Balkinization  

Thursday, July 31, 2014

A Modern Censure Resolution

Gerard N. Magliocca

In 1834, the Senate passed a resolution censuring President Jackson for his "unconstitutional" decision to withdraw the Treasury's deposits from the Bank of the United States.  The Senate argued that Jackson's unilateral executive action attacking the Bank was unauthorized by Congress.  In 2014 we have a resolution from the House of Representatives authorizing a suit against President Obama claiming that his unilateral executive actions regarding the Affordable Care Act are unconstitutional.  How are these resolutions related?

In both cases, the institutional action was a second-best solution to a political problem.  The Censure Resolution, which I discuss at length in my book on Jacksonian Democracy, was an unorthodox reply to the fact that President Jackson's opponents could not impeach him since Democrats held the House of Representatives. Since they believed that the destruction of the Bank was a constitutional disaster and wanted to continue that debate in the next midterm elections, their solution was to take a formal position defending the Bank and castigating the President.  Jackson (being Jackson) did not take this measure lightly--he issued a written Protest to the Censure Resolution denouncing the Senate's act as unconstitutional. That battle continued until Democrats were able to take control of the Senate and "expunge" the Censure Resolution from the Senate Journal in 1837.  (They literally brought out the Journal and drew black lines around the Censure Resolution.)

Today House Republicans want to take another stand in the great constitutional controversy of the day--Obamacare--as they head into the midterms, but in their case impeachment is either politically unpalatable or dead on arrival in the Senate.  Just passing a resolution attacking the President, though, lacks the punch that such an act had in the 1830s.  (Why is an interesting question--probably because political honor was taken more seriously by men like Jackson who had fought in duels.) Thus, we get the modern equivalent, which is a lawsuit.  This is more than a resolution, less than impeachment, and reflects the ongoing judicialization of politics.

 

Comments:

Gerard's closing words:

" ... and reflects the ongoing judicialization of politics."

reflect what is really going on. In what manner may a House lawsuit get before the Supreme Court prior to the coming November elections? Assuming such a lawsuit would be brought in a federal district court, in normal course what traction would the lawsuit make to affect the mid-term elections? Or is the House leadership relying on the mere filing of the lawsuit and talking it up between now and the mid-term elections without pushing it actively? And how might Pres. Obama - and Democrats - respond during the period up to the mid-term elections? And most importantly, how will voters react? As in physics, for every political action there is an equal and opposite political reaction, at least in dysfunctional times.

 

There was the failed censure of Clinton, impeachment being the favored device there. As to legal challenges, with the recent 2-1 win, perhaps they hope for a lottery win again in the D.C. Court of Appeals.
 

Here's a link to Andrea Prokop's "Why the House of Representatives just voted to sue President Obama":

http://www.vox.com/2014/7/30/5953325/house-of-representatives-sues-obama?utm_medium=social&utm_source=twitter&utm_campaign=mattyglesias&utm_content=thursday

with background on the vote, precedents for such a lawsuit, political views, the process of such a lawsuit, etc.

Once the lawsuit is filed, how much attention will it generate in the media and political campaigning for the upcoming mid-term elections? Will the lawsuit eclipse whatever else is going on domestically and internationally? Or might the public merely yawn? Or might a politically active federal district court where the lawsuit is filed promptly take steps to move the lawsuit up the ladder to the Supreme Court?
 

Not sure why people, including Vox, keep missing the census case, US House of Representatives v. Dept of Commerce, which is the closest analogy. We didn't name president as defendant because it was not necessary, but we could have (a similar suit by a private party did). The same is true of the House's current suit, where the Secretary of the Treasury will have to be named as a defendant, while the president does not.

As for timing, the case probably won't be filed until shortly before the election, if not later.
 

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Is mls' comment on the timing of filing the lawsuit a guess or based upon "inside" information? Is it possible that House Republicans have had someone like a Frank Luntz work with focus groups of potential voters in the mid-term elections to address the lawsuit, including the timing for filing?
 

no, its not based on inside information. Its based on the fact that it will take some time to interview outside counsel and screen for conflicts, plus the time needed for counsel to make a number of important decisions about what claims to raise, what defendants to sue, where to bring the case, etc. Moreover, even if the House could file tomorrow, there would be no advantage in doing so because only bad things could happen between now and the election. So the strategy has to be either to file after the election or just shortly before so that there is not much time for any of the bad things to happen.
 

But unsophisticated voters, unlike mls, may not understand the delay in filing the lawsuit which has been on Speaker Boehner's front burner for weeks, months, rushing the vote through earlier this week. Such voters may think Boehner doesn't have a strong case, or that Boehner is like a Donald Trump threatening to sue. Or is the real goal of the GOP House impeachment?
 

Shag:

The lawsuit is meaningless to the vast majority of voters and the ones like myself who see the real and present threat of expanding executive dictatorship are singularly unimpressed with this diversion to avoid impeachment.
 

While our CO gasbag speaks for "the vast majority of voters" for whom he claims "the lawsuit is meaningless" I speak only for myself as a long time "country lawyer." While I can agree that the GOP dominated House can be "meaningless" (witness the House events of the past few days), the authorization of the lawsuit is not "meaningless" to the House majority's conservative base (of which I thought our CO gasbag was a charter member).

Recall the reactions of Republicans following Obama's reelection in 2012 that the Party should be more inclusive what with the changing demographics. The House Republican majority has however closed its doors on sensible immigration reform to address the 2012 defeat goal of the GOP being more inclusive.

The House's authorized lawsuit against Obama is not based upon Obama's actions on immigration. Rather, its focus is on ACA, aka Obamacare, which the House GOP majority has tried to beat down more than 50 times (which may support the thought that the House GOP majority can be "meaningless" over and over again). Imagine the impact of possible results of the lawsuit, if brought and if successful, on the many who became insured (with subsidies), and who may vote in the mid-term elections, concerned with the lawsuit as the Sword of Damocles threatening their affordable health insurance.

Perhaps the minority of the GOP base favoring impeachment will actively make the case that the lawsuit would be meaningless. Imagine adding impeachment to the current political dysfunction.
 

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Shag:

The self imposed limitations of the House suit and the timing before the 2014 elections just further expose it as a political act rather than a serious attempt at reestablishing limits on executive assumption of legislative power.

