Balkinization: Conventions on Replacing a Justice in a Presidential Election Year

Comments:

Gerard's closing:

"If the President wants to get a nominee confirmed this year, then he needs to pick a compromise candidate."

might be a reversal of the process set forth in the Constitution, in that the Senate (bi-partisanely?) might "nominate" a so-called "compromise candidate" with the advice and consent of the President.

# posted by

Shag from Brookline : 3:28 PM

This is silly. You develop conventions concerning matters that happen frequently. This hasn't happened often enough for there to be a convention.

There isn't a convention concerning everything.

If the President wants to get a nominee confirmed this year, he needs to have a brief chat with the NSA, and then lean on several Republican Senators. One of the perks of running a survailance state.

# posted by

Brett : 3:45 PM

firv 1000
hguhf
friv 4
tt4
frive
العب
العاب درايفر
العاب سيارات
firv 100
firv 2
firv 3
firv 10
firv5

http://j33x.com
http://www.jeux-top.net
http://www.al3abmix.com
http://www.jeux44.com

# posted by

Taita Web : 3:49 PM

Yes, multiple justices were confirmed in election years (however you code Kennedy's confirmation) and as noted over at Talking Points Memo, the Republicans are doing some bs-ing there. But, that doesn't really matter, since convention norms have changed & the Constitution leaves them open to time as it does a range of things.

They should be judged on the merits, not based on what they did back in the day. As suggested, it is early enough that it reasonable to have a nomination and honest hearing. "The line" cited in the discussion for sake of argument works. Basically, I think it's a fairly easy call here since there is more than enough time to stock the term for the start of next term.

Sure, this doesn't mean confirmation is required. But, process and degree of obstruction matters in government, including as it effects later actions. Various choices given all that would be unlikely to lead to confirmation. Judge S., on the top of various lists, would be a compromise (some on the left already are worried he's be not liberal enough). Another interesting choice is Judge Kelly, who the Chairman of the Judiciary Committee supported strongly last time.

What "compromise" means here, however, these days is unclear.

# posted by

Joe : 5:13 PM

I agree: Obama should nominate somebody, and then, unless he makes a shockingly reasonable, from a REPUBLICAN perspective, choice, his nominee should be shot down. Rinse and repeat, until late January of next year, at the earliest.

There's no Presidential veto here, there's no wickedly clever procedural move the Democrats can pull to get a bad nominee approved. Blocking bad nominees, and again, bad nominees from a REPUBLICAN perspective, is one of the main reasons we elect these clowns. They have no excuse, the heavens will not fall if the Supreme court has only 8 members for the next year.

Prove you can keep a bad nominee from being confirmed, or demonstrate you're a waste of space. That's the bottom line.

# posted by

Brett : 6:47 PM

People elect senators for various reasons and determining "advise and consent" only means confirming "shockingly reasonable" as in "very conservative" judges might not be what everyone thinks. They might think other things like foreign policy or taxes or something was the "main reasons" they elect them. Especially if it is just "until January and Clinton comes in since you know, even we know there is a limit."

But, it's a changing thing there. Democrats when in control of the Senate, even when they could appeal to non-ideological grounds, confirmed Clarence Thomas to replace Thurgood Marshall. At the time, it looked like it might meant the death knoll of Roe v. Wade. It also gave Republicans a firm majority on various issues. But, Democrats were not elected "mainly" to defeat such a nominee. They were elected for a range of reasons. Imagine someone like Judge S. with more experience who clerked with Ted Cruz and so forth.

# posted by

Joe : 6:57 PM

More accurately, they didn't block him; Most Democrats voted against, and that's fine, and to have been expected at a time when the parties overlapped somewhat, and the Democratic party was not so dependent on the Court to backstop it's shrinking legislative power.

Perhaps Democrats did not, at that time, primarily elect their Senators for their capacity to block harmful stuff, like bad nominees. That is none the less most of what Republicans expect of their Senators. Nothing positive, we don't really expect a lot out of the federal government, and know they can't do anything positive while Obama is in office.

But they have the majority, which means they CAN block bad nominees, and we darned well expect them to. And will punish them at the polls for failing to.

That, of course, is why McConnell pledged to prevent a vote, rather than to defeat anybody Obama sent up in a vote. He, and we, know that some fraction of the officeholders we elect lied their way into office. If you hold a vote like this in an election year, they will betray the people who elected them, and be punished at the polls.

McConnell isn't blocking a vote to block Obama's nominee. He's blocking a vote to prevent Republican voters from knowing who they should replace.

Once the primaries are past, we lose the option of replacing the Senators up for election with another possibly better Republican, and are stuck with the choice of them or a Democrat. At that point betraying us will be more politically survivable, and McConnell will likely schedule a vote on whoever Obama picks at that point, between the Republican primaries and the general election.

# posted by

Brett : 7:26 PM

If you want to spin, go right ahead, but their votes in practice confirmed Thomas as would be the case if a few Republicans voted for a moderate nominee (no Goodwin Lius etc.) like they didn't filibuster Sotomayor and Kagan. Also, by 1991, Republicans for decades complained Democrats relied on the courts. But, apparently, the dynamic changed so much there (query if Republicans are relying now on multiple issues) Democrats will not do what they did in 1991. Again, when it happens, I'll believe it.

"McConnell isn't blocking a vote to block Obama's nominee. He's blocking a vote to prevent Republican voters from knowing who they should replace."

Sounds like Republican voters should be annoyed at that. Anyway, if senators want to change the rules for advise and consent, they have the power to do that. The good policy of that is another matter. But, they didn't let that stop them before.

# posted by

Joe : 7:49 PM

There are indeed reasons why one might not want to replace a Justice in a Presidential election year. But there are no Constitutional reasons.

Since this is all transparently obvious, one might hope for some refreshing honesty here. E.g. "we object because we don't want this President to nominate" etc.

Failing that, anyone who made an issue of his deep love for the Constitution and strict interpretations thereof, can hardly object.

# posted by

jpk : 8:05 PM

It is really good experience to go through this website. It is beautifully covered the topic without having any irrelevant element. Thank you.
Buy Term Papers online

# posted by

Unknown : 5:16 AM

There are neither constitutional reasons not to replace a Justice in a Presidential year, nor constitutional reasons to replace them in a Presidential year. The number of Supreme court Justices isn't even constitutionally fixed, how can being one short be a constitutional issue?

It's all politics, because our judicial system has been broken, it's just another way of waging politics now.

You don't like that, you need to fix the judicial system, and since it was broken by federal officeholders realizing they could 'hack' the Constitution by appointing Justices who'd say it meant whatever they wanted, the only way to fix it is to take the selection of Supreme court justices away from federal officeholders.

# posted by

Brett : 6:49 AM

Tangential, but I can't let the black comedy of Scalia's death certificate pass unremarked.

According to WAPO, the hotel owner found Svalia's body in the morning in his room after he failed to appear for breakfast. Presidio County is very empty, and it took some time to round up a official authorised to issue a death certificate. Eventually they found County Judge Cinderela Guevara (sic). She was unwilling to drive some large distance simply to inspect the corpse and trusted the hotel owner. {Imaginary dialogue: "I was in 'Nam and know a dead guy when I see one. The Justice was as cold as a witch's tits, begging your Honour's pardon." "Pardon denied, but I'll take your word for it. Anything suspicious?" "Not at all. The guy was fat, angry, 79 years old and really tucked into my prize chile. Heart just gave out, I'd say." "OK. I'll fax a certificate over. I'll just put "natural causes", or we'd have to get a doctor to look at him, which looks like a waste of taxpayer dollars.")

So there was no autopsy, no first-hand observation, and no proper cause of death. Cue conspiracy theories: it was Secretary Clinton in the dining room with curare.

# posted by

James Wimberley : 8:36 AM

Conspiracy theories about this strike me as a bit silly; The man was 79, overweight, and had a bad enough heart condition that he was considered too great a risk for surgery. Under the circumstances, his dying like that was to be expected, really the only question was whether it would be this year, or maybe the next.

That said, an autopsy should have been done. A great deal of the trouble we have with conspiracy theories in the US, is that they're not considered worth properly refuting. But dismissing a conspiracy theory out of hand, rather than comprehensively refuting it with evidence, is rather ineffective as a way of suppressing it.

It really would have been worth it to have an autopsy, just to stop the rumors.

# posted by

Brett : 8:46 AM

they could 'hack' the Constitution by appointing Justices who'd say it meant whatever they wanted
Whatever they [the officeholders] wanted, or whatever they [the Justices] wanted? I assume [the officeholders] is meant, but it's not obvious from the syntax; nor from the outcomes. As to outcomes, Brett's list of Constitution-hacking Justices doubtless includes Warren & Brennan, "my two biggest mistakes" according to the federal officeholder who appointed them.

Since the appointing officeholder evidently has no idea what the Justice, e.g. Souter, might do up there, it's a curious kind of hack. & if federal officeholders are not to appoint them, might we have circuses like the W. Virginia's Don Blankenship buying a favorable State Supreme Court justice? or the present Republican Presidential nominating contest, or the preceding money primary?

Just looking for a well-thought-out alternative here.

# posted by

Larry Koenigsberg : 9:12 AM

That said, an autopsy should have been done. A great deal of the trouble we have with conspiracy theories in the US, is that they're not considered worth properly refuting. But dismissing a conspiracy theory out of hand, rather than comprehensively refuting it with evidence, is rather ineffective as a way of suppressing it.

It really would have been worth it to have an autopsy, just to stop the rumors.
# posted by Blogger Brett : 8:46 AM

A competent conspiracy theorist will just claim that the medical examiner was involved in the conspiracy.

# posted by

Anonymous : 9:36 AM

Feh, you think conspiracy theorists don't come in a distribution of crazy? Sure, nothing is going to totally eliminate conspiracy theorizing. Nor should it be completely eliminated, because conspiracies do happen occasionally. (You really think people should have believed Nixon's missing minutes on the tape were innocent?)

But your average person who buys into a conspiracy theory isn't totally insane, immune to evidence. It's just that, when conspiracy theories come up, the theorists provide reasons to believe in them, and the people dismissing them just... dismiss them. Instead of taking the time to explain why they're wrong.

That's the attitude that makes it so easy to spread them: They don't meet with serious opposition, just contempt. That's all well and good for people who respond to contempt, but contempt isn't actually an argument, and people know that.

In a sense, the people who buy into conspiracy theories are actually more rational than the average person, because they're responding to arguments. It's just they're only getting arguments from one side.

# posted by

Brett : 9:54 AM

The only thing that matters is that Article II does not require the Senate to provide advice and consent for every nominee. The Senate has the discretion to disregard a nominee. The convention of not consenting to nominations made during election years is a purely political decision by the Senate to allow the new president to make the nomination.

Obama will likely nominate a female minority that matches key parts of the Democrat electorate and the Democrats will argue that the GOP is racist and sexist for not giving her a hearing and a vote.

On the other side, Senator Cruz is campaigning to make this election in part a referendum on the nomination, arguing that a court with a five progressive majority will likely seriously limit or effectively eliminate the right to keep and bear arms, religious liberty, and free speech. He made this argument at length at the CNN town hall last night.

In November, the voters are free to express their opinion on the nomination at the ballot box.

If history is any guide, though, this issue may only work at the political margins, if there. The folks on both sides who believe that religious liberty, abortion and/or firearms are important issues may respond. The Democrats so routinely play the race and gender cards that I doubt laying them on the table one more time after a nomination is likely to change the election calculus.

# posted by

Bart DePalma : 10:01 AM

Check out Jack Balkin's:

"The Last Days of DISCO:Why the American Political System is Dysfunctional" and his take near the end on the role of the judiciary regarding dysfunction and how change comes about (like soon?).

http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5885&context=fss_papers

# posted by

Shag from Brookline : 10:03 AM

There is no constitutional bar from the Senate just blocking everyone for five years and let the Supreme Court go down to seven justices or whatever. They did something comparable during the Andrew Johnson years.

The issue for me is what is good constitutional policy, which is not the same thing as what is compelled by the doctrine. This is where GM's norm or convention idea starts to kick in and those change over time though some hold such as never simply having a simple up/down vote for everything, but putting some sort of bottlenecks in.

To me, and sorry if no one believes me, it is a consistent thing, it is good constitutional policy to not simply say in February that we are not going to vote on anyone. Furthermore, if the President puts forth an objectively reasonable person (and that would include ideology to some extent, so if Pamela Karlan is nominated, he isn't somehow owed a confirmation -- the system sets up partisan limits of some sort), it is a good thing if the person is confirmed as a constitutional norm thing. Now, this would probably involve the centrist/conservative wing of the party, who I'd be less willing to vote for myself, but it's good such people are there.

