Saturday, January 29, 2011

Et tu, Garrett

Sandy Levinson

Garrett Epps, whom I very much like personally and whose work I greatly admire, has an article in the current Nation justifiably attacking some Tea Partiers (think of Michelle Bachman) for their wacky, and often pernicious, views of the Constitution. The subtite of his piece (I assume the product of Nation headline writers) is "Inside the right's cammpaign to hijack our country's founding text--and how to fight back." So, given that I agree with a great deal of the piece, including, for example, his takedown of Antonin Scalia for basic dishonesty in the way he actually operationalizes his vaunted commitment to "originalism" and a "dead Constitution" (Scalia's term, not his critics'), why am I left so dismayed after reading the piece?

The quick answer is that Epps cannot forbear from engaging in his own version of Constitution worship. If the response of the Left to Bachman and her ilk is to claim only that we love the "real" Constitution more than they do--and to ridicule without discussion the desires of some of the Tea Partiers to amend the Constitution--then I we only slip further into the reverie of Madisonian "veneration" of the Constitution instead of adopting Thomas Jefferson's injunction not to treat it as an "ark of the Covenant." When all is said and done, Epps, like most contemporary leftists, including the American Constitution Society (an organization that I happy to financially support), is almost entirely Madisonian, which, for me, obviously, is no compliment. (Hope springs eternal that the ACS will become more critical of the Constitution.)

So here's the bill of particulars with regard to Epps's essay:

"Our Constitution wasn't written to rig the political game but to play it without killing one another. It created a government and gave that government the power it needed to function." First, it is patently false to say that the Constitution "wasn't written to rig the political game." After all, as he himself notes (contra the ridiculous claims of Bachman), the Constitution was written to rig the game in favor of slaveowners and the states they lived in, who got a huge bonus in the House of Representatives (and, therefore, the electoral college and, ultimately, because it's the President who chooses nominees for the Supreme Court, that institution as well). And, of course, as he well knows, having written a fine book on the Fourteenth Amendment, it took a bloody war that killed two percent of the entire population of the United States in order to overcome this particular aspect of the Constitution. But, as he also well knows, the South actually won greater political power by losing the war, inasmuch as the former slaves who had been treated as only 3/5 of a whole person now indeed became "whole persons," but since by the end of the 19th century, they were disallowed from voting, the South got a huge "segregation" bonus that was even bigger than the slavery bonus, which, of course, rigged American politics until at least the time of Lyndon Johnson and the passage of the Voting Rights Act. Moreover, the Senate was obviously rigged in order to protect the political interests of small states, and we play the price for this every single day with regard, to take only the most obvious example, an indefensible (and expensive) agricultural policy that is passed at the "bipartisan" behest of upper Middle West Senators who care more deeply about agricultural subsides than anything else.

I agree withi Epps that the Constitution "gave the government the power it needed to function." Marshall was correct in McCulloch v. Maryland, which is enough to establish the constitutionality of the Affordable Care Act. Period. The problem is not "interpretation" of Article I, Section 8, but, rather, the egregious set of political structures that make it next to impossible actually to pass the kind of progressive legislation we so desperately need. In fact the ACA is both of historic importance and thoroughly mediocre as a genuine attack on the ever rising costs of medical care, and the reason it is so mediocre is the ridiculous power given small state senators, plus, of course, the indefensible filibuster rule, which is the result of the Constitution's grant of a power to each House of Congress to establish its own rules. One can say "you lie" (correctly) to Bachman, Glenn Beck, and their minions, but that has precious little to do with addressing the extent to which the Constitution is shamefully rigged in favor of maintaining the status quo in domestic politics. (Foreign and military policy raise different issues, though, of course, one could argue that we continue our idiotic policy toward Cuba--this is literally the 50th anniversay of the embargo established against that country--because of the structures of American politics such as the electoral college andthe inordinate power given "battleground states" like Florida, not because most rational analysts believe it makes the slightest bit of sense in today's world.)

"The framers wanted to impel change, not prevent it." Well, yes and no. The fact is that many of the Federalist Papers are full of language denouncing the tendency of legislatures, particularly the House of Representatives and its greater sensitivity to ordinary (and passionate, basically irrational) electors, to pass unwise legislation. That is, after all, why we have a bicameral system in which the Senate has a death-ray veto over anything passed by the House, and then, for good measure, the also undemocratically-chosen (in the 1787 Constitution) President would also have a veto power. (I put judicial review to one side.)