I have jumped on Sandy's constitutional reform bandwagon, although my reforms would outlaw much of progressive and socialist misgovernance and releash the beast.
 

I think Sandy's "constitutional reform bandwagon" may be stuck in idle primarily because of recognized difficulties with the Article V amendment processes especially with making the Senate more (small-d) democratic.

I assume our CO gasbag's desire for reform to "releash the beast" refers to the Administrative State. Surely a nation of over 300 million cannot expect Congress to function without it having provided for the Administrative. Yes, the Administrative State is not perfect. Consider the changes that would have to be made to Article I such that Congress could be in a position to perform the roles of agencies that Congress itself established in recognition of Congress' limitations. Properly operated, agencies can be efficient with expertise in addressing the role of an agency.

I'd be interested in how this "releashing" might be brought about with Article V amendments.
 

I can understand how it is unlikely but wonder if an amendment would be useful to tweak the rules given our current administrative state is so much different than things were back in the day. A legislative veto, e.g., might be sometimes appropriate if it was allowed (see INS v. Chadha).


 

The best route for genuine reform relimiting government would be to have the states call a convention and bypass DC entirely.
 

One of my reforms would be to expressly prohibit the executive from exercising legislative or judicial power and void all regulations Congress does not enact in a bill within five years. The bureaucracy can propose regulations to Congress, but it can no longer impose them by fiat.
 

void all regulations Congress does not enact in a bill within five years

From Wikipedia: "By the mid-1980s, a significant shift in lead end-use patterns had taken place. Much of this shift was a result of the U.S. lead consumers' compliance with environmental regulations that significantly reduced or eliminated the use of lead in non-battery products, including gasoline, paints, solders, and water systems." (Emphasis added.)

Such regulation seems like an unalloyed good to me but I very much doubt that today's Republican caucus would support the persistence of such regulations, busy as they are with votes to repeal the ACA. The regulations arising from Upton Sinclair's The Jungle could also hardly persist in today's climate. Be glad that there's not mad cow disease in your sausage, Mr. DePalma!
 

Larry's comment is a reminder that our CO gasbag has identified "The Gilded Age" as America's best of times, demonstrated by this earlier comment:

"I have jumped on Sandy's constitutional reform bandwagon, although my reforms would outlaw much of progressive and socialist misgovernance and releash the beast."

So our CO gasbag seems to prefer "re-releasing the beast" of "The Gilded Age." [Note: The ever astute Jack Balkin has referred - as have others - to current times as the "Second Gilded Age."]
 

Larry:

There are over 170,000 pages in the Federal Register sold as of June. I added them up for a book I am writing.

Congress would have no problem enacting the tiny fraction of genuinely necessary regulations you and Shag could actually name.

The country would not miss and indeed would be far better off not paying for much of the rest. This is money far better spent on economic growth and jobs.
 

Congress would have no problem enacting

This House voted to sue the Obama administration over its delaying some compliance requirements with the ACA. The same Republicans in Congress were initially indignant about those requirements and refuse to modify them legislatively. Tell me about having no problem enacting!

Oh, I forgot. Something about airline flights that threatened their own ability to fly... No problem there. So by analogy, the only regulations the Republican House is likely to uphold are those that improve their direct personal interests, i.e., that get them those Koch and Rove millions.
 

The Legal History Blog's "Sunday Book Roundup: provides a link to a review of Richard A. Epstein's "The Classical Liberal Constitution: The Uncertain Quest for Limited Government" by Stephen Rohde who title's his review: "An Illiberal Reading of the Constitution." Rohde points out that Epstein " ... rejects both the conservative 'originalist' and the liberal 'living Constitution' interpretation of the US Constitution, in favor of 'classical legal theory.'" This highly critical review closes with:

"This is a sprawling book with big ambitions, which remain largely unmet."

Maybe our CO gasbag's work of friction in progress will try to meet his ambitions for limited government without too much sprawl.

Query: How can the Executive faithfully execute laws when Congress fails to provide funding for laws on the books?
 

Our CO gasbag's proposal:

"The best route for genuine reform relimiting government would be to have the states call a convention and bypass DC entirely."

may not be realistic or effective.

Richard Albert's "Constitutional Disuse or Desuetude: The Case of Article V" points out (page 1056):

"The national convention procedure - requiring two-thirds of states to petition Congress to call a convention and three-quarters of states to ratify the amendment proposals - has not once been used successfully since the Constitution's adoption."

Albert's article - 94 BU Law Rev 1029 - was his contribution to the BU Law School symposium on "Political Dysfunction ... " last year on Panel VI: What Are We To Do About Dysfunction. Sandy participated in this symposium Albert states (pages 1047-7):

"Sanford Levinson argues that 'Article V, practically speaking, brings us all too close to the Lockean dream (or nightmare) of changeless stasis,' and that it is 'the Constitutions's most truly egregious feature.'"

Sandy's concern with the undemocratic Senate provisions of the Constitution includes the protection specifically afforded by the "Equal Suffrage Clause" in Article V, which Albert discusses (at pages1043-4) of his article.

Calls may be made for a national convention but to what avail? A run-away convention may result, despite efforts to narrow such a convention.
 

BD: Congress would have no problem enacting the tiny fraction of genuinely necessary regulations you and Shag could actually name.

LK: This House voted to sue the Obama administration over its delaying some compliance requirements with the ACA. The same Republicans in Congress were initially indignant about those requirements and refuse to modify them legislatively. Tell me about having no problem enacting!


Not a single Obamacare regulation is remotely necessary and the GOP House as voted to modify Obamacare and all of its regulations legislatively by repealing them.


 

BD: "The best route for genuine reform relimiting government would be to have the states call a convention and bypass DC entirely."

Shag: may not be realistic or effective.

Richard Albert's "Constitutional Disuse or Desuetude: The Case of Article V" points out (page 1056):

"The national convention procedure - requiring two-thirds of states to petition Congress to call a convention and three-quarters of states to ratify the amendment proposals - has not once been used successfully since the Constitution's adoption."


Often, Congress acted whenever the states came close to calling for a convention.

