Balkinization  

Monday, July 05, 2010

Will Maryland lead the nation?

Sandy Levinson

An interesting story in today's Washisngton Post notes that Marylanders wil, thanks to their constitution, have the opportunity this November to vote to call a new constitutional convention that would be empowered to suggest significant revisions to the Maryland Constitution, whose present form goes back to the immediately post-Reconstruction Era. For obvious reasons, I hope that the good folks of Maryland will vote for such a convention and that, more to the point, it can serve as a model of the kind of constitutional reflection that is so desperately needed (and lacking) in the United States today. Unfortunately, the constitutional revision movement in California seems to have collapsed. And New York, another contemporary "failed state," will not have the next opportunity to vote for a new convention, as its constitution also allows, for some years.

Indeed, won't devotees of "federalism" at some point have to confront the fact that a striking number especially of our larger states are essentially terminally dysfunctional? I vehemently oppose the unwillingness of crazed congressional Republicans to pass legislation that might enable states to get through the crisis without further massive layoffs. On the other hand, if there is a silver lining to such truly anti-social behavior, it might be to illustrate that modern American states are incapable of functioning effectively without a significant federal presence, including the necessary infusion of funds when times are tough. Perhaps the Party of No will in fact triumph in the 2010 elections. I wonder what they will be saying in 2012, when the complete and utter lack of a "governing vision"--unless it is to return to the wisdom of Andrew Mellon and Herbert Hoover by cutting spending during a time of de-facto depression--is apparent for all to see.

Comments:

Whatever MD does about its constitution, it will have to provide for a republican form of government. That requirement of the US Constitution should prevent federalism from getting too far out of hand, unless the Roberts court says otherwise.
 

Sandy:

Indeed, won't devotees of "federalism" at some point have to confront the fact that a striking number especially of our larger states are essentially terminally dysfunctional? I vehemently oppose the unwillingness of crazed congressional Republicans to pass legislation that might enable states to get through the crisis without further massive layoffs. On the other hand, if there is a silver lining to such truly anti-social behavior, it might be to illustrate that modern American states are incapable of functioning effectively without a significant federal presence, including the necessary infusion of funds when times are tough.

First, the comment begs the question of why several state governments are dysfunctional. The simple answer is that they spend far more than their citizens are willing to pay for employees, services and redistribution and, unlike the federal government, generally cannot foist that cost on future generations through debt because of constitutional limitations.

I agree with you that a constitutional solution is required. May I humbly offer my state Colorado's Tax Payer Bill of Rights, requiring a vote of the People to raise taxes or borrow and capping spending increases to population growth plus inflation. With TABOR, there is no effective difference between GOP and Dem government because neither can increase the size of government beyond its people's means.

As to the federalism point, the Feds are part of the problem with state insolvency, not the solution. CO would have no problem balancing its budget if not for two items: (1) "mandatory" spending increases on Medicaid and (2) the feds refusal to enforce the immigration laws saddling the states with the net fiscal drain of illegal immigrants.

As to your suggestion that the Feds should be borrowing money for which the citizens of responsible states like CO are responsible to pay for the profligacy of states like CA, NY and IL, I am struggling to think of a word which can be posted in this family forum to describe the inequity of this proposal. Time the dysfunctional states get their own houses in order.

Perhaps the Party of No will in fact triumph in the 2010 elections. I wonder what they will be saying in 2012, when the complete and utter lack of a "governing vision"--unless it is to return to the wisdom of Andrew Mellon and Herbert Hoover by cutting spending during a time of de-facto depression--is apparent for all to see.

You are analogizing Hoover to the wrong party.

Hoover raised marginal income tax rates sharply on millionaires to pay for increased government spending. Sound familiar? This misbegotten policy is part of the reason a recession turned into a depression. Currently, we are headed for the same policy as the Bush tax reforms will expire on January 1 of next year and the Dem Congress has no current plans to stop that tax increase.
 

This comment has been removed by the author.
 

