as "illegitimate") and FUNCTIONAL legitimacy (whether a law can actually constrain behavior).

And the problem is, the debates we have been having have been about functional legitimacy. Obamacare may be wrong (quite possibly) and it may be a violation of constitutional principles (doubtful), but it is enforceable. Which means that people have an obligation to obey it until it gets repealed.

Put another way, in a democracy, a lot of the laws you believe to be illegitimate can be repealed through democratic processes. It's only in a Jim Crow situation where they really can't that you get to issues such as civil disobedience.

But Obamacare? All Republicans have to do is convince enough Americans about it and win the next Presidential election and majorities in Congress and it's gone. If they can't do that, the law seems to me to be legitimate, because you don't get to use anti-democratic methods to repeal laws just because you can't get enough votes to repeal them through the ballot box.
 

"But Obamacare? All Republicans have to do is convince enough Americans about it and win the next Presidential election and majorities in Congress and it's gone. If they can't do that, the law seems to me to be legitimate, because you don't get to use anti-democratic methods to repeal laws just because you can't get enough votes to repeal them through the ballot box."

What he said. Representative democracy is a pretty simple concept. Get enough votes and enact the laws you have been elected to enact.

Dancing around on the head of a pin to deny this basic premise just points out the weakness of your argument.
 

An election is only legitimate for Blankshot when his side wins.
 

"The problem is, all that rhetoric is fine and good, but at the end of the day, if the sovereign can still enforce it, it's legitimate."

Wow. I've never seen somebody more clearly say, "Might makes right".
 

Take a peek at historian Joseph J. Ellis' LATimes Op-Ed "Tea party want to take America back - to the 18th Century" for a little history.

Brett's "might makes right" better fits the northern Michigan militias that he has yet to wean from.
 

Dilan said...

The problem is, all that rhetoric is fine and good, but at the end of the day, if the sovereign can still enforce it, it's legitimate.

So if a GOP congress and a GOP president properly enact a law outlawing the Democratic Party as a criminal conspiracy and making membership in that party a felony crime punishable by imprisonment, then a Supreme Court deferring to the elected branches finds this law constitutional, you would view such a law as legitimate?

Which means that people have an obligation to obey it until it gets repealed.

Thus, the American Revolution, the Underground Railroad and the modern civil rights movement were all illegitimate and indeed criminal enterprises because they refused to follow properly enacted laws?

But Obamacare? All Republicans have to do is convince enough Americans about it and win the next Presidential election and majorities in Congress and it's gone. If they can't do that, the law seems to me to be legitimate, because you don't get to use anti-democratic methods to repeal laws just because you can't get enough votes to repeal them through the ballot box.

Funny, I thought this was an appropriations and debt battle between the elected branches of government.

I am not seeing any civil disobedience attempting to stop the execution of Obamacare. Of course, the Obamacare bureaucracy is pretty much self destructing all on its own like most socialist misadventures.
 

"The problem is, all that rhetoric is fine and good, but at the end of the day, if the sovereign can still enforce it, it's legitimate."

I take if a court strikes a law down, e.g., it would not be properly enforced, it "could not" under the rules be enforced. If it was, it would not be illegitimate.

That's the rules in our system. Anyway, just to remember, some king isn't the "sovereign" here. It's a republican system of government made up of representatives the people elected in some fashion.
 

"I've never seen somebody more clearly say, "Might makes right"."

Except that he didn't say that at all. A law can be legitimate -- that is, passed properly and supported by the populace -- without being "right" at all.

The whole point of a democratic system is that when a law is "legitimate", then the response is to convince others that it's not "right" and should be repealed. As Dilan did, I also except situations such as Jim Crow, where the democratic process is itself corrupt.
 

Our SALADISTA closes with:

"Of course, the Obamacare bureaucracy is pretty much self destructing all on its own like most socialist misadventures."

Like Social Security? Like Medicare? Like Prescription Drugs? Our SALADISTA as a founder of the Tea Party seems to have forgotten Tea Paritiers' chants during the 2012 presidential campaign about the government keeping its hands off their Medicare - and by inference their Social Security. Perhaps our SALADISTA could identify the socialist misadventures that have self-destructed.
 