As to conspiracy theories, repeatedly evidence against IS provided. Some are to be honest stupid and contempt of ignorance isn't a horrible thing. If someone says things that run into reason, they should accept some need to have a higher burden of proof. Brett is contemptuous of things he thinks is stupid (such as the law in general at times). The problem is they are still believed -- since, no, the people who buy into them don't tend to be more rational. "Arguments" can be found for most thing such as you know Noah having an ark and so on.

# posted by

Joe : 10:06 AM

GM tossed out Justice O'Connor's name. Other than supporting confirming someone sooner than later, she thought that idea was too silly to respond to.

The "surprise" factor of justices is overblown. Warren and Brennan were chosen for political reasons & their backgrounds suggested they weren't going to be Ike Republicans. Souter had support of Sen. Warren Rudman, your run of the mill New England Republican and Souter acted that way.

Few justices in the recent era to me were that surprising, at least for the reasons they were appointed (some might be surprised Scalia was pro-defendant in certain ways, but sentencing wasn't an immediate concern when he was nominated).

# posted by

Joe : 10:15 AM

I'm not seeing what it adds to your argument, to insert the word "constitutional", Joe. Why not just say you don't think it's good policy?

Since it's not actually compelled by the Constitution, it isn't really "constitutional policy" in any significant sense.

And you say evidence against IS provided, but the autopsy would have been easy evidence, highly relevant, and it conspicuously wasn't provided. You think it wouldn't have changed any minds on the margin?

The refusal to provide/discover relevant evidence, rationally, promotes suspicion. I'm content based on Scalia's doctor's statements, and just looking at an actuarial chart, that there's probably nothing criminal here. But the failure to have an autopsy to prove it doesn't help things.

# posted by

Brett : 10:22 AM

Can we expect a conspiracy theory movie in time for the November election on an "untimely" death?

# posted by

Shag from Brookline : 11:14 AM

The fact that something isn't mandatory under the Constitution doesn't mean that it's not a good practice for continued Constitutional government. The Constitution actually does mandate an appointment -- the President "shall appoint". It doesn't mandate that the Senate confirm anyone, but the smooth functioning of the system into the future requires adherence to extra-Constitutional norms.

In addition, the law for the last 150 years had set the number of Justices at 9. While nobody thinks short vacancies (say, 6 months or so) infringe on that law, longer ones would. In the very long run, failure to confirm Justices would result in there being no Court, and that itself would violate the Constitution. Hence the requirement of extra-Constitutional norms.

# posted by

Mark Field : 11:55 AM

Where the president will nominate a justice who will rewrite or erase provisions of the Constitution and the US Code any time they conflict with a desired progressive policy, the Senate declining to provide advice and consent for a nominee until after a new president is elected in an attempt to receive a qualified nominee is the epitome of good constitutional practice.

The abuse of our judicial system has deteriorated to that point.

# posted by

Bart DePalma : 12:14 PM

Yes, it was a shame that "The judicial power of the Confederate States shall be vested in one Supreme Court" provision was never honored. The Confederacy never got around to having a Confederate Supreme Court.

http://law2.wlu.edu/deptimages/Law%20Review/68-2White.pdf

"The January 1865 session of the Confederate Congress subsequently adjourned, scheduling its next session for November 1865"

It wasn't an eventful one.

# posted by

Joe : 12:24 PM

"Article II does not require the Senate to provide advice and consent for every nominee."

Article II says "[the President] shall nominate, and by and with the advice and consent of the Senate,...judges of the Supreme Court"

Shall means to command, mandatory, 'must' doesn't it? It seems to read that the President must nominate, by and with the advice and consent of the Senate, that is that he must nominate and they must provide 'advice and consent (by which I don't take to mean they must consent, but they must go through the process of advising and giving/denying consent).

Here's a question for those who say the Senate need not engage in 'advice and consent' in these matters: consider if through some awful accident or act of God all of the Justices died at once, and one party controlled the Senate and Presidency. According to your logic they could just sit on nominating anyone to constitute a new court, and thereby make any laws or measures they enact during that time free of judicial review, right?

# posted by

Mista Whiskas : 2:34 PM

This comment has been removed by the author.

# posted by

Joe : 2:41 PM

There would be "judicial review" -- state courts (originally, the Supreme Court had much less jurisdiction under the Judiciary Act of 1789 etc. than it has now even over constitutional matters) and lower federal courts (which even shares original jurisdiction on certain matters such as crimes involving ambassadors per a 1790s ruling) would still have that power.

But, the overall question holds.

# posted by

Joe : 2:43 PM

The Constitution actually does mandate an appointment -- the President "shall appoint".

This is really dead wrong. It's 2 year old's legal reasoning (although Scalia, who was a champion of 2 year old's legal reasoning, would approve of it).

"Shall" modifies President, i.e., it's the President, and not someone else, who shall appoint the nominee.

It is NOT a mandatory duty. There's no punishment for not doing it, and it's not an impeachable offense. The President COOULD announce "I'm not appointing anyone", and nobody could do a thing to stop him. Indeed, if the vacancy occurred 5 days before the end of his term, he WOULD do that.

There's just so many dumb things people I normally agree with are saying here, and this is one of them.

# posted by

Dilan : 2:47 PM

Here's a question for those who say the Senate need not engage in 'advice and consent' in these matters: consider if through some awful accident or act of God all of the Justices died at once, and one party controlled the Senate and Presidency. According to your logic they could just sit on nominating anyone to constitute a new court, and thereby make any laws or measures they enact during that time free of judicial review, right?

If the political branches refused to staff the Supreme Court, you would have a constitutional crisis.

But what makes you think the Constitution prohibits constitutional crises? Congress could also repeal all federal laws with a veto-proof majority, too. It wouldn't be unconstitutional.

If you think these scenarios are problematic, then admit that our founders were immoral, slaveholding, dumb, slave rapists (they were) and they wrote a crappy Constitution (they did). But don't pretend that it's unconstitutional just because you don't like the result.

# posted by

Dilan : 2:50 PM

Dilan, I subscribe to the idea that when giving an interpretation to the law one should expend some effort to avoid one that produces absurd results, because the paramount purpose of the law is to try to stave off calamity.

As to your other point, "Shall" modifies President, i.e., it's the President, and not someone else, who shall appoint the nominee," yes, it's the President who shall (must) nominate the judge. Any person who *is the President* should take it as part of their duty.

# posted by

Mista Whiskas : 2:55 PM

Here's another wrinkle on my question:

Say a Chief Justice dies. Could a President refuse to appoint a successor and in doing so prevents, say, his impending impeachment (which requires the Chief Justice to preside iirc)?

# posted by

Mista Whiskas : 2:59 PM

"The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present."

By statute:

"Whenever the Chief Justice is unable to perform the duties of his office or the office is vacant, his powers and duties shall devolve upon the associate justice next in precedence who is able to act, until such disability is removed or another Chief Justice is appointed and duly qualified."

https://www.law.cornell.edu/uscode/text/28/3

# posted by

Joe : 3:28 PM

I subscribe to the idea that when giving an interpretation to the law one should expend some effort to avoid one that produces absurd results, because the paramount purpose of the law is to try to stave off calamity.

I agree, but there's a limit to that. If you think that the Constitution prohibits any act that might precipitate a constitutional crisis, you are taking that way too far.

As I said, Congress really can repeal all federal statutes with a veto-proof majority. In doing so, it would precipitate a crisis. But the Constitution is totally clear on that point.

It's also totally clear that the President is not required to nominate justices ("shall" is just the designating verb that it's the President, and not someone else, who has the power) and the Senate is not required to confirm them.

# posted by

Dilan : 4:26 PM

In November, the voters are free to express their opinion on the nomination at the ballot box

Just as they were in November 2008 and November 2012.

# posted by

jpk : 6:47 PM

jpk:

There were nominations pending in 2008 and 2012?

If you were referring to the election of Obama, you may want to also note the election of the GOP Senate in 2014.

# posted by

Bart DePalma : 9:11 PM

If you were referring to the election of Obama, you may want to also note the election of the GOP Senate in 2014.
# posted by Blogger Bart DePalma : 9:11 PM

Senators don't select Supreme Court judges. They just vote whether to approve them. The President does the selecting.

# posted by

Anonymous : 11:56 PM

Over at the Legal Theory Blog, Larry Solum posts on an Eric Posner Blog post "Why originalism will fade away." Then Solum goes into a long riff on Justice Scalia and originalism, concluding with a few lines from the "immortal words of Buddy Holly," then concluding in his own words:

"Not fade away, Nino, not fade away."

Solum is a tad younger than I am and I recall well Douglas MacArthur's "farewell speech" (pre-Buddy Holly) that included:

"Old soldiers never die, they just fade away."

I used to think that Solum was the least ideological originalist, but his editorializing over the past couple of years indicates that his originalism (the New Originalism) is as political as was the late Justice Scalia (on and off the Court).

I read Solum's post before getting to Posner's. But I would recommend to those interested that they first read Posner's post to better understand Solum's editorializing.

# posted by

Shag from Brookline : 7:34 AM

"Senators don't select Supreme Court judges. They just vote whether to approve them. The President does the selecting."

Exactly. And the voters are aware Presidents serve an entire four years, not three and an 'election year.'

The Republicans are running around saying 'the people should have a say in selecting Scalia's replacement!' They did already.

# posted by

Mista Whiskas : 7:40 AM

Republican Senators are engaging in pre-emptive advice/rejection, exercising their 1st A speech rights. And President Obama under his 1st A speech rights can use the bully pulpit to point out what the Constitution provides for in this situation regarding his role and that of the Senate..

# posted by

Shag from Brookline : 8:18 AM

I say, I say ... there is a lot of b.s. going on.

https://www.youtube.com/watch?v=KTwnwbG9YLE

Not a big fan of Eric Posner (for one thing, too open to executive power; yes, he's the son of Scalia foe, Judge Richard Posner), but he does have a good summary:

Only Justice Clarence Thomas, who has become increasingly isolated, has tried to use originalism in a consistent way. The three other Republican-appointed justices—Roberts, Kennedy, and Samuel Alito—are not originalists, nor are the four justices appointed by Democratic presidents. These justices decide cases the way justices always have: by using whatever materials at hand—historical sources, yes, but also (and mainly) judicial precedents, common sense, general principles, political values, and so on—to generate outcomes that pretty reliably track their ideological priors.

[…]

This is why originalism has no staying power except as a slogan. When Sen. Ted Cruz says that he will appoint an originalist if he wins the presidency, he means that he would appoint a justice who will vote to overturn Roe v. Wade and strike down economic regulation like Obamacare.

Originalism is not the same as textualism nor conservatism. Anyway, Linda Greenhouse had a long op-ed in the NYT the other day. Her interests lead Greenhouse to somewhat undersell Scalia's influence (e.g., he probably did have significant influence in sentencing law), but as usual is worth reading. She noted the last meeting she had with Scalia involved him talking about the pope.

# posted by

Joe : 8:36 AM

bb: They just vote whether to approve them.

This is one of the Constitution's checks on executive power. The President and Senate are full partners in selecting judges.

The Republicans are running around saying 'the people should have a say in selecting Scalia's replacement!' They did already.

You could make the same argument concerning the voters' election of a GOP Senate. Full partners.

The voters will both choose a new president and can choose a new Senate majority this year. Therefore, they can indeed choose Scalia's replacement.

The GOP seems sure that they will win both elections. By pulling out all stops to select a justice now, the Democrats also appear sure that the GOP will win as well.

# posted by

Bart DePalma : 8:53 AM

The President and Senate are full partners in selecting judges.

# posted by Blogger Bart DePalma : 8:53 AM

Not according to the Constitution. The President selects. The Senate participation is limited to "advice and consent".

# posted by

Anonymous : 8:59 AM

I attended the Conservative Review convention in Greenville last night. In addition to a list of conservative pundits, Ben Carson and Ted Cruz made appearances. Rubio had confirmed, but chickened out at the last moment. Probably wisely so, it was not going to be a friendly audience.

Cruz intends to make this election about the Supreme court, and the absolute necessity of preventing it from falling into liberal control. He was quite explicit about that. As a reason not only why he should be elected in the fall, but why he needed to be the nominee.

He's not going to be short on campaign workers, with Heller being on the line.

# posted by

Brett : 9:00 AM

The GOP seems sure that they will win both elections. By pulling out all stops to select a justice now, the Democrats also appear sure that the GOP will win as well.

# posted by Blogger Bart DePalma : 8:53 AM

Nominating a Supreme Court judge is not "pulling out all stops". The Constitution gives the President the power to select Supreme Court judges, so that is what he is doing. The GOP's actions are not those of a group dealing from a position of power. Their refusal to even vote betrays their weakness. Their only hope of getting to choose Scalia's replacement is to stall until after the election. Hopefully the voters punish them harshly for it.