I am all for constitutional reform, but I am not sure how you think the problem of failed states will be solved by transferring their liabilities to the federal government (which, I seem to recall, you also believe to be dysfunctional).

If the states have promised more in public benefits than they are raising in revenue, they have two choices. They can cut spending, as Governor Christie is doing in NJ, or they can raise taxes. One might ask why there are no progressive governors seeking to attract residents by promising full employment, top-notch education and free health care in exchange for high taxes. Instead they look for ways to impose the costs of their spending on other states.
 

mls asks a very important question. One reason, perhaps, is the inability of states to keep the gains of progressive policies in-state. This is a problem with higher education financing, for example, since out-of-staters who (used to be able to) take advantage of low prices might easily leave the state afterward, Of course, this is a more basic problem with regard to all public goods, where federalism often leads to their unproduction because of positive externalities that can't be captured by the generous state surrounded by freeloaders. Thus the move toward decision by the national government.

Of course, one could argue that the California of Earl Warren and Pat Brown did substantially fit his vision, which was wrecked not only by arguable excess (my sopy to Republicans), but also by Proposition 13, which, together with the 2/3 rule for budgets, has basically destroyed California and is wrecking its world-class university system.
 

As to your suggestion that the Feds should be borrowing money for which the citizens of responsible states like CO are responsible to pay for the profligacy of states like CA, NY and IL, I am struggling to think of a word which can be posted in this family forum to describe the inequity of this proposal. Time the dysfunctional states get their own houses in order.

Baghdad, currently the Blue states are subsidizing the Red states, so I have no idea what "inequality" you could possibly see in that proposal.
 

Professor Levinson- I appreciate your response, but I see two problems with it. First, it implies that people would enter the hypothetical progressive state for the purpose of receiving education, and then flee to lower tax jurisdictions to work and make money. This suggests a sensitivity to incentives that would make any type of progressive governance problematic. Second, the same problems exist at the federal level. For example, some portion of the benefits of stimulus spending go to foreign countries, while austerity measures in other countries are going to harm us to some degree (by reducing demand for US goods). So progressive government at a national level is going to face the same type of inherent limitations. So if you really want to give progressive government a fair shot, I guess you need a hermetically sealed country like North Korea.
 

First, it implies that people would enter the hypothetical progressive state for the purpose of receiving education, and then flee to lower tax jurisdictions to work and make money.

Better education system also means better jobs, so they can't flee very far. The commute between NH and MA is very busy, and almost all in one direction.
 

mls makes another important point, capturing the implications of "globalization" for the ability of any country, including the United States, to remain in charge of its own fate. Indeed, it is increasingly silly for any governmental unit, whether a city, state, or nation, to prattle about "sovereignty," given all of the ways that other units can impose negative externalities that can torpedo its own best efforts to address some problem. I have no idea what constitutes a solution to this problem/reality of contemporary life.
 

The article ends thusly:

For all of the potential improvements, however, passing a new constitution might be essentially impossible in today's political climate, advocates said. It's highly likely that as in other states in recent years, abortion, union rights or other social issues could make the rewrite a referendum on hot-button issues.

Maryland's last experience with a constitutional convention ended much that way. In 1968, a constitutional convention produced not a new state charter but a book titled "Magnificent Failure," after conventioneers sought to modernize and shorten the document by taking, among other things, sheriffs and local clerks out of the Constitution.

"Everybody found something to hate," Miller said.


SL is hopeful though. Dare the dream.
 