"The original Constitution prohibited oppressive practices...." Surely Epps should have rewritten this sentence, given that it so notably protected slavery, writing in a special protection for the international slave trade until 1808.

"[T]he Constitution allowed for a government adequate to the challenges facing a modern nation." No, not really. Or, to justify such an optimistic statement, one first has to create a list of "challenges" to the nation since 1789, when Washington was inaugurated, and then assess how well the government responded to them and the extent to which inadequate responses might have something to do with defects in the constitutional design. One challenge, of course, was the fact that American Indians weren't fans of American expansion, and Andrew Jackson did indeed "solve" that problem by an American version of "ethnic cleansing." But, just as obviously, in no way did the government adequately respond to the problem of slavery or the aftermath of slavery. Again, it's not that the Constitution estops the government from doing so by saying it doesn't have the power. Rather, it creates a structure within which politics occur that make this highly unlikely.

"The idea that states have rights. . . appears nowhere in the original Constitution." As a matter of fact, the Constitution very clearly does give states some genuine rights. Article VII makes ratification a matter of decision by state polities, not by the people at large. And Article IV requires, for example, the assent of a state before it can either lose territory (by division into more than one state) or gain territory (by amalgamation with another state). This is why, for example, we can't simply force the Dakotas to become one state, which would still be overrpresented with two senators. I agree strongly with Epps that the actual number of rights specified for states is astonishingly few, that most notions of states rights are made up by the Supreme Court, but why can't one settle for this rather than claiming that the Constitution is totally silent as to states possessing at least some rights (including, for that matter, a right to have its own miitia, under the Second Amendment. Today, this is viewed as a "minimalist" interpretation of the Amendment, but, as I've written on other occasions, there is nothing minimalist in the real world about sub-national units having a right in effect to have their own quasi-armies).

"The most important truth about the Constitution is that it was written as a set of rules by which living people could solve their own problems, not as a 'dead hand' restricitng their options." With respect, I think that "the most important truth about the Constitution" is that it is the most difficult to amend Constitutoin in the entire world and therefore makes it next to impossible for "living people" to "solve their own problems" if, God forbid, solution might require formal amendment of the sacred text. We are confined in an "iron cage" developed by long dead people from 1787 who had no comprehension of the way that the United States would actually develop and what kinds of political structures might be necessary to new realities.

Although Epps is critical of unnamed"progressive legal scholars" who "hold forth with polysyllabic theories of hermentics that ordinary citizens can't fathom," I am afraid that he commits the basic sin of almost every law professor, which is focus exclusively on what I have come to call the Constitution of Interpretation--i.e., the Constitution that law professors love to talk about and that is the subject of endless litigation and law review articles--rather than the Constitutoin of Settlement that never rises to the top of a law professor's consciousness because there really isn't anything to "interpret" (what part of "two senators" or "January 20" do you not understand) and, of course, this is never of interest to the judiciary.

One obvious response to this critique is simply that he didn't write the article I wish he had written. So what? Unfortunately, I think it matters. He concludes his article by writing "Ordinary Americans love the Constitution as leawst as much as far-right ideologues. It's our Constitution too. It's time to take it back." Well, as everyone who follows Balkinization knows, I very definitely do not love the Constitution, and I don't think that anyone else should either, except those who benefit from the status quo. Otherwise, we're all like deluded spouses who accept being battered as simply part of what the trials and tribulations of marriage/politics are all about. Ordinary Americans should learn that it is far past time to dispense with their mindless love and instead to engage in cold-blooded analysis. Ironically or not, the best model for that is that of the Framing generation itself, which ruthlessly dispensed with our first constitution, the Articles of Confederation, because it was viewed as thoroughly dysfunctional. There is, alas, not an iota of that most valulable lesson of 1787 in Epps's essay.

I obviously hope that he responds to this critique, either here or on his own indispensable blog site at the Atlantic. He is always worth reading (not least because, as a former reporter, he writes extremely well). But this time, at least, I do conclude, "et tu, Garrett?"