Congressional Democrats are too far invested in the progressive and socialist government they have imposed to agree to even a simple reform like a balanced budget amendments.

The path to a convention has never been clearer today. 2/3 of the state legislatures have already called for a convention to consider a balanced budget amendment, but a handful have attempted to withdraw their applications.

There is no basis in Article V authorizing states to withdraw applications or ratifications. The handful of appellate courts who have ruled on attempted withdrawals of ratifications have ruled against the states. The same principle applies to applications. Thus, we should have sufficient applications to call a convention now.

Calls may be made for a national convention but to what avail? A run-away convention may result, despite efforts to narrow such a convention.

We need a runaway convention to repair the damage of over a century of progressive government on the Constitution's checks and balances and to check various progressive governance the Founders never foresaw.

Proponents of limited government should have no fear of a runaway convention. Every state gets the same representation, which means libertarians and conservatives will dominate the convention.
 

While it's true that enough states have called for a constitutional convention, they have done so with a variety of wordings and restrictions. This gives Congress a little wiggle room to deny the convention for now, though in all honesty they ought to to just go ahead anyway, instead of using it as an excuse.

The real point of no turning back will be when 2/3 of the states have called for a convention with the same wording. My personal expectation is that Congress will ignore that, too, that under no circumstances will they permit a convention.

After all, they can originate any amendments THEY want, a convention can only serve as a source of amendments Congress doesn't want. They won't give up their 200 year monopoly on amending the Constitution easily.

At that point, we'll have to just go ahead with the convention anyway, I suppose. I can't say I'm really enthusiastic about the idea, the Constitution is not likely to be improved overall by being reexamined in today's climate. But a constitutional convention is the last effort at fixing things short of revolutions, and even successful revolutions aren't happy things.
 

Our CO gasbag's call for needing a run-away constitutional convention includes:

" ... and to check various progressive governance the Founders never foresaw."

suggesting that the Civil War Amendments were progressive and that the amendment giving women the right to vote was progressive, since the Founders never foresaw this.

His confidence in a run-away convention taking us back to "The Gilded Age" based on:

"Proponents of limited government should have no fear of a runaway convention. Every state gets the same representation, which means libertarians and conservatives will dominate the convention."

is questionable, but demonstrates the undemocratic aspect of our Constitution that Sandy complains of. And keep in mind that states small in population but dominated by libertarians and conservatives may thwart reasonable constitutional reform. And keep in mind that one-quarter +1 of the states dominated by Democrats (including Progressives) may thwart the efforts of "reform" offered by such small states.

What if a Constitutional Convention were called and it decided that Article V was too much of an obstacle for reform based on the precedent that the "original" 1787 Constitutional Convention ignored compliance with the Articles of Confederation? Now that's a run-away Convention!


 

Brett: While it's true that enough states have called for a constitutional convention, they have done so with a variety of wordings and restrictions. This gives Congress a little wiggle room to deny the convention for now...

Article V expressly grants the convention the power to propose amendments. States cannot limit the scope of the convention. The last time we did this, the convention ignored the limits some states placed on them.

The real point of no turning back will be when 2/3 of the states have called for a convention with the same wording. My personal expectation is that Congress will ignore that, too, that under no circumstances will they permit a convention.

A group of state legislators is working on a common balanced budget amendment application.

If Congress refuses to act, we may need to get the courts involved.

But a constitutional convention is the last effort at fixing things short of revolutions, and even successful revolutions aren't happy things.

Agreed. However, things might have to get worse to overcome the opposition.

It is useful to recall that our fledgling republic was gripped in a stagflationary depression and armed rebellions were cropping up before the states agreed to scrap the old order with a new constitution.
 

Shag: And keep in mind that one-quarter +1 of the states dominated by Democrats (including Progressives) may thwart the efforts of "reform" offered by such small states.

Our last constitutional convention established two important precedents here:

1) The convention can liberalize the terms for ratifying its proposed constitutional provisions. One of the amendments a convention should propose is a replacement of Article V reducing the number of states necessary for ratification to 3/5 or 30.

2) The ratifications can bypass state legislatures and their establishments by using state conventions with popularly elected delegates. The convention reached this understanding informally with the states the first time around. My proposed replacement for Article V would expressly require this.
 

So our CO gasbag proposes that it be easier to "bomb" by amendment the Constitution back to the "stone age," aka "The Gilded Age", or even back to the pre-Civil War Constitution? Maybe he can list the progressive laws he would like to see eliminated? Would this list include Brown v. Bd. of Educ. and the Civil Rights Acts of 1960s? What else? The Civil War Amendments, the amendment giving women the right to vote? Social Security, Medicare, Medicaid, Bush's prescription drugs, Obamacare?
 

Shag: Maybe he can list the progressive laws he would like to see eliminated?

1) Eliminate all taxes apart from those on individual income and spending above that required for basic living expenses.

2) Eliminate all progressive rates on taxes.

3) Eliminate all tax credits, deductions and penalties through which progressive government attempts to direct our lives.

4) Eliminate all executive exercise of legislative or judicial power. All regulations not enacted into law by Congress within five years are void.

5) Cap tax revenues and spending at 20% of GDP absent a supermajority vote of Congress or a declared war against a nation state.

6) Eliminate the redistributionary welfare state outside of programs for orphans and the truly disabled. This reversal does not include social insurance programs where everyone pays and everyone can take out like Social Security and unemployment insurance. Not all progressive ideas are bad.

7) Eliminate all laws seeking to direct our lives which go beyond prohibiting people from causing actual substantial harm to one another.

8) Eliminate all laws which take or substantially reduce the value of property (with the exception of public nuisances) without paying the owner market compensation.

9) Eliminate all the various racial and gender discriminations progressive government imposes.

I am finishing a short book detailing how the progressive state is unsustainable and proposing a new bill of rights with ten amendments establishing these reforms and more.

If these reforms went into effect, I guarantee that the economy will be growing at 4% or more, full employment will return and folks will be substantially wealthier than under the current system which favors the politically connected.
 

Our CO gasbag's:

" ... proposing a new bill of rights with ten amendments establishing these reforms and more."

must be a doozy, especially the "and more" that he tantalizes us with. Then he switches from his role as a constitutional scholar to that of an economist with this::

"If these reforms went into effect, I guarantee that the economy will be growing at 4% or more, full employment will return and folks will be substantially wealthier than under the current system which favors the politically connected."