Dare the dream ... Debating the legal nuances certainly has its place (especially on a con law blog), but from a practical standpoint it will take civic leadership to raise awareness and empower the community to understand that they really *can* do better in this era of fear and gross inequality. The lack of civic education and the epidemic of political corruption make people feel helpless. Simply damning them for it will not solve the problem. Who is going to help them see *how* they can remake the constitution in a better way that will not simply be twisted to work against them by clever lawyers, politicians, & lobbyists? To take just one example, where will they get objective information they can trust to evaluate Robert Reich's proposal that constitutional provisions to boost immigration will increase the tax base in the long run rather than simply increasing competition for jobs? Who will propose sample constitutional revisions that can be discussed --- far enough in advance of the vote to get support? If Maryland is going to have any chance of setting an example for the nation, it seems to me that someone who can communicate effectively about constitutional law will have to step up and lead the charge. Do you really believe in this possibility or is it simply an academic debate? I do apologize for not having yet read Sandy’s book on the subject but does it propose a practical means of implementation? I consider myself a progressive and I live in Maryland but in the absence of a serious proposal and public discussion of how the constitution can be revised to better meet people’s needs, even I would feel gun-shy. On the other hand, if someone(s) took it upon themselves to provide leadership, that really would be exciting.
 

Wouldn't it be constitutionally wonderful if the federal and all state constitutions were all amended or rewritten to reflect perfection - or reality? Hindsight is not always 20-20. And foresight often can be short-sighted. Mary Dudziak's Legal History Blog has a post today (7/7/10) on the SSRN posting of Prof. Herbert Hovenkamp's 1996 Columbia Law Review essay "Judicial Restraint and Constitutional Federalism: The Supreme Court's Lopez and Seminole Tribe Decisions." What was of particular interest to me was the "Abstract" posted at the Blog making reference to the recent Senate Judiciary Committee hearings on the nomination of Elena Kagan and Republican challenges on the commerce clause, including those of the Tea Party. The "Abstract" (which is NOT included with the download of the essay) provides some history regarding the meaning of "commerce" back at the founding and the differences in meaning of "between" and "among" the states back then. Justice Thomas, joined by Brett, surely disagree. But just how might the commerce clause be restructured today to reflect the current and anticipated future situations regarding commerce? The same question may be asked of other contentious constitutional provisions at both the federal and state levels. How effective might current "framers" with their foresight?
 

Michigan has the same vote this year. A vote on a constitutional convention is required every 20 years here.
 

One thing I forgot to add is that all the large entrenched groups in Michigan, both on the left and the right, are opposed to the Convention proposal. That might be reason enough to vote for it.
 

Shag:

But just how might the commerce clause be restructured today to reflect the current and anticipated future situations regarding commerce?

There is nothing wrong with the Commerce Clause, but rather with the bastardization of the provision by the courts to extend federal power.

Instead of revising the commerce clause, I would suggest adding a default provision to Article I along the lines of:

Congress shall have the power to regulate acts between the several States, but not acts which take place wholly within a State, except for acts of war against the United States.
 

Our Yodeler's default provision just might need a tad of interpretation/construction, such as the meaning of "acts." Also, I note in the default his use of "between" which might clash with "among" in the basic Commerce Clause. And just consider what might be considered "acts of war against the United States" in the current political climate. Does Arizona come to mind?
 

Wouldn't do any good, Bart. Constitutional amendments only work if the courts are interpreting them in good faith. And if they were doing that, the original interstate commerce clause would have about the same effect, only more restrictive, since it didn't reach all categories of "acts".

The fundamental problem we face right now, is how to have a constitution bind the government, when the government is picking the people who will 'interpret' it. A possibly insoluble problem, once the government decides it doesn't want to be bound.
 

Brett:

Agreed.

The singular weakness in the Tea Party's strategy to use electoral means to return to limited government is that the progressive courts have gutted the Constitution's checks and balances to the point where elections are not longer enough. For example, the modest progress of the Reagan Gingrich years towards this goal was completely lost and then some in the Bush/Obama years.

I believe we need a new bill of rights to restore limited government and have suggested ten amendments here.

My last suggested amendment puts checks on the courts which were missing from the original Constitution because the founders genuinely believed that the courts would be the weakest branch:

Amendment 10

Section 1. The judicial power shall include interpretation of the law, treaties and this Constitution, but such interpretation shall be limited to the original meaning of the language of the law as it was commonly understood at the time of its enactment. To the extent that the original meaning of a provision of this Constitution is uncertain, the judiciary shall construe the language against the reviewed government exercise of power.