"I agree strongly with Epps that the actual number of rights specified for states is astonishingly few,"

Well, aside from that pesky 10th amendment, which basically gives the states jurisdiction over EVERYTHING the constitution doesn't hand to the federal government. That's a pretty big grant, if you don't elide most of the language of the interstate commerce clause, and 'interpret' "necessary and proper" as "convenient".

With regard to the "takedown" of Justice Scalia on originalism that Sandy notes in his first paragraph,
so do Harold Anthony Lloyd in his "'Original' Means Old, 'Original' Means New: An 'Original' Look At What 'Originalists' Do" available at SSRN:

and Larry Rosenthal in his "Originalism In Practice" also available at SSRN:

(each of whom also throws in Justice Thomas for good measure). Direct links are available at Larry Solum's Legal Theory Blog.

Brett plays the role of a rather simplistic originalist bomb-tosser with his reference to "that pesky 10th amendment." What does originalism tell us of the 10th amendment? And does the ninth amendment also, via "We the People," add to powers of states? Just what are the rights specified for states in the tenth amendment? Brett should put a constitutional band-aid on his Wick-burn, as necessary and proper for his healing, especially if he reads - and understands - Profs. Lloyd and Rosenthal's articles.

Epps is, I imagine, trying to develop a conception of the Constitution which, if accepted, would justify the political outcomes that he holds dear. To the extent that you are attacking his conception on the grounds that it is factually false (or at least highly selective), this is not necessarily germane to his project. OTOH, if you are arguing that his conception, even if accepted, will not in fact achieve as much as you (and he) would like, he might respond that your position will achieve nothing at all because there is no evidence of any political inclination to take radical steps such as abolishing the Senate.

More importantly, a few weeks ago you were arguing that the issue of filibuster reform was a defining one for the Obama administration and the Senate leadership. Since that has apparently been resolved, what are your views on how they did?

Brett, the 10th A says not a single word about "rights" of states. It only uses the word "powers".

That's putting aside the fact that it's an irrelevance anyway; all it does is gild the lily.

Oh, I agree, states' "rights" is a sloppy way of referring to states' powers. But the 10th amendment is only irrelevant if you've decided the Constitution, of which it is a legally ratified part, is irrelevant.

Which an awful lot of liberals have so decided, though prudence dictates that they not say so.

Who says the Constitution is irrelevant? That the tenth amendment is irrelevant? What is relevant is how the Constitution, as amended, is to be interpreted/construed in the here and now. When the Constitution, or any of its amendments, is not clear in its meaning, originalism too often, as Prof. Rosenthal in particular points out, fails to provide the answer. But perhaps there are gaps that even non-originalism cannot provide answers to. Perhaps this is the gist of Sandy's concerns with Epps. If the Constitution needs fixing, how to fix it is a problem of great magnitude in the current political climate.

The Originalism Blog provides a link to a recent Ohio State Law Journal Symposium on "Originalism and the Jury." Query as to incorporation of the Seventh Amendment to apply to the States? (I'll be thinking of McDonald v. Chicago as I read the papers - and $20.00 measured today as compared to 1791 and 1868.)

Shag, when the Constitution was ratified, the word "dollar" was understood to refer to a particularly widely circulated and imitated Spanish coin of consistent weight. The US dollar was adopted as a coin of identical weight, interchangeable with it. Hamilton actually weighed a bunch of them, and averaged the weight, when our currency was designed.

So, from an originalist standpoint, how to interpret the $20 thing is easy: The current value of the silver in 20 historical Spanish "dollars". That would, by my calculations, be about $485 or our highly inflated fiat currency, as of today.

When is the measurement point of $20.00 under originalism relative to the 14th Amendment, assuming incorporation of the 7th Amendment to apply to the states, 1868 or 1791?

And should eligible ages for elective offices be modified to reflect changes in mortality tables since 1789?

By the Bybee (&$^%@#), Hamilton probably had a thumb on the scale.

Possibly he did; He came up with an average weight of 27 grams, while historians seem to think that it was more like 25. But maybe he simply made a point of using unworn "dollars"; The coins were of fairly high purity, and thus wore away easily.

In any event, the word "dollar" doesn't appear anywhere in the 14th amendment that I can see, so I can't figure out how any originalist would think ratification of the 14th amendment reset the clock on it's meaning.

