hello click the swamp attack hack
 

Really, really desperate for nobody anywhere to have standing to challenge any part of Obamacare, aren't you? That doesn't show confidence about being right on the merits.
 

Brett,

Last time I checked, the actual plaintiffs in a case need standing. Does your Constitution say something different?
 

Brett might check out this link:

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/caseorcontroversy.htm

on "Constitutional Limitations on the Judicial Power: Standing, Advisory Opinions, Mootness, and Ripeness."

Perhaps Brett, an engineer (and a self-proclaimed anarcho-libertarian), believes that Article III is a constitutional bridge to nowhere, except for where he wants to get to.

Specifically as to standing, it seems from recent commentary that standing is an issue throughout the appeal process, i.e., standing when first appealed may be lost during the course of the appeal.
 

I only read one of the stories, but the one I read suggested to me at least one of them did. If the stories as a whole (and this does show that at least outside of its editorial pages, WSJ can provide balanced news) do suggest all of them are, yes.

But, standing is one of those things justices have been a bit flexible about. In some cases, it is done more strictly than others. If they want to decide something, justices often (to be fair, not always) find a way.
 

Is there a reason why the spam was left in? Is GM spam friendly? Is it an experiment? I see some spam entering into his Concurring Opinions posts too.
 

Brett, your complaint about standing is pretty odd considering that it's the conservative justices who are most insistent on standing. And the reason they are is that they claim that it's a Constitutional requirement. You know, the Constitution you are always saying that liberals don't follow.
 

Last i checked, standing iwas still jurisdictional. It is hornbook law that the absence of subject-matter jurisdiction can be raised at any time, by any party, or by the court sua sponte .

If the WSJ reporting is accurate, three of the four plaintiffs lack standing right now, and the fourth will lose it on her 65th birthday in June.

Que lastima, Brett.
 

Gerard:

It would be highly improper (and embarrassing) for the Court to decide the merits of such an important case when there are doubts about whether this is actually a "case or controversy" under Article III.

The problem with judicial review of the various bureaucratic decrees extending benefits or waiving mandates/penalties in violation of the Constitution's Take Care Clause and the Obamacare statute is that the real injury is inflicted indirectly on the taxpayers and the Congress.

If the Supreme Court is going to review any of this lawlessness, they are going to have to accept some pretty creative standing arguments like they did in past civil rights cases.

If the Supreme Court refuses to review these cases based on standing, then the only remaining remedies are impeachment or revolution. I prefer the option where the Supreme Court liberally construes their standing doctrine.
 

Plenty of plaintiffs would have standing. Just maybe not these plaintiffs.
 

I don't always have time to delete the spam, unfortunately.
 

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Gerard:

Plenty of plaintiffs would have standing. Just maybe not these plaintiffs.

Plenty?

The issue here is whether the IRS had the authority to extend taxpayer subsidies to those who obtained health insurance on the Obamacare federal exchange in direct violation of the statute restricting subsidies to exchanges established by the states.

Who is really injured apart from the Congress who wrote the statute and the taxpayers who are going to foot the bill?
 

Our own Mr. Myth comes up with:

"If the Supreme Court refuses to review these cases based on standing, then the only remaining remedies are impeachment or revolution."

Impeachment of whom? Revolution by whom? Our own Mr. Myth can be revolting at times but should keep in mind the oath he took regarding our Constitution. While impeachment is provided for expressly in the Constitution, revolution is not. And our own Mr. Myth must be aware that impeachment would only add to the current political dysfunction.

By the Bybee [expletives deleted], neither Article III nor any other provision of the Constitution makes specific reference to "judicial review," or to judicial supremacy of the Court over the federal Executive and Congress.

And our own Mr. Myth's:

"I prefer the option where the Supreme Court liberally construes their standing doctrine."

may be the only thing he is liberal about, but only because it serves his purpose.
 

Gerard:

Upon further contemplation, impeachment is really not an effective remedy.

The illegal bureaucratic decree would remain even if the President who ordered it was removed.

Thus, the remedies are down to judicial review or revolution.
 

Plenty of plaintiffs would have standing. Just maybe not these plaintiffs.

Agreed. In fact, if it were up to me I'd say the Court could go ahead and hear the case even if all 4 lacked standing, for precisely that reason. But I favor pretty relaxed standing requirements.
 

It seems that our own Mr. Myth has contemplated his navel in taking impeachment off the table, now focusing on: " ... the remedies are down to judicial review or revolution." But he fails to tell us "Revolution by whom?" Will he be in the front lines of such a revolution? While an argument can be made that "judicial review" is implicit under the Constitution, revolution is not. Keep in mind how at the Constitutional Convention Shay's Rebellion was handled by the Framers. And I once again remind our own Mr. Myth of the oath he took regarding the Constitution. Or is just our own Mr. Myth's customary hyperbole?

By the Bybee [expletives deleted], our own Mr. Myth does not inform as to why he has taken impeachment off the table. I earlier questioned who would be impeached but he consulted only his navel. Perhaps he realized that the impeachment targets might be the Justices, or some of them.

But back to the revolution alternative, our own Mr. Myth might check out the lyrics to The Beatles' "Revolution."

 

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Shag:

Our nation was established on the proposition that the people have the right to abolish a government which does not derive its powers from the consent of the governed:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Progressives originally pitched the regulatory bureaucracy as simply filling in the details of a general mandate by our elected Congress. However, we have now crossed the Rubicon into dictatorship where the president is directing the unelected bureaucracy to waive the express laws of Congress and substitute its own by decree. Thus, the constitutional crisis created by the establishment of the regulatory bureaucracy has now reached its logical and inevitable climax.

An unelected bureaucracy established in direct violation of Articles I and III of the Constitution which waives the express laws of Congress and substitutes their own by decree is by definition a government which does not derive its powers from the consent of the governed.

Because the president and bureaucracy are already disregarding the laws of Congress, there is no congressional legislative remedy.

That leaves the judiciary or the people.

For you progressives who do not give a damn about the constitutional separation of powers so long as progressive policy is imposed by hook or by crook, what if our emerging bureaucratic dictatorship instead works to reverse progressive policy?

What if the Social Security bureaucracy gets tired of waiting for Congress to make the program solvent and simply decrees a reduction in benefits for you Shag?

What if the IRS bureaucracy believes that having the highest combination of corporate income tax rate and capital gains tax rate is bad policy and simply decrees that it is adopting the less onerous German tax code and will not prosecute anyone who fails to pay the statutory rates?

Can't you see where this lawlessness is leading?

Dictatorship is only fun and games when the dictator is imposing your preferred policy.
 

As to Shag's song suggestion, given Citizens United, is this out of date?

"But if you want money for people with minds that hate All I can tell you is brother you have to wait"

Mark Field seems on the money. Not sure his position on trees.

 

Our own Mr. Myth must lose a lot of sleep fearing what's under his bed and that the sky may be falling. Did he display this paranoia during the Bush/Cheney 8 years of yada, yada, ending with their 2007-8 Great recession? No, it's all Obama's fault. Apparently our own Mr. Myth's view is that hatred of Obama is sufficient for standing. [Aside to Joe, who picked apropos lines from The Beatles' Revolution that befit our own Mr. Myth.]

Our own Mr. Myth has declined in the past to 'fess up to being a fellow anarcho-libertarian of Brett. Maybe he's getting there. It's clear that he doesn't trust elected officials with his latest screed, but trusts only the courts whose members are unelected (but appointed via elected officials) and serve for life, and thus unaccountable.

I trust our Mr. Myth's neighbors will notify the local authorities of his "the courts or revolution" paranoia if they are concerned.
 

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Henry's:

"I am merely noting that standing is purely a judicial invention."

suggests a look at "judicial review" as perhaps "purely a judicial invention" as neither Article III nor the rest of the Constitution make references to "judicial review." Also, perhaps the position of the Court on being the final arbiter on interpretation/construction of what the Constitution means may also be "a purely judicial invention," as neither Article III nor the rest of the Constitution specifically provide therefor. Now Henry might point to the Supremacy Clause, but a careful read of that clause does not set forth any basis for supremacy of the Court over the Federal Executive and Legislative branches.

Henry inspires a contest to identify other purely judicial inventions. Let's hear from readers on these "Mothers of Judicial Invention" (in contrast to the "Founding Fathers"). Then we can consider how to correct these inventions.

I'm sure Henry realizes this particular invention on standing did not emerge during Obama's reign as President and that it was "invented" many years ago. Now all of a sudden standing's judicial history is being challenged? Can we expect originalists of whatever version to demonstrate that Henry is correct?

But Henry as a layman makes the point that determining what the Constitution means is not as simple as some make it to be. And the Court may not always be correct in interpreting/construing the Constitution.

Query: Was CJ Marshall the "Mother of Judicial Invention"?
 

Mr. DePalma writes: Our nation was established on the proposition that the people have the right to abolish a government which does not derive its powers from the consent of the governed

However the D of I has no effect on Con Law, which includes no such right. The Civil War (1861-1865) certainly settled that. The D of I is like the decision of the five ruling Justices in Bush v. Gore, as they themselves described it: a one-shot, an ad hoc to get something done.

I just wish that conservatives were up in arms over 4th & 8th Amendment violations. Where was the talk of revolution when the courts allowed warrantless wiretapping, or execution by mystery substance injection torture?
 

A party without standing sues over a controversy.

Query if the need for a "controversy" to sue would still provide some "standing" requirement. Mark Field references there being lots of possible people with standing. What if that wasn't true. Take mootness -- if a controversy is moot, there might not be either a case or a controversy. Anyway, yes, formulating these rules -- which took place over time -- is a matter of legal creation from bare words.


the D of I has no effect on Con Law

I disagree. It provides certain basic principles that helps to give meaning to various constitutional terms and principles. For instance, the 9A can be affected by the presence of natural rights not arising merely from government.

I had thought it self-evident that all men were endowed by their Creator with liberty as one of the cardinal unalienable rights. It is that basic freedom which the Due Process Clause protects, rather than the particular rights or privileges conferred by specific laws or regulations.

Justice Stevens (a remark joined over the years by at least three justices, including RBG). Moving past that, the DOI was cited in many legal opinions, since it has some "effect" on the law. Such a basic expression of principle would.

The Civil War did not end history here either. If a true tyranny arises in this country, let's say an alien invasion, the right to rebel will still be possible.

As to the constitutional restraints, that is debatable. It is rather academic, but it is not out of the realm of sanity to argue that the Constitution assumes a certain sort of republican government is necessary.
 