Section 2. Congress shall have the power to review and revise a judicial interpretation of this Constitution by the Supreme Court within five years after entry of the order of the Court. A bill revising a judicial interpretation shall originate in the House of Representatives and must be approved by a two thirds vote of both the House of Representatives and the Senate. A bill of revision so approved is binding upon the Executive and the Judiciary. A bill of revision is not presented to the President of the United States and the President may not disapprove it.

Section 3. Amendments to the Constitution may be proposed by a three fifths vote of both Houses of Congress or by a majority vote of a Convention called by the application of the legislatures of three fifths of the several States. Proposed amendments ratified by the legislatures of three fifths of the several States shall be valid as part of this Constitution. This section replaces Article V of this Constitution in its entirety.


Any constructive criticism would be welcome.
 

Let's take a look at what the thin air in Colorado mixed with wafting wisps of you-know-what-is-legal there has produced for a proposed "Amendment 10":

"Section 1. The judicial power shall include interpretation of the law, treaties and this Constitution, but such interpretation shall be limited to the original meaning of the language of the law as it was commonly understood at the time of its enactment. To the extent that the original meaning of a provision of this Constitution is uncertain, the judiciary shall construe the language against the reviewed government exercise of power."

This is basically a current version of originalism. Look at the difficulties as originalism has gone through its various - and continuing - phases since the early days of Ed Meese. (Who was it that said "I hate Meeces to pieces"?) The Heller and McDonald decisions in the past two years demonstrate the difficulties in SCOTUS agreeing upon the original meaning of the Second Amendment back in the time of its ratification and upon the original meaning of the Fourteenth Amendment decades later as it impacted the Second Amendment. Just where is "the original meaning of the language of the law as it was commonly understood at the time of its enactment" clearly set forth for all to be aware of or discover? Over the years technology improvements permit for greater retrieval of past statements. But consider just the Internet - and Google - with respect to current statements; will they be factored into commonly understood original meaning through the vastness of Google? (Maybe Google has something in the works that will seek to provide the answer with reference to a particular point in time. But keep in mind that GIGO - am I aging myself? -could apply to Google.) We are well beyond the Federalist papers with its three founders views. Just consider what, if anything, is "commonly understood" just at this Blog (never mind the Volokh Conspiracy)? Should there be a constitutional Restatement approach with explanations, including history, that sets forth (as of today) "the original meaning of the language of the law as it was commonly understood at the time of its enactment"? Then over the years cases would be cited to such a Restatement? Maybe the salvation of the legal profession will be legal history. But this might not work well with future events that just might not have been identified or anticipated by the new founders/framers as happened to be the case with the original and Civil War Amendments founders/framers.

This criticism of just Section 1 may not be constructive but that is because originalism even in its present version fails, 5-4, just as the Devil can cite scriptures. Yes, the devil is in the details; but let's keep the Devil from creating the details.
 

Here's a constructive criticism, Bart: Your Section 2 effectively gives Congress the power to 'amend' the Constitution without state ratification. And has the same problem as the current system, with the 'constitution in practice' diverging from the written constitution.

Congress already has the power to propose amendments to reverse court rulings it doesn't like. This existing mechanism has the advantage that the states have to not like them, too. I think that's good.
 

Brett:

Thanks for the take on Section 2.

The ability to interpret the Constitution inevitably carries with it the danger of amendment by decree.

If not eliminate, I hope to check this danger by first limiting the method of interpretation, next by providing a congressional check on a SC when it ignores that limit, and then finally by lowering the hurdles to amend the Constitution to remove a reason for courts to feel the need to do it themselves.

As to your specific critique of Section 2, there currently is no effective check on the Court's ability to amend the Constitution by decree. Impeachment is generally reserved for crimes and misdemeanors, not as a check on tyranny.