# posted by

Anonymous : 9:10 AM

Brett: Cruz intends to make this election about the Supreme court, and the absolute necessity of preventing it from falling into liberal control.

This subject emphasizes Cruz's strengths as a constitutional lawyer. I watched the CNN SC town hall the other night and Cruz makes a very eloquent case when given time free of a Trump filibuster. A five member progressive majority would very likely write much of the First, Second and Fifth Amendments out of the Constitution and would rubber stamp Obama's various illegal rewrites and waivers of the laws of Congress.

Unfortunately, I really do not see appointing Scalia's replacement moving many votes in the election. The vast majority of people do not pay attention to the courts unless they just released some outrageous decision.

# posted by

Bart DePalma : 9:24 AM

BB: Nominating a Supreme Court judge is not "pulling out all stops".

The progressive political, media and academic complex is out in force attempting to force the GOP congressional leadership to cave again. Full court press like before the Obamacare and SSM decisions.

# posted by

Bart DePalma : 9:27 AM

Bartbuster, the Senate currently has a Republican majority, and there's a couple week window this fall, when the new Senate has been seated, but Obama is still President. If Democrats were really at all confident of gaining strength in the Senate, let alone becoming the majority, the sensible thing would be to hold off on nominating somebody until then, when somebody no Republican would ever vote for could be rammed through on a straight party line vote.

They're not going to do that, because there's an excellent chance the Senate is not going to change hands, and an excellent chance that the next President will be a Republican. Nominating somebody they can possibly get confirmed by peeling off a handful of Republican Senators is their best option for maximizing the change at the Supreme court.

Obama still has a couple of days in his window to plausibly make a recess appointment. I would not be surprised if he reversed his stance on that, and did so. They could do a lot of damage in the next couple of years with a recess appointment who didn't have to be moderate enough to have any chance of confirmation.

# posted by

Brett : 9:31 AM

"Unfortunately, I really do not see appointing Scalia's replacement moving many votes in the election."

The NRA cares about it, the survival of Heller is on the line. And the NRA can move a LOT of votes, when it cares.

# posted by

Brett : 9:33 AM

The progressive political, media and academic complex is out in force attempting to force the GOP congressional leadership to cave again. Full court press like before the Obamacare and SSM decisions.
# posted by Blogger Bart DePalma : 9:27 AM

Gosh, I wonder why the Dems are trying to make the GOP look like they're ignoring the Constitution? That certainly is a mystery...

# posted by

Anonymous : 9:37 AM

the sensible thing
# posted by Blogger Brett : 9:31 AM

The sensible thing is to hammer the GOP at every possible opportunity, so that's what they're doing.

# posted by

Anonymous : 9:39 AM

"Heller being on the line."

Why would it be on the line? Democrats repeatedly have supported the opinion, which went out of its way to provide a list of regulations not even at issue that was presumed to be okay (not an "exhaustive" list either):

longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms

Plus, “dangerous and unusual weapons.” Fear of Kennedy being some sort of turncoat (or whatever Cruz-like scare language is used) might not be the reason they didn't accept for review cases Scalia/Thomas opposed -- http://www.supremecourt.gov/opinions/15pdf/15-133_7l48.pdf -- perhaps, Roberts and/or Alito simply find such laws acceptable.

Brett has noted he thinks Heller is weak sauce. Brett et. al. are defending the idea of an opinion as much as the actual one. As with Cruz defending the Christian morality Brett is less gung ho about, this idea of reality will gather support. But, each major Republican candidate also appeals to such concerns, so not sure how much it will help. Cruz should appeal to Brett, given he's a conservative, who is selectively (push comes to shove) concerned about government power.

# posted by

Joe : 9:39 AM

and an excellent chance that the next President will be a Republican
# posted by Blogger Brett : 9:31 AM

These poll numbers are GREAT news for John McCain!!!

# posted by

Anonymous : 9:56 AM

"Heller being on the line."

Why would it be on the line? Democrats repeatedly have supported the opinion, which went out of its way to provide a list of regulations not even at issue that was presumed to be okay (not an "exhaustive" list either): longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms Plus, “dangerous and unusual weapons.

Easy.

Five progressives will rubber stamp any prohibition of firearms they consider "unusual and dangerous" and cite such prohibitions as "longstanding" by citing prohibitions in other progressive jurisdictions. Furthermore, they will limit the right to keep and bear to the private home and rubber stamp prohibitions on public carry. These actions will render the individual right recognized by Heller into an effective nullity.

BTW, Democrats only tell voters that they support the 2A to get elected, then they turn around an offer "common sense" firearm prohibitions when in power. If you live in a blue jurisdiction, the courts are your only hope to protect your right to keep and bear arms.

# posted by

Bart DePalma : 10:03 AM

Democrats have repeatedly supported a tendentious reading of Heller, much like they previously "supported" the 2nd amendment by interpreting it in a fashion that rendered it toothless. The game plan here is to expand the exceptions until they swallow the rule.

Hillary Clinton "supporting" the Heller decision.

# posted by

Brett : 10:03 AM

A minority of Democrats want Heller overruled. Loads of Democrats, especially in states with strong gun cultures, have supported gun rights repeatedly.

The fact a majority oppose overruling a right to own a gun as well as the fact Heller by its terms and as applied allows the regulations most likely to pass except for a few places more gun regulation friendly (whose self-government your candidate selectively want to deny using national power here as compared to women's control of their bodies) makes overturning Heller low in priorities over other issues.

# posted by

Joe : 10:22 AM

Joe: A minority of Democrats want Heller overruled. Loads of Democrats, especially in states with strong gun cultures, have supported gun rights repeatedly.

That is no longer true.

Those loads of white working class voters bitterly clinging onto their guns and religion have largely left Obama's Democrats and are now voting GOP or have stopped voting at all.

The Democrats are now overwhelmingly an urban party, a majority of whom have no problem with the firearm prohibitions in listed above.

# posted by

Bart DePalma : 10:28 AM

It looks like it isn't just Democrats who want to restrict gun rights...

http://www.vox.com/2016/2/19/11059650/muslim-free-gun-range-lawsuit

# posted by

Anonymous : 10:41 AM

ETA: Since some of the base are not fans, candidates will at time appeal to them (and "secret recordings" can be found to scare Republican voters), but as with Republicans, the proof is in the pudding. But, guess, Sanders is the choice there, given he has supported gun rights in the past like his fellow senator who has a target range on his front porch or whatever the line was.

Anyway, all 8 #SCOTUS Justices look on as their colleague and friend Justice Scalia lies in repose in the Great Hall.

https://pbs.twimg.com/media/CblcUH0VAAEq1m4.jpg:large

Instead of the scheduled conference, more somber events today.

# posted by

Joe : 10:43 AM

I'm not feeling very somber.

# posted by

Anonymous : 11:03 AM

Riiight. Hillary is secretly pro-gun, and is just scamming the rubes about being hostile to gun ownership. Once elected she'll actually work on behalf of the NRA to protect gun rights.

You have any idea at all how insulting it is to be on the recieving end of arguments premised on your being a moron?

# posted by

Brett : 11:16 AM

Where did I say she was "secretly pro-gun"? Where? I said this:

A minority of Democrats want Heller overruled. Loads of Democrats, especially in states with strong gun cultures, have supported gun rights repeatedly.

And, they have. Bernie Sanders himself is getting flack for that and Democrats in gun culture states especially honor gun rights. Democrats own guns, they hunt etc. Ignore me and reality all you want. It helps the level of victimhood Cruz wants to rile up. It is annoying that you apparently can't read what I said, but I will continue to assume you can.

HC says some things to appeal to the base. But, push comes to shove, she realizes a majority support gun rights, so will likely accept Heller since it provides a middle ground -- it explicitly allows after all the basic regulations Democrats repeatedly highlight. The "dangerous and unusual" exception even will -- as seen by a lower court opinion only Scalia/Thomas wanted to hear -- allow certain so-called "assault weapon" bans.

This is why you and others don't really like Heller like some liberals think Casey protects abortion rights too mildly.

# posted by

Joe : 11:41 AM

"HC says some things to appeal to the base. But, push comes to shove, she realizes a majority support gun rights, so will likely accept Heller since it provides a middle ground"

Back to claiming she's lying to the rubes.

# posted by

Brett : 11:54 AM

Joe: HC says some things to appeal to the base. But, push comes to shove, she realizes a majority support gun rights, so will likely accept Heller since it provides a middle ground...

That would be the normal Clinton triangulation SOP, but Hillary seems to have dumped that strategy during this campaign. The dowager queen in waiting has enthusiastically gone far to the left of Bill and even to the left of Obama.

Tacking back to the center during the general will not be easy, especially since a heavy majority of voters consider her a liar.

# posted by

Bart DePalma : 12:15 PM

I'm personally expecting Sanders to be the nominee, on the basis that, when the DoJ refuses to indict Hillary, (They can't, she knows where too many bodies are buried.) somebody at the FBI is likely to go public with everything they have on her. The ruin she made of national security has too many people with security clearances pissed off beyond all sanity, to let her go untouched.

It won't be enough to make Democrats turn on her wholesale, they really don't care enough about whether their leaders are criminals. But it will likely push him over the top.

Speaking of over the top. Just the thing for any Hitler Youth you may happen to know.

# posted by

Brett : 12:29 PM

Brett:

My dream general election is Cruz v. Sanders. This would be the first time since maybe Reagan v. Mondale where both candidates are being completely honest with the American about how they intend to govern.

I have an extremely difficult time seeing the corrupt Democrat machine allowing Sanders to win, though. They are already playing games with the delegate counts in IA and NH to favor Clinton.

# posted by

Bart DePalma : 1:22 PM

If the Democratic machine were all-powerful, Sanders wouldn't have done as well as he has. They're not set up to deal with the first generation out of the modern University indoctrination centers. And even Democrats find Hillary a bit too dishonest to be comfortable with her.

# posted by

Brett : 1:31 PM

"These wet dreams [of our dynamic dyslexic duo Brat and Bert] are great news for the Cruz Canadacy!"

# posted by

Shag from Brookline : 2:08 PM

If one needs to use what the other side doesn't say, one's side is weak. But, apparently, it's enough to rile oneself up.

Ted Cruz is also saying things that appeals to the base, including his opinions of SCOTUS being wrong about certain things. But, he knows he cannot do all he could if he had his druthers. So, he will realistically have to choose the art of the possible there. This doesn't mean he is "lying to the rubes," but politics and governing.

Hillary Clinton will too. You can ignore what I say and selectively take potshots at liberals all you want, but it remains the case. First, guns simply isn't a major concern for even many Clinton/Sanders voters. Some wish this was not true, but such is the case. Second, Heller amounts to the median voter's position on guns. Brett and others don't like Heller, since it allows more than they want.

This only underlines why Hillary Clinton is probably willing to live with it, while reassuring her base that she's not a big fan. But, "the machine" is not all-powerful, so like Cruz, she will act with the art of the possible, especially given her priorities.

# posted by

Joe : 2:09 PM

The idea politicians (or human beings on a lesser level) of all sort are not totally honest is taken as so obvious to be left unsaid.

# posted by

Joe : 2:12 PM

I'm really looking forward to finding out that Ted Cruz was a RINO after he loses the election (assuming that he can even get past The Donald).

# posted by

Anonymous : 2:35 PM

I agree that guns simply aren't a major concern for Clinton/Sanders voters. They never were. And yet you got the Brady Bill, and the 94 'assault weapon' ban, and numerous other attempts at more extreme legislation that failed. How can this be?

The Democratic party machine doesn't represent the median voter. Not even the median urban voter, really. Like the Republican establishment, it represents itself.

The interests of the base drives what either party must SAY they will do if elected, and to some extent, forces them to make a show of attempting some of these things. But, beyond that, the parties have their own interests, where their base's concerns are more of a constraint than a driver.

I mean, looks at the TARP process. Did the Democratic party's base demand that the banks be bailed out, and that not one executive be prosecuted? No, of course they didn't. And yet, it happened.

Because the Democratic party's base does not much care about guns, one way or the other, it doesn't function as a constraint on what the Democratic party attempts to do on the subject of guns when in power.

In power, the Democratic party will attempt to reverse Heller, not because it's base demands it, but because it is institutionally hostile to gun ownership, and its base wouldn't demand it refrain.

# posted by

Brett : 2:47 PM

bb:

I would not make fun of the Donald. He is arguably the most electable of the Democrats running for President.

# posted by

Bart DePalma : 2:54 PM

I would not make fun of the Donald. He is arguably the most electable of the Democrats running for President.
# posted by Blogger Bart DePalma : 2:54 PM

These poll numbers are GREAT news for John McCain!!

He's a Republican, sparky.