Brett, everyone at the time thought the 10th A was superfluous. That's why the Federalists were willing to pass it. All it did was codify the inclusio unius rule of construction which was widely admitted during the ratification debates.

And when you consider the language of the 10th A itself, it's obvious that it can't possibly mean anything. It refers only to "powers not delegated". That means the whole ballgame consists in interpreting the powers which were delegated under Art. I, Sec. 8. If the power was delegated, the 10th A is inapplicable on its own terms. If the power wasn't delegated, Congress would lack power even if the 10th A had never been adopted.

The word "arms" from the Second Amendment - does it appear in the 14th Amendment? Wasn't there a sort of "reset" in the context of the framing/ratification of the 14th Amendment considered in McDonald v. Chicago?


What in particular do you admire about Mr. Epps' writing style?

Epps starts off his rant against "the toxic coalition of Fox News talking heads, radio hosts, angry "patriot" groups and power-hungry right-wing politicians" by creating a lunatic strawman in the person of one Lester Pearce, of whom nearly no conservative or Tea Party member has ever heard. Our Tea Party group discusses the Constitution as it is written without feeling the need to engage in wild forays into Mosaic law.

Then there is the paragraph which ridicules Congress for reading the Constitution as it exists rather than some prior version and for suggesting that prior Congresses have acted in excess of their Article I powers by requiring that future legislation cite Congress' Art. I authority, with a bizarre Monty Python-esque side journey to the shooting of Congresswoman Gifford. Does any serious person disagree that the Constitution as amended is the law of the land and that past Congresses have often enacted unconstitutional legislation?

Then there are these gems:

So the right is seeking to win by changing the rules. Progressive, democratically enacted policy choices are unconstitutional, they argue.

Any democratically enacted policy choice is unconstitutional if it exceeds Congress' Article I powers to do so. A very reasonable argument can be made that progressive policies have a far greater track record of exceeding those enumerated powers than most, thus the progressive judicial rewrite of the Commerce and N&P clauses past anything justified by the text in order to find progressive policies constitutional.

A document that over time has become more democratic and egalitarian is being rewritten as a charter of privilege and inequality.

Presumably, Mr. Epps is arguing here that enforcing the Constitution as written will make it less democratic and egalitarian because such an approach would outlaw much of the progressive project. Mr. Epps must be referring to big "D" Democratic Party because taking the power to legislate from an unelected bureaucracy and it to the Congress would hardly make the government less small "d" democratic.

I stopped reading after this next classic paragraph:

Conservatives also claim that the Constitution was set up to restrain the federal government. If so, there's precious little evidence of it. The actual text of the Constitution is overwhelmingly concerned with making sure the new government had enough power; the framers thought the old Articles of Confederation were fatally weak.

Even a middle school child attending civic class at a government school knows about the checks and balances, even if their teach likely skipped over the enumerated powers language at the beginning of Article I and do not share Brett's temerity of quoting the unambiguous language of the Tenth Amendment.

The argument that the Founders desired a nearly unrestrained federal government simply because they recognized that the federal government under the Articles of Confederation was fatally hobbled is the weakest of non sequiturs. Our Constitution as it is written arguably shackles our national government more than any other constitution in effect around the world.

Those few minor quibbles aside, I am sure that a book with the sober and reflective title "Unhinged: Reclaiming Our Constitution From the Lunatic Right" is sure to sell well among the readers of The Nation and those of like mind.

Our yodeler says a lot but does not read a lot. Consider his:

"I stopped reading after this next classic paragraph: ...."

I printed out the Epps article of just over 6 pages in length. The paragraph our yodeler quotes appears just shy of the middle of page 3, thus ignoring over 50% of the article. Apparently our yodeler got "Unhinged."

By the Bybee (%*^&#$@), our yodeler's reference to:

" ... the unambiguous language of the Tenth Amendment."

reveals his long suffering constitutional diarrhea.

By the Bybee (%&^#$*@) II, the recent Senate Tea Party caucus of three Senators meant that only one tea bag had to be spent - no need for lemon, thank you.

"Brett, everyone at the time thought the 10th A was superfluous."