BD: "Of course, the Obamacare bureaucracy is pretty much self destructing all on its own like most socialist misadventures."

Shag; Like Social Security? Like Medicare? Like Prescription Drugs?


Socialism is the government directing the economy to redistribute wealth. Obamacare is German Zwangswirtschaft socialism where the the government declines to nationalize an industry, but rather abuses its police, taxing and spending powers to direct the industry as if it were the de jure owner.

Social insurance where everyone contributes and everyone draws benefits is a progressive concept, not socialism.

I break it all down in my book Never Allow A Crisis To Go To Waste for those like you who are ignorant concerning what constitutes socialism and progressivism.
 

Hi! Hope you don’t mind me dropping a link to my Lawyer resources site, thought it related to your work here. Great posts!
 

Our SALADISTA responds by promoting his work of Friction but fails specifically to respond to this:

"Perhaps our SALADISTA could identify the socialist misadventures that have self-destructed."

He seems to duck and weave (BUI*?) on Social Security and doesn't specify Medicare. In the past - pre-Tea Party - he has derogated the New Deal, including Social Security, and LBJ's Medicare. Our SALADISTA may be walking a tight rope with Tea Party pressure a la John Bo[eh]ner. I'm not interested in reading his work of Friction, even if given free. Surely our SALADISTA can identify the socialist misadventures that have self-destructed, unless he can't, which would not be a first at this Blog for him.

*Blogging under the influence.
 

He's probably referring to that socialist organization known as the Pentagon.
 

Is there anything...I mean anything, worse than a moron acting like they are the smartest person in the room? Such pseudo-intellectual twaddle. And then pimping a book on top of it? The ego is sickening.

Words have meaning, and the idea that the ACA is in any way socialism is laughable on its face.
 

Thus, the American Revolution, the Underground Railroad and the modern civil rights movement were all illegitimate and indeed criminal enterprises because they refused to follow properly enacted laws?

Bart:

Other people in this thread have made most of the responses I want to make on the substance of what you are saying. But I wanted to address the passage I quoted above. Because I think Josh Marshall gets to this in this post:

http://talkingpointsmemo.com/edblog/heroic-times

And it gets at why we are having the problems we are having in our political system.

Simply put, the Tea Party is NOT the American Revolution. It isn't the civil rights movement. There certainly are situations where desperate times call for desperate measures. And there are certainly situations where, even if illegal, revolutionary activity or massive resistance is entirely appropriate.

But it isn't an appropriate response to 99.9 percent of the political disputes where one side loses. Rather, you regroup, try to win the next election, and advance your policy goals.

I didn't like the Bush tax cuts, but I wouldn't endorse the Democrats in Congress refusing to fund the government or allow the debt ceiling to be raised until they were repealed.

The problem with the Tea Party, fundamentally, is that you guys really do think you are the equivalent of the Boston Tea Party. And you are not. There's no King George here. There's no taxation without representation. All there is is a government you didn't vote for enacting policies you don't like. You guys have all the levers in the democratic process available to you to convince the public that these laws are bad, win the next Presidential election, and repeal them.

It's fun to be a revolutionary. Heck, the left knows that better than anyone! Anyone who has seen an Occupy protest, or the Vietnam War protests back in the day, knows this. But it's the very rare cause that really calls for a revolution, and certainly nothing about a Democratic president passing relatively milquetoast liberal legislation qualifies for that. (And it is milquetoast-- is Obamacare really farther left than the Bush Medicare prescription drug bill or No Child Left Behind?)

You guys are too full of yourselves. You guys, to reverse Justice Scalia's formulation, think you are in a kulturkampf when it's really just a fit of spite.

There's no revolution here. There's just a bunch of petulant conservatives who are threatening to turn over the sandbox if they don't get their way. Back down, regroup, and persuade the American people of the rightness of your cause. It isn't as though the implementation of Obamacare hasn't given you some ammunition to do so.
 

Shag:

Up until the the Obama administration, the federal government has not engaged in any socialist misadventures. This regimes misadventures includes the nationalization of GM and Chrysler, the effective nationalization of Fannie and Freddie and the Zwangswirtschaft socialism of Obamacare and Obama's "clean energy economy" programs.