# posted by

Anonymous : 3:03 PM

I would not make fun of the Donald. He is arguably the most electable of the Democrats running for President.
# posted by Blogger Bart DePalma : 2:54 PM

BTW, I'm not making fun of The Donald. I'm making fun of Cruz. He's losing to a Democrat in the Republican primary. How great is that?!?! I don't see how he can lose in the general election...

# posted by

Anonymous : 3:05 PM

bb:

Do you know what the term RINO means?

# posted by

Bart DePalma : 3:09 PM

Do you know what the term RINO means?
# posted by Blogger Bart DePalma : 3:09 PM

Republican I'm No longer Owning

# posted by

Anonymous : 3:16 PM

bb:

:::chuckle:::

Good one.

# posted by

Bart DePalma : 3:17 PM

I know what you think it means, but in reality you use the term to disavow any Republican that says or does something that makes you look even more silly than usual.

# posted by

Anonymous : 3:21 PM

Brett has formally joined up with SPAM I AM! as a Cruz Canadacy troll at this Blog with his:

"[Cruz's] not going to be short on campaign workers, with Heller being on the line."

In a later comment, Brett adds:

"The NRA cares about it, the survival of Heller is on the line. And the NRA can move a LOT of votes, when it cares."

Of course, Heller (and McDonald as well) is limited to certain weapons for self-defense in the home. The Court has been reluctant to grant Cert in 2nd A appeals, which so frustrated Scalia and Thomas in a recent case that they noted their objections to the failure to grant Cert. Now the objectors are down to one.

But Brett has wet dreams of 2nd A absolutism. Perhaps he will lead a posse, well armed, to make the point of this election that he sees in the Cruz Canadacy. Is there a suggestion of a Cruzade (without papal approbation, of course)? Despite Cruz's carpet bombing and glowing sands comments, I double that a Cruzade would venture into the Middle East, rather I would imagine such a Cruzade heading for our southern border and otherwise addressing the changing demographics. Can I vszualize Brett as a leader in such a Cruzade? Nah, but I do picture the pictures of Brett and SPAM I AM! pursuing their wet dreams together. But Brett is using his 1st A speech rights in an attempt, at least in his current home state of S. Car. into a lock and load election.

# posted by

Shag from Brookline : 4:06 PM

Over at the Legal Theory Blog, Larry Solum has posts on Jack Balkin's recent posts (without editorial comments), and over at Eric Posner's Blog, Posner references Solum's earlier post and Jack's posts, indicating responses later on. So we've got a round-robin going her with perhaps others with dogs in the hunt prepared to jump in, a sort of a Westminster originalism dog show.

# posted by

Shag from Brookline : 4:17 PM

Found a few comments elsewhere to get past this caricature he favors around here. Perhaps, you two can go back to discussing gardening as you did once.

Voting on Saturday, btw, is not a bad idea though not as good for certain Jews and Seventh Day Adventists.

# posted by

Joe : 6:05 PM

For those of us outside of S. Car., at the NYTimes Brent Staples (Editorial Observer) with his "South Carolina's Legacy, Exploited by Trump" we get an idea of attitudes of Trump supporters on certain issues, including race. Staples also takes a short look at the Cruz Canadacy's take on Rubio melding into Obama. I wonder how S. Car. supporters of the Cruz Canadacy would respond to the polling questions asked of Trump supporters. With all this baiting by the Republican candidates in S. Car., we outsiders wait with bated breath. (Now, what was the first state to secede from the Union?)

# posted by

Shag from Brookline : 9:11 AM

I skimmed the article I cited above about the Confederate Constitution and it was pretty interesting. A much briefer discussion of the Confederate Supreme Court (or lack thereof) can be found here, a nine page 1920 article:

http://www.jstor.org/stable/1106296?seq=1#page_scan_tab_contents

I generally need a separate database to sign in JSTOR, but that allowed me to download the article without an issue. Also, from 1934:

http://scholarship.richmond.edu/cgi/viewcontent.cgi?article=1310&context=honors-theses

Not sure why this old thesis with type-over corrections and all is still around, but it reminds me that I don't really miss typewriters.

# posted by

Joe : 9:50 AM

This is the outlaw legal regime we can look forward to if the GOP Senate caves (again) and allows Obama to create a progressive majority on the Supreme Court:

JB: Eric Posner predicts-- correctly, I think-- that if the Democrats succeed in replacing Justice Scalia with a liberal Justice, there will be a sea change in liberal constitutional argument:

[T]he various theories of judicial restraint (that is, deference to precedent) advocated in recent years by a number of liberal law professors will instantly lose their appeal. Judicial restraint would simply consolidate conservative precedents at a time when liberals finally have the opportunity to reverse hated decisions like Citizens United and Heller. Look for a revival of Elyish theories that claim that the political process fails women, gays and lesbians, African-Americans, criminal defendants, poor people, and other vulnerable minorities (or, in the case of women majorities). Look for more arguments, adumbrated by essays in this book [The Constitution in 2020], that liberal or progressive values have been incorporated into constitutional norms via historical, sociological, and intellectual processes. (The authors of the book may have been unduly pessimistic, from their own standpoint, in picking 2020 as the year of constitutional change.)

# posted by

Bart DePalma : 10:40 AM

Can we expect SPAM I AM! to form what he may perceive as a 2nd A posse to challenge his alleged: " ... outlaw legal regime we can look forward to if the GOP Senate caves (again) and allows Obama to create a progressive majority on the Supreme Court: ...."? This is another hyperbolic reaction of SPAM I AM! to another possible cyclical shift in the judicial branch. Jack Balkin lays this out in his "Last DISCO:" article I earlier referenced. The changing demographics continue to gnaw at SPAM I AM!

# posted by

Shag from Brookline : 11:44 AM

Shag:

Hyperbole? Can you read for content?

The professors here are quite openly discussing a conspiracy to rewrite and/or erase the Constitution by judicial decree.

# posted by

Bart DePalma : 12:25 PM

Obviously SPAM I AM! is incapable of reading content or context. SPAM I AM! provides his "J'accuse":

"The professors here are quite openly discussing a conspiracy to rewrite and/or erase the Constitution by judicial decree."

with knowledge (I assume) of the meaning, innuendo and context of his charge of "conspiracy." Is this SPAM I AM!'s attempt at a group libel? Or is it just his usual hyperbole?

# posted by

Shag from Brookline : 1:33 PM

Shag:

I intentionally chose every word of my last statement of fact. A conspiracy is a group effort to commit an act. The act here is to reverse hated decisions protecting 1A and 2A rights and to otherwise rewrite the law to accomodate Democrat interest groups.

Read for content.

# posted by

Bart DePalma : 4:19 PM

SPAM I AM! is an attorney. This is a legal blog. Is SPAM I AM! using the word "conspiracy" in a legal sense, connoting illegality? Or is SPAM I AM! once again playing HUMPTY-DUMPTY* with language? What may be a "fact" in SPAM I AM!'s mind may be opinion. SPAM I AM! talks of an "act" by the alleged professor conspirators:

"to reverse hated decisions protecting 1A and 2A rights and to otherwise rewrite the law to accomodate Democrat interest groups."

Is SPAM I AM! stating this as a "fact" as opposed to his opinion? Is there a suggestion (innuendo) that this is an illegal "act" under federal/state law?

*Humpty Dumpty and the Meaning of a Word

“When I use a word,” Humpty Dumpty said, in a rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” Alice in Wonderland

# posted by

Shag from Brookline : 5:52 PM

Shag:

Rewriting or erasing the Constitution or US Code by judicial decree is illegal.

My opinion? What part of this do you not understand?

JB: Eric Posner predicts-- correctly, I think-- that if the Democrats succeed in replacing Justice Scalia with a liberal Justice, there will be a sea change in liberal constitutional argument: [T]he various theories of judicial restraint (that is, deference to precedent) advocated in recent years by a number of liberal law professors will instantly lose their appeal. Judicial restraint would simply consolidate conservative precedents at a time when liberals finally have the opportunity to reverse hated decisions like Citizens United and Heller. Look for a revival of Elyish theories that claim that the political process fails women, gays and lesbians, African-Americans, criminal defendants, poor people, and other vulnerable minorities (or, in the case of women majorities).

# posted by

Bart DePalma : 10:57 PM

I realize that SPAM I AM! is mourning the Cruz Canadacy results in S. Car. despite (or because of?) the assistance of Brett. But while it may (and I stress may) be a fact that Eric Posner made a certain prediction, it does not make the content of that prediction a fact. And Jack's ""correctly, I think" is clearly his opinion as to that prediction, opinion on opinion.

Let's go back to SPAM I AM!'s "J'accuse":

"The professors here are quite openly discussing a conspiracy to rewrite and/or erase the Constitution by judicial decree."

Subsequently he states:

"Rewriting or erasing the Constitution or US Code by judicial decree is illegal."

Perhaps SPAM I AM! can provide a US Code (or federal common law?) cite for this. In any event, SPAM I AM! in effect is saying that the professor conspirators are doing something illegal. That's a serious charge, especially when made by an attorney. But of course SPAM I AM! can fall back on his HUMPTY-DUMPTY defense.

# posted by

Shag from Brookline : 9:04 AM

Shag:

An illegal act is an act in violation of the law. Rewriting or erasing the Constitution or US Code by judicial decree is by definition an illegal act, similar to the executive decreeing, dispensing or suspending laws of Congress.

Balkin and Posner agree that a progressive Supreme Court will likely engage in a conspiracy to eliminate the 1A and 2A rights recognized in Citizens United and Heller, as well as to rewrite the law that affects various Democrat interest groups.

The progressive professors here are hardly without blame themselves. How much of their work here is dedicated to generating legal arguments for progressive organizations, a president and judges engaged in rewriting, erasing, dispensing and suspending the Constitution or US Code. They openly denigrate enforcing the law as written.

I am indeed making a very serious indictment. We are not discussing mere disagreements over legal interpretation or policy within the framework of a free political economy. Absolute rule by decree is a necessary feature of every modern totalitarian system and, during the Anglo-American past, led to multiple English civil wars and the American Revolution.

I am not offering hyperbole, but rather observing constantly repeating historical fact.

# posted by

Bart DePalma : 11:17 AM

SPAM I AM! digs an even deeper hole with his latest response. His closing:

"I am not offering hyperbole, but rather observing constantly repeating historical fact."

actually revealing his hyperbole plus repeating "hysterical fact."

Now he has Balkin and Posner agreeing:

" ... that a progressive Supreme Court will likely engage in a conspiracy to eliminate the 1A and 2A rights recognized in Citizens United and Heller, as well as to rewrite the law that affects various Democrat interest groups."

Now SPAM I AM! brings in a conspiracy on the part of certain Justices on the Supreme Court if prior 5-4 decisions of the Court were overturned. In SPAM I AM!'s view that would be illegal. Grounds for removal?

SPAM I AM! then goes on to say:

"They [the progressive professors here] openly denigrate enforcing the law as written."

SPAM I AM! is "indeed making a very serious indictment."

But as noted earlier, this is SPAM I AM!'s hyperbole and "hysterical fact."

All the King's horses, etc, ....

# posted by

Shag from Brookline : 11:57 AM

"I am not offering hyperbole"

That's exactly what you're arguing. The professors you are talking about just happen to disagree with you about what the provisions of the constitution mean. Having a different idea about that is not illegal rewriting, the Founders anticipated, and themselves engaged in, great disagreements about what was or was not constitutional. They designed a system to address that.

# posted by

Mista Whiskas : 1:03 PM

Those poll numbers in SC last night were not great for Bart's candidate, Rafael Cruz (R-Calgary)!

It appears that the SC GOP selected, according to Bart, a Democrat for their Presidential candidate yesterday. That's some confusion there!

# posted by

Mista Whiskas : 1:06 PM

Mr. W: "The professors you are talking about just happen to disagree with you about what the provisions of the constitution mean."

That dog never hunted.

For example, there is no good faith disagreement concerning the textual meaning of the Second Amendment guarantee "the right of the people to keep and bear arms shall not be infringed." Provisions of law do not get much more categorical and unambiguous. The "right of the people" is an individual right. To "keep and bear" means to own and carry. "Arms" in context with the rest of the guarantee mean at minimum small arms which the people commonly own and carry, and given the discussion in the prefatory clause concerning the necessity of a militia, very arguably includes military small arms.

When a progressive argues instead that this guarantee allows "the Capital" government to prohibit people from owning and carrying all or entire classes of arms, that person is in no way offering a good faith disagreement over the original or even current textual meanings of "right of the people," "to keep and bear," or "arms." Rather, they are acting in bad faith to erase the guarantee from the Constitution and to deny a fundamental liberty of the people behind the fig leaf of interpretation.