No, that it was redundant. Redundant, in the sense that, once you've written something, bolding the text is redundant. Underlining the bolded text is redundant. And following the text with another passage saying, "And I really meant it!" is redundant.

Subsequent history has shown, of course, that if a text is read by somebody determined to misunderstand it, saying something twice won't really stop them. Just like a belt AND suspenders won't keep your pants from falling down, if you're deliberately taking them off.

Bu, superfluous? Not on your life.

Brett makes mountains out of molehills with his challenge of Mark's use of "superfluous." My nearby Webster's New World Dictionary #1 definition of "superfluous" reads: "being more than is needed, useful, or wanted; surplus; excessive." And its #1 definition of Brett's preferred "redundant" reads: "more than enough; overabundant; excess; superfluous." Granted, my rusty, trusty Webster's does not take us back to the old original Webster's of 1791 that originalists might wish to consult. I shall leave that to those who think the language of the 10th Amendment is "unambiguous," which my Webster's does not define but does provide its #1 definition for "ambiguous" as follows: "having two or more possible meanings."

By the Bybee (#*^&%@$), Brett might provide a cite for this claim:

"Subsequent history has shown, of course, that if a text is read by somebody determined to misunderstand it, saying something twice won't really stop them. "

like the majority in Heller and McDonald v. Chicago? Or is Brett figuratively "mooning" with his subsequent reference to belt, suspenders and pants falling down?


Actually, the Tenth Amendment is the third statement that the federal government is limited to its enumerated powers. Article I states this at the beginning and again in the N&P clause.

"The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added."

Sometimes, this "whereas" type language is included in publications of the BOR and I find it informative. The fact that certain things were included in the BOR over others (Madison would have also included other "declaratory" type clauses) is of some note. The 10A was included because the basic principle was deemed important to express in red ink, so to speak.

It is on that level not a trivial inclusion and as with other amendments, its power and symbolic weight grew beyond its explicit words to its assumed "penumbras and emanations."

I'd add that I share Mark Field's distaste for using "right" with "states" but the term was so applied over the years, including by various people of the Founding Generation. For good or ill.

Joe, I think your point has force with respect to those who were doubtful about the new Constitution. But the Federalists -- and they controlled Congress and many of the state legislatures -- didn't think the 10th A was important at all. In fact, it was precisely because it was unimportant that they were willing to provide the votes to pass it.

Professor Levinson -
Thank you for yet another thoughtful post. I was particularly intrigued by your brief discussion of what you term the "Constitution of Settlement." In the Balkinization symposium on Bruce Ackerman's recent book, Stephen Griffin referred directly, and you more obliquely, to the optimistic "Yale tradition" of constitutional theory. It's interesting that you share such an awareness for the power of numbers and dates - the seemingly more banal aspects of the constitutional text - with Akhil Amar, a prominent advocate of that tradition and someone who seems to revere the Constitution in a way you do not. As I'm sure you know, Amar has written and said that the ability to insert all the numbers in the Constitution would be more influential than all the rights and vague clauses guaranteeing them. I always enjoy finding connections across the work of scholars who disagree on many levels.

As always, I appreciate your contributions to the important discourse on this blog.

Mark, I agree the Federalists didn't think they were giving up anything there, but the same might have been said about the BOR as a whole.

Madison included it because he knew others were concerned about the matter, warranting this specific "unimportant" declaratory statement. If it was totally superfluous, there would be no need to put it there in the first place.

And, once there, over time, it was likely to gain power in ways Federalists might not have supported, including providing a gloss to reaffirm the "spirit" the document that goes beyond the words. This is the current "10A."

Anyway, "everyone" wouldn't be "Federalists," so that seems an edit of an earlier comment.

If it was totally superfluous, there would be no need to put it there in the first place.

Which was the Federalist position.

And, once there, over time, it was likely to gain power in ways Federalists might not have supported, including providing a gloss to reaffirm the "spirit" the document that goes beyond the words. This is the current "10A."

Anyway, "everyone" wouldn't be "Federalists," so that seems an edit of an earlier comment.

Fair enough on both counts.

On a related note concerning Congress exceeding its enumerated powers....

Ruling on a lawsuit by two dozen states, the Federal District Court for Northern Florida ruled today that Obamacare is unconstitutional in its entirety.

Round One goes to the Constitution.