Article III of the Constitution has, for decades, been interpreted uniformly by federal courts to limit their jurisdiction to cases where at least one plaintiff has standing. A plaintiff must have standing for the duration of the case. Standing cannot be waived - that is, even if plaintiff and defendant agree that the court should decide the case, if plaintiff lacks standing the court is duty bound to dismiss on that basis. Standing may be raised any time during a case, including on appeal. This is so even if no party raised standing in their appeal papers. To have standing, a party must have an injury distinct from the injury suffered by the public at large. Thus, the claim that all taxpayers are injured by the Affordable Care Act so that these particular Burwell plaintiffs should be permitted to proceed with the case regardless of whether they have standing is at odds with well settled case law. If other plaintiffs have standing, they are free to bring suits and the cases can move forward. However, well settled rules of standing should be applied to this case, as those rules would be applied to any other case in a federal court.
 

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Larry Koenigsberg said...

Mr. DePalma writes: "Our nation was established on the proposition that the people have the right to abolish a government which does not derive its powers from the consent of the governed"

However the D of I has no effect on Con Law, which includes no such right. The Civil War (1861-1865) certainly settled that.

Apples and asparagus.

During the Civil War, the South was not attempting to abolish and replace a federal government operating without the consent of the people in violation of the Constitution. Rather, a minority of the population attempted to leave the union because our representative democracy wanted to implement policy with which they disagreed.

Are you really going to argue that the people do not have the right to abolish a government operating without the consent of the people in violation of the Constitution because the Constitution does not expressly state that they can?

Oh, the irony.
 

However the D of I has no effect on Con Law, which includes no such right. The Civil War (1861-1865) certainly settled that.

The Secesh never claimed that they were exercising a revolutionary right like that provided in the DoI. The reason they didn't is that they didn't want to make any such claim in the context of holding slaves -- some uppity folks might get the notion that slaves had such a right too.

In consequence, the only claim they made was that they were exercising a right which, they asserted, was found in the Constitution. It was that claim which was settled at Appomattox, not the existence of a revolutionary right (which Lincoln agreed existed).
 

I'm unsure that no one raised some "right of revolution" during the Civil War, but the DOI was cited:

http://avalon.law.yale.edu/19th_century/csa_scarsec.asp

Anyway, focusing on the Constitution is a hazy line. Wasn't a major argument in 1776 that in effect the English "constitution" was being violated and we had the right to separation?

I'm unsure of the distance there. Anyway, I doubt some such "claim" was "settled" for all time in 1865. With apologies to a letter Scalia wrote on the point.
 

Some scholars have looked at the American Revolution as a secessionist movement, secession of the Colonies from Mother England. Current discussions of such movements in America consider this being accomplished perhaps by means of an agreed upon arrangement between the group seeking to secede and the federal government. On an earlier thread at this Blog, I had extensive comments on Sandy Levinson's views on nullification and secession presented at a symposium in late 2013 at Arkansas Law School. Sandy had a delicious example of Texas seceding and agreeing to give up "nucular" arsenals in Texas (similar to what Ukraine did in a deal with Russia), with the result that a Texas-less America would have to deal with the Texas border. (I questioned whether exas would agree to give up its "nucular" arsenals.)

Image, a call for revolution - or secession - or nullification - over healthcare, which might enhance the need for healthcare that revolution, secession or nullification might bring about. Query: Is a more perfect union one that is more healthy?
 

As to claims of tyranny in America under President Obama, Jon Stewart recently made the point that this is countered by the very existence of Fox News.
 

As to our own Mr. Myth's claims of the right of "the people" to abolish the government, how many of "the people" would be required to do so? Would the rural faction of the populace be enough?
 

"It was that claim which was settled at Appomattox,"

Wars don't settle claims, they just convince people it's dangerous to make them. Once they start to think you're not going to kill them if they raise the issue again, it comes right back. Because you don't change people's minds about the correctness of an argument by shooting people who try to make it.
 

Is Brett reverting from his self-proclaimed anarcho-libertarianism to an "ordinary" one? He seems NOT to favor revolution, etc, that might lead to exercises of absolute 2nd A rights.
 

I don't see a need for the Court to spontaneously order briefing on standing when: (1) at least one of the plaintiffs appears to have a reliable claim to standing, (2) it would only be replaced -- a year later -- by Halbig v. Burwell, and (3) so far, at least, the government has not made any moves to question plaintiffs' standing.

I'm all for the letter of the law -- heck, that's the whole point of the subsidy cases! -- but, as long as the fourth plaintiff seems to have (pretty clear) standing (until June), questioning standing seems more like a delaying tactic (perhaps to get her standing to expire!) than a genuine defense of Article III.

Incidentally, I don't recall any hand-wringing in this space about Edith Windsor's *extremely* questionable standing during her time before SCOTUS. If *I* were Justice Scalia (which, praise God, I am not), I'd still feel pretty burned about the majority's politicized contortions over standing in *that* case, and therefore terribly disinclined to entertain objections to standing in this one. Of course, that would be tit-for-tat judicial sniping, not good law, but I'm a flawed man.
 

"He seems NOT to favor revolution"

What sane person does? Setting aside the fact that most revolutions are approximately 360 degrees, "Meet the new boss, same as the old boss", they're typically bloody affairs.

Revolutions seldom turn out well. I'd argue the only reason the US 'revolution' did, was that it wasn't really a revolution as such: The colonies already had substantial autonomy, and King George was attempting to take it away.

Much more a case of seccession or defense, than a revolution.

No, things have to get pretty awful before a revolution even starts to make sense.

I'd merely suggest that the possiblity of revolution tends to restrain things from getting that bad, so it's a good idea to retain it.
 

Wars don't settle claims

Of course they do. WWII settled lots of them. So did the American Revolution, the Mexican War, etc.

I'm unsure that no one raised some "right of revolution" during the Civil War, but the DOI was cited

Fair enough on the citation, but SC was clever enough not to cite the DoI as justification for secession, but as a preliminary for the "breach of compact" argument. It's a cute way to get the revolutionary resonance without actually making the argument.

Wasn't a major argument in 1776 that in effect the English "constitution" was being violated and we had the right to separation?

Yes, but nobody (AFAIK) argued that the English "constitution" itself allowed for separation. Rather, it was the violation of the "constitution" which justified the exercise of the revolutionary right.
 

How was Windsor's standing "extremely" questionable? She was being denied not the right to avoid $20 a month or something by avoiding subsidized insurance but hundreds of thousands of dollars.

The standing issue was disputed because the Obama Administration said that they thought the law was unconstitutional. But, they were enforcing the law.

And, even executives signing laws they thing constitutionally problematic & later going to the courts to challenge them has been known to happen. John Roberts himself advised Bush41 to enforce but challenge a law.

Anyway, one last data point. As to fear of slave revolutions, people in '76 spoke in revolutionary tones while being slaveowners. How the DOI allows slavery might seem curious to many, but slavery was not nothing if not creative.
 

I think Mark Field is drawing things a bit too finely but appreciate the response.
 

Shag from Brookline said..."how many of "the people" would be required to do so? Would the rural faction of the populace be enough?"

As many as it would take to win.

Historians doubt that a majority of colonists openly supported our Revolutionary War. Most were on the fence.
 

Brett:

Revolutions do not necessarily require armed rebellion. Mass civil disobedience is sometimes all that is required. See the Indian independence movement and the Czeck Velvet Revolution.

Unfortunately, it took Shay's Rebellion and a stagflationary depression to change our last failed government.



 

I think Mark Field is drawing things a bit too finely

I think of it this way: could you plausibly assert the argument in a fair court of law? If your claim is that you have a Constitutional right to do X, then of course you can. But if your claim is based on first principles -- that is, revolution -- then by definition you are denying the right of any court to decide the issue (and, implicitly, agreeing that the constitution doesn't support you because if it did you could vindicate the right in court).
 

I should add that the distinction I make was well-understood at the time. Consider these passages from Lincoln's First Inaugural:

"It follows from these views that no State upon its own mere motion can lawfully get out of the Union; that resolves and ordinances to that effect are legally void, and that acts of violence within any State or States against the authority of the United States are insurrectionary or revolutionary, according to circumstances."

"This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing Government, they can exercise their constitutional right of amending it or their revolutionary right to dismember or overthrow it."
 

Palpatine,

First, you point that Supreme Court will have to decide the issue anyway when Halbig v. Burwell goes before the Court actually cuts against finding standing in King -- if there's an appropriate vehicle to present the issue to the Court waiting in the wings, then there's no reason to bend the rules in order to find standing in King.

Second, the jurisdiction issue in Windsor was whether the Government had standing to appeal. Ms. Windsor clearly had standing.
 

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Our dictatorship proceeds apace.

First, President Obama decreed that he would no longer enforce immigration law against up to 5 million illegal aliens and issue them work papers and other benefits in violation of immigration law.

Now, IRS Commissioner John Koskine has just decreed that he will make EITC payments to any illegal alien to whom or leader has granted amnesty, both when they file tax forms in the future and for past years of work when they were here illegally and did not file tax forms. Koskine claims that he is doing this on his own without orders from our leader.

I expect our dictatorship will next grant illegal aliens the full array of welfare state benefits, paid for by those of use who still pay taxes.

No taxation without representation?
 

Own own Mr. Myth points out in 1776:

"Historians doubt that a majority of colonists openly supported our Revolutionary War. Most were on the fence."

The Mother Land was across the Atlantic. The availability of Redcoats was thin what with Mother England's concerns with its other colonies scattered throughout the seven seas. To quote our own Mr. Myth: "Apples and asparagus."

Is our own Mr. Myth's goal to inspire fence-jumping to increase his rural ranks of revolutionaries? Maybe he'll attract lemmings.

Our own Mr. Myth continues (in another comment):

"Unfortunately, it took Shay's Rebellion and a stagflationary depression to change our last failed government."

Is this what brought forth the Constitution of 1787? If so, what was so unfortunate? Does our own Mr. Myth believe it would have been preferable if Shay's Rebellion turned into a full blown revolution?

I assume our own Mr. Myth has his trusty glock in his jock in preparation for the revolution he seems to be fomenting.

 

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BD: "Unfortunately, it took Shay's Rebellion and a stagflationary depression to change our last failed government."

Shag: "Is this what brought forth the Constitution of 1787? If so, what was so unfortunate?"

Unfortunate in that it took a small armed rebellion and a stagflationary depression reducing hundreds of thousands to abject poverty before the powers that be would agree to change the failed government.
 

court of law

It can be a political question that is decided in some other fashion. In theory, it can be decided by a court of law, akin to a defense on account of necessity. But, in reality, like "trying" impeachments etc., courts would let others decide it. This doesn't necessarily mean lacks "constitutional" meaning.

South Carolina rested on a theory that the Constitution assumed a contract theory & followed certain principles set forth in the DOI. This is akin to arguing, e.g., the 9A includes retained inalienable rights.