Has our CO gasbag been under the influence of a chocolate bar in the manner of Maureen Dowd?

As a non-constitutional scholar I can guarantee that our CO gasbag's proposed reforms would never be passed by a national convention, perhaps to dwell forever in remainder bins - and in the archives of this Blog. If my guarantee comes about, then our CO gasbag's guarantee would be worthless, except perhaps to entertain real economists.



 

LARP-ing is fun but real life is harder, thus I'm with others wary of Sandy Levinson's project.

These days are far from ideal, but we haven't actually reached the sort of special "constitutional moment" (or whatever Bruce Ackerman calls them) likely to result in major changes.

I can see in a few years after things calm down that some sort of amendment is passed. The end of the natural born citizenship rule comes to mind. But, I don't see any reorganization coming.

Some emergency, such as Ike's illness etc., also might result in some surprise. We are due for that soon, I guess.
 

Shag: I can guarantee that our CO gasbag's proposed reforms would never be passed by a national convention

Progressivism is unsustainable and is failing across the world. Every single progressive nation (now including the US) is facing population, economic and fiscal collapse.

It is very possible that the United States could follow the example of Europe, do nothing until the progressive government implodes, and then turn to alternatives like fascism. Europe has done this once and appears to be in the process of doing it again.

I still have faith that America is exceptional and will change course before the inevitable collapse. It may have to get worse before we do, but an increasing number of serious people are discussing fundamental constitutional reform.
 

I agree with Joe that there will be no major changes pursuant to Article V for some time. But there may be other changes. Part I of Richard Albert's article focuses on Article V and its limitations. Part II focuses on "The Methods of Informal Amendment" that includes some of the views of Bruce Ackerman. Part II is instructive on past informal amendments. The role of the Court necessarily becomes involved such that changes in the make up of the Court become important. Informal amendments of the past may be changed by the Court. So for practical purposes all three branches are political, contributing to the current political dysfunction.
 

The filibuster rule is something to keep an eye on.
 

Joe, are you suggesting that the filibuster rule may be taken up by the Court?
 

No, it would be a matter of de facto constitutional dimension that could be "amended" pursuant to non-Art. V action. We already had the (for now) end of filibustering of executive appointments.

 

If anything, I'd like to see a Convention work out a way of abolishing "informal amendments". They're just a way of circumventing Article V in order to implement changes the states wouldn't agree to.
 

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The article describes "informal amendments" to include various things which to me at least partially involve things that the Constitution provides some play in the joints for.

It allows for various applications that over time become so well recognized and deemed norms (is the term "amendment" the problem here?). But, such things are more able to be tweaked and even over time changed, since a hard and fast formal amendment is not in place.

I'm unable to forsee realistically language that blocks this sort of thing when it comes to constitutional matters. As Marshall noted:

"A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind."

This includes "informal amendments" like filibusters or other things. Some of these things now have supermajority support. The states (or the people therein) often understood the Constitution to allow for such things, including when they voted in the people who helped things along.
 

The 1787 Constitution and the Bill of Rights provided a straight-jacket for the protection of slavery. The Civil War Amendments followed the Article V formal amendment process, with ratification assured because of limitations placed on the former Confederate states. But for these limitations would the former Confederate states have agreed to these Amendments?

Following the Civil War Amendments, the former slave states' Jim Crow laws in effect were protected by "informal amendments" that the former slave states agreed with. While Brown v. Bd. of Educ. (1954) and the 1960s Civil Rights Acts set out to undo Jim Crow, this resulted in the switch whereby the former slave states changed political parties, such that today's Republican Party is no longer the "Party of Lincoln."

Richard Cohen's WaPo article today on Nixon's racism with his "Southern Strategy" continues to serve the interests of the former slave states and the Republican Party of today. And we continue to have a variation of the straight-jacket in this day and age.

So Brett's complaint of "informal amendments":

"They're just a way of circumventing Article V in order to implement changes the states wouldn't agree to."

should be considered with some history in mind of the straight-jacket, including its current, ongoing variation.
 

Joe's CJ Marshall quote distinguishing a Constitution from a legal code impacts how a Constitution is to be interpreted/construed. Perhaps a run-away national convention might collapse if its direction might result in a code.
 

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Brett said...If anything, I'd like to see a Convention work out a way of abolishing "informal amendments". They're just a way of circumventing Article V in order to implement changes the states wouldn't agree to.

Two amendments.

1) Lower the number of states needed for an amendment down to 3/5 to make it reasonable to formally amend the Constitution. Consider adding a national initiative option requiring a 3/5 majority of voters.

2) Expressly require courts to enforce the original meaning of the Constitution and, where a provision is vague, to grant a presumption in favor of individual liberty. Also give Congress the power to overrule Supreme Court opinions within five years with a super majority vote. This will check political minorities who wish to impose their policy through abuses of judicial review.
 

I would just amend Article V to state that any amendment, regardless of origin, which is ratified with the same language by the the required number of states shall become law. Take Congress out of the loop entirely, remove all excuses for refusing to permit a convention, by making the source of the amending language irrelevant, making Congressional certification of the call irrelevant.
 

Brett expresses his dislike of the federal nature of the Constitution.
 

I guarantee that... folks will be substantially wealthier than under the current system which favors the politically connected.

This is bizarre. The wealthy are politically connected under the current system due to their campaign contributions, and the current system favors them with fun tax arrangements. But what are guarantees to someone who guaranteed Romney's election in 2012?

Expressly require courts to enforce the original meaning of the Constitution

That's rich from someone who evidently can't tell the difference between what he terms "voter suppression" -- discouraging voters by bad-mouthing their preferred candidate -- and actual voter suppression such as throwing voters off the registration rolls because their names are similar to the names of felons, as happened in Florida in 2000... Original meaning turns out to be pretty flexible if he wants it to be!
 

Joe demonstrates his inverted understanding of the term "federal", as meaning something closer to "national".