Next stop, 11th Circuit Court of Appeals.

Our yodeler needs some Kaopectate.

Looks like Justice was just hung on its own petard.

By repeatedly insisting that Obamacare cannot function without an individual mandate, Justice went "all in" by hoping the court would shy away from striking down the unpopular individual mandate to avoid taking down the rest of the law with it

Well, Justice blundered into a judge willing to take its dare.

Apparently the Kaopectate will not work with our yodeler, so it looks like pharmacy quality plaster of paris is called for.

Shag, past experience suggests this question is probably futile, but I feel compelled to ask it anyway: Do you have any actual arguments to deploy here?

Brett, it's been well over 24 hours since my last comment of 7:38 AM yesterday aimed at you and this is your response? I have no argument with Mr. Epps, which does not mean that I agree with all he says. But I am in agreement with him in general. I appreciate Sandy's parsing of Epps' article, agreeing with him in some aspects but not all. You introduced at the very beginning the "pesky 10th amendment" which got some play here, including from me. I raised some points at my 7:38 AM comment addressed to you and I futilely await a response. In the meantime, our yodeler has continued with his constitutional diarrhea and I have been offering prescriptive measures to alleviate his condition, since Sandy's post is not aimed at the ACA (or the 10th amendment for that matter). (The reference to "pharmacy quality plaster of paris" goes back to a bout of diarrhea I had as a pre-teen with medication prescribed in the form of a white powder mixed with water that had an awful smell and taste. A few years later, I was working to fill my hollow plastic chess set with plaster of paris to give the pieces heft and as I mixed water with the plaster of paris I noted the similarity of the aroma with the white powder of a few years earlier.)

By the Bybee (*^&%$@#), what are your actual arguments deployed here other than revealing your long suffering with Wick-burn?

Now I've got to keep my eye on another snow storm hitting this region to shovel that may keep me from shoveling (less purely, of course) at this Blog. But seriously, Brett, it's nice to be asked.

Iconfess to being mystified by the sentence that "I have no argument with Mr. Epps, which does not mean that I agree with all he says." Clause two suggests that one does indeed have atleast some argument with Epps, which obviously contradicts clause one. My (apparently futile) aim was to stimulate a serious discussion of a serious (and seriously flawed) article.

Sandy, your quote from my comment was followed by these words of mine: "But I am in agreement with him [Epps] in general. I appreciate Sandy's parsing of Epps' article, agreeing with him in some aspects but not all." I agree with you that Epps' article is serious; but I disagree with you that it is "seriously flawed." If I argued about everything I disagreed with, that wouldn't leave time for more reading and writing and whatever else I do (besides shoveling snow). Perhaps Epps' adaptation of this essay from his work in progress left out some steps (or footnotes) for reasons of space limitations that might have been more edifying. That's a problem that many writers have with condensing their thoughts. So I would give Epps a little slack, just as I give you and other posters at this Blog and other blogs a little slack - as long as you're going in the proper direction.

While Sandy agrees with Epps "takedown" of Justice Scalia, he failed to note (with an update?) Epps' prescience with this:

"Federal District Judge Roger Vinson of Florida, who is hearing a challenge to the new healthcare program, recently cast doubt on its constitutionality in an opinion that cited, among other things, a a Wall Street Journal op-ed as its 'authority.'"

Epps' article (as well as Sandy's post) was published prior to Vinson's decision declaring the ACA unconstitutional in its entirety. Jack Balkin and other posters on this Blog have challenged Vinson's decision with vigor (although they do not provide for comments).

Later on, Epps takes on originalists. Epps doesn't seem to believe that the Constitution is lost or that Lochner should be revived. Maybe in his book he will address undemocratic portions of the Constitution in the manner of Sandy (and others before Sandy). For the here and now, we've got a Constitution to deal with and Epps is challenging efforts of the right to highjack it, perhaps tacking a bit here and there to Sandy's dismay, but going in the proper [I'm deliberately avoiding "right"] direction.

Shag, I've scarcely been quiet about my opinion that neither side in the recent 2nd amendment rulings were particularly originalist in their reasoning. (Even as both took care to adopt a patina of originalism, given the high public salience of the cases it was necessary to preserve the Court's legitimacy.) Did I really have to go over that yet again?