I think Lincoln probably overcompensated a bit -- "a more perfect union" is but one thing in the Preamble. "Perfection" here can include avoiding a certain level of tyranny if states are forced at all costs to stay in. Union isn't the whole deal here. Again, Lincoln truly wins because the South made a bad case.

The argument alleged to be rational would be that the Constitution assumes the government should be republican. If it is such a tyranny that it is not, it is not legitimate. It would not be "revolution" to set up an alternative government, particularly if that government followed the terms of the Constitution.

Who would determine if "rank tyranny" exists? Big question. Perhaps a moot one -- perhaps once you step outside of the federal government, even if it is run by evil aliens, it is revolution. A retained power to resist is simply not logically constitutional at all.

I think arguments can be made on both sides here. And, again, agreeing the South's compact argument problematic, the true problem was their case that it was a tyranny was bad. If it was good, it would be a lot more complicated.

---

I appreciate Ryan White's comment. My comment was a bit slipshod in confusing that matter.

http://www.law.cornell.edu/supct/cert/12-307
 

I had expected our own Mr. Myth"s "unfortunately" was based upon the strong central government with the 1787 Constitution, including the Militia and Insurrection Clauses, which provided the authority and funds to put down the Whiskey Rebellion fairly quickly. I'm pleased that our own Mr. Myth was pleased with the work of the Constitutional Convention in strengthening the central government and providing the Militia and Insurrection Clauses.
 

Bart

"However, we have now crossed the Rubicon into dictatorship where the president is directing the unelected bureaucracy to waive the express laws of Congress and substitute its own by decree. Thus, the constitutional crisis created by the establishment of the regulatory bureaucracy has now reached its logical and inevitable climax."

This is more than a bit too much. An agency has taken a very complex law and, reading the provision in question along with other provisions about how if a state does not set up an exchange the federal government will create 'such' an exchange, decided that the best way to implement the law is the contested reading. This is pretty short of Ceasar crossing the Rubicon. It's not uncommon for different administrations to read well established laws in very different ways (the Bush administration saw, iirc, dozens of their interpretations of environmental laws struck down by courts). The situation is going to the highest court in the land with the administration having lost at the Circuit level. This is pretty far from dictatorship.
 

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BD: "However, we have now crossed the Rubicon into dictatorship where the president is directing the unelected bureaucracy to waive the express laws of Congress and substitute its own by decree. Thus, the constitutional crisis created by the establishment of the regulatory bureaucracy has now reached its logical and inevitable climax."

Mr. W: This is more than a bit too much. An agency has taken a very complex law and, reading the provision in question along with other provisions about how if a state does not set up an exchange the federal government will create 'such' an exchange, decided that the best way to implement the law is the contested reading.

Mr. Obama and IRS are not offering a "contested reading" of the statute, they are rewriting an express provision the law to avoid yet another policy train wreck.

The provision in question if perfectly clear and does not conflict with any other provision of the statute.

The Democrat congressional leadership who drafted this mess in secret had two intents here - (1) use taxpayer money to pay people to buy government designed insurance on government exchanges and (2) blackmail states into building these government exchanges by limiting subsidies to exchanges "established by the states."

The fact that the Democrats blackmail did not work in a majority of states and thus undermined their goal to pay people to buy insurance from government exchanges does not make the blackmail provision vague or unenforceable.

Neither the President nor the IRS has the power to rewrite statutes to make them more effective.

In what is left of our Republic, only Congress can rewrite or repeal statutes.

It's not uncommon for different administrations to read well established laws in very different ways (the Bush administration saw, iirc, dozens of their interpretations of environmental laws struck down by courts).

Let's restate that for accuracy. The courts allowed an unelected bureaucracy rather than an elected president and his civilian appointees to determine the content of regulations.

The situation is going to the highest court in the land with the administration having lost at the Circuit level. This is pretty far from dictatorship.

Courts acting out of party loyalty to rubber stamp dictatorial decrees hardly makes them less dictatorial. Indeed, this is SOP in most dictatorships.
 

Our own Mr. Myth's paranoia is deepening. Can he have any followers in his CO mountaintop community (or any where for that matter)? Revolution? Dictatorship? Or is this all a to-be-self-published book promotion by a criminal defense attorney who took an oath to defend the Constitution? Is an intervention in order for his obvious "Network" crisis?
 

Mark,

How was Windsor's standing "extremely" questionable? She was being denied not the right to avoid $20 a month or something by avoiding subsidized insurance but hundreds of thousands of dollars. The standing issue was disputed because the Obama Administration said that they thought the law was unconstitutional. But, they were enforcing the law.

Having settled the question to the stated satisfaction of both parties in the court below, there was no case or controversy to appeal. I'll refrain from restating Scalia's dissent, as I've no doubt you've read it -- but suffice to say I found it's examination of the standing question far more persuasive than the majority's, and so I do call Windsor's standing "extremely questionable."

It was not questionable at the outset of the case; you are of course right that she suffered a clear injury. But the District Court ruled in her favor, the government agreed, and she agreed. End of case or controversy.
 

Mark

Joe

Having settled the question to the stated satisfaction of both parties in the court below, there was no case or controversy to appeal.

Windsor didn't get her money. She did not get "satisfaction" that led her to lose standing merely because the Administration supported the reasoning of the 2CA but still didn't give her the money. Since the government didn't give her the money, contra Scalia, "Windsor’s injury was [not] cured by the judgment in her favor."

I'll refrain from restating Scalia's dissent, as I've no doubt you've read it -- but suffice to say I found it's examination of the standing question far more persuasive than the majority's, and so I do call Windsor's standing "extremely questionable."

Scalia felt the problem -- as I noted thanking Ryan White -- was jurisdictional -- "the jurisdictional portion of today’s opinion" is flagged. ALITO was more concerned with "standing." But, he doesn't really help you -- he finds standing in Congress. So, he too (though he went the other way) goes to the merits.

It was not questionable at the outset of the case; you are of course right that she suffered a clear injury. But the District Court ruled in her favor, the government agreed, and she agreed. End of case or controversy.

The government did not "agree" to give her the money. So, it was not the full agreement necessary. Controversy alive. The Administration wanted the matter settled by the USSC. It was sound policy, one followed in the past, to oppose the constitutionality of a law, but enforcing it until the USSC ruled on the matter.

The matter was discussed more from different angles at the time:

http://www.dorfonlaw.org/2012/12/domas-future-if-court-denies.html

This is an example. The Administration argued the case was "obvious" enough, disagreeing with Prof. Dorf, but that is a matter of executive judgment.
 

"The situation is going to the highest court in the land with the administration having lost at the Circuit level."

To be clear, they won in King v. Burwell (Burwell is the Secretary of HHS). They did lose in the D.C case, but that case went to en banc (where the odds makers suggest they were going to win), where it is in abeyance.
 

Shag:

I know you Democrats spin Mr. Obama's decrees as a clever use of executive power in the face of an obstructionist Congress.

I am a classicist in this matter and use the old Roman definition of a dictator as an executive who waives laws of the legislature and decrees his own.
 

Our own Mr. Myth attempts to explain my non-medical diagnosis of his paranoia (although I am a J.D. - converted from an LLB) with this:

"I am a classicist in this matter and use the old Roman definition of a dictator as an executive who waives laws of the legislature and decrees his own."

This brought to mind a memory from the early 1940s when my older brother got into an argument with our father on the virtues of capitalism versus the virtues of a unionized worker like my father. My brother was then sort of like the Michael J. Fox character Alec on the much later Family Ties on TV, but younger. When the argument was ending, my father said to me, "Look at him, a capitalist without any capital." Now I don't know if that was an original line, but it has syuck with me all these years. (Yes, I was a progressive even as a pre-teen.)

So my rejoinder to our own Mr. Myth for his explanation is, "Look at him, a classicist without any class."

And this isn't the old Roman Days. So when not in Rome, I do as the non-Romans do and deal with the here and now. Our own Mr. Myth's explanation is not a good first step to recovery.
 

Shag:

Your family is evidence that progressivism is not hereditary. There is hope yet for the old Republic.
 

Your family is evidence that progressivism is not hereditary. There is hope yet for the old Republic.
# posted by Blogger Bart DePalma : 3:21 PM

Whether or not wingnutism is hereditary, I'm still feeling pretty good that you're not having children.
 

If the Supreme Court refuses to review these cases based on standing, then the only remaining remedies are impeachment or revolution.

Legislative action?
 

@toad:

Our own Mr. Myth has reconsidered, taking impeachment off the table, thus leaving revolution as his alternative. He has no confidence in the Legislature, at least while President Obama has the veto; in addition, he seems to include Congress as part of the problem establishment complicit with the Administrative State. So for our own Mr. Myth this leaves the unelected - and serving for life and thus unaccountable to voters - members of the federal court system to correct the establishment's evils, failing which, he provides only his revolution alternative. This is of course his usual hyperbole at this Blog, with a segue to his "dick-tater" mentality on the tyrannical (in the old Roman sense - hold the parmesan) President Obama: what goes around, comes around - revolution!
 

The Legal History Blog Weekend Update feature provides a link to Balls & Strikes and Calvin TerBeek's "Originalism's Obituary" that is quite worthy of a read. Maybe our host Jack Balkin will make a few remarks. But will originalism rest in peace or resurface as Zombie Originalism? Who has a "stake" in this?
 

The idea behind "Madison's Music: On Reading the First Amendment" By: Burt Neuborne is worthwhile. See here:

http://www.acslaw.org/acsblog/madison%E2%80%99s-music-on-reading-the-first-amendment

And, it has a touching page long dedication to his dad. Plus, in a section that should please Prof. Levinson given his own writings, he bemusingly skewers the events behind Marbury v. Madison as someone who has a mixed record in front of the courts probably would.

But, I felt the overall effort somewhat garbled. It might work better as an extended essay. Still, his caution on the limits of judicial review and constitutional analysis as a whole & comprehensive "poem" approach to the 1A & BOR as a whole are well taken messages.

---

Those interested can check out two of his oral arguments here:

http://www.oyez.org/advocates/n/b/burt_neuborne



 

BD: If the Supreme Court refuses to review these cases based on standing, then the only remaining remedies are impeachment or revolution.

toad said...Legislative action?

Two problems:

1) Perversion of Constitutional checks and balances. The minority party in Congress has no problem with their fellow Democrat ruling by decree and will vote to uphold any presidential veto defending these decrees.

2) If the President and the bureaucracy are currently ignoring explicit provisions of law enacted by Democrat Congresses, why precisely would they obey any law from a GOP Congress?

The only remaining remedies are judicial review or revolution.
 