The auto maker nationalization alone lost $14 billion minimum not counting upwards of $20 billion in wasted subsidies.

Fannie and Freddie remain wards of the state.

The over $100 billion wasted on the government directed "clean energy economy" is all gone and the result has been higher energy costs and a series of bankrupt solar and wind firms.

However, the prize for the worst socialized health insurance system in the world belongs undeniably to Obamacare. I spent three chapters in my book listing the then current or imminent train wrecks in that program. The bureaucracy did not disappoint. The apparent train wrecks all occurred, but I do not think that any of us predicted the complete crash and burn of the Obamacare exchanges.

So precisely why should the self identified conservative American political party not do everything within its power to reverse these misadventures?
 

The idea that economic terrorists like you have any concern for anyone is hilarious. You and your ilk are nihilists. You have no core beliefs of any kind. Just the desire to obtain power/wealth and propagate the "F--k you, I've got mine" world view.

Their only concern is that in reforming healthcare and allowing everyone to obtain affordable coverage (the horror!), that the GOP will be relegated to the wilderness.
 

I'll keep this opening by our SALADISTA:

"Up until the the Obama administration, the federal government has not engaged in any socialist misadventures."

to refer to when our SALADISTA attacks the New Deal or LBJ's Administration or Bill Clinton's Administration as he has in the past.

Note our SALADISTA ignores the misadventures of Bush/Cheney over their eight (8) years that ended with the 2007/8 Great Recession and a deep hole that Pres. Obama had to address with the economy.

So Obama is the socialist - and sometimes a Caesarist. No, what our SALADISTA is attempting is to blame Obama for the ills that were dumped on him by Bush/Cheney, including two (2) wars. No longer is our SALADISTA in adulation of Bush/Cheney, even dropping Richard Nixon as his once conservative favorite, relying now on Saint Reagan with his foreign policy misadventures.

No, our SALADISTA is walking the Tea Party line, a reborn conservative/libertarian who wrote a book of Friction that he started the day Obama, the first African American President, was inaugurated. Just go back in the Archives of this block to see the evidence. Remember, much of what is being said of Obamacare was said of Social Security and Medicare. The fear of the Tea Party and many conservatives and libertarians is that Obamacare will be a success and Obama will get the credit for the prelude to single payer down the road. And what really, really sticks in the craw of our SALADISTA, the Tea Party, conservatives and libertarians is that it was originally a conservative Republican idea that Mitt Romney as Governor of MA got through its legislature. Of course, Mitt Romney as the 2012 GOP candidate had to attack Obamacare despite its similarity to Romneycare in MA because of the Tea Party and other conservatives and libertarians. And we know how the voters reacted in 2012.

So our SANDANISTA can put his work of Friction in the form of a roll to put it to real use with a successful flush.

And if our SALADISTA is interested in train wrecks, all he has to do is look back at the Bush/Cheney eight (8) years when our SALADISTA was an ardent supporter. Must be something in the tra our SALADISTA has been drinking.
 

"Obamacare is German Zwangswirtschaft socialism where the the government declines to nationalize an industry, but rather abuses its police, taxing and spending powers to direct the industry as if it were the de jure owner."

It seems to me that the line you casually cross there (nationalization), is for most people the critical one in defining socialism as apart from some other governing system or philosophy. All government regulations, to the extent they command the owner to do something they would otherwise be free not to, could be said to be one that 'directs the industry as if it were the de jure owner.' It then becomes a matter of degree more than kind.
 

BD: "Obamacare is German Zwangswirtschaft socialism where the the government declines to nationalize an industry, but rather abuses its police, taxing and spending powers to direct the industry as if it were the de jure owner."

Mr. W: It seems to me that the line you casually cross there (nationalization), is for most people the critical one in defining socialism as apart from some other governing system or philosophy.


That is classical socialism. Early socialists raised in societies with property rights simply assumed that the most straight forward way of assuming the power to direct a business was to take ownership. However, other socialist regimes allowed private citizens to retain nominal ownership of the business (Zwangswirtschaft) or transferred ownership to some degree to the workers (Tito's Yugoslavia or American economic democracy). Ownership of the means of production was simply a means, but not the only means, to the ends of directing the economy to redistribute wealth.