Brett, I'm quite familiar with your simplistic originalism and your views on Heller and McDonald v. Chicago failures to see originalism through your wrong end of the telescope. But you made a claim noted in my 7:38 AM comment about what "subsequent history" has shown and I asked for a cite (suggesting Heller and McDonald). "Subsequent history" is a tad too general and perhaps even oxymoronic for purposes of your claim. Your simplistic originalism just doesn't cut it constitutionally. Perhaps you are in step with Justice Thomas, but as both Profs. Lloyd and Rosenthal point out in their article, Thomas is not always an originalist. (I trust you read these articles. Here's another recent article I'll be reading while snowbound today: Dale E. Ho's "Dodging a Bullet: McDonald v. City of Chicago and the Limits of Progressive Originalism" available at SSRN:

A link is available at The Originalism Blog.)

By the Bybee ($^*%&#@), Brett, did you consult a Webster's of 1791 for definitions of "superfluous" and "redundant"?

I have now read Epps’ article and find my original surmise confirmed. This is a blatantly political piece-- what else would you call something that ends by exhorting “ordinary Americans” to “take back” the Constitution from “far right ideologues” like Justice Scalia? Epps uses the views of a few fringe figures to stereotype and discredit everyone who disagrees with Epps’ approach to constitutional interpretation. Interestingly, this is the same technique used by "demagogue" Glenn Beck, although even Beck might not go so far as to find relevant the racial makeup of the town where some obscure organization is headquartered.

I am not sure why Professor Levinson feels the need to treat this article as if it were an intellectually serious discussion of anything. Of course, he has also started to respond to Shag’s comments, which suggests the need for a vacation.

By the Bybee (by gosh, that does become funnier when it is repeated for the millionth time!), Judge Vinson’s opinion seems to have unhinged most of the commentariat at Balkinization. So far they have accused him of everything but establishing death panels, and I wouldn’t be surprised to see that next.

Surprise, surprise! mls commented at 9:41 AM (3rd thread comment) on Sandy's post on Epps' article without having read the latter. Now that he has read Epps' article, he pats himself on the back with his "original surmise confirmed." (Go back and read his earlier comment and attempt to identify his surmise.) mls' attempt to connect Epps with Glenn Beck's methods is shallow, revealing mls' not very subtle political bent.

By the Bybee (&*%^#$@), I trust mls will enjoy the vacation he obviously needs.

mls' closing paragraph suggests he hasn't read with care the commentariat of Jack Balkin et al on Judge Vinson's decision. Perhaps mls has been too busy salivating over Vinson's tea party reference in his decision.

And as to originalism, perhaps mls walks in lockstep with Brett's simplistic version. In any event, mls is tagged now for shooting first and reading later.


Vinson's opinion threatens the progressive assumption that the courts had interpreted away any semblance of a Congress of enumerated powers, allowing Congress to enact anything that did not infringe a favored individual right.

Vinson's opinion is really quite limited and makes two points:

1) Congress may not use the CC to compel people to buy goods and services.

2) As a matter of appellate strategy, it is unwise to play chicken with the courts by repeatedly insisting that the weakest part of your legislation is vital to function of the whole and intentionally leave out a severance provision.

It would be karmic justice if the overriding arrogance of a government that ignored the will of the voters in enacting Obamacare was also the basis for striking down the entire provision.

Shag- you can identify my surmise by reading the sentence with the words "I imagine" in it.

As for your other comments, that's what I get for heckling Don Rickles. . .

This, then, is mls' surmise:

"Epps is, I imagine, trying to develop a conception of the Constitution which, if accepted, would justify the political outcomes that he holds dear."

That of course is mls' imagination, in the form of a surmise (mls' chosen word) or just a guess. (Maybe mls was inspired by the Beatles' "Imagine.") Well, in his own imagination mls made a lucky guess. How prescient.

Perhaps mls has a conception of the Constitution that is purely apolitical. Of course, that would be a rarity in this political age, especially with SCOTUS 5-4s galore (Bush v. Gore, Citizens United, since the turn of the 21st century). But maybe mls will reveal to us his conception (perhaps by walking in lockstep with Brett?). While the word politics is not specified in the Constitution (or judicial review or supremacy), clearly politics emerged fairly soon including via Justice Marshall post Jefferson's defeat of Adams in interpreting and construing the Constitution. Politics cannot be ignored when it comes to the Constitution. Maybe mls has no political outcomes that he holds dear, the sign of a truly self-made libertarian.