If we are to grant a check on the Supremes to Congress, we need to balance the danger that the Congress will amend the Constitution by decree with the need to make the check a realistic possibility.

Two items mitigate the danger of Congress amending the Constitution by decree: (1) Congress can only act negatively to Supreme Court decisions and (2) Congress will need to muster a super majority to do so.
 

It's amazing that our Constitution has survived for so long without specifically providing for judicial review; likewise, without specifically providing for judicial supremacy over the executive and/or legislative branches. So is now the time to fill in these as well as other gaps - and end up not with a constitution but a code?
 

"Two items mitigate the danger of Congress amending the Constitution by decree: (1) Congress can only act negatively to Supreme Court decisions and (2) Congress will need to muster a super majority to do so."

Note quite. You're omitting the first step:

1: Congress passes law usurping new power.

2a: Supreme court upholds law, Constitution 'amended'.

2b: Supreme court strikes law down.

3: Congress votes to overturn Supreme court decision, Constitution 'amended'.

In both routes, Congress initiates things, and decides what the 'amendment' will be. (The first route is by far the more common.)

This is not to say that the Supreme court doesn't occasionally initiate it's own 'amendments', (Roe, anyone?) and it would be nice to have a mechanism for reversing these easily. But how do we enable the easy reversal of wrong Supreme court rulings, without enabling the easy reversal of correct Supreme court rulings?

Better to attack the root cause: The conflict of interest inherent in the federal government staffing the branch that decides whether or not federal actions are constitutional. So long as the federal government is choosing the judges who pass on the legality of it's own actions, and consciously doing so with the aim of getting it's actions approved, no amendment can restrict federal power. Certainly we saw that with the recent amendment restricting Congressional pay raises. Mooted by the Court so fast your head would spin.

We need to take control over the composition of the federal bench away from the federal government. Or perhaps create a separate constitutional court for deciding the constitutionality of federal actions, composed of judges chosen at the state level.

Maybe the latter would be simplest, being least disruptive of the present structure, while providing a route for reversing Supreme court outrages.

But I'd definately retain state ratification of amendments. In fact, cut the federal government out of the amendment process entirely, and simply amend Article V to state that any amendment which is ratified by the legislatures or conventions of 3/5ths of the states becomes a valid part of the Constitution regardless of how it originated.
 

"Two items mitigate the danger of Congress amending the Constitution by decree: (1) Congress can only act negatively to Supreme Court decisions and (2) Congress will need to muster a super majority to do so."

Note quite. You're omitting the first step:

1: Congress passes law usurping new power.

2a: Supreme court upholds law, Constitution 'amended'.

2b: Supreme court strikes law down.

3: Congress votes to overturn Supreme court decision, Constitution 'amended'.

In both routes, Congress initiates things, and decides what the 'amendment' will be. (The first route is by far the more common.)

This is not to say that the Supreme court doesn't occasionally initiate it's own 'amendments', (Roe, anyone?) and it would be nice to have a mechanism for reversing these easily. But how do we enable the easy reversal of wrong Supreme court rulings, without enabling the easy reversal of correct Supreme court rulings?

Better to attack the root cause: The conflict of interest inherent in the federal government staffing the branch that decides whether or not federal actions are constitutional. So long as the federal government is choosing the judges who pass on the legality of it's own actions, and consciously doing so with the aim of getting it's actions approved, no amendment can restrict federal power. Certainly we saw that with the recent amendment restricting Congressional pay raises. Mooted by the Court so fast your head would spin.

We need to take control over the composition of the federal bench away from the federal government. Or perhaps create a separate constitutional court for deciding the constitutionality of federal actions, composed of judges chosen at the state level.

Maybe the latter would be simplest, being least disruptive of the present structure, while providing a route for reversing Supreme court outrages.

But I'd definately retain state ratification of amendments. In fact, cut the federal government out of the amendment process entirely, and simply amend Article V to state that any amendment which is ratified by the legislatures or conventions of 3/5ths of the states becomes a valid part of the Constitution regardless of how it originated.
 