Query: Can Kurt Lash's "Safe Harbor Originalism" survive the heavy seas of competing versions within originalism ias well as without in the quest for the Holy Grail of constitutional interpretation/construction? Or is originalism's safe only in the doldrums? Perhaps Lash might apply the 4 steps of his required methodology to opinions written by Justices Thomas and Scalia claimed to be based on originalism.

A link to Lash's article is available at Larry Solum's Legal theory Blog, with favorable editorial comments and a "Highly Recommended." The article names several originalists but not all; the latter may be waiting on the high seas.
 

Our own Mr. Myth's:

"The only remaining remedies are judicial review or revolution."

seems aimed at the Court. But what if our own Mr. Myth disagrees ;with the outcome of judicial review?
 

Shag: "But what if our own Mr. Myth disagrees ;with the outcome of judicial review?"

One man does not make a revolution.
 

Here's a chorus from "Stout-Hearted Men":

"Give me some men who are stout-hearted men,
Who will fight, for the right they adore,
Start me with ten who are stout-hearted men,
And I'll soon give you ten thousand more.
Shoulder to shoulder and bolder and bolder,
They grow as they go to the fore.
Then there's nothing in the world can halt or mar a plan,
When stout-hearted men can stick together man to man."

that our own Mr. Myth may think about when he says:

"One man does not make a revolution."

Will our own Mr. Myth be recruiting if he is dissatisfied with the judicial review? Keep in mind that millions were disappointed with the Court's decision in Bush v. Gore and there was no revolution. (Some might say in hindsight of the Bush/Cheney 8 years that ....)



 

The Fisher case was but one affirmative action case where standing was flexible as compared to some other case where standing was refused (see, e.g., the Hein case or conservatives disputing standing in environmental cases).

See, e.g., here where this blog post gets a link:

http://www.newrepublic.com/article/121061/supreme-court-could-challenge-king-v-burwell-plaintiffs-standing
 

http://elqanas.com/%D8%A7%D8%AD%D8%AF%D8%AB-%D8%A7%D9%84%D8%B7%D8%B1%D9%82-%D9%84%D9%86%D9%82%D9%84-%D8%A7%D9%84%D8%B9%D9%81%D8%B4/
http://elqanas.com/%D8%AE%D8%AF%D9%85%D8%A9-%D9%86%D9%82%D9%84-%D8%A7%D9%84%D8%A7%D8%AB%D8%A7%D8%AB-%D9%85%D9%86-%D9%85%D8%A4%D8%B3%D8%B3%D8%A9-%D8%A7%D9%84%D9%82%D9%86%D8%A7%D8%B5-0556532250/
http://elqanas.com/%D8%AE%D8%AF%D9%85%D8%A9-%D9%86%D9%82%D9%84-%D8%A7%D9%84%D8%A7%D8%AB%D8%A7%D8%AB-%D9%85%D9%86-%D9%85%D8%A4%D8%B3%D8%B3%D8%A9-%D8%A7%D9%84%D9%82%D9%86%D8%A7%D8%B5-0556532250/
http://elqanas.com/%D8%B4%D8%B1%D9%83%D8%A9-%D8%B9%D8%B2%D9%84-%D8%AE%D8%B2%D8%A7%D9%86%D8%A7%D8%AA-%D8%A8%D8%A7%D9%84%D8%B1%D9%8A%D8%A7%D8%B6-0556532250/
http://elqanas.com/category/%D8%AE%D8%AF%D9%85%D8%A7%D8%AA-%D8%B1%D8%B4-%D8%A7%D9%84%D9%85%D8%A8%D9%8A%D8%AF%D8%A7%D8%AA/
http://elqanas.com/category/%D8%AE%D8%AF%D9%85%D8%A7%D8%AA-%D8%B1%D8%B4-%D8%A7%D9%84%D9%85%D8%A8%D9%8A%D8%AF%D8%A7%D8%AA/
http://elqanas.com/category/%D8%AE%D8%AF%D9%85%D8%A7%D8%AA-%D8%AC%D9%84%D9%89-%D8%A7%D9%84%D8%B1%D8%AE%D8%A7%D9%85-%D9%88%D8%AA%D9%86%D8%B8%D9%8A%D9%81-%D8%AD%D8%AF%D8%A7%D8%A6%D9%82/
http://elqanas.com/%D8%AE%D8%AF%D9%85%D8%A9-%D9%83%D8%B4%D9%81-%D8%AA%D8%B3%D8%B1%D8%A8%D8%A7%D8%AA-%D9%85%D9%86-%D8%B4%D8%B1%D9%83%D8%A9-%D8%A7%D9%84%D9%82%D9%86%D8%A7%D8%B5-0556532250/
 

http://elqanas.com/%d8%b4%d8%b1%d9%83%d8%a9-%d8%aa%d9%86%d8%b8%d9%8a%d9%81-%d8%a8%d8%a7%d9%84%d8%b1%d9%8a%d8%a7%d8%b6-0556532250
 

Query: Does the Court conduct judicial review when it determines that the appealing party lacks standing and thus declines to get to the merits of the appeal?

Also, at Legal History Blog's Sunday book review feature, a link is provided to a review of a recent book by Bloom on whether tough cases make bad law. I found the discussion of Marbury v. Madison quite interesting on the circuitous route taken by CJ Marshall in eventually dismissing the case because of failure of original jurisdiction requirements leaving behind a trail of questionable dicta.
 

http://elqanascompany.blogspot.com/2015/02/0556532250.html
http://elqanascompany.blogspot.com/2015/02/0556532250.html
http://elqanascompany.blogspot.com/2015/02/0556532250.html
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http://elqanascompany.blogspot.com/2015/02/0556532250.html
 

http://elqanascompany.blogspot.com/2015/02/0556532250.html
http://elqanascompany.blogspot.com/2015/02/0556532250.htmlhttp://elqanascompany.blogspot.com/2015/02/0556532250.html
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http://elqanascompany.blogspot.com/2015/02/0556532250.html
http://elqanascompany.blogspot.com/2015/02/0556532250.html
http://elqanascompany.blogspot.com/2015/02/0556532250.html
http://elqanascompany.blogspot.com/2015/02/0556532250.html
 

The most recent post at this Blog is by Andrew Koppelman who provides a link to his short response "Theorists, Get Over Yourselves: A Response to Steven D. Smith." Smith's theme seems to be "Gimme That Old Time Religion."

Calvin TerBeek's "Originalism's Obituary" points to the same Steven D. Smith's critiques of the current direction of originalism, with Smith blaming our host Jack Balkin for his "Living Originalism." Smith's theme seems to be "Gimme That Old Time Originalism."

Maybe this was all part of Jack's master plan with what I have described as his "Cross-Dressing Originalism" with his "Living Originalism." If so, perhaps Jack may provide a eulogy befitting this occasion, as Jack seems to have had a well placed stake in it.

But is there a connection or correlation between religion and originalism? Can we expect a call for "Gimme That Old Time Constitution/Bill of Rights" that strengthened rights of slaveowners and slavery well beyond the Articles of Confederation? Just asking.


 

I think this obituary a tad premature, for all that Balkin certainly means to drive a stake through the heart of originalism.

Premature, because there will always be a need for reading the text objectively, even if this is difficult, and the alternative to originalism is rejecting objectivity.
 

Nothing new. Progressives have been at war with the Constitution for well over a century.
 

This comment has been removed by the author.
 

BD: "1) Perversion of Constitutional checks and balances. The minority party in Congress has no problem with their fellow Democrat ruling by decree and will vote to uphold any presidential veto defending these decrees."

Indeed, the minority party in Congress repeatedly demands that their fellow Democrat in the White House rules by decree:

Three senior House members told The Associated Press that they plan to strongly urge the administration to grant a special sign-up opportunity for uninsured taxpayers who will be facing fines under the law for the first time this year.

The three are Michigan's Sander Levin, the ranking Democrat on the Ways and Means Committee, and Democratic Reps. Jim McDermott of Washington, and Lloyd Doggett of Texas. All worked to help steer Obama's law through rancorous congressional debates from 2009-2010.

After all, no matter what their law actually says, these Democrats obviously never intended it to work this way.

Lawlessness from top to bottom.
 

Burt Neuborne (take those marbles out of your mouth) argues that the 1A, fully honored, protects "secular" conscience as well with an assist by the 9A. Prof. Dorf (Dorf on Law) has also noted that conscience independently should be protected as a constitutional principle. See also:

http://www.illinoislawreview.org/article/disentangling-conscience-and-religion/

Andrew Koppelman also reminds that free exercise of religion goes beyond god talk specifically to rituals and ceremony, sometimes done by those who are really atheists. The word "religion" might come from a word meaning "tie" and in ancient times (e.g., Rome) was often more about ritual than belief Jupiter was controlling things.

Suffice to say, I don't think there will be an end to religion or some parallel (see, e.g., the Seeger case involving conscientious objectors) belief structure that gives people's life meaning any time soon. Even if a few Bill Maher types wants it.

As to originalism, oh well. I am reading Jane Alexander's book on her time at the NEA. She played the O'Connor role (or perhaps O'Connor played the Alexander role) in "First Monday in October" aside Henry Fonda, as the conservative first woman justice.

This was in the late '70s, when the first new breed of originalism was but shall we say a foetus.
 

Our own Mr. Myth's:

" Progressives have been at war with the Constitution for well over a century."

would seemingly include his criticism of Brown v. Bd. of Educ. (1954) and ignores that originalism's timeline began in the late 1970s/early 1980s.

And Brett's concept of "objectivity" is highly subjective in practice.

But note that our dyslexic duo of Bert and Brat do not respond to whether there is "a connection or correlation between religion and originalism?". Maybe they are engaged in prayer.
 

BD: "Progressives have been at war with the Constitution for well over a century."

Shag: would seemingly include his criticism of Brown v. Bd. of Educ. (1954) and ignores that originalism's timeline began in the late 1970s/early 1980s.

Brown I was the exception between progressive Democrat Jim Crow and progressive Democrat racial preferences.

Originalism's timeline extends several hundred years back into Anglo-American law.
 

I should point out that things have been heating up this morning since I have been on the Internet starting at -1 to +5 degrees here in Brookline. No, Hell hasn't frozen over.
 

Our own Mr. Myth responds:

"Originalism's timeline extends several hundred years back into Anglo-American law."

But what about the hiatus from 1787-91 until its "discovery" in the late 1970s/early 1980s? At least our own Mr. Myth is not going back to the old Roman days with originalism.

And our own Mr. Myth's post-Brown I critique shows his true colors once again with respect to the mid 1960s Civil Rights Acts brought about by the civil rights movement following Brown I and the political shift of the former slave states to become the current base of the Republican Party (in reaction, of course, to Brown I).
 