The states are already, constitutionally, permitted to originate amendments Congress doesn't like. Just as Congress is permitted to originate its own amendments. (But both must be ratified by the states.) My proposal simply addresses a structural flaw in the Constitution, which allows the federal government to prevent the states from originating amendments by the simple expedient of refusing to ever admit the states have called for a convention.

This is entirely a federal amendment, it alters the balance of power between federal and state government not at all, unless you assume Congress would respond to a call for a convention in bad faith.

Do you so assume, Joe, and further, approve?
 

One of the flaws of Article V according to Brett is that Congress can thwart efforts by the states for a convention. So Brett proposes a "simple" [minded] amendment to Article V that would take away Congress' edge under Article V. But wouldn't Congress thwart such efforts by states so as to retain its edge?

By the Bybee [expletives deleted while I await the release of the redacted Senate report on torture], our CO gasbag and Brett may be enthused by the Owl report at Daily Kos on the un-wise ALEC efforts for a call by the states for a constitutional convention to consider a balanced budget amendment.
 

Despite the Article V flaw that concerns Brett, Congress has provided for the Bill of Rights (which I assume Brett approves), the Civil War Amendments (which Brett may not approve), the income tax (which Brett may not approve), women's right to vote (query whether Brett approves?), direct election of Senators (which Brett may not approve), etc. So far states' efforts under Article V for a convention have been unsuccessful, although per Article V the required states approved these amendments.

Perhaps Brett might like the Court to declare the 1787 Constitution as violative of the Articles of Confederation that required unanimous approval by the states for changes. But that might make the Supreme Court itself illegal.

Both Brett and our CO gasbag seem to want to bring back the good old days, whenever they were. Of course, each may have a different concept of the good old days. Presumably their quest is to address concerns with the changing demographics.
 

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My comment regarded the "federal nature of the Constitution" ... not any sort of "federal" model.

Brett showing again his distrust of the model that is in place in the document wants to amend it, not trusting Congress (part of the federal system in place under its terms). Congress is given the power to call a convention because (like other powers) it was deemed best that the national government has this power. It might lead to certain results especially since the process is seen basically as a political question left outside of the courts. But, the alternative is seen as less ideal.

The "flaw" is a distrust of one of the powers given to Congress (representatives of the people of the states given certain powers deemed best left to the national government). The current text already seems to be mandatory -- if the states ask, a convention "shall" be called. And, amendments formulated there "shall" be official with the appropriate majority.

Anyway, the convention approach never was used & I still have large doubts that Bret's fears will come to pass. So, it does seem rather academic. And, yes, the proposal is 'federal' in nature to some extent but the distrust given to Congress does as noted show distrust to the current constitutional federal model, Brett in various ways not trusting or liking the powers given to the national government under it.
 

Here's a paragraph from Mary Dudziak's article that identifies distinction between the states and the central government:

***

Law is also an aspect of public diplomacy. During the early Cold War years, for example, American diplomats sought to ensure that peoples in other nations understood the nature and structure of the U.S. Constitution. When the United States faced criticism about civil rights violations during the 1957-58 Little Rock Crisis over school desegregation, the State Department promoted public diplomacy programming that focused on federalism. If peoples of other nations understood the American federal-state structure, they thought, then they would understand that crises like Little Rock were due to a state government’s action, and did not reflect on the federal government’s commitment to civil rights reform. Major legal reforms like the desegregation case Brown v. Board of Education (1954) and the Civil Rights Act of 1964 were prominently featured in American public diplomacy publications and programs because they were seen as a way of responding to global criticism, thereby improving U.S. international relations.22

***
 

The convention approach is sensible since having institutions in over 30 separate states operate here is unwieldy and liable to lead to various problems, including different proposals.

Congress serves as a national arbitrator here, with representatives coming from each state. A single convention provides a more productive approach to dealing with the matter. Congress as a national body here as elsewhere provides for a "more perfect union."

I share with Shag some belief that if Congress is going to do what Brett fears (in effect ignore the "shall" language), they will do so anyway even with new language.

Anyway, enough with this amendment to the post's original subject matter.
 

Joe: "The "flaw" is a distrust of one of the powers given to Congress (representatives of the people of the states given certain powers deemed best left to the national government). The current text already seems to be mandatory -- if the states ask, a convention "shall" be called. And, amendments formulated there "shall" be official with the appropriate majority."

Brett has good reason to be doubtful.

The "power" granted Congress to call a convention is purely ministerial and should be automatic, but progressives generally only follow the Constitution, or even their own laws, as written when it suits their policy goals.

That being said, Article V needs a single national body to call the convention. Individual states cannot do this effectively.

Thus, the remedies for a progressive Congress refusing to perform its ministerial duty to call a convention is a writ of mandamus from the courts or, failing that, a Second Amendment solution.

Remember that Congress and the states did not agree to call the last constitutional convention until after Shay's Rebellion.


 

Is this by our CO gasbag a not so subtle threat?:

"Remember that Congress and the states did not agree to call the last constitutional convention until after Shay's Rebellion."

A little history, please. There was a realization that the Articles of Confederation would not be in a position to effectively address insurrections. There was a need for the central government to be in a position to quell rebellions of small groups like Shay (as well as slave states concerns with slave insurrections). The 1787 Constitution addressed this.

Madison wanted the central government to have certain veto rights over certain actions by states but he was not successful.

Our CO gasbag made what may be an overt threat in his penultimate [still my favorite word] paragraph:

"Thus, the remedies for a progressive Congress refusing to perform its ministerial duty to call a convention is a writ of mandamus from the courts or, failing that, a Second Amendment solution."

Our CO gasbag should be aware that non-progressive Congresses failed to so perform. In the meantime, this seems to be a call to arms. What will Brett do with his arsenal?

By the Bybee [expletives deleted], Stephen Colbert had a review on his show yesterday of a children's book on open carry.
 

Shag: "Our CO gasbag should be aware that non-progressive Congresses failed to so perform."

The application of 2/3 of the states has not come before Congress - progressive or otherwise - yet, so there is no precedent.

I am merely noting progressivism's long and sordid history of refusing to enforce the Constitution as written and arguing that a progressive Congress is very likely to ignore its Article V obligations to call a convention to propose amendments which would limit its powers.

When our government refuses to follow the law and creates a constitutional crisis, the people can only turn to the courts and then to themselves.
 