By the Bybee (*%&^$#@), have you heard of George Carlin?


Any comment on the Obama Administration's decision to ignore the Vinson decision and plans to continue to implement the law found unconstitutional?

If Sandy responds to our yodeler's request, I trust that Sandy will also comment on "karmic justice" earlier referenced by our yodeler on this same topic. Of course, I am aware that the Constitution makes no reference to "karmic justice." Does it involve being forced to eat broccoli?


Shag, you are not as amusing as you believe yourself to be, but that was a good one.

Bush 43 appointed Judge Vinson to the bench. Bush 43's father, Bush 41, has hated broccoli all his life. Bush 43's invasion of Iraq in 2003, it is said, was attributed in part to Saddam's order for the assassination of Bush 41 because of his earlier invasion of Iraq. "Six degrees of Kevin Bacon" comes to mind. Something is not Kosher. [Recycled comment from another blog.]

I am not suggesting that Sandy stalk Epps but before Sandy responds to our yodeler's request, he might first wish to read Epps' 2/2/11 article "The Vinson Ruling and the Strange Nature of American Judicial Review." (Epps points out that Article III of the Constitution does not specifically provide for judicial review - or judicial supremacy, for that matter.)

I have been searching, unsuccessfully so far, for Epps responses to Sandy's critique. (A little help, please.) In the course of this search, I accessed Epps' Jan/Feb 2009 The Atlantic article "The Founders' Great Mistake" dealing with the imperial presidency as extended by George W. Bush, with some thoughts for amending Article II of the Constitution. Perhaps Epps and Sandy have more in common than not. Of course, the challenge is with amendment. Consider how tumultuous a Constitutional Convention would be in the current political climate (that is well beyond warming, with the tea pot spouting steam).

I'm a big fan of Epps' Atlantic article on the Framers' mistakes. What I was criticizing in his Nation piece was the absence of that kind of critical edge in favor of assurances that liberals "love" the Constitution as much as the Tea Party does. As I wrote, I think is important that "we" get over that infatuation.

Today's NYT editorial "Politics and the Court" that focuses upon recent Justices Scalia and Thomas doings includes this:

"Constitutional law is political. It results from choices about concerns of government that political philosophers ponder, like liberty and property. When the court deals with major issues of social policy, the law it shapes is the most inescapably political."

It's a shame we don't have a Finley Peter Dunne and his Mr. Dooley around to constantly remind us of this but with wit and charm. What might Mr. Dooley have said about the back and forths on the constitutionality of the Affordable Care Act, aka Obamacare? And what might Mr. Dooley have said about the "Tea Totaling Party"?

Back in the fall of 1952, I asked my ConLaw Prof. Thomas Reed Powell how he thought the Supreme Court might rule on a particular issue (it had to do with baseball) working its way through the courts. He responded: "I don't know. I stopped years ago trying to figure out what those bozos will do." And he knew well personally and professionally several of those then serving.

Wikipedia has a nice feature on Dunne that includes some of his and Mr. Dooley's memorable quotes to help put the present in perspective.

The NYT editorial referred to in my preceding comment does not identify Justice Thomas' wife by name in making reference to his " ... not disclosing his wife’s income from conservative groups ... " over a period of six years. Perhaps this editorial was written prior to disclosures yesterday at several websites that identify his wife's availability, through her firm, as a lobbyist for certain Republican causes, although she or her firm may not be "registered" as such. Mr. Dooley in that no Tea Totaling bar in "heaven" might be discussing (with his friend Mark Twain) how potential political "pilla" talk may impact judicial views.

It is "political" down to the justices being appointed by political actors. The range of cases where this is a deciding factor is sometimes exaggerated. As is how.

Thus, in Gonzalez v. Raich, many justices on both sides supported a policy that they very well might have voted differently if given their druthers. Scalia never said abortion is itself unconstitutional.

Lawyers Drugs and Money Blog had a good post (with a reference to an article by Mark Graber) on this subject yesterday or the day before.

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