Shag:

Originalism is nothing more than applying the law as written under its original meaning. Anglo-American law does this routinely with contracts, wills, and formerly the Constitution.

It wasn't until the advent of progressivism that that the Constitution was transformed into a common law document to be rewritten by the courts.
 

Our own Mr. Myth informs us:

"It wasn't until the advent of progressivism that that the Constitution was transformed into a common law document to be rewritten by the courts."

but fails to provide a timeline to test this. When was this "advent"? With a timeline we can test decisions of the Court pre-dating that "advent" to test his speculative views.

Uncovering the original meaning of the Constitution, including as amended, is not a simple task, especially when "law office history" is utilized not only by advocates but by members of the Court to justify their ideologies as comporting with originalism. The "new, new originalism" provides for "construction" when the original meaning cannot be ascertained. Kurt Lash in his "Safe Harbor Originalism" 4-steps methodology recognizes that compliance with such 4-steps may not be correct if there is "newly discovered" evidence to counter earlier originalist conclusions. The search for evidence to newly discover is ongoing, well over 200 years after 1787-91, such that in future years we will have more and more evidence to challenge earlier originalist interpretations.
 

The 800th anniversary of the Magna Charta was recently celebrated, including with involvement of CJ Roberts. The "original meaning" of those events probably continue to be debated.

"Advent" for many Christians is "a time of expectant waiting and preparation for the celebration of the Nativity of Jesus at Christmas." Timely word, perhaps.

I asked Brett a few times the Golden Age of constitutional interpretation in his view, since he various times noted that at some point we really went off the rails. Given people thought that since the time of Jefferson, I wished for some clarity.

Don't recall any given. But, hey, keep on trying Shag. Might keep you warm. It was in single digits here and hear it was even more wintery over in Boston.
 

Shag:

The progressive proposition of an organic government free from constitutional checks and balances started in the 1880s. They were far more open about their intent back then.

Woodrow Wilson was a leading theorist in this area. Here is a decent summary of his writings:

https://online.hillsdale.edu/document.doc?id=318

You can find many of the full writings with Google.
 

re: "Shag:

Originalism is nothing more than applying the law as written under its original meaning. Anglo-American law does this routinely with contracts, wills, and formerly the Constitution.

It wasn't until the advent of progressivism that that the Constitution was transformed into a common law document to be rewritten by the courts"

Thank goodness for progressivism. Without it lawyers would still be running around in white wigs. And the days of Jim Crow would reign supreme in the country.

How anyone would want to go back to Originalism mystifies me (hat trick to Shag).
 

Our own Mr. Myth starts off with editorializing with this:

:"The progressive proposition of an organic government free from constitutional checks and balances started in the 1880s."

misdescription of the progressive movement. There were many checks and balances along the way that continue to this day, including with the Administrative State. Progressivism brought reforms, including democracy at the federal, state and muicipal levels, eliminating corruption, supporting public education, trust busting, pure food laws, child labor laws, workers' rights to unionize, national parks, conservation, clean water, women's suffrage, support of civil rights, and so much more. As the country grew, Congress recognized its inability to micro-manage with legislation details of the needs of the public, leading to the Administrative State This was all reform, to be contrasted with The Gilded Age that our own Mr. Myth believes were America's best days, that gave rise to the need for such reforms.

Of course, Congress can take steps (subject to veto) to undo the Administrative State. But consider what the result would be if Congress were to be successful. Consider the current brouhaha in the House in its battles with the Senate over funding for the Department of Homeland Security set to expire on February 27th. That's just one part of the Administrative State but is quite important for America's protection and security. Speaker John Bo(eh)ner with his 50 shades of orange seems firm on his position backed by the Tea Party.
 

Teresa:

Progressives were big fans of Jim Crow for decades and lawyers wearing white wigs did not keep our British cousins from sliding into socialism,
 

This comment has been removed by the author.
 

This comment has been removed by the author.
 

Shag:

As the country grew, Congress recognized its inability to micro-manage with legislation details of the needs of the public, leading to the Administrative State

You really need to get beyond the pablum you were fed in high school and read what your progressive founding fathers were actually writing and saying.

Progressive theorists were almost all from the then emerging credentialed elite of university graduates entering academia, law, journalism and the bureaucracy.

Progressives were elitist and authoritarian. They uniformly considered the common man to be incompetent, democracy to be corrupt and admired the Bismarck's authoritarian state employing a bureaucracy filled with a credentialed elite the Germans called Bildungsburgertum to direct their society and economy. Later, during the New Deal, progressives were enormous admirers of fascist Germany and Italy and modeled much of the New Deal (especially the NRA) after fascist programs.

The progressive idea for an "administrative state" was to limit our elected Congress to setting broad policy goals and then leave the actual governing to a regulatory bureaucracy run by "educated and fitted men" like themselves.

The seminal work on this subject was Woodrow Wilson's essay The Study of Administration. Read this appalling work closely.

Then I recommend American Progressivism: A Reader offering several additional speeches and essays offered by the founding fathers of progressivism.

Of course, Congress can take steps (subject to veto) to undo the Administrative State. But consider what the result would be if Congress were to be successful.

Every time we have a so called "government shutdown," the President unconstitutionally spends tax revenues which Congress did not appropriate on agencies he considers necessary. Neither Clinton or Obama considered the regulatory bureaucracy to be necessary and no one apart from maybe administrative lawyers and bureaucrats missed them.
 

Our own Mr. Myth once again goes over the edge. His paranoia is too deep for an intervention. It is not only the elite who want clean water, clean air, healthy food, safe drugs, good medical care, good public schools, and the list goes on. Is our own Mr. Myth now claiming to be an egalitarian?

And since when was Father Coughlin part of the New Deal? And his rants about revolution are cries for help, Chicken Little the Sky is Falling. I can imagine his frustration with his law practice in his middle age defending alleged drunks. He must wonder from time to time,"Did I plan on this as my career when I went to law school?" Alas, what other direction could he have gone in with this type of paranoia?
 

Bart, I don't find your history of progressivism to be so much wrong as incomplete.

For example, you seem to live out how the progressive movement grew out of the 'good government' or 'goo-goo's' of the suburban and urban middle classes who objected to the ethnic machines, such as Tammany, that ran many cities rife with corruption and incompetence.

Hardly a proprietary project of the Democrat party, which at the time often played to the ethnic machines, it flowered among Republicans first and foremost (hence TR and LaFollette, both former Republicans, as the major Progressive Party figures of the time).

Southern 'progressives' certainly embraced racism often enough, but of course that was true of every Southern political movement that had any success (for example, see the exact opposite of progressives, the Bourbon Democrats, a philosophy that in many ways is very close to your Tea Party's; while some Northern Bourbons bravely opposed racism their Southern counterparts, such as Murphy Foster in Louisiana or Wade Hampton of South Carolina, embraced it).
 

A major political result of progressivism following Brown I and the civil rights movement culminating with the 1960s Civil Rights Acts was to convert former Democratic voters in the former slave states to become the core of the current Republican Party. So there seems to be a constant with the voters of the former slave states when they were Democrats and now converted Republicans. It seems that it is this constant that our own Mr. Myth supports despite his efforts to cast racial attitudes on progressivism with his perverted histrionics.
 

Mr. W:

Progressivism was always an upper middle class movement and, as you noted, the "good government" reforms of a century ago were popular with the middle class of the time. That alliance of interests disappeared by the New Deal.

Progressivism also started out as an almost universally white movement who were often active proponents of eugenics and racial superiority until the reality of the Nazi holocaust made that position politically and morally untenable. This is why northern progressives either supported or had no problem with Jim Crow for decades.
 

Now our own Mr. Myth with this:

"That alliance of interests disappeared by the New Deal."

suggests a shift from the upper middle class good government progressivism, to what, egalitarianisms or whatever? Our own Mr. Myth ignores the Roaring Twenties with Harding/Coolidge years that dumped on poor Herbert Hoover shortly after the latter's term began with the Crash of '29. With over 3 years remaining in his term, Hoover was unable to stop the impacts of the Crash, resulting in the New Deal which had to deal immediately with the Great Depression. [Segue to the Bush/Cheney Great Recession of 2007-8 that the two terms of that Administration dumped on President Obama: Republicans fail, leaving cleanup to Democrats.]

Our own Mr. Myth was not even a glimmer in the eyes of anyone during the Great Depression and what the New Deal had to do to recover. [Our own Mr. Myth will jump in with his long bandied myth that the Great Depression was avoidable. Sadly the government spending resulted from a war to improve the economy as isolationists on the conservative Republican side attempted to thwart the New Deal, including through the Court. Sort of like the current GOP Congress saying "NO" to everything Obama.]

FDR was well aware of problems with Democrats in the deep South on racial issues. Compromises were necessary (e.g., Social Security non-coverage for farm workers). But FDR proposed a New Bill of Rights in 1944; alas, he died before being able to implement it early in his 4th term. Then consider the steps taken by successor Harry S. Truman with desegregting the military despite the objections of Democrats in the deep South to Truman's executive action.

The story of progressivism has been two steps forward one step back, but progress. Does our own Mr. Myth believe Truman was in error in spirit with his executive action, in addition to our own Mr. Myth/s obvious view that pos-Brown I steps in leveling the playing field racially were in error? Does our own Mr. Myth fail to recognize the racially political change of the current base of the Republican Party resulting from converted Democrats in the former slave states to Republicans in response to the civil rights movement?

And consider the absurdity of our own Mr. Myth's second paragraph response to Mista W. It was of course difficult for African-Americans to be active in the progressive movement what with Jim Crow. But our own Mr. Myth's efforts to tie in eugenics and racial superiority with motives of progressives is beyond the pale, even for this NOAGN*, with a reference to the Nazi holocaust. This paragraph shows our own Mr. Myth's vileness. This is a moment calling for Boston attorney Joseph Welch's response to Sen. McCarthy during the Army-McCarthy hearings. [Those who do not recall the response should Google to get the full nuance.]

*NIT ON A GNAT'S NUT
 

Mr. W:

Progressivism is a political economy. Starting with the industrial revolution, an expanding university credentialed elite argued that they could better direct society and the economy with a combination of science and a totalitarian (unlimited) government than could the people in a free market republic. This new elite gave us socialism, fascism and progressivism - which are really just variations on that same theme.

Racism is not a necessary element of progressivism, but progressives are often racists for a variety of cultural reasons.

Progressives are generally upper middle class elitists who are contemptuous of anyone who is not part of their social class.

Progressives also tend to subscribe to the pseudo-sciences of the day. Up until the Nazi holocaust, eugenics and racial superiority was one of those pseudo sciences.

Finally, southern progressives simply inherited their region's historical racist culture.