"Two items mitigate the danger of Congress amending the Constitution by decree: (1) Congress can only act negatively to Supreme Court decisions and (2) Congress will need to muster a super majority to do so."

Note quite. You're omitting the first step:

1: Congress passes law usurping new power.

2a: Supreme court upholds law, Constitution 'amended'.

2b: Supreme court strikes law down.

3: Congress votes to overturn Supreme court decision, Constitution 'amended'.

In both routes, Congress initiates things, and decides what the 'amendment' will be. (The first route is by far the more common.)

This is not to say that the Supreme court doesn't occasionally initiate it's own 'amendments', (Roe, anyone?) and it would be nice to have a mechanism for reversing these easily. But how do we enable the easy reversal of wrong Supreme court rulings, without enabling the easy reversal of correct Supreme court rulings?

Better to attack the root cause: The conflict of interest inherent in the federal government staffing the branch that decides whether or not federal actions are constitutional. So long as the federal government is choosing the judges who pass on the legality of it's own actions, and consciously doing so with the aim of getting it's actions approved, no amendment can restrict federal power. Certainly we saw that with the recent amendment restricting Congressional pay raises. Mooted by the Court so fast your head would spin.

We need to take control over the composition of the federal bench away from the federal government. Or perhaps create a separate constitutional court for deciding the constitutionality of federal actions, composed of judges chosen at the state level.

Maybe the latter would be simplest, being least disruptive of the present structure, while providing a route for reversing Supreme court outrages.

But I'd definitely retain state ratification of amendments. In fact, cut the federal government out of the amendment process entirely, and simply amend Article V to state that any amendment which is ratified by the legislatures or conventions of 3/5ths of the states becomes a valid part of the Constitution regardless of how it originated.
 

Sorry about the double comment, sure looked like nothing was happening.
 

Brett, it's treble, not double, "damages." If Arne were still with us (I don't know where he is), he would surely reference the delete feature of this Blog to get rid of the triplification (that's not a dirty word, is it?).

But I really want to mention recent (2010) writings of legal historian Alison L. LaCroix: 1) her book "The Ideological Origins of American Federalism" and her Law and History Review article "The Authority for Federalism: Madison's Negative and the Origins of Federal Ideology." Article III apparently resulted from the eventual failure of Madison's "Negative" that would have given the federal government review of state legislation powers, somewhat like the powers of Parliament over the Colonies. In addition to Article III as a control, the Constitution ended up including the supremacy clause. Madison was not pleased with the failure of his "Negative." The qustion is did the Article III and supremacy clause provisions accentuate the "Positive." As Johnny Mercer said: "Don't mess with Mister In Between."
 

Brett said...

BD: "Two items mitigate the danger of Congress amending the Constitution by decree: (1) Congress can only act negatively to Supreme Court decisions and (2) Congress will need to muster a super majority to do so."

Note quite. You're omitting the first step:

1: Congress passes law usurping new power...

2b: Supreme court strikes law down.

3: Congress votes to overturn Supreme court decision, Constitution 'amended'.

In both routes, Congress initiates things, and decides what the 'amendment' will be...


You offer an interesting scenario which I frankly had not considered. However, your step 3 is very unlikely if the People have reelected the usurping Congress. Let me revise your 3 to make it more realistic:

3. The usurping Congress has been replaced by a subsequent election and the new Congress reverses the Supreme Court decision and finds unconstitutional the law of the prior Congress.

Call this the Tea Party wave election scenario.

In this case, it is up to the People to ensure use the check by throwing out the usurping Congress and electing one which will enforce the Constitution.

If the People decline to do so, then they have effectively signed off on amending the Constitution.

So long as the federal government is choosing the judges who pass on the legality of it's own actions, and consciously doing so with the aim of getting it's actions approved, no amendment can restrict federal power.

A couple notes...

1) Elect representatives who believe in limited government.