Our CO gasbag with this:

"When our government refuses to follow the law and creates a constitutional crisis, the people can only turn to the courts and then to themselves."

moderates his tone somewhat, perhaps mindful of:this provision of Article IV of the Constitution:

"Section 4.

The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence."

together with:

"The Congress shall have Power To ...provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions...."
Article I, Section 8, Clause 15
 

This comment has been removed by the author.
 

Shag:

The Constitution is conflicted about revolution.

The Founders were largely successful armed revolutionaries and their commentary on the Second Amendment and the right to keep and bear arms makes clear that they were attempting to protect the means for a popular armed revolution.

On the other hand, no legitimate government can long exist when every group of disgruntled citizens with a grievance turns to armed rebellion. Thus, the provisions you cite along with others discussing putting down rebellions.

This all begs the question of what constitutes grounds for a legitimate revolution?

I would think that a government violating the Constitution and supported by a corrupt judiciary which refuses to enforce the constitution would be such a ground.

Have you ever considered why nearly every government oath, including those taken by the military, swears or affirms that the taker will defend the constitution and not whatever elected government happens to be in power?
 

Our Dynamic Dyslexic Duo Brat and Bert like libertarian moths may be attracted by Myron Magnet's (City Journal) "It's Not Your Founding Fathers' Republic Any more," reviewing recent books by Adam Freedman, Mark R. Levin, Richard A. Epstein and Philip K. Howard, which includes some of their proposed amendments to the Constitution.

The review article runs 10 printer friendly pages and is a must read for liberals and progressives as well as libertarians.

http://www.city-journal.org/printable.php?id=10516


 

This comment has been removed by the author.
 

Shag:

Thanks for the article.

Not a bad outline of the fundamental ways progressives have rewritten the Constitution to remake our government.

My approach would be somewhat different.

It is not enough to show how progressive government has undermined the Constitution's three firewalls protecting our liberty - democratic government, checks and balances, and the bill of rights. I would show that, even if you like it, progressive government is simply unsustainable.
 

What is the proof of our CO gasbag's claim that the Founders':

" ... commentary on the Second Amendment and the right to keep and bear arms makes clear that they were attempting to protect the means for a popular armed revolution."

The Second Amendment did not amend the 1787 Constitution's militia clauses nor Section 4 of Article 4.

The Court (5-4) in Heller and McDonald focused on self-defense in the home. This is not the same as a "popular armed revolution."

With regard to defending as well as supporting the Constitution whether pursuant to an oath of office or just wanting to be a good citizen/person, requires knowing what the Constitution means. The Court has had significant splits during the life of the Constitution on how to interpret/construe the Constitution. Originalism is a fairly new phenomenon. Constitutional scholars find it difficult to agree on this subject. There is no specific provision in the Constitution for how it is to be interpreted/construed. Nor for judicial review. Nor for horizontal judicial supremacy over the Executive and Legislative branches. Originalism is not the choice of all of the present Justices on the Court. There are several versions of originalism as it has evolved since the beginning "original intent" version of the 1980s. Those classified as the "New, New Originalists" are not in agreement as to the "New, New Originalism."

There are doubts. There are difficulties determining "original meanings." Justices and judges have a poor record on history, some emulating "law office history." (Consider Heller and McDonald - each 5-4 - where all sides relied on history on which they could not agree. Historians and linguists with their highly honed disciplines were ignored for the most part.

So accept the fact that there are times when the Constitution is not clear when it comes to original meaning. And accept the fact that a "living Constitution" adapts to the current "We the People" who had not been around to "consent" when the Constitution and Amendments were adopted/ratified. Some scholars over the years have challenged current "consent" to be governed in the manner of the dead hands of the Founders/Framers/Ratifiers.

Here's a book proposal idea: "The Original Meaning/Understanding of the Constitution and its Amendments." The reviews should be interesting.

 

BD: " ... commentary on the Second Amendment and the right to keep and bear arms makes clear that they were attempting to protect the means for a popular armed revolution."

Shag: The Court (5-4) in Heller and McDonald focused on self-defense in the home. This is not the same as a "popular armed revolution."


Agreed.

Scalia grafted the natural right to self defense onto the right to keep and bear arms. The Founders never offered individual self defense as a reason for the right to keep and bear arms.

It is important to remember that our Founders were successful armed revolutionaries who wanted to guarantee that remedy for future generations. Hell, Tom Jefferson thought that regular armed insurrections would be necessary to check government and did not think Shay's Rebellion was a bad thing. No modern jurist - including the most conservative like Scalia - has the sand to make the Founders' radical core argument today. They are afraid of being labeled as lunatic Tea Baggers or the like.

Originalism is a fairly new phenomenon.

Original meaning has been the standard for interpreting the law, contracts and wills since the beginning of the Republic.

There have been two major divergences from that standard for interpreting the Constitution - the racist Democrats gutting the Civil War amendments and progressive Democrats gutting much of the rest of the Constitution.


 

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"Original meaning has been the standard for interpreting the law, contracts and wills since the beginning of the Republic."

Exactly. You don't need a theory that texts mean what the words meant when written, and continue to do so until the words are changed, until the contrary notion starts gaining traction. Originalism didn't need a name until 'living constitutionalism' showed up. It was just how you read things until then.

 

Brett jumps on our CO gasbag's bandwagon:

"Original meaning has been the standard for interpreting the law, contracts and wills since the beginning of the Republic."

Brett is an engineer, not formally trained in the law and thus has an excuse for his ignorance. But construing contracts, wills, etc, is a tad more complex than the so-called standard of "original meaning." The common law prevalent at the time this Republic was formed was not uniform among the states. Over the course of time this brought about uniform laws in various legal areas that especially would have impacts across the borders of states. Federalism provided for each state whether or not to adopt a uniform law in a particular legal area, including perhaps modifications to reflect certain views of a state. Back in law school, I took separate courses in Negotiable Instruments, Sales, etc, that years later were incorporated into the Uniform Commercial Code that eventually all states adopted, with of course some local modifications. The UCC has undergone modifications over the years as well. A review of the UCC provides a history of the manners in which commercial instruments were construed, including in a not so uniform manner by various states.