Having a different idea about that is not illegal rewriting, the Founders anticipated, and themselves engaged in, great disagreements about what was or was not constitutional.

The Founders almost universally applied the tools of textual interpretation to determine what the word of the law would allow. Progressives ridicule interpreting provisions of law by their original textual meaning. Read the posts here at Balkinization over just the past month.

# posted by

Bart DePalma : 4:47 PM

As is your won't you've put your foot squarely in your mouth in your choice of example of a 'bad faith' constitutional reading, because while your strong personal biases no doubt leave you unpersuaded by Justice Stevens dissent in Heller, it's laughable to argue that his dissent was not written as a rather uncontroversial example of " the tools of textual interpretation to determine what the word of the law would allow" that you laud. Stevens continually points to the text of the 2nd Amendment, to histories of it's drafting and changes of language therein, to the text of other provisions of the Constitution and contemporaneous state Constitutional provision, etc. He reads the prefatory clause (which you interestingly continuously leave out here in your invocation's of the second) differently, but certainly reasonably. He doesn't find the term 'people' to necessarily have the meaning you do because, he argues, the use of the same term in the 1st Amendment specifically refers to the right to petition which he sees as a 'collective action' (therefore akin to the militia); he finds the failure to adopt language such as Vermont and Pennsylvania's contemporaneous along with the drafting history refusing that kind of language to be persuasive. Etc., etc., etc.

None of this indicates 'bad faith.' This is why noted conservative Constitutional jurists like Wilkinson and Richard Posner thought Steven's dissent equaled or got the better of Scalia's reading.

That you are incapable of seeing that someone can read these kinds of things differently than you is evidence not of their bad faith but of your near blinding personal, usually partisan, biases. You no doubt like guns and want to be able to have a strong, Heller-like right. And so a reading-I dare say any reading-that supports that is not only persuasive to you, but any who isn't similarly persuaded must be arguing in 'bad faith.' That's your myopia, not theirs, a myopia that has led you here on this blog to wrongly, embarrassingly, misapprehend reality around you with cocksure pronouncements (McCain and Romney wins for example) that you wanted to see be true but which, quite spectacularly, fell totally through.

Think about our recent discussion about what the 'natural born citizen' clause meant. There too, your vision no doubt clouded by your partisanship for Cruz, you confidently pronounced this matter well settled by English statutes of the time. When it was pointed out to you that these statutes would not apply to Cruz, you simply shifted to an argument that is known in Constitutional circles, liberal and conservative, as one of the least textually persuasive, most prone to 'rewriting law to suit one's own partisan philosophy', that there was a hidden 9th Amendment right that has never been recognized by any Court that would save your candidate's eligibility. That a man who would make such an argument to serve his partisan interests could declare that Steven's completely traditional Heller dissent is an exemplar of judicial lawlessness is the height of chutzpah.

# posted by

Mista Whiskas : 9:52 PM

Mr. W:

2A: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Stevens dissent offers the same dishonest grammatical nonsense progressive firearm prohibitionists offered for over a century.

The prefatory clause is merely commentary about the necessity of a militia to preserve a free state from tyranny. This commentary in no way grammatically limits the guarantee of the main clause. Various states placed similar commentary in front of their guarantees of individual rights and no court attempted to limit those rights to the commentary.

The 2A is a perfect example of why original meaning interpretation is necessary for interpreting the law. The Founders considered the militia to be the armed citizenry. Once you understand that the militia and an armed citizenry are synonymous, the prefatory and main clauses become grammatically complementary and Stevens' prohibitionist arguments fall apart.

The Bill of Rights uniformly uses the term "right of the people" to refer to individual rights because all rights are individual. Stevens efforts to equate these rights with "collective action" were facially absurd. I especially liked the argument that the individual right to petition the government actually contemplated collective action because, "if they are to be effective, petitions must involve groups of individuals acting in concert."

The facts that the term "militia" was the armed citizenry and phrase "the right of the people" refers to an individual right were not some secrets unavailable to Stevens and the other progressives. Rather, these justices decided to ignore these inconvenient facts in their dishonest effort to erase the 2A from the Constitution and take away the fundamental right it guarantees.

# posted by

Bart DePalma : 11:55 PM

Bart, once somebody goes down the PoMo rabbit hole, there's no hauling them back. It's words, after all, that would be used to retrieve them, and it's words they've decided will have no force.

# posted by

Brett : 5:56 AM

This shows the heart of Brett and Bart's problem: can one disagree, for example, over what a prefatory clause means for an operative clause without one side being involved in 'dishonesty', or more amusingly, 'postmodernism?' 'Postmodernism' here just means 'things Brett thinks are obviously wrong' (and as we know, Brett thinks most anything that disagrees with the issues he feels strongly on are 'obviously wrong.')

Again, you might not agree with Steven's argument, but it was as far from 'postmodernism' as you two seem to be from logic, reason and history. It was pretty standard common law analysis of text and legislative history that happened to come to a different conclusion than you did. But of course, that's the real problem for you with these opinions, given your insular thinking and arrogance people who come up with a different reading, even if that reading was ascendant through a huge chunk of our history, must be dishonest or postmodernists...

# posted by

Mista Whiskas : 8:21 AM

Bart, once somebody goes down the PoMo rabbit hole, there's no hauling them back. It's words, after all, that would be used to retrieve them, and it's words they've decided will have no force.
# posted by Blogger Brett : 5:56 AM

LOL

You realize that this is directed at a person who makes up his own definitions for words when the universally accepted definitions don't support his views?

# posted by

Anonymous : 8:52 AM

Mr. W:

You cannot apply basic grammar and honestly argue that the prefatory clause limits the main clause guarantee to service in militias.

You cannot apply basic law and honestly argue that any right is collective and thus unenforceable.

Its not that Progressives are inherently skeptical of extending rights. They created "rights" to abortion and SSM out of thin air with no textual basis at all. Rather, progressives illegally and dishonestly abuse the power of judicial interpretation to limit or eliminate rights with which they disagree (religious liberty, arms and property) and to create "rights" they desire.

We need to ratify an amendment with a strict set of checks on the judiciary to stop this arbitrary rule by judicial decree.

# posted by

Bart DePalma : 9:08 AM

To remind, when Mark Field noted he doesn't read BP's comments, Brett said this:

Really emblematic of the difference I see between conservative and liberal blogs, and blog commentors. Liberals have this remarkable tendency to refuse to engage people who disagree with them, and, even more remarkable, think it a virtue and a source of strength, rather than the weakness it really is.

That, I think, is the main reason the right is doing as well as it is in American politics. The habitual refusal to engage with people who genuinely disagree has enfeebled the left's capacity to preach to anybody but the choir.

Brett uses words differently than most of us here. It does lead to confusion.

# posted by

Joe : 10:02 AM

Bart, as I say you've picked a particularly foolish hill to die upon here.

It's perfectly reasonable for someone to think a prefatory clause can limit an operative clause. If you were to ask a sample of people if a reasonable reading of the phrase 'Since a free press is important, the right of free speech is guaranteed to the people' means that only the press or people engaged in press activities are guaranteed free speech I bet quite a few would say 'of course.' It wouldn't be because they are 'dishonest' or evil (or, as Brett laughingly invokes, 'pomo'), but because it's entirely reasonable to think the prefatory clause can limit an operative clause in that way.

But it's even worse for you: Stevens goes on to say that even if you don't buy that idea, that even the Heller majority admits that a prefatory clause can help clear up an ambiguous operative clause, and as Stevens notes "Surely not even the Court believes that the Amendment’s operative provision, which, though only 14 words in length, takes the Court the better part of 18 pages to parse, is perfectly “clear and unambiguous.” Look at how narrow and hewing to traditional interpretive methods of reading legal text Stevens arguments here are. I'm not saying they're therefore persuasive, but they're certainly not lawless or necessitating a finding of 'dishonesty.' In fact, I'd say someone who suggests so is the one acting in total 'bad faith,' letting their strong personal biases (you know, the ones that lead you to make such spectacularly wrong pronouncements here frequently?) control their reason.

"I especially liked the argument that the individual right to petition the government actually contemplated collective action because, "if they are to be effective, petitions must involve groups of individuals acting in concert."

I'm glad you liked it, because it's pretty reasonable. That a reading of the right of the people to *assemble,* of all things (try 'assembling' by yourself), might be limited to involving collective action must be a 'dishonest' or 'pomo' reading is the most laughable thing I will likely read today.

# posted by

Mista Whiskas : 1:48 PM

try 'assembling' by yourself

hey, me, myself and I assemble all the time!

The reference does suggest the various possible nuances of the text of the 1A, at least if we take an originalist (whatever that means) approach.

For instance, the text is: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The "right of the people" language only comes up at the end. Does this, e.g., have anything to do with the rule SCOTUS upheld regarding foreign money?

http://thecaucus.blogs.nytimes.com/2012/01/09/supreme-court-retains-ban-on-foreign-campaign-donations/

After all, the USSC upholding a lower court ruling without comment that blocked a Canadian for merely saying something critical of the President is fairly unlikely. And, assembly and petition does not really seem like a "right of the people" as such on some level, does it? Non-citizens assemble and have every "right" to do so as a general matter from what I can tell. It does seem the reference was originally highlighting something narrower than we now understand it to mean.

Consider a source that Brett appealed to on another matter.

"the people have a right, peaceably to assemble together to consult for their common good, or to instruct their representatives: that every freeman has a right to petition, or apply to the legislature, for the redress of grievances"

http://press-pubs.uchicago.edu/founders/documents/amendI_assemblys19.html

That's a fairly narrow view of the right of assembly. Cf. NAACP v. Alabama.

("freedom to engage in association for the advancement of beliefs and ideas")

I think something akin to this happened with the 2A -- in time, it broadly was understood to apply to individual ownership, a narrower understanding the median viewpoint beforehand. I therefore don't share Stevens' views as such though agree he puts forth a reasonable 'originalist' view in that dissent. But, he himself doesn't rely on that in his jurisprudence so that is really only working within Scalia's terms to show even with that, Stevens' final resting place is logical.

And, multiple justices on multiple issues (including religion, federalism et. al.) was able to do something similar. Originalism has its problems, but not being able to get you to a particular side is not really one of them.

# posted by

Joe : 2:21 PM

Cf. Stevens' dissent in McDonald v. Chicago, part of which involves him discussing a possible substantive due process argument that we have a right to own a firearm for personal defense, particularly in the home. He sees the case for that as much more close though still rejects it as applied there, leaving open possible as applied challenges. I myself fwiw (little) think self-defense and the militia usages of arms are in different categories as well, but again, disagree with him.

But, again, I think he is making an honest, reasoned argument, one shared by people of various ideologies. Stevens was appointed by Ford (R) & e.g., in the past questioned to the logic of minimum wage laws.

# posted by

Joe : 2:33 PM

Mr. W;

The ground under the 2A is rock solid.

A prefatory clause can offer limiting language, but the one in the 2A does not. The 2A does not say: "For the sole purpose of serving in the National Guard, the right of the people to keep and bear arms shall not be infringed," or anything remotely similar.

When you apply the original meaning, no part of the 2A text is ambiguous, limiting or conflicting.

The structure and language of the prefatory clause of the 2A was largely based on Section 13 of Virginia's 1776 Declaration of Rights: "That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power." Once again, once you understand that the "well-regulated militia" of the time was composed of the armed citizenry, the 2A prefatory clause simply offers a reason to guarantee the individual right to keep and bear arms.

Let's compare the 2A to the 12th declaration of right of the Pennsylvania Constitution of 1776: "That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained."

Does the grammar of the 12th declaration limit the right of the people to freedom of speech to only the people working in the press? Of course not and no court ever thought to offer such an absurd argument. Like the 2A, the clauses of the 12th declaration are related, but do not limit one another.

Stevens' dissent would get a failing grade in a grade school class diagramming sentences. Thus, you have two explanations for the dissent: (1) The four dissenting progressives are too stupid to pass a 5th grade english class, or (2) the dissent is a dishonest and illegal attempt to erase the 2A from the Bill of Rights. Take your choice.

# posted by

Bart DePalma : 3:32 PM

Bart, you're proving my point, not yours. If the reading were such an obvious one that a contrary one must be either profoundly stupid or dishonest you wouldn't have to keep introducing all this other evidence to make your point.

Worse, the evidence you bring up doesn't help you at all. Your grasp of grammar is uconvincing: ask anyone not invested in the outcome of this controversy if a reading of the following sentence: 'Since learning is important, the children have the right to surf the internet' which says that the children can surf the net, but not to view certain content deemed inconsistent with learning is reasonable and I guarantee you a significant number of them will say 'yes.' Are they all stupid and dishonest?