2) The executive appoints judges, which is why I granted Congress alone the power to reverse the SC.
 

Further on the subject of federalism, Prof. Michael Dorf has an interesting essay at Find.Law today (7/12/10) on federalism issues involved with the feds challenge of the AZ immigration statute and Judge Tauro's District Court of MA decisions on DOMA.
 

Shag- I read the Dorf piece, hoping that he would answer the question Holder ducked yesterday, namely how is the Arizona law inconsistent with federal law? Dorf gives the analogy of cigarette labeling cases, where state “over-enforcement” would lead to inconsistency, but doesn’t explain how that relates to the immigration context. Is Arizona saying that something that complies with federal law is not good enough under state law? Is Arizona making it more burdensome to comply with its law than it would be to comply with federal law? Dorf doesn’t say. Admittedly, Dorf isn’t claiming that preemption applies here, but he clearly wants the reader to get the impression that this is a plausible case, without explaining why.

Dorf also tries to justify the federal position by saying “under our Madisonian system of divided powers, in which ambition is made to check ambition, we should fully expect the federal government to insist on its prerogatives when a state makes a bid to exercise a power that is seemingly lodged elsewhere by the Constitution itself.” Isn’t this rather silly? Of course, the framers expected self-aggrandizement, seeing as how men aren’t angels. But this doesn’t mean that the federal government will pursue every conceivable pre-emption case, even those that are slam dunks (as Dorf’s own example of medical marijuana shows). And even if it did, it wouldn’t justify such behavior . . . unless this blog wants to retract all of the outrage it has expressed over the executive’s attempts to expand its powers.

Speaking of which, how about them recess appointments? Do you think Professor Lederman has reformed his views on their constitutionality?
 

Further yet on federalism, Larry Solum's Legal Theory Blog provides an SSRN link today to Erin Ryan's "How the New Federalism Failed Katrina Viictims," a chapter excerpted from a more extensive article by her. This chapter runs 62 pages but margins are quite wide and double-spacing makes for a fairly quick read (if footnotes are ignored). I am over the half way mark and it reads well. The "New Federalism" is "defined" as that of the Rehnquist Court.

I'll get back to mls later, but i don't speak for Lederman. As to recess appointments, what's sauce for the goose is sauce for the gander. (Think of John Bolton.) But quicker action by the Senate just might lessen the need for such appointments.

Quickly as to Dorf, what I found most interesting were his comments that the issues involved can impact both left and right, perhaps even Mugwamps.
 

Erin Ryan's article was published in 2007. I wonder if she plans a follow up with respect to the response to the BP Gulf calamity. Granted, this did not occur in territories of the Gulf states but its impact will be felt in each of those states. So federalism issues may have to be addressed.

mls says:

"And even if it did, it wouldn’t justify such behavior . . . unless this blog wants to retract all of the outrage it has expressed over the executive’s attempts to expand its powers."

I don't anticipate a retraction. It's only 18 months into the Obama/Biden Administration. I expect criticism from time to time by posters at this Blog of the Administration as opposed to the lockstep of neocons (and other cons) in support of Bush/Cheney for 8 errant years.

And on recess appointments, I can't get Revoltin' John Bolton out of my head, a man who - unlike Obama's recess appointment - never understood "do no harm."

As for Dorf, the point of his recent column was contrast on federalism, not primarily to make the case for the federal versus the state positions in the two matters he discussed.

Perhaps mls would like to take a crack at proposed amendments to the Constitution to address any gaps in federalism, which like originalism is modified from time to time when challenged. Frankly, with the benefit of over 200 years of hindsight, I wouldn't expect substantial agreement on any amendments proposed, at least in the present political climate.
 

Stuart Taylor, Jr.'s OpEd in today's (7/14/10) WaPo "Supreme immodesty: Why the justices play politics" closes with this:

"Why so immodest? Perhaps because the justices know that as long as they stop short of infuriating the public, they can continue to enjoy better approval ratings than Congress and the president even as they usurp those branches' powers."