One has merely to go to the UCC or the various digests under various legal areas to explore how written instruments are construed. There is no uniform rule or standard that applies to each area of the law. Consider wills and trusts that are the product of an individual where sometimes the maker's intent, as and however it may be determined, may carry the day on the construction of a will or trust.

Back in 1952 when I took ConLaw, the concept of "originalism" as it has developed in recent years was not on the table. Too many articles/books have been written on the subject to distinguish originalism as it pertains to the Constitution as opposed to the so-called standard of "original meaning" adopted by our Frick & Frack duo. Keep in mind our Constitution is not a code. (Check the earlier CJ Marshall quote Joe provided.)

So let's not dumb this down. Common law changed over the years, including on how written instruments were to be construed. One size does not fit all written instruments.

Brett continues to suffer from chronic Wickburn. But our CO gasbag should know better.
 

Our CO gasbag's views on Scalia's self-defense in Heller as not being a matter that can be traced to the Founders is most interesting. Perhaps Heller and McDonald have not worked out the way that he wanted. Brett of course is a 2nd A absolutist AND a self-proclaimed anarchic libertarian. Our CO gasbag seemed to be drifting in the same directions with his thoughts on revolution, but he seems to have softened them somewhat. Regarding oaths to defend and support the Constitution, that applies to the admission of attorneys to practice in just about every state. So our CO gasbag has to take care to comply with his oath, keeping in mind that the Constitution's militia clauses and Section 4 of Article IV were not changed by the adoption of the 2nd A. The fact that the Founders/Framers/Ratifiers were involved in the Revolution does not prove that they saw the 2nd A as preserving a right to revolt. The 1787 Constitution and the Bill of Rights read as a whole disproves this view of our CO gasbag. I just can't picture our CO gasbag as a Bundy armed with his Glock in his jock.
 

Legislation, both statutory and constitutional, is enacted, it is true, from an experience of evils, but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore a principle, to be vital, must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, "designed to approach immortality as nearly as human institutions can approach it." The future is their care, and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be. Under any other rule, a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value, and be converted by precedent into impotent and lifeless formulas.

This was written in 1908 in an opinion joined 7-2 and was not a new sentiment. Also, it was not just joined by "progressives." Wrong or right, the interpretative debates had a long history when Shag was in short pants.

History and text is a useful part of constitutional analysis. Prof. Balkin in "Commerce," e.g., used it, but it didn't convince Brett. He disagreed with the way it was used. See also, his response to a piece, again using text and history, interpreting the 2A.

Prof. Magliocca has an inter sting series of posts on "bills of rights" over at Concurring Opinions.
 

Joe's comment:

"Wrong or right, the interpretative debates had a long history when Shag was in short pants. "

applies even today, when coincidentally I am once again wearing short pants (for comfort).

Interpreting/construing the Constitution over its existence has not been a simple matter. The farther we get from 1787, it seems some know more about the original meaning/understanding of the Constitution than those interpreting/construing the Constitution in the interim since 1787, as if the lapse of time permits for greater discovery of such original meaning/understanding. If it were easy, what would happen to all the constitutional scholars who cannot agree on such? So we have a "constitutional cottage industry" with disparate views.

As usual, Joe comes through with a meaningful quote.
 

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I was going to write more but that article Shag provided is not only short but a useful example of op-ed history. I find actual history more complex. I'm no Mark Field, but my reading of constitutional and other history leads me there.
 

Shag: Back in 1952 when I took ConLaw, the concept of "originalism" as it has developed in recent years was not on the table.

The Republic existed for nearly two centuries before then.

You were trained in the progressive view of judicial review as constitutional common law and are a product of that training.

If you read the writings of the early progressives in the later 19th and early 20th centuries, they all complained about the obstacles the Constitution posed as written and the need for an organic and growing body of basic law to allow progressive government.

Progressives were quite honest about their methods and goals back then.
 

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Shag: Our CO gasbag's views on Scalia's self-defense in Heller as not being a matter that can be traced to the Founders is most interesting. Perhaps Heller and McDonald have not worked out the way that he wanted.

For the most part, Scalia did an absolutely superb job of original meaning jurisprudence in Heller. Heller's one error was to attribute the primary modern usage of the right to keep and bear arms - individual self defense - to the Second Amendment. This was actually rather progressive of him.

Second Amendment jurisprudence is just starting, so it is too early to tell where it will end up. Fingers crossed that Ginsberg makes it to the next GOP president, who appoints an original meaning jurist to replace her. Then, Kennedy can be bypassed.
 

I wonder if our CO gasbag is keeping his fingers crossed with his Glock in his jock.

(More later, as I have to get ready for today's lunch of liberals/progressives.)
 

Shag: I wonder if our CO gasbag is keeping his fingers crossed with his Glock in his jock.

Great way of shooting off your family jewels.

I would suggest a small and easily drawn semi-auto pistol in a shoulder holster.
 

Our CO gasbag suggests a shoulder holster, presumably for me. Alas, I do not own a gun (other than an inoperative antique). While I can respect the safety of family jewels, especially my own, and even those of our CO gasbag as unreproductive as they seem to have been, referring to "his Glock in his jock" not only has rhythm and rhyme but conveys the picture of the 2nd A absolutist.

I made my 2nd A bones back in the 1980s when I was instrumental in "killing" the dress code at Locke-Ober's [new] bar in downtown Boston back in my salad - strike that - martini days. For comfort I would occasionally doff my jacket while lunching at the bar with fellow members of the bar and other professionals, sometimes to the dismay of more conservative patrons of this renowned watering hole. This dismay was expressed vocally when doffing my jacket revealed my short sleeve shirt. I "stooled" my ground at the bar, asserting my constitutional right to bare arms (which permitted me to pick up a loaded martini or two).

That was long before Heller and McDonald. Alas, Justice Scalia did not have the benefit of this history.

But I remain intrigued with our CO gasbag's critique of Scalia's self-defense as non-original. Wasn't that the basis for the 5-4 individual versus collective right ? Here's what our CO gasbag said:

"For the most part, Scalia did an absolutely superb job of original meaning jurisprudence in Heller. Heller's one error was to attribute the primary modern usage of the right to keep and bear arms - individual self defense - to the Second Amendment. This was actually rather progressive of him."