Of course, racism is hardly limited to progressives. However, when Shag trots out his nonsense tarring libertarians, conservatives and the GOP as racists, I find it useful to note progressivism's sordid racist history.
 

Shag:

The alliance of interests between progressives and the middle class supporters of "good government" reforms disappeared by the New Deal because of a political shift, not because of the Depression.

As Mr. W noted, the Republican middle class were big supporters of the "good government" reforms and largely accomplished them over the first couple decades of the twentieth century. These folks never shifted to the Democrats.

The Democrats formed their New Deal majority based on working class votes organized by political machines in northern cities and across the South, hardly paragons of "good government."
 

I take our own Mr. Myth's:

"Of course, racism is hardly limited to progressives. However, when Shag trots out his nonsense tarring libertarians, conservatives and the GOP as racists, I find it useful to note progressivism's sordid racist history."

as his denial that the current base of the Republican Party consists of former Democrats in the former slave states post-Brown I conversions in response to the civil rights movement that followed Brown I. I don't tar libertarians and conservatives in the GOP as racists but focus on what is clearly the base of the current Republican Party that some libertarians and conservatives support and join with. Denial of this conversion ignores reality.

And our own Mr. Myth adds to his hysterical screed with this:

"This new elite gave us socialism, fascism and progressivism - which are really just variations on that same theme."

Were there no progressives in WW II in the fight against fascism? Our own Mr. Myth dwells on the past, The Gilded Age.


 

Shag:

Were there no progressives in WW II in the fight against fascism?

The wars between fascists and socialists/progressives were analogous to the internecine wars between Protestants and Catholics over who more properly worshipped the same God.
 

Our own Mr. Myth now comes up with this doozy:

"The wars between fascists and socialists/progressives were analogous to the internecine wars between Protestants and Catholics over who more properly worshipped the same God."

So we're all currently doomed as Christians, Hebrews and Muslims share the same God of Abraham?

Is our own Mr. Myth suggesting America should not have entered WW II, with his description of it as a war between fascists and socialists/progressives? Did our own Mr. Myth have this same view of the Bush/Cheney two wars which he whole heartedly supported? Our own Mr. Myth leaves a paper trail on the Internet of his contradictions and ignorance. He is a work in digress.
 

"Progressivism also started out as an almost universally white movement who were often active proponents of eugenics and racial superiority"

Of course this wasn't unique to progressivism (remember that Buck v. Bell was 8-1 with justices that could not be called 'progressives' with a straight face joining Holmes homage to eugenics; and note that Calvin Coolidge himself wrote an homage to eugenics published in the popular press and signed the immigration restriction act based on eugenic principles).

Nor was this uncontested in progressive circles, think of William Jennings Bryan who opposed eugenics for example.
 

"Progressivism is a political economy"

I'm not sure this is inherently or even primarily true. While I don't deny that progressives in the past and today don't advocate for a technocratic approach to managing (they would say 'rationalizing') the economy, this was not their main, primary thrust when they appeared on the scene. That was 'good government,' to combat the ethnic urban political machines by making government less corrupt, more 'rational' and less political. The hallmarks, perhaps the foundations, of progressivism are found in the idea of 'city managers' vs. elected mayors and professional police chiefs vs. elected sheriffs as it can in things like the FDA or Federal Reserve.
 

There are racial considerations too grave to be brushed aside for any sentimental reasons. Biological laws tell us that certain divergent people will not mix or blend. The Nordics propagate themselves successfully. With other races, the outcome shows deterioration on both sides. Quality of mind and body suggests that observance of ethnic law is as great a necessity to a nation as immigration law.

Calvin Coolidge. "Whose Country Is This?", Good Housekeeping Magazine (February 1921).

Of the infamous 'Four Horsemen' of the Supreme Court noted for their opposition to so much of the New Deal and as defenders of the 'Constitution in Exile,' three (McReynolds, Devanter, and Sutherland) joined Holmes' opinion in Buck v. Bell.
 

Mr. W:

Of course this wasn't unique to progressivism (remember that Buck v. Bell was 8-1 with justices that could not be called 'progressives' with a straight face joining Holmes homage to eugenics

Agreed. The Supremes of that era were all from the same university credentialed elite and they shared similar cultural views, even if they were not yet on board with progressivism.
 

BD: "Progressivism is a political economy"

Mr. W: I'm not sure this is inherently or even primarily true. While I don't deny that progressives in the past and today don't advocate for a technocratic approach to managing (they would say 'rationalizing') the economy, this was not their main, primary thrust when they appeared on the scene.

Go read the original progressive speeches and writings. They were pitching what the Germans called "state socialism" as a third way between socialism and free markets.

Good government was a side bar for progressives.
 

Shag:

Is our own Mr. Myth suggesting America should not have entered WW II, with his description of it as a war between fascists and socialists/progressives?

We properly waged war against Japan and Germany because they were engaged in a campaign of conquest against our allies, trading partners and eventually America itself.

If, instead, this was just a war between fascist Germany and the socialist USSR, The US should have stayed out.
 

Prof. David Bernstein did this sort of selective approach thing when talking about 'progressives' including when promoting his rehabilitating Lochner book.

The misleading nature of selective focus is seen by the cover of the book. It has Holmes (writer of the famous dissent) being knocked out by the author of the opinion. But, the problem with Lochner is largely the breadth of the opinion. So, John Harlan (who dissented in Plessy) actually wrote the main dissent and showed the a "liberty of contract" need not justify striking down a range of economic regulations.

I can belabor the point -- dealt with him on his own blog & elsewhere. It's just a data point. Another case is where -- this is a guy wrote to try to balance writings about "progressives" and such -- he noted how it was so hard to pass laws regulating abortion. I listed a range of regulations of abortions allowed. The problem seems to be that singling out abortion was made somewhat harder (more so before 1991).

Anyway, welcome Mr. W's comments. It's like noting "progressive" Holmes wrote Buck v. Bell. The opinion was 8-1. Conservatives joined the opinion. The fact the sole dissenter was Roman Catholic doesn't mean Roman Catholics all were libertarian types. One of the "four horsemen" supported the 19A too. But, many conservatives were against it.

Picking and choosing is too often done by "originalists" too for me to be comfortable with the "restraint" that offers. It isn't something one side does either. Prof. Bernstein has some value here -- he just overcompensates on Lochner.

I guess if we can have the humor and detail of Shag, the mostly calm attempt at dialogue by Mr. W etc. even BP has a useful function. Again, let's lay off the personal potshots.
 

ETA: Originalism is problematic on various grounds. It seems to me though that it falls apart using the arguments of its defenders (restraint, restraint vs. other means, reliance on history etc.)
 

David Bernstein with his Rehabbing Lochner credited (in a positive way) the Lochner Court with leading the way or serving as a model for later progressive decisions such as by the Warren Court. But does this mean that Bernstein praises the Warren Court? That might be difficult with his ideology. As Jack Balkin has pointed out, Lochner was wrong back then and that it's still wrong now. (Note: Jack had a blurb on Bernstein's book that struck me as tongue in cheek.)
 

Justice Douglas, of the Warren Court, once noted:

"The error of the old Court, as I see it, was not in entertaining inquiries concerning the constitutionality of social legislation, but in applying the standards that it did."

Nuanced criticism of Lochner approach things in that fashion. Some critics provide strawmen but new strawmen aren't necessarily ideal there.
 

"The Supremes of that era were all from the same university credentialed elite and they shared similar cultural views, even if they were not yet on board with progressivism."

That's an understatement, like saying Churchill just wasn't yet on board with Nazism. Besides, most of those four justices were educated before 1890.

"Go read the original progressive speeches and writings."

What we call progressivism grew out of the good government movement, I thought we agreed on that. They wanted to rationalize government first, then have that rationalized, technocratic government tackle certain social ills. They became convinced the economy was a source of some of those ills and it should get the same treatment later.
 

Progressives were active in the battles against tobacco that resulted in regulations based upon public health that have had significant financial impact on the tobacco industry. With the benefit of the 1st A, John Oliver's recent This Week Last Night schtick on tobacco has upset some in the tobacco industry which has been diverting its marketing efforts internationally and using legal systems to "protect" their trademarks from the impact of health safely laws in many small nations. In America, the Administrative State and the courts have upheld health safety laws regarding the risks of tobacco, this despite the fact that FDA is prevented from regulating tobacco even though its nicotine component is a drug. Congress has prevented legislative changes in this regard, some members being addicted to big tobacco.

Now let's hear from libertarians.
 

Shag:

Now let's hear from libertarians.

The harms people voluntarily do to themselves are none of the government's damned business.
 

Check out this link:

http://www.jstor.org/discover/10.2307/2210346?sid=21105380940951&uid=3739256&uid=4&uid=2

to: "The NAACP As a Reform Movement 1909--1965: 'To Reach the Conscience of America,"'" by Meier and Bracey. Read of the NAACP's involvement in the progressive movement.
 

Does our own Mr. Myth speak for all libertarians with this?:

"The harms people voluntarily do to themselves are none of the government's damned business."

What if such harms also impact others, like a spouse, children, parents, second hand smoke, the fisc? Of course Obamacare might help with the medical care required for the harms to that sad-sack self-centered libertarian.

But does our own Mr. Myth object to the regulatory health protection aspects imposed on the tobacco industry, which might protect young children from nicotine addiction? Let's listen to that oldie "Smoke, Smoke, Smoke (That Cigarette" by Tex Williams. Anyway, this will lead to the lyrics:

http://www.lyricsondemand.com/t/texwilliamslyrics/smokesmokesmokethatcigarettelyrics.html
 

The NYTimes obituary on "Robert E. Herzstein, Who Foiled Nixon, Dies at 83" does not use the word "progressive" in describing him but he was indeed a progressive. Imagine if Nixon had prevailed with the resulting loss of transparency of the "Nixon Error" (aka, inter alia, Watergate).
 

BD: "The harms people voluntarily do to themselves are none of the government's damned business."

Shag: Does our own Mr. Myth speak for all libertarians with this?

Pretty much every libertarian subscribes to Mill's harm principle.

"What if such harms also impact others, like a spouse, children, parents, second hand smoke, the fisc?"

As usual, you are changing the subject. Government can properly prohibit you from causing actual harm to others.

"But does our own Mr. Myth object to the regulatory health protection aspects imposed on the tobacco industry, which might protect young children from nicotine addiction?"

I routinely object to useless government programs. When will you progressives learn that government cannot change human nature?
 

Shag: Imagine if Nixon had prevailed with the resulting loss of transparency of the "Nixon Error" (aka, inter alia, Watergate).