You keep repeating this idea that 'the militia was considered all the able bodied men' as if this proves your point, but it only introduces more problems for you. I doubt you want to say the 2nd amendment right should be denied those who were understood at the time to not be in that category (disabled men, women, older people), and this is a group short of 'the people' as it is used in, say, the 4th Amendment, so there goes your argument that 'the people' means the same thing in all the provisions it occurs.

The selection from the Virginia Declaration of Rights you supply supports Steven's reading more than it does yours. It's clearly about militias and their importance vis-a-vis standing armies, it doesn't mention an individual right to keep and bear arms for self defense, hunting, etc., *at all,* just that militias are better than standing armies and the body of the people should make up the militia. The Founders knew how to write a provision guaranteeing the right of the people to arms for hunting and defense of themselves, such provisions existed in state constitutions at the time, but in the 2nd they expressly did not adopt such language! The Virginia ratifying convention actually sent a proposal which the Founders more likely drew upon in crafting the 2nd, it has much of the language you think so dispositive from the Virginia Declaration, but unfortunately for you it was followed by a provision to exempt religious objectors and have them procure someone in their place, a provision which hardly makes sense if what was being discussed were an individual right to arms for self defense, hunting, or something other than keeping arms specifically for militia service. Note also that the Heller law is entirely consistent with what you've been arguing: DC could say 'OK, our residents have the right to keep and bear arms in case we might have to call on them for militia service, but until and unless they're so called they have to keep those arms unassembled or locked.'

Etc., etc., etc., this tit for tat could go on forever.

But again, the very existence of this back and forth proves my point: the meaning of the 2nd is not obvious, reasonable people can disagree about it. The only unreasonable position is that reasonable people couldn't disagree about it!

# posted by

Mista Whiskas : 7:18 PM

There were nominations pending in 2008 and 2012?

There was an attack on the World Trade Center in 2000?

No?

Well then obviously we should have waited until the next election
before responding to it.

# posted by

jpk : 7:23 PM

"There was an attack on the World Trade Center in 2000?"

Well, no. It was in 2001. But, if I'm missing that only a hypo is raised, think that is a bit too cute. Such is an emergency -- Brett is right in the sense that a 4-4 Court is not the end of the world. Marbury v. Madison was decided in 1803 because Congress passed a law taking away a whole term.

We survived though these days the Supreme Court does a lot more. And, this is but a 4-4 Court holding up less than a third of the cases taken each year, even some of the splits probably able to be decided narrowly. This doesn't make it okay, but it's still not 9/11. Lower court judicial nominees also aren't the same as justices, even the rare situation where the nominee would break a tie in a circuit.

# posted by

Joe : 7:51 PM

"But again, the very existence of this back and forth proves my point: the meaning of the 2nd is not obvious, reasonable people can disagree about it"

The tautological definition: If somebody disputes the meaning of a clause, the meaning is purported to be ambiguous for that very reason. The idea that they might be unreasonably disputing it is just inadmissible, as any objective basis for such a determination has already been rejected.

But the very fact that a clause being 'ambiguous' licenses living constitutionalists to attribute whatever meaning they like to it, gives living constitutionalists a strong motivation to see ambiguity everywhere clarity would compel a meaning they don't like.

That's why I say there's no hauling anybody up out of that rabbit hole. Once somebody decides that they're not going to understand language that carries a meaning they don't like, they're unreachable. They may, eventually, manage to save themselves. Nobody else can save them from that pit.

# posted by

Brett : 9:03 PM

But the very fact that a clause being 'ambiguous' licenses living constitutionalists to attribute whatever meaning they like to it

This is true of originalism too. It's true for every theory of interpretation. If a provision has a plain meaning, then there's no basis for using any theory of interpretation, whether living constitutionalism, originalism, or any other.

# posted by

Mark Field : 9:23 PM

A more generous, in the spirit of being open to alternative points of view without using non-generous extreme tests on trying to get what people are basically saying (allegedly the "non-left" approach), is that Mr. W. is saying more than "somebody" offers a position. To me, he is saying that there is a major split on the question with each side putting forth as a whole reasonable positions. This might be lost if you quote a little bit of Mr. W's expanded comments.

Next, no, LCs (again, an approach that matches what the Founders assumed would occur, so ironically it seems 'originalist') don't have some special "license" to attribute "whatever meaning" they like. To be serious, again if we want to be fair here, they need to provide reasonable arguments on what the text means. Yes, the text IS repeatedly ambiguous. From the very beginning there were different reasonable views on what exactly it means in a range of important respects.

LCs if anything rather argue a specific text doesn't have ambiguity to it. Again, the irony is here too -- some argue the 2A obviously doesn't say what the majority in Heller says it does. I -- along with quite a few others of my basic politics (hint: I cannot vote in the Republican primary) -- actually think they are wrong as to the result there. It would HELP if the 2A was less ambiguous, if there really weren't at least two at least somewhat reasonable arguments.

The "rabbit hole" is as much Brett's way. Once he decided that the other side is just unreasonable, it almost compels him to think them fraudulent, since he at least accepts some of them aren't idiots. They can't simply miss "obvious" reasoning, so what they "really" are doing is ignoring what the 2A means since they don't "like" it. The justices in effect deserve to be impeached for violating their oath or at best (as he described Stevens) a pathetic old confused person.

I find this sad but realize -- unlike him apparently -- it isn't just one side has to handle. Each side, though probably like Mark Field noted more one side, has such self-assured true believers.

# posted by

Joe : 9:38 PM

Look, there are genuinely ambiguous clauses in the Constitution, places where it is actually intended to indicate that a judgment call is in order. What is "cruel", for instance?

But the whole thing isn't ambiguous! And the 2nd amendment is one of the less ambiguous parts of it.

We've got people claiming that a "right of the people" isn't really a right, or maybe it's some kind of collective right you can only exercise when the government wants you to. Like making the right to trial by jury into a 'right' to BE a juror, but only if the government wants you to be one, they claim the 2nd amendment protects the 'right' of soldiers to carry guns if the government itself tells them too.

[sarcasm] Obviously a right that needs protecting from the government. [/sarcasm]

Up the blog a bit, "The Matthew Stephenson Moment", somebody is open to the suggestion that the Constitution doesn't actually require nominees to be confirmed. Seriously! Now, magically, tautologically, whether confirmation is requires has become disputed, ambiguous.

Similar arguments have been put forward that non-states can be represented in Congress.

I get that it's possible for originalists to just pull stuff out of their rears. To engage in sophistry to arrive at the conclusion they like. Yes, originalists are fallible and corruptible. But, this is only to say that it's possible for an originalist, if they go wrong, to do what living constitutionalists set out to do.

Maybe I'm missing something, but what I've seen of living constitutionalism, it's just a collection of techniques for taking a text that was written by somebody who didn't share your own views of what is right, just, and workable, (But, unlike you, happens to be the dude who wrote the law.) and imposing on it a meaning you'll like. People who don't like the right to keep and bear arms employ it to transform that right into an obligation to carry a gun if you're drafted. Other people who didn't like the interstate commerce clause being a grant of authority over commerce that crosses certain boundaries, used it to transform it into a general grant of authority over anything that hypothetically could effect such commerce.

As far as I can see, the only real limit to how far you can take this, is what you can get away with. Stalin famously said "Those who cast the votes decide nothing. Those who count the votes decide everything." A living constitutionalist might, in a similar spirit, say, "Those who write the law decide nothing. Those who read it decide everything."

I get that living constitutionalists don't think they're sophists engaging in fraud. I really do get that. That's the nature of the rabbit hole. They've rejected the power of language to compel a meaning they don't like, and they think that they've rightfully rejected it. They don't feel guilty about it.

Sociopaths don't feel guilty about anything, either, but that doesn't mean everybody else has to think they're innocent.

# posted by

Brett : 6:26 AM

Mr. W: You keep repeating this idea that 'the militia was considered all the able bodied men' as if this proves your point, but it only introduces more problems for you. I doubt you want to say the 2nd amendment right should be denied those who were understood at the time to not be in that category (disabled men, women, older people)...

The Founders knew how to write a provision guaranteeing the right of the people to arms for hunting and defense of themselves, such provisions existed in state constitutions at the time, but in the 2nd they expressly did not adopt such language!

This is getting very, very old.

What part of the 2A prefatory clause is NOT LIMITING do you not understand? It simply gives a reason for guaranteeing the individual right to keep and bear arms.

"The selection from the Virginia Declaration of Rights you supply supports Steven's reading more than it does yours. It's clearly about militias and their importance vis-a-vis standing armies, it doesn't mention an individual right to keep and bear arms for self defense, hunting, etc., *at all,* just that militias are better than standing armies and the body of the people should make up the militia."

As noted quite clearly above, I cited Section 13 of Virginia's 1776 Declaration of Rights for the original meaning of a "well-regulated militia," not as an example of a guarantee of an individual right to keep and bear arms.

Etc., etc., etc., this tit for tat could go on forever.

Stop chasing your tail. You will never catch it and the Stevens dissent will never make grammatical or legal sense.

# posted by

Bart DePalma : 9:04 AM

the whole thing isn't ambiguous

various portions are not or at worse largely agreed upon

And the 2nd amendment is one of the less ambiguous parts of it

So even Brett thinks it is kinda ambiguous.

We've got people claiming that a "right of the people" isn't really a right

The argument is that it is a right to something else.

or maybe it's some kind of collective ...

The founding generation would be upset at how you are trivializing the basic right to be a member of the jury, seen by them to be a basic security of liberty from government power. Granting for the sake of argument the other side here, so is the right to be a member of the militia.

Like the jury, the militia is "necessary" and cannot be removed; there can be a case (as Scalia said in various sentencing cases) the militia is being underused. But, they are not "soldiers" -- the whole point here is that the militia is the average person, not a select group either, with inferior officers appointed by the members traditionally, entrusted with the right of force over others. "The government" here is you and me -- we vote for the people involved and our representatives pass the rules here.

The militia like the jury and voting provides a RIGHT for the average person to be directly involved. Yes, like voting and jury, militia service is practiced within the contours of state action. Elections give you a chance to vote; you carry arms while in militia duty. Guns can be kept in various ways, including perhaps as Mr. W. notes by the government, of we the people not some "them," regulating the arms so they are at homes but disassembled when not used. This might, e.g., be the best way to do things in heavily populated areas. And, this was a historical practice, if one cares about that sort of thing.

There is ANOTHER right though -- a right of personal self-defense. But, Heller and McDonald was about the 2A as such.

# posted by

Joe : 9:38 AM

Up the blog a bit, "The Matthew Stephenson Moment" ...

I don't think that's the argument. The argument is "the Senate can be deemed to have consented simply by remaining silent for a period of time."

Similar arguments have been put forward that non-states can be represented in Congress.

I think that's a bad argument. ANY interpretative approach has bad arguments. Yours isn't some special snowflake there.

what living constitutionalists set out to do.

LCs "set out to do" this -- reasonably apply the text using a range of common law approaches. As Eric Posner noted, originalists use the same approaches. LCs don't "set out" merely to make shit up to advance what they "like" though again to the degree a judge will do that, both sides have the same potential. And, given how shoddy originalists often apply their craft, looks like they do it too.

Maybe I'm missing something, but what I've seen of living constitutionalism, it's just a collection of techniques for taking a text that was written by somebody who didn't share your own views of what is right, just, and workable, (But, unlike you, happens to be the dude who wrote the law.) and imposing on it a meaning you'll like.

Over and over again, LCs carefully and with much effort show how the text, structure and so forth of the Constitution authorizes a certain result. You might disagree with their reasoning, you might think the text "imposes" on others something else, but that is a difference of understanding.

Finally, the fact such and such text like "equal protection" was understood with different knowledge and facts to mean something else (e.g., interracial marriage not protected) doesn't violate it, in part since the original framers KNEW specific applications would change over time as knowledge and experience change. John Marshall is but one person who said this. If you are going to ignore even "the dude who wrote" (or ratified) the law, who are you going to listen to here?

People who don't like the right ....

Difference of understanding is not the same as ignoring what something says because they don't "like" it. But, you and others seem to me to do the same thing. Thus, the Commerce Clause (what it was traditionally called in part since it does more than regulate "interstate" commerce -- it covers three things) covers more than you like, so you oppose how far it reaches. It has various limits, but like you belittling the right of juries, not big enough for you to really matter much. This translates into the others side ignoring it.

[You then bring up Stalin and sociopaths ... kinda going off the rails, but I engaged with you enough to show I'm not one of your stereotypes.]

# posted by

Joe : 9:39 AM

Apparently, I am not the only one here to call out Balkin and Posner's prediction that a progressive Court majority will rewrite or erase the law. Now Jack is offering the conservatives do the same thing defense:

In the recent past, many conservatives have become more attracted to theories of judicial engagement, or originalist theories that argue that judges should be more willing to strike down laws and practices that are contrary to conservative values as conservatives understand them.