I sense apostasy on the part of our CO gasbag, as it is not clear about Scalia's original meaning being absolutely superb otherwise especially when ardent 2nd A conservatives have been highly critical of Scalia's originalism especially with his dicta on limitations). And Scalia might take umbrage to the progressive tag pinned on him.

By the Bybee (expletives deleted), Locke-Ober's, alas, no longer serves. For significant parts of my professional life, it served me and many others well. I would refer to it as "Locke-Ober Alles." Imagine a lunch of Chateaubriand for Two, Baked Alaska for dessert, followed by a Pousse Cafe with 11 layers (not to mention a couple of Bombay on the rocks with a wedge of lime), served by our favorite bartender Butch. Locke-Ober Alles"!
 

Larry Solum's Legal Theory Blog provides a link to James E. Fleming's "Are We All Originalists Now? I Hope Not!" (2013), with a Solum "Highly Recommended."

Solum also supplies a link to the "Contents" of the BU Law Review on BU Law School's Symposium on "America's Political Dysfunction: .... " held last year. Fleming played a major role in putting the Symposium together. I attended much of the Symposium and have commented in several threads at this Blog that in my view there was no consensus on whether or not we currently have political dysfunction, and even if we do, there was no consensus on whether or how the Constitution contributes thereto. Several posters at this Blog participated on panels, including Sandy Levinson, and Jack Balkin provided the Closing Keynote Address with his"The Last Days of Disco: Why the American Political System is Dysfunctional." (This speech is a "must read" especially on changes on Court personnel over time that may help to overcome such dysfunction.

One reason for no consensus may have been too much balancing of panelists. But Sandy and Jack were in basic agreement that there is political dysfunction.

BU Law School will be dedicating it new facility on September 19th. If a time capsule is in order, I think this issue of BU Law Review should be included.

Solum had earlier provided a link to Fleming's "The Inclusiveness of the New Originalism" (2014) also with a "Highly Recommended."

Fleming has been quite active with articles lately relating to his book project, on fidelity to the Constitution and its interpretation.

I wonder if Sandy will post on the BU Law School Symposium regarding his insights.
 

Regarding the 2A, there are two panel discussions (video) available at ACS Blog.

http://www.acslaw.org/multimedia
 

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Paul Krugman's NYTimes blog post "Libertarian Fantasies" provides for my reading assignment today: Robert Draper's NYTimes Magazine article "Has the 'Libertarian Moment' Finally Arrived?" There are several different kinds of libertarians, just as there several kinds of originalists. Brett is a self-proclaimed anarcho libertarian. As to our CO gasbag, he may very well be a "plain vanilla" libertarian, but he seems to shift around from time to time. This regarding the economic results of constitutional "reform" amendments he proposes:

"If these reforms went into effect, I guarantee that the economy will be growing at 4% or more, full employment will return and folks will be substantially wealthier than under the current system which favors the politically connected."

might suggest to some that he is a "loony tunes libertarian."

Now let's consider who may provide the "Libertarian Moment," will it be Rand Paul, his dad or RuPaul? [Credit latter to Stephen Colbert - or Jon Stewart.) How long might that "moment" last? Atlas must be shrugging. Libertarian's may "Ru" the day.
 

The "Libertarian Moment" article refers to a 1971 NYTimes Magazine article in which its authors considered libertarianism "undoubtedly the fastest-growing movement in the country." A complication to this predicted tidal wave was, the authors said: "At present, the only areas of disagreement with the libertarian movement are whethere the movement should strive for anarchy or for limited government, and whether it should work through revolution or within the system." The author of the current article comments: "That tension has not gone away. During my travels with libertarians, I met many who cheerfully identified themselves to me as 'anarcho-capitalists,' .... "

The current article does not discuss the 2nd A directly as a center of libertarianism. But "revolution" may be a code word for it.

I await critiques of the current article by self-proclaimed libertarians of all stripes.
 

Shag:

Political economy is a continuum from limited government to totalitarianism. Libertarianism/classical liberalism occupies the limited government end of that continuum.

Libertarians are not all the same. They generally differ on exactly what limits to place on government.

The Millennials are arguably the most libertarian generation since the 1920s, so there is hope for a more (not pure) "libertarian moment" as they grow up and raise families. There are too many government bureaucrats and dependents for a large shift to libertarianism.

http://reason.com/reasontv/2014/07/10/reason-rupe-poll-finds-millennial-suppor

As to your articles, Draper comes from an establishment progressive POV and is intrigued with libertarian freedom on social issues.

Krugman is further along the political economy continuum toward progressive/socialist totalitarianism and correctly sees libertarianism as a threat to his deluded world view where regulations do not cost the economy hundreds of billions, if not well over a trillion dollars of GDP and the welfare state is "fairly efficient."

Libertarians have always failed as a post New Deal political movement because they tend to be black and white purists who are unwilling to settle for marginal movement toward freedom the pay progressives accept marginal movement toward totalitarianism. If they became pragmatic, the next generation could well become a somewhat "libertarian moment."

BTW, I am intentionally using the term totalitarianism. Progressives are totalitarian in that they see almost no area of life government cannot improve and thus do not recognize any substantial boundaries to government power. The fact that progressives have not walked as far down the road to serfdom than communists only makes them less totalitarian as a matter of degree.
 

The "Libertarian Movement" (1971 article) and the "Libertarian Moment" ( 2014 article) may lead to the "Libertarian Moonshot" in 2016 with this potential (and a-Paul-ing) ticket:

"PAUL R-AYN/RAND PAUL"

(or vice versa if that is how you prefer it).

Alas, Jon Stewart and Stephen Colbert are on hiatus this week and thus without comment on the intriguing question: "What's the difference between a libertarian and a libertine?"
 

Paul Krugman's NYTimes column today "Phosphorus and Freedom - The Libertarian Fantasy" elaborates on his blog critique on the 2014 article in NYTimes Magazine. I can just hear Libertarians: "We won't drink to that."

As a good liberal, Krugman neglects to mention that Nixon gave us EPA that libertarians seem to loathe.

Nor does Krugman address the intriguing question: "What's the difference between a libertarian and a libertine?"
 

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