It would look a lot like the Obama administration. See IRS harassment of political opponents, HHS/IRS waivers for political supporters, multiple bureaucracies doling out slush fund money to green supporters, the Benghazi coverup, etc.
 

Regarding the new article on Windsor, there are links to old posts here and elsewhere among the source material.

I continue to find the criticism overblown (as seen by some of my comments at one of the links that go to a blog comment here). It does use a somewhat different approach but it is a logical opinion & the criticism is tiresome.
 

Our own Mr. Myth jumps from Nixon over the Bush/Cheney 8 years to make a comparison with Obama. His obvious reason is the lack of transparency in those 8 years of Bush/Cheney when our own Mr. Myth walked in lockstep with Bush/Cheney. How about the lack of transparency and outright lies of the Bush/Cheney invasion of Iraq in 2003?

And our own Mr. Myth as spokesman for all libertarians informs us:

" I routinely object to useless government programs. When will you progressives learn that government cannot change human nature?"

apparently unaware of the impact of regulation on the tobacco industry that has significantly reduced harms of smoking in America. And I am not changing the subject as libertarians of our own Mr. Myth's ilk stick their heads in the sand on what constitutes harm to others, focusing selfishly on their rights rather than responsibilities.

By the Bybee [expletives deleted], is it the free market's human nature to provide unclean air, unclean water, unhealthy food, unsafe drugs, etc?
 

Joe:

I am so looking forward to Kennedy's next opinion this summer attempting to argue why his Windsor celebration of the state power to define marriage is now no longer operative less than two years later, and of course the Scalia dissent eviscerating that opinion.
 

Shag: "apparently unaware of the impact of regulation on the tobacco industry that has significantly reduced harms of smoking in America."

Really? How do you figure?

Tobacco use fell over the past generation for three reasons - taxes increasing cost, kicking smokers outside to smoke and because it was no longer cool among much of the middle class.

Regulating the tobacco industry has done nothing except employ more bureaucrats and administrative lawyers.
 

Our own Mr. Myth's latest myth:

"Regulating the tobacco industry has done nothing except employ more bureaucrats and administrative lawyer."

ignores the health, mortality benefits of such regulation. Yes, Joe Camel is no longer "Kool" to youngsters, nor are flavored cigarette and other tobacco products aimed at young children to get them addicted, all because of regulation. Sin taxes generally don't work to change habits - booze (a financial component of our own Mr. Myth criminal defense practice), prostitution and gambling, not to mention our own Mr. Myth's "Ganja-mile high state" of mind in CO with its significant tax revenues on Ganja revenues that seem to get higher and higher as CO adults get higher and higher. [I'll get back to the harms of ganja use in a subsequent comment but it seems CO libertarianism is combining with libertinism.] And outside smoking requirements at least expose the smokers to fresh air (courtesy of the clean-air progressive movement) and lessening second hand smoke harms to third parties. Perhaps libertarians of our own Mr. Myth's ilk approve as a poster for their libertarianism the YouTube 2-year old Indonesian boy with his 40 cigarettes a day habit.
 

I don't know if our own Mr. Myth watched John Oliver's schtick on tobacco. A major point was that the tobacco industry having lost much of its market in America due to regulation, the industry is focusing in foreign countries whose governments may not be able to as effectively regulate the industry, making it easier for the industry to deliver nicotine addiction in those countries. That must be the free market that libertarians of the ilk of our own Mr. Myth laud..
 

Shag:

There is absolutely no correlation between regulation of advertising cartoon characters and smoking rates. That regulation is exhibit 1 for the uselessness of this entire exercise.

Both direct and indirect (lawsuit judgments) taxes on tobacco has more than doubled the cost of the product. While demand for vice products is relatively inelastic, you can still affect it by increasing the cost dramatically.

I don't go to the Daily Show for my news or data.
 

Don't be a Maybe!

To add to the Windsor comment, Kennedy's opinion is set up like this. He notes that marriage regulation has largely been left to the states but notes that there are constitutional checks here (see, e.g., Loving v. VA). Also, the feds do have some power to regulate, including over aliens.

This makes the feds DOMA move problematic -- suddenly state discretion to the changing marriage field (see, e.g., a recent reference by RBG to the days of strict divorce laws) is interfered with by the feds, but not in a legitimate way. In purpose and effect, it is done to illicitly discriminate.

The early federalism discussion provides a window on why the federal DOMA is suspicious. But, the opinion is clear that ultimately it is resting on the equal protection aspect of the 5A.

Critics appear confused in part by selective focus on certain parts of the opinion. A usual tool for advocates too akin to citing a biblical verse out of context.

Others wonder about standards of review. First, this isn't novel to Kennedy opinions. Anyways, the opinion notes that as a whole the law is suspicious in a way flagged in past "animus" opinions. This warrants a more closer look. (see, e.g., the beginning of Section IV).

Finally, the use of federalism in the promotion of liberty is far from novel. It is a long held argument that liberty is protected in part by avoiding illegitimate federal power. This is what happens here -- states that recognized same sex marriage helps liberty and equality but the feds are illegitimately interfering.

The article thus shows how federalism, liberty and equality can work together. The liberty/equality sections do provide an opening for a nation-wide right for same sex couples too. Many opinions rule on a specific subject but there is opening for more.

As to Nixon, the movie "Dick" (a well done satire) has been on t.v. in recent weeks.


 

This comment has been removed by the author.
 

ETA: There is now more on that article & more to come on how the ruling helps “clear the channels of political change.”

There is a "people's brief":

http://www.thepeoplesbrief.com/41708

It shows how the barriers to SSM, particularly in the cases taken for review this term, put a special uninformed barrier in place for political change. Cf. Hawaii, where the legislature was given power to legislate over SSM, not blocked from doing so if it decided to do so in support.

So, though the claim goes beyond Windsor, there is a connection.
 

BREAKING NEWS FOR OUR OWN MR. MYTH:

John Oliver is no longer on the Daily Show, and hasn't been for some time.

Actually, our own Mr. Myth seems to make his own news, usually via his derriere. I don't know how much he knows about sin, but he surely doesn't understand the economics of sin taxes (or at times syntax).
 

Joe,, yes, we are being inundated on how Justice Kennedy tied the Windsor knot.
 

http://www.acslaw.org/acsblog/king-v-burwell-standing-pat-or-standing-corrected

This ACS post covers the standing issue for nth time at this point but raises a concern about the fourth plaintiff, so to speak, that I at least was not so aware about.

I'm unsure still if this means no plaintiff had standing at the time of the lawsuit, but that isn't even the only issue. Prudential standing factors in here too. Given current policy, consistency would be for the justices to care about this issue.

I'm with Mark Field in thinking there probably should be standing anyhow, but the USSC doesn't follow "Joe" standing rules these days.
 

Query: How persuasive might it be upon Justice Kennedy to utilize John Hart Ely's "clearing the channels of political change" when the Court's conservatives have in recent years cluttered the channels of political change?
 

Joe, in case you might have missed it, David Bernstein and Ilya Somin's "Mainstreaming of Libertarianism" is available at SSRN; a link is provided at the Legal History Blog. Here's a portion of the abstract:

"This article explores the connections between mainstream and libertarian constitutional thought in recent decades. On a number of important issues, modern Supreme Court doctrine and liberal constitutional thought has been significantly influenced by pre-New Deal libertarian ideas, even if the influence is often unconscious or unacknowledged."

I haven't downloaded the article as yet but plan to do so in a couple of days as I catch up on my reading list. This may be a rehash of Bernstein's Rehabbing Lochner bolstered my Somin. I recall a statement by Bernstein that he doesn't claim to be an originalist. Somin I'm not sure of as he has gotten involved with Orin Kerr on the application of originalism to SSM in which Larry Solum intervened. Speaking of Solum, he has not, as yet, posted on this article as he is engaged in an originalism program at USD on which Solum does post. The Originalism Blog has a detailed post on this program and I note that our host Jack Balkin is designated as a responder to one of the papers to be presented. Perhaps Jack may post on the program.

Speaking of libertarians, I recall statements that some libertarians believe the Constitution was a libertarian document. Perhaps those libertarians so claiming might be a tad concerned with the fact that the 1787 Constitution and the 1791 ratified Bill of Rights strengthened the rights of slaveowners and slavery even beyond the Articles of Confederation. Maybe this claim of some libertarians waltzes around (cherry-picks) those strengthened such rights of slaveowners and slavery. Query: Are originalists inclined or disinclined to be libertarians?
 

Thanks. A bit wary about reading that duo though did find Prof. Berstein's chapter on Lochner in "Constitutional Law Stories" (edited by Michael Dorf) a reasonable summary that doesn't have his blog persona bias.

The basic argument that some sort of "libertarian" thought has continual staying power is fairly vanilla to me. Liberals on the Supreme Court, e.g., repeatedly cite cases from that era.

Nuanced criticism states a change of degree and focus. As Prof. Nourse discussed in her article on "a tale of two Lochners," the pre-New Deal Court wasn't that libertarian overall. Its (dis)respect of freedom of speech is but an example.

Lochner itself isn't really an exception. The libertarian concern, like many libertarians today, was of a certain type. Certain economic regulations concerned people.

Later, the overall idea of basically a natural rights view of liberty continued, but there was a different philosophy respecting regulating economics. The old system was deemed inequitable as well as inefficient.

Multiple critics of Lochner of the Supreme Court recognized this & I pointed it out in various comments to Bernstein's posts over at Volokh Conspiracy. Some critics simplify. Others use "Lochner" as a summary label. So, Bernstein calls them out & notes such and such is really a federalism decision. But, the criticism is really about how the courts regulated the economy.

Berstein etc. can cite some cases where liberty is protected in other areas. There are examples, but overall, Prof. Nourse is correct. Pre-New Deal, the police power was stronger than after. The best way around that was that with a smaller population and less developed economy etc., there was less regulation overall.

But, even there, people have shown that there were lots of regulations that were far from libertarian. And, the courts as a whole upheld them. That duo is overall make some good points but lack a certain sense of perspective for me to appreciate them that much.
 

The "libertarian" nature of the original Constitution would have surprised some of its early opponents.

I disagree with some on the breadth of the pro-slavery nature of the document -- as with Prof. Fehrenbacher, I think the issue there was more on how the open-ended text was applied.

After all, Dred Scott and Prigg were in no way compelled by the text, "originalist" the authors claimed they were being. But, I will wait for another day to belabor that hobbyhorse.
 

Modern libertarianism is nothing more than classical liberalism before FDR and his merry band of progressives misappropriated the term.

The basic precept of classical liberalism is that way to maximize individual liberty is to limit government power. This distinguishes liberalism from socialism and progressivism, which recognize no natural limits on government power and are thus totalitarian political economies.