Progressivism is a departure from socialism. Early American progressives shared socialism's critiques of a free economy and argued that socialism (government representation of the collective) was a higher form of democracy than our Republic where citizens chose representatives to implement their will. However, these progressives were almost all upper middle class with property and they did not fancy giving up their property or lowering their income in favor of a classless, government owned state.

Progressivism took a different path. Where socialists affirmatively directed the economy to redistribute wealth, progressives imposed negative regulations telling business what it could not do and redistributed wealth through progressive taxation, a welfare state and unions.
 

Up until the the Obama administration, the federal government has not engaged in any socialist misadventures.

Hmm. I seem to remember a certain LP record on which a beloved actor and GE spokesman laid out in no uncertain terms that Medicare was certainly "socialized medicine", and a major step toward the degraded depths of Godless Communism. Was Reagan talking through his hat?

A few years later, President Nixon imposed direct wage and price controls, something not attempted since WWII by any other President. Businessmen lost, for a time, the freedom to determine prices and wages. Why was that not socialism?
 

BD: Up until the the Obama administration, the federal government has not engaged in any socialist misadventures.

JH: Hmm. I seem to remember a certain LP record on which a beloved actor and GE spokesman laid out in no uncertain terms that Medicare was certainly "socialized medicine", and a major step toward the degraded depths of Godless Communism. Was Reagan talking through his hat?


Reagan never said that at all. Reagan argued that Medicare would be a stepping stone to socialized medicine.

http://en.wikipedia.org/wiki/Ronald_Reagan_Speaks_Out_Against_Socialized_Medicine

It appears he was right.

A few years later, President Nixon imposed direct wage and price controls, something not attempted since WWII by any other President.

Nixon was one of the most leftist presidents of the century. He completed and dramatically expanded LBJ's Great Society welfare state, printed mass amounts of monopoly money, and played with wage and price controls. However, none of this was socialism, which is affirmatively directing the economy to redistribute wealth. It is progressivism on steroids.
 

Here is Bart's socialism--$7 Billion in taxpayer's money to subsidize fast food company's profits.

http://gawker.com/study-low-fast-food-wages-cost-taxpayers-7-billion-pe-1445671762

I eagerly await an addendum to his book.
 

"progressives imposed negative regulations telling business what it could not do"

I do not see this as supportable. First, I do not see much difference, in terms of 'directing a business', between prescriptions and prohibitions. Secondly, even the most basic regulations includee 'though shalts' as well as 'though shalt nots.' Think of building safety codes: they have plenty of both (to pass, building must have certain features and must not have others), or minimum hour and wage laws (are they prohibiting employee-employer relationships below the wage or prescribing the minimum wage).
 

Here's a link:

http://www.truth-out.org/archive/item/83147:reagan-the-great-american-socialist

to Ravi Batra's 3/20/09 "Reagan: The Great American Socialist" that our SALADISTA may read with both eyes shut. Keep in mind that starting with Reagan the inequality gap started its soar to the present. Alas, the Tea Partiers, including our small town DUI attorney, are on the short side of that gap but do the work for the 0.1% lemming-like.
 

BD: Socialism is the government directing the economy to redistribute wealth...Progressivism took a different path. Where socialists affirmatively directed the economy to redistribute wealth, progressives imposed negative regulations telling business what it could not do

Mr. W: I do not see this as supportable. First, I do not see much difference, in terms of 'directing a business', between prescriptions and prohibitions.


Allow me to provide three examples:

In the auto industry, progressivism is a regulation prohibiting a windshield that shatters into dangerous shards. Classical socialism is nationalizing GM and Chrysler and directing them to build unprofitable battery cars.

In the energy industry, progressivism is a regulation proscribing emissions which cause acid rain. Zwangswirtschaft socialism is a cap and tax regime compelling the industry to shift from fossil fuel production to solar and wind production.

In the health insurance industry, progressivism is regulations barring insurer fraud and requiring they keep the money they promised on hand. Zwangswirtschaft socialism is Obamacare telling insurers what policies to sell, where to sell them, how to market them and how much they can spend doing so.