Taylor looks at originalism and history in Heller and McDonald. He doesn't say it directly, but the Constitution does not specify judicial supremacy.
 

Taylor inserts some dubious comments in that op-ed. For instance:

Conservative (and some liberal) "originalists" are correct in saying that justices who seek to override the text and original meaning by invoking the "living Constitution" have nothing to guide them but their own policy preferences -- and precedents, which can be overruled.

I'm curious who these people are. Justice Brennan, for instance, used "text" to advance his approach, and he is the archetype of the LC model. Prof. Balkin, Senor No Commento, uses original meaning to advance what is labeled as "LC" too.

So, who is "overriding" here? That is question begging. Even if they did, any summary of constitutional analysis has more than three modalities (i.e., text, original meaning and precedent) available. And, for those who use them, "policy preference" is not the only stopper.

For example, nothing in the original Constitution (which ratified slavery) or the 14th Amendment (which required only states to provide "equal protection") was originally understood to bar the federal government from discriminating based on race.

The first Justice Harlan among others probably would have disagreed. Of course, segregation (the example supplied) was not deemed discriminatory to many people. Even Justice Harlan appeared to accept it for public schools.

Finally, is it that justices follow "policy preferences" -- as in "politics" (per the title) or do they each have a certain judicial model that they follow that influences their result? "Liberal" or "conservative" is rather simplistic here.

Stuart Taylor simplifies in attempting to disimplify.
 

Joe asks:

"Finally, is it that justices follow 'policy preferences' -- as in 'politics' (per the title) or do they each have a certain judicial model that they follow that influences their result?"

I'm curious as to what may constitute a "judicial model." The term brings to mind the field of economics, which does not provide very much confidence or comfort with its models, especially of late. Perhaps by identifying the "judicial model" of a particular Justice, we can then test it to see if it is consistently applied. Is there serious doubt that a Justice's views evolve over time with experience? (Consider Justice Stevens in this regard.) Legal scholars with political science backgrounds have written extensively on the politics of Justices over the years. And consider Bush v. Gore. Taylor's closing paragraph provides much food for thought with respect to the unelected Judiciary. The 5-4 Heller and McDonald decisions will keep the Judiciary busy for years, perhaps repenting at leisure over any limits on Second Amendment rights while more important issues/rights are ignored. I'm thinking of Dred Scott. I can't believe that Heller and McDonald resulted from "judicial models."
 

I'm sure there are exceptions, but the op-ed purported to discuss rulings as a whole, not various hot button topics. And, though substantive policy concerns factor in, differences in judicial philosophy as a whole does affect such results.

For instance, Scalia has a propensity for clear statements. This at times leads to what appears to be liberal results: for instance, confrontation requirements even for lab technicians. Clear statement rules that are done with some consistency is a judicial model, not merely some "political" decision.

It is quite arguable that Heller (each side) was an honest attempt to put forth an originalist and/or textual interpretation. This is not to say it is only that which is involved. The level of importance (and I doubt something that Democrat senators like Leahy and Feingold supported is Dred Scott level divisive, even if it might be quite upsetting for some communities) is of course also debatable.

To millions, gun rights are quite important, and the Supreme Court has (to be honest) not really done its job until recently to actually decide the issue. Minutiae in the 1A, including nude dancing, was covered, while lower courts were left to parse stray dicta and a thinly decided case back in the 1930s.

Of course, some sort of "political" decision might be assumed here, akin to the Warren Court deciding to address certain issues. But, many other factors were involved too.
 

P.S. I would emphasize my concern is to note that any one thing is not the "only" thing involved.

Also, Sandy Levinson was cited in a recent 2A case.

http://www.ca7.uscourts.gov/tmp/ZE0KUGPU.pdf

Sanford Levinson, United States: Assessing Heller, 7 INT’L J.
CONST. L. 316, 319 (2009)

His seminal article on the embarrassing Second Amendment is still worthwhile reading.
 

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