Our Constitution was based on the liberal/libertarian philosophy of the day and provides comprehensive limits on the use of government power.

The fact that the Constitution did not go far enough to guarantee human liberty for all hardly means that it does not establish a liberal/libertatian political economy for those it did protect.
 

Ramussen's recent polling found that a plurality of Democrats have no real problem with dictatorship:

43% of Democrats believe the president should have the right to ignore the courts. Only 35% of voters in President Obama’s party disagree, compared to 81% of Republicans and 67% of voters not affiliated with either major party.

Fifty-two percent (52%) of all voters believe, generally speaking, that court challenges of actions approved by the president and Congress help protect the rights of U.S. citizens. Thirty percent (30%), however, consider such challenges mostly nuisances that stand in the way of good policy. Eighteen percent (18%) are not sure.

Thirty-one percent (31%) think it is more important for government to operate efficiently than it is to preserve our system of checks and balances.

http://www.rasmussenreports.com/public_content/politics/general_politics/february_2015/should_obama_ignore_the_federal_courts
 

Our own Mr. Myth, whom I had earlier referred to as " ... a classicist without any class ... " reaffirms his living in a past that clearly he does not understand. And his not so subtle attempt to cloak the libertarianism of the 1787 Constitution and the Bill of Rights ratified in 1791 that extended beyond the Articles of Confederation protection of the slaveowners and slavery with the "philosophy of the day," stands libertarianism on its head - slavery was a philosophy? Perhaps the libertarian slaveowner did no harm owning slaves as slaves were chattels, i.e., merely the slaveowner's own property (that libertarianism exalts), that the libertarian slaveowner was only harming himself with what he did with his own property, in other words, the Mill principle of no harm to others, no foul. At a minimum, a libertarian of today should condemn the impure libertarians of the founding.

Our own Mr. Myth tries to get cute with this:

"The fact that the Constitution did not go far enough to guarantee human liberty for all hardly means that it does not establish a liberal/libertatian political economy for those it did protect."

Perhaps he can describe the "liberal/libertarian political economy for those [the Founders established and] did protect" to measure what the chattel slaves, (white) women, the Indian Tribes, and (white) non-property owners (aka the non-elite) were deprived of. If libertarians seek to claim that the 1787 Constitution and the Bill of Rights ratified in 1791 reflected libertarianism, they must accept their warts and horns that led to the Civil War. Most likely libertarianism has changed over the years, just as the Republican Party of Lincoln today has as its base former slave states Democrats converted to Republican post-Brown I and the civil rights movement. But the current Republican Party also includes many libertarians. So how really different are today's libertarians from those of the founding? Hmmm.
 

Our own Mr. Myth can be selective with his reliance on polls. Perhaps polls regarding the public's approval/disapproval of the President, the Congress and the Supreme Court might add a tad of meaning to the poll he cites (assuming that any Rasmussen poll can be considered objective).
 

I have my doubts about that article, but the originalist/corporation article Shag cites at the OP's Concurring Opinions blog was interesting.

Citizens United rises and falls on non-originalist 1A Kennedy jurisprudence. But, then, "originalist" is a word that plastic.

http://t.co/ZHk3ZVi1yz
 

Shag:

I suppose that Athens did not have a democracy and Rome did not have a republic because they both held slaves?

If the Constitution did not create a classical liberal/libertarian political economy, precisely what political economy did it create?
 

Our own Mr. Myth responds with a question:

"I suppose that Athens did not have a democracy and Rome did not have a republic because they both held slaves?"

What kind of a democracy was Athens as compared to America at the founding? Do we have to delve into a detailed or significant history of that Athens? What were the circumstances back then, including the technology? What caused the demise of Athens? What were the demographics of slaves back then in comparison to the total population? How were women treated? How were the non-elite treated? Remember, as a sage once said, "Beware of overbearing Greeks." Should we consider the military battles and their impacts on Athens democracy?

Do we need a similar review of the Roman Empire at its various stages?

No, these are tossed out by our own Mr. Myth as "strawmen."

Keep in mind that the Founding goes back a little over 2 centuries, a blink of the eye compared to how long ago there was Athens and Rome.

America's political economy was founded on slavery in the slave states. It was a fiction that the pols in the slave states expected expected that in due course (1808) the slave trade would end and that the significance on the economy of slavery would diminish and end overtime. We know the slave trade continued to a limited extent after 1808. But technology especially with cotton required more slaves with expanding production. Procreation by slaves significantly increased the slave population (aided by some slaveowners). In fact, a reduction in the slave trade post 1808 made existing slaves more valuable to their owners. And then there were the Territories and new states where the slave force would be economically. The leaders of the slave states had the benefit of the pro-slavery provisions built into the Constitution and Bill of Rights to extend slavery into the Territories and new states. Consider the 1850 Fugitive Slave Act and the Compromise that Webster had a hand in. Then there was CJ Roger Taney's opinion in Dred Scott. The clear goal of the slave states was to protect slaveowners' interests in the non-slave states via the Taney Court goal to override the NY Lemmon case that did not involve fugitive slaves but slaves in transit.

Now, we dont have to go back to the Mediterranean and Ancient Greece and the Roman Empires to address the 1787 Constitution and the Bill of Rights ratified in 1791 to address the libertarian involvements. Perhaps libertarians back then - and some apparently even now - look upon all this as a function of the free market dealing with property.
 

Query: Will current day libertarians flock for 2016 over to the candidacy of libertarian Rand Paul's "half-Atlas shrugging" version of libertarianism? Like Jeb Bush, Paul claims to be his own man, not a repeat of the alleged racism of his father who was once a darling of libertarians. But Rand and dad Ron seem to be isolationist.
 

"First, it explains why the Medicaid defunding threat in [ACA] was properly held unconstitutional in NFIB. That provision threatened to take away pre-existing Medicaid from any State that did not accept the Medicaid Expansion."

From a new post advertising a new article. The provision did 'threat' but strings are legitimate except in some special situations (e.g., violation of the 1A). So, no, it really wasn't "properly held" unconstitutional.

Aside from the fact that in practice, given executive discretion written into the statute, that refusal to take the Medicaid expansion would not likely actually have led to denial of all the Medicaid in that state.

But, accepting that part of the ruling is correct, yes, it does provide another reason for not accepting the King plaintiffs' argument. And, again, various conservatives and conservative states agree.
 

I basically agree with Heather K. Gerken on the "right to vote."

Such a right to vote already existing via a comprehensive approach of various constitutional provisions was also addressed in Burt Neuborne's new book.

A bland "right to vote" amendment very well might be akin to a "freedom of speech" -- a good absolutist sentiment that in practice will result in a range of exceptions. Also, not seeing it being passed anything soon.

I do wonder what the next amendment to the Constitution will be. The 27A doesn't quite count, so the last one was ratified over forty years ago.


 

I haven't read Heather Gerken's paper on voting, only the abstract at Larry Solum's Legal Theory Blog with his "Highly Recommended." The abstract brings to mind the implementation clauses in the Civil War Amendments perhaps as her Stage 2 concerns. I don't know if she addresses these Amendments in her paper. But isn't Stage 1 critical as indeed the were 1st paragraphs of each of the Civil War Amendments? I recall a law associate of some years back explaining certain situations to clients by asking if they knew the recipe for Muskrat Stew. When they replied they did not, he in a raised voice would say: "First you've got to catch the muskrat." Or with voting, do we already have the muskrat?

(I may get around to reading the paper but first I've got Bernstein and Somin on constitutional libertarianism at the top of my pile.)
 

She summarizes her position a bit more at Election Law Blog but it is under twenty pages. The Reconstruction Amendments does provide a telling precedent, without the special situation present to make ratification easier.
 

Shag:

Query: Will current day libertarians flock for 2016 over to the candidacy of libertarian Rand Paul's "half-Atlas shrugging" version of libertarianism? Like Jeb Bush, Paul claims to be his own man, not a repeat of the alleged racism of his father who was once a darling of libertarians. But Rand and dad Ron seem to be isolationist.

Good question.

Ron Paul is definitely an isolationist. I have heard Rand go both ways.

In one interview, Rand adopted a version of the Reagan Doctrine where you work to spread freedom in other countries, but keep war back as only a final option.

That was Reagan's basic approach. However, Reagan also had not problem training and supplying others to wage war against the Soviets and their puppet states. On that last element of the Reagan Doctrine, Rand has been silent.

Rand Paul is far more comfortable discussing economics and is likely still developing his foreign policy. If he is running for President, Paul better develop a comprehensive policy post haste. Whoever wins in 2016 will inherit an absolute mess from the current president.
 

Our own Mr. Myth closes his paean to the libertarian Rand Paul for 2016, whom I described as "half-Atlas shrugging," with this:

"Whoever wins in 2016 will inherit an absolute mess from the current president."

This is of course a prediction, a skill for which our own Mr. Myth is most inept. [BB can fill in details.] Now let's go back to the Bush/Cheney 8 years during which our own Mr. Myth walked in lockstep with that Administration and look at what that Administration actually left for the victorious Pres. Obama in 2008. No prognostications by our Mr. Myth back then. And Obama dug the country out of that big hole that Bush/Cheney left behind with their 2007-8 Great Recession, with record economic growth. Hindsight is usually 20-20 except for our own Mr. Myth who has ranted with hatred from day 1 of the Obama Administration and continuing into his reelection in 2012 to the present. Our own Mr. Myth needs the services of an ophthalmologist. Perhaps Rand Paul is available via his self-certification in that specialty. And our own Mr. Myth should keep in mind that the Republicans control Congress up to 2017, extending the Republican "NO" to everything Obama as they have since Obama's inauguration. Yes, the Republicans messed up with the Great Recession of Bush/Cheney in 2007-8 and the Republican Congress can mess up even more through 2016 with their say "NO" to everything Obama. Let's see how Homeland Security funding works out this week.

And Rand Paul's economics are as silly as those of our own Mr. Myth.

Personally, I don't think that many libertarians share the views of our own Mr. Myth on Rand Paul for 2016. But I'm pleased that our own Mr. Myth took the bait, thus exposing himself to frowns of libertarians.
 

Joe's comment on the Reconstruction Amendments is apt. In addition, consider how long it took after the ratification of the 14th A to implement it with the Civil Rights Acts of the mid 1960s. You can lead Congress to the political waters, but it can be hard to swallow. The Constitution, even as amended, was not intended to be a code; rather, principles were set forth, making the current vogue of originalism oxymoronic. Accept the fact that historically the Court reflects political ideologies from time to time. But unlike Congress, the Court is not accountable to voters.
 

John Paul Stevens on originalism:

http://www.supremecourt.gov/publicinfo/speeches/JPS%20Speech%28Georgia%29_11-06-2013.pdf


 

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