Now, progressivism is a departure from socialism which takes a parallel path seeking to remedy the same problems, not a 180 degree, diametrically opposed system like free markets. Intersections between the two ideologies definitely occur.

For example, progressive regulations are becoming more frequently prescriptive (i.e. thou shalt install air bags) without crossing over entirely into socialism because the prescriptions do not redistribute wealth.

Similarly, you can have prescriptive laws like that which mandate a minimum wage in order to redistribute wealth, but are not socialism because they do not direct what businesses produce.

Finally, proscriptive regulations can be used for prescriptive effect to advance a socialist program. For example, part of Obama "clean energy economy" program is to enact proscriptive regulations so onerous that they drive the coal industry out of business to be replaced by government directed and subsidized solar and wind power.

Nothing designed by man is neat and completely without exceptions, but there are fundamental and identifiable differences between socialism and progressivism.
 

Shag:

Ravi Batra's 3/20/09 "Reagan: The Great American Socialist"

I was rather impressed that Batra identified (if over broadly) the two elements of socialism - government direction of the economy to redistribute wealth - but mistakenly claims that the implementation of either element is socialism:

""Socialism" is a pejorative term in American politics and needs to be carefully examined. It usually refers to increased government control over the economy, or policies that promote the redistribution of wealth."

The rest of the article is the typical collection of distortions and logical fallacies you would expect from a progressive/socialist blog.

I find it fascinating that today's left has taken to frequently using Reagan (an object of fear and loathing by your generation, Shag) to cover for Obama's unpopular policies. First, there was Reagan the great progressive tax raiser and now apparently the great man is also a socialist.

I wrote my book specifically to dispel this type of ignorance and misrepresentation from both the left and the right.
 

Our SALADISTA's revisionism and reinvention should be taken with a grain of salt (or a dry martini), as our SALADISTA has proclaimed on so many occasions that the good old days of America were the "Gilded Age" of the late 19th century, which of course he could not directly enjoy. Perhaps he seeks a "Second Gilded Age" even though he would continue on the short end of a further increasing inequality that was jump-started by Reagan. I can't speak for my generation, but for myself, I did not, do not, fear and loath Reagan, despite his false foreign policies that required Presidential pardons.

Note that our SALADISTA fails to challenge the factual aspects of Bafra's article. Keep in mind that the article was written about two months after Pres. Obama's inauguration. There was already a move on by the ilk of our SALADISTA to paint Obama as a Socialist - intending it as a pejorative - even before he got a chance to climb out of the deep hole that our SALADISTA's then favorite Bush/Cheney Administration had left with their eight (8) years of misadventures ending with their 2007-8 Great Recession.

And notice how our SALADISTA attempts to disguise himself as an objective scholar with this:

"I wrote my book specifically to dispel this type of ignorance and misrepresentation from both the left and the right."

How noble of our SALADISTA. But one only has to check the Archives of this Blog going back to Bush/Cheney forward to avoid stepping on his HOOPAH! [This latter term is from a joke about Truman campaigning on an Indian Reservation with what Truman thought were cheers of approval of his speech, following which a Reservation official walking with Truman told him to watch out for the HOOPAH.]


 

Gerard: " Indeed, when I talk to non-lawyers, I'm struck at how important they think bipartisan agreement is as compared to how unimportant it is for lawyers. Hence my attempt in the Washington Post op-ed to translate that into a notion of "settled" law."

Nope. I'll flat-out guarantee you that none of those Republican non-lawyers were thinking that during the Bush administration. They might have *wanted* some 'bipartisanship' (i.e., all Republicans + Lieberman), but they would all have been OK with anything passed with only Republican votes.
 

Are we talking bipartisan bipartisanship, or one or two Republicans vote with the Democrats bipartisanship? Because when you hear talk of "bipartisan", it's usually the latter sort: A Democratic law, with one or two Republicans throwing in their votes just so that it's not a party line vote.

Never seems to get called "bipartisan" when it goes the other way.
 

Brett, what difference does it make, especially to you, since we'll all eventually die?
 

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