To start, the terms progressive and conservative are of limited use in discussing abuse of judicial review. The better distinction is between judges who regularly enforce the law as written under its original meaning and those who do not; those who apply the rule of law and those who do not.

In judicial review, ideological progressives always act contrary to the rule of law by selectively enforcing the laws they support and rewriting or erasing the laws they do not in order to achieve progressive policy objectives. I do not recall a progressive judge ever applying the law as written to reverse a progressive policy. Advancing progressive policy is always paramount.

Ideological conservatives are a mixed bag and go both ways.

If you are going to enforce the law as written under its original meaning, then you cannot recognize as precedent and must reverse any prior judicial holdings which rewrite or erase the written law. This is not "advancing conservative values as conservatives understand them," but rather applying the rule of law. Indeed, this poses a problem to some traditionalist conservatives who believe in both the rule of law and stare decisis.

Jack: I am quite certain that he would not conclude from this gradual shift in conservative views over the years that conservative intellectuals have been acting in bad faith. He should offer liberals an equal degree of charity.

False choice.

Any judge who does not apply the law as written under its original meaning is by definition acting dishonestly, regardless of their political ideology. I admire most of Scalia's work, but he sometimes acted dishonestly to advance his preferred policies. See the awful concurrence in Raich.

# posted by

Bart DePalma : 9:58 AM

Maybe I'm missing something, but what I've seen of living constitutionalism, it's just a collection of techniques for taking a text that was written by somebody who didn't share your own views of what is right, just, and workable, (But, unlike you, happens to be the dude who wrote the law.) and imposing on it a meaning you'll like.

What you're missing is, as Joe points out, that legal traditionalists (a much more accurate term than "living constitutionalism") set out to do no such thing. It is, in fact, originalists who are guilty of doing what you say; not that they necessarily intend to do so (some do), but that it's seductive for them to be able to paint their own views on what is mostly a blank canvas.

The fact is, originalism imposes many fewer constraints on interpretation than traditional legal methods of interpretation. Originalists don't need to worry about precedent; traditionalists do. Worse yet, there's some chance we could accurately describe how people interpret the Constitution today. There's virtually no chance of doing that as of 1788, if for no other reason than we lack the evidence. And it's that very lack of evidence which originalists use to construct "just so stories" about what people back then "understood".

As Eric Posner noted, originalists use the same approaches.

And as I pointed out in the other thread, the Founders used those approaches too. In fact, and to make my point even stronger, the Founders declined to apply "original public meaning", preferring the traditional reasoning instead.

# posted by

Mark Field : 10:13 AM

"The argument is that it is a right to something else."

Something else that isn't a RIGHT. A 'right' to carry a gun when the government wants you to. That's not what "rights" are; "Rights" are when YOU get to make the decision, and the government has to accept it. Not that you get to do what the government tells you to do.

The bottom line is that originalists of course are going to think that living constitutionalists are engaging in bad faith. Living constitutionalism is what originalists regard as bad faith, made systematic.

It's like declaring that embezzlement is just another school of accounting, and you're being faithful to it. That's how originalists view living constitutionalism.

We have a fundamental disagreement here about what judges are supposed to be doing, and nothing is going to erase that disagreement.

# posted by

Brett : 10:31 AM

This comment has been removed by the author.

# posted by

Bart DePalma : 10:34 AM

Mark: What you're missing is, as Joe points out, that legal traditionalists (a much more accurate term than "living constitutionalism") set out to do no such thing.

At the turn of the last century, progressives (not legal traditionalists) started offering the idea that the Constitution is "organic" and needs to evolve with the times. Woodrow Wilson was a leading proponent of this theory.

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

# posted by

Bart DePalma : 10:34 AM

Something else that isn't a RIGHT. A 'right' to carry a gun when the government wants you to. That's not what "rights" are; "Rights" are when YOU get to make the decision, and the government has to accept it. Not that you get to do what the government tells you to do.

The argument you are disputing includes the right, which the government has to accept, for the average person, not just white straight males etc., to be members of the militia. The argument is that the 2A gives the state government, which we the people vote in (or affect by direct democracy), power to retain militia and regulate them in various ways. The federal government has to accept it. And, the text seems to assume that the militia should be used, it is "necessary," so arguably it is being underused. The government "has to accept" usage of the militia for crime control in various cases; we arguably rely too much on select police forces in that respect. This would again give people "rights" like people have power as jurors.

Rights sometimes incudes involvement in structures set up and framed in some fashion by the government. At 18, e.g., I had a "right ... to vote" that the 26A said "shall not be denied or abridged by the United States or by any State on account of age." The state has some discretion here on determining when elections occur. Maybe, e.g., there don't has to be an election for a mayor. But, if there is one, I had the RIGHT to vote at 18.

The bottom line is that originalists of course are going to think that living constitutionalists are engaging in bad faith. Living constitutionalism is what originalists regard as bad faith, made systematic.

Not shown.

It's like declaring that embezzlement is just another school of accounting, and you're being faithful to it. That's how originalists view living constitutionalism.

No. Embezzlement is intentionally breaking the law. The group you oppose are not. You not agreeing with their methods is not the same thing. You might think them confused pathetic people. But, they are not saying "we know the law means x, but intentionally breaking it." That is embezzlement or bank robbery.

We have a fundamental disagreement here about what judges are supposed to be doing, and nothing is going to erase that disagreement.

We agree "what judges are supposed to be doing" as a basic matter. Not intentionally ignoring the law. We disagree on what the law specifically is in various cases. This isn't novel. People have fundamentally disagreed about the meaning of the Constitution from the Founding. And, many accused the other side of bad faith too, since they just couldn't understand how the other side didn't see what to them was obvious. So, they had to be acting in bad faith.

# posted by

Joe : 10:51 AM

As Joe said before, militia duty is like jury duty. Both are rights.

# posted by

Mark Field : 10:54 AM

As to Mark Field, to be clear, I also noted "the Founders used those approaches too."

Appeals to John Marshall et. al. only are okay when done the right way:

http://lawandpolitics.blogspot.com/2006_01_01_lawandpolitics_archive.html#113756175348882886

(I might have read it back then, but someone else flagged this on Twitter; Mark Field did turn up on a blog that cited it.)

# posted by

Joe : 11:06 AM

Joe: The argument you are disputing includes the right, which the government has to accept, for the average person, not just white straight males etc., to be members of the militia. The argument is that the 2A gives the state government, which we the people vote in (or affect by direct democracy), power to retain militia and regulate them in various ways.

???

The generic militia referred to by the 2A prefatory clause is an armed citizenry.

Both the states and Congress have the power to mobilize a subset of that militia. Individuals do not have any "right" to be part of that mobilization. Military security is a compelling government purpose and limiting a mobilization of the militia to the most combat ready individuals advances that purpose.

# posted by

Bart DePalma : 11:50 AM

Brett

It's interesting that you recently lectured the left on not engaging the right, but here you equate those, I guess on the left, that disagree with you about how to interpret the Constitution with sociopaths.

What's especially absurd though is when you do something like call Stevens' dissent in Heller 'pomo.' An opinion which spends nearly every word examining the drafting of the Amendment, the English Bill of Rights, the contemporaneous state constitutional provisions, and Samuel Johnson's dictionary is about as far from being 'postmodern' as one can be. It's also pretty far from 'living constitutionalism.' I can think of examples of what one might call 'living constitutionalism,' and you might be surprised that some of them I think are really unpersuasive opinions, but Stevens dissent is, again, really far from that kind of thing. When you say something like that it makes one think you're 1. ignorant of the opinion 2. ignorant of what 'postmodernism' or 'living constitutionalism' is and/or are just ignorantly using the labels in point 2 to try to attack an opinion that reached a result you didn't like.

Maybe Steven's conclusions from his examination of text, history and document is unpersuasive. But 'postmodern' or 'living constitutionalism?' That's laughable.

# posted by

Mista Whiskas : 1:05 PM

# posted by

Brett : 1:08 PM

"This is getting very, very old."

My thoughts exactly.

"What part of the 2A prefatory clause is NOT LIMITING do you not understand? It simply gives a reason for guaranteeing the individual right to keep and bear arms."

Repeating your ipse dixit here is indeed getting old. I've given you numerous analogies, both in legal and non-legal language, about how a prefatory clause can reasonably be read to limit the operative clause. Your stamping your feet and insisting 'nu-uh' proves nothing. Beyond that, I've shown that even the Heller majority that conceded that a prefatory clause can and should be used to resolve ambiguity in an operative clause, and as Stevens said you don't spend 18 pages trying to interpret 14 words when something is unambiguous. This actually gets to one of Brett's points above, about the 2nd Amendment being about as unambiguous as it gets. That's easily refutable, because we can not only imagine a less ambiguous provision that does the work Brett and Bart want it to, such provisions actually existed in state Constitutions at the time! If the 2nd Amendment had said that the people have a right to keep and bear arms 'for their defense' or to hunt, as state provisions at the time read, then this would be rather unambiguous that there was a right to keep and bear arms apart from potential service in a militia. But of course the Founders, knowing of such language, decided not to use it. It's demonstrably therefore more ambiguous that you two want to accept, and if you can't see that reasonable, non-dishonest, non-sociopathic, non-embezzlement level crooks can read an ambiguous provision (made even more so by the prefatory clause!) differently than you, then that says something sad about your rigid, harsh worldviews, not those you criticize.

"I cited Section 13 of Virginia's 1776 Declaration of Rights for the original meaning of a "well-regulated militia," not as an example of a guarantee of an individual right to keep and bear arms."

Good lord, you don't even see how this *undermines* your argument, do you? Talk about rabbit holes!

# posted by

Mista Whiskas : 1:15 PM

"It became much, much more oriented towards rationalizing that whatever the political elite wanted was constitutional. "

I don't know that this isn't the way it's always been. Justices are put in by the political elites of their day and will, of course, tend to hold views congruent with those beliefs. To take a historical example, look how the 14th Amendment put into place by the radical republicans to combat Southern terrorism of blacks and those sympathetic to them was invoked successfully more often in the subsequent 'Gilded Age' to protect business corporations. The 'change' you're talking about only involved the political elite starting to favor centralized federal law being ascendant (a change that, with irony, yielded much that you no doubt like [the very incorporation that is today used to strike down state/local affirmative action, gun laws, etc.,] but now spite).

# posted by

Mista Whiskas : 1:38 PM

Oh, come on. "Legal traditionalists"? Anybody who knows some history and pays attention realizes something changed, and changed drastically, in that 'legal tradition', in the early to mid 20th century. It became much, much more oriented towards rationalizing that whatever the political elite wanted was constitutional.

With all due respect, I think I know a great deal more about history, and specifically legal history, than you do, and I don't realize any such thing. As MW says, the Court system always, in the long run, tends to justify what elites want. Note that I'm not saying that it does so in every single case. It will rule against elite opinion sometimes; it's a tendency, not a rule. Thus, before the Civil War the Courts tended to rule in favor of slaveholding interests (e.g., Prigg, Ableman, Dred Scott), after that in favor of big business and against unions (so many it's not worth listing), etc.

What you're protesting is not the principles of interpretation -- those remain traditional; you can find them in the common law early on -- but the factual understanding the courts brought to their application. It became apparent that certain issues were national now which were not before.

# posted by

Mark Field : 1:51 PM

The thing that changed, let's be adults here, is that the norm cited resulted in things you don't "like." Sorry, you come off as a phony here. That's not nice to say, but a bit better than "sociopath" or "embezzler." We are "engaging" with you; like happened since the beginning, we disagree on the merits. Like from the beginning, the other side at times were like you. So, e.g., Jefferson thought his opponents were royalists. Washington for some included.

"No matther whether th’ constitution follows h’ flag or not, th’ Supreme Coort follows th’ election returns” wrote Finley Peter Dunne in 1901. The rule was known over a hundred years ago. As to the war on drugs, that begun before FDR. The regulatory state did as well though, yes, like dealing with illegal segregation, it did increase during and after it.

History is great. I studied it for years. It helps the side you oppose here.

# posted by

Joe : 2:45 PM

a 4-4 Court is not the end of the world

If that's the standard, sure, there's no hurry. Any time in the next century or three would be fine.

Of course, next time a conservative President and Senate are resident, suddenly we'll find conservatives reckon the time is now and no reason for delay.

# posted by

jpk : 8:13 PM

jpk, you compared this with 9/11. It's not the same thing. Just saying.

I want it done now. But, even if it is done after the election, that isn't the same thing as "any time" either. And, yes, they are being partisan. Excessively so imho.

It's still no the same as them saying we can't act on an attack on the U.S. until an election passes.

# posted by

Joe : 9:03 PM

Obama summarizes how progressive judges rewrite the law:

Second, the person I appoint will be someone who recognizes the limits of the judiciary’s role; who understands that a judge’s job is to interpret the law, not make the law. I seek judges who approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice, a respect for precedent, and a determination to faithfully apply the law to the facts at hand.

But I’m also mindful that there will be cases that reach the Supreme Court in which the law is not clear. There will be cases in which a judge’s analysis necessarily will be shaped by his or her own perspective, ethics, and judgment. That’s why the third quality I seek in a judge is a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook. It’s the kind of life experience earned outside the classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times. That, I believe, is an essential element for arriving at just decisions and fair outcomes.

http://www.scotusblog.com/2016/02/a-responsibility-i-take-seriously/

# posted by

Bart DePalma : 9:43 AM

You've undercut your own hyperbole again. Obama says, as directly quoted in your selection, "I appoint will be someone who recognizes the limits of the judiciary’s role; who understands that a judge’s job is to interpret the law, not make the law. I seek judges who approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice, a respect for precedent, and a determination to faithfully apply the law to the facts at hand."

He indicates it is only "cases that reach the Supreme Court in which the law is not clear" that judges will have to decide using "his or her own perspective, ethics, and judgment" to make the case come out equitably and with positive results for our society, far from 'rewriting the law' this type of legal reasoning is a long staple of the common law.

# posted by

Mista Whiskas : 11:01 AM

A book on the side panel -- Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging -- covers some of that ground. See, e.g., here:

http://concurringopinions.com/archives/2010/01/bright-ideas-a-dialogue-with-brian-tamanaha.html

“Balanced realism” recognizes that there are gaps in the law, that sometimes judges have discretion and must make choices, that different judges can sometimes interpret the same law in different ways owing to differences in perspective and background, that inconsistent precedents or conflicts in the applicable law can exist, and that sometimes judges manipulate the law to reach desired ends (I called these factors the “skeptical aspects”); but “balanced realism” also recognizes that a substantial bulk of the time the rules and their application are clear and predictable, that surrounding institutional factors constrain judges, that most judges abide by the commitment to follow the law, and that the overwhelming majority of judicial decisions are legally determined (the “rule bound” aspects).

Critics on both sides to me at times exaggerate the level that personal ideology interferes with a honest application of the law. Scalia at times aggravated this with his heavy-handed rhetoric about how the other side, to be blunt, just make shit up because they like it. That was hard to take given on that level he was surely not some special snowflake.

Judges aren't fungible but aren't merely partisan political actors either.

# posted by

Joe : 1:32 PM

Joe, you applied the standard of the end of the world. By that standard it is the same thing.

Would you care to modify your standard?

yes, they are being partisan. Excessively so imho.

Yep. With 361 days left in office, might be hard to call it anything else.

# posted by

jpk : 1:48 PM

This comment has been removed by the author.

# posted by

Joe : 2:27 PM

"361 days left in office"

I'll take this as a typo.

The "end of the world" is a figure of speech, not an obscure one either. I don't think belaboring the point made is worth it.

# posted by

Joe : 2:28 PM

"Judges aren't fungible but aren't merely partisan political actors either."

This is true of judges. Of Justices? Not so much; They have so much power to dictate the outcome of political battles, that their being partisan political actors has become one of the selection criteria.

We've learned that you can win political battles in the Supreme court, even if you lose them at every other level of government, if you just pick the right justices. That's not a lesson the political system is going to unlearn.

# posted by

Brett : 6:40 AM

This comment has been removed by the author.

# posted by

Bart DePalma : 8:34 AM

Mr. W:

Among progressives, the law is always unclear when it interferes with progressive policy.

Do you think this is hyperbole?

Show me a single example of any of the current four progressives on the Supreme Court who ever enforced the Constitution or US Code to reverse a progressive policy.

I have shown you multiple cases during just the past session where they (with the help of a nominal "conservative" or two) rewrote or erased express provisions of the Constitution and U.S. Code.

This is not even a close question.

# posted by

Bart DePalma : 8:36 AM

This is true of judges. Of Justices? Not so much; They have so much power to dictate the outcome of political battles, that their being partisan political actors has become one of the selection criteria.

Again, I have to wonder when this "become" moment was supposed to arise, especially in reference to a comment written on the anniversary of Marbury v. Madison.

Judges in our constitutional system ALWAYS had a major importance in "political battles" given the power of judicial review, which was why battle over judges was a major conflict between Federalists and Democratic-Republicans, including surrounding the confirmation of a Chief Justice in the last days of the lame duck term.

Justices have and had more power being on the top of the food chain but still are not MERELY "partisan political actors," but act as judges with competing judicial ideologies as well as personal inclinations since judges are humans. Judges are nominated and confirmed in a political process and this is factored in.

We've learned that you can win political battles in the Supreme court, even if you lose them at every other level of government, if you just pick the right justices. That's not a lesson the political system is going to unlearn.

Yes, we learned that we have something called "judicial review," recognized even before 1803, and this involves interpreting the Constitution. This makes "we the people" electing certain people who nominate and confirm the judges important.

So, Adams led to Marshall; Jackson to Taney etc. A nation with over 300 million etc. is bigger with more law, so government of all levels is more important, but the general principle didn't change.

# posted by

Joe : 9:44 AM

"Show me a single example of any of the current four progressives on the Supreme Court who ever enforced the Constitution or US Code to reverse a progressive policy."

It's funny that I bet Bart was parroting the line about how the Obama administration had lost so many 9-0 SCOTUS decisions that it showed how lawless it was.

"I have shown you multiple cases during just the past session where they (with the help of a nominal "conservative" or two) rewrote or erased express provisions of the Constitution and U.S. Code."

You've shown us none of that, rather you've shown us your hysterical hyperbole about many cases.

# posted by

Mista Whiskas : 2:39 PM

Mr. W:

Just one case will do.

# posted by

Bart DePalma : 3:06 PM

Horne vs. USDA

Hosanna-Tabor Evangelical Lutheran Church & School vs. EEOC

Bond v. US

Arkansas Fish & Game Commission v. United States

The Medicaid Expansion part of NFIB v. Sebellius

Etc.

# posted by

Mista Whiskas : 3:22 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 3:23 PM

Mr. W:

Precisely what progressive policy(s) did the Court reverse in those cases? The existence or powers of the progressive state were not at issue in any of these cases and none were reversed.

Horne discussed whether the government owed compensation to a farmer for taking his raisins. The unconstitutional program itself was not at issue and was not reversed. The four progressives dissented on aspects of the issue of compensation.

Arkansas discussed whether the government owed compensation for flooding it caused.

In Hosanna, the court applied an existing rule governing EEOC to an individual suit.

Bond dealt with a treaty.

NFIB v. Sebellius is one of the cases I offered as an example of progressives rewriting the Constitution and the law. The progressives all held that the Medicaid expansion was a constitutional exercise of Congress's power. The progressives only split over whether Congress could deny other funding to force the states to participate in the program. If you consider Congressional funding coercion to be a progressive policy, then you have offered a partial exception to one case which proves my rule.

# posted by

Bart DePalma : 3:55 PM

Bart no likey = progressive

# posted by

Anonymous : 4:07 PM

It is the mark of an educated mind to be able to entertain a thought without accepting it.
Agen Judi Online Terpercaya

# posted by

Unknown : 4:18 PM

"361 days left in office" I'll take this as a typo

You are correct sir; should have read 342 as of Feb 13th, the date of Scalia's death. As in "the longest Supreme Court confirmation was Brandeis, at 125 days. Obama has 342 days left in office".

# posted by

jpk : 7:20 PM

These poll numbers are great news for John McCain!

MSNBC didn't televise the speech of a Hispanic or African American elected official or candidate at the RNC

Expect Rice to resign within the week and accept all responsibility to protect the President

The center right electorate still opposes Obama policy, which is why they will fire him on Tuesday

My well armed little mountain town has not had a shooting or any other type of serious violence in decades

Among progressives, the law is always unclear when it interferes with progressive policy.

I am confident in everything I do and that is not going to change.

# posted by

jpk : 7:24 PM

"Just one case will do."

"then you have offered a partial exception to one case which proves my rule."

See, I just won right there.

Of course, you're wrong about the others (the program in Horne *was* the Raisin Reserve program based on uncompensated takings which were ended by the ruling, the EEOC in Hosanna argued there was no categorical exemption from the retaliation provisions of the ADA, Bond dealt with a federal law passed to comply with a treaty which federally criminalized local activity, etc., etc.,).

# posted by

Mista Whiskas : 8:36 PM

Mr. W: See, I just won right there.

OoooTay. So Congressional fiscal blackmail of the states is now officially a progressive policy that conservatives would never employ.

The unconstitutional Raisin Reserve Program was not reversed and the four progressives dissented from the Supreme Court granting the farmer compensation for the taking. Three wanted further review so the lower court could deny the claim and one dissent wanted the Supremes to deny it.

# posted by

Bart DePalma : 8:45 AM

GM has a post at Concurring Opinions regarding how the enumeration of powers in Art. 1, sec. 8 was not originally generally understood as much as a check as now. The 10A was brought up in comments as an obvious rejoinder, but the 10A doesn't say "enumerated" or "expressly" -- it says "powers not delegated."

James Wilson argued during ratification:

"Whatever object of government is confined, in its operation and effects, within the bounds of a particular state, should be considered as belonging to the government of that state; whatever object of government extends, in its operation or effects, beyond the bounds of a particular state, should be considered as belonging to the government of the United States."

What this means is unclear but note it isn't the same as looking at the enumerated powers alone. Thus, marriage is generally seen as a state matter, though you can formulate a range of ways to use enumerated powers to greatly nationalize marriage. So, marriage as (generally; you can't wrongly discriminate) a state matter is argued to be a "10A" issue. It isn't just a matter of "enumerated" power.

So, the text matters ("delegated" ... not "enumerated"), but what it might mean is unclear and complicated, plus "may only become apparent over time."

http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1025&context=fss_papers

It, of course, hurts if other people are using an ever changing special guidebook. Mr. W. at some point knows this & is starting to be sarcastic, which isn't really his thing. But, I appreciate the effort.

# posted by

Joe : 11:05 AM

This comment has been removed by the author.

# posted by

Bart DePalma : 11:46 AM

Joe: GM has a post at Concurring Opinions regarding how the enumeration of powers in Art. 1, sec. 8 was not originally generally understood as much as a check as now. The 10A was brought up in comments as an obvious rejoinder, but the 10A doesn't say "enumerated" or "expressly" -- it says "powers not delegated."

Wilson is describing the general principle of federalism. The Constitution is very clear concerning its limited grants of power ( of as Wilson put it, "the object of government") to the federal government.

Art I, s. 8: "Congress shall have the power to...

10A: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, shall be reserved to the States respectively, or to the People.

There is no power unaccounted for under those two categorical provisions of the Constitution.

Even if the 10A was never ratified, the principle of textual interpretation Expressio Unius Est Exclusion Alterius bars the addition of any powers not included in the Art I, s. 8 list of enumerated powers.

# posted by

Bart DePalma : 11:49 AM

ETA: "other people are using an ever changing special guidebook" will make some people's eyes light up, since they think let's say (to save time) my side is doing that. And, that does hit to a problem -- from the beginning, different sides look at things so differently, this isn't by definition fraudulent mind you, that it seems they are on different wavelengths. Or, making shit up.

So, it's a matter of degree and one different people will apply differently, which is why Mark Field engages with most but not all people here.

# posted by

Joe : 12:11 PM

I have been reading out many articles about this topic and this is the best article of which I have found
buat akun & aplikasi facebook & buat email & download facebook seluler

# posted by

Unknown : 5:23 PM

Bart, the proposed program for expansion of Medicaid in that case was that it would be expanded by being tied to funding for Medicaid overall. That was the proposal. Was that not a progressive proposal? If it wasn't, as it a conservative one? Two of the justices voted against *that* proposed program.

Likewise, the Raisin Reserve program had as a component that raisins would be taken without compensation. That was the program. In ruling that it could no longer do so uncompensated the progressive justices were ruling against something that was a component of the program.

# posted by

Mista Whiskas : 9:02 PM

Mr. W:

Congress denying funding to state and local governments to fiscally blackmail them into taking some act is a bipartisan tool (see,eg, the proposed legislation targetting sanctuary cities or past legislation setting DUI standards) and is not some uniquely progressive policy.

# posted by

Bart DePalma : 10:29 AM

Mr. W:

Progressive policies include a regulatory bureaucracy, a redistributive tax code, minimum compensation mandates and a welfare state.

# posted by

Bart DePalma : 10:36 AM

This comment has been removed by the author.

# posted by

Joe : 11:26 AM