Balkinization  

Friday, January 09, 2015

Obfuscating what judges do

Sandy Levinson

There is an illuminating piece by Stephen Stromberg in today's Washington Post on the utter disaster that will ensue if those supporting the challenge in Burwell prevail before the Supreme Court re the "state" as distinguished from "federal" exhanges. He notes not only that literally millions of people would lose their coverage in Republican states, but also that premiums would likely skyrocket and set up the "death spiral" of health insurance.  The Republicans would get what they've been wishing for (and haven't achieved), which is a true trainwreck (for which they have no plausible solution whatsoever).  But my purpose is not to rant about evil Republicans and their unceasing attempts to torpedo Obamacare (which I'd gladly see replaced by a Canadian single-payer system if that were politically feasible). Rather, I'm interested in the language that Stromberg, a member of the Post's editorial board, uses to describe the stance of the Supreme Corut:

The court can’t base its ruling merely on the possible effects. But the Urban analysis gives a sense of the stakes. It’s astonishing that the coalition challenging the government would welcome such an outcome, creating a policy fiasco where they only imagined one to be before....

Though they have plenty of legal reasons to avoid it, a majority of justices might still rule that lawmakers’ language compels a negative result, detonating the bomb instead of defusing it.
So two things are worth noting:  First, the use of the word "merely" in the first sentence.  Perhaps courts can't base (or, at least, publicly admit that their basing their decisions) exclusively on "possible effects," but, going back to Marbury and foreword to the embarrassing decision a couple of years ago finding a lack of standing in Perry v. Hollingsworth, it's literally impossible to believe that the justices do not regularly take consequences into account in deciding what they do.  The mystery, of course, is why they granted cert in the first place in the exchanges case, given that there are no current conflicts among the circuits, but, hey, they're the Supreme Court, and the four anti-Obamaists can grant cert whenever they want to. 

But what about the notion that "a majority of justices might still rule that lawmakers' language compels a negative result."  Even if we grant, for sake of argument, that the attack on the statute is not frivolous--everyone in the world has to agree that it was poorly drafted in some respects, not least because fanatical Republicans refused to engage in the legislative process that might have alleviated some obvious problems--could any reasonable person believe that the statute "compels" any result at all.  That is, I concede that a judge could argue that the language supports the distinction between "state" and "federal" exchanges and that one shouldn't both putting it within the context of the larger 2000-page statute, though I think that view is, at the end of the day, indefensible save for a kind of legal formalism that is blessedly absent from most of what I call the Constitution of Conversation.  So this means that no judge is "compelled" to decide X or non-X; instead, the judge has to engage in what Mark Tushnet has accurately labeled "judgment," which presumably includes what, overall, is best for the overall polity.  Obviously, if one is a libertarian, then what is best is torpedoing the entire legislation.  But if one is not a libertarian, then what is best is upholding the current law, as it is operating, and leaving it to the political process, such as it is, to cure the defects.  One could do that either because a) one believes, on balance, that Obamacare is a genuine improvement in our overall polity or b) because one actually believes in something called "judicial restraint" that believes that the Court, especially by a 5-4 Republican-Democratic vote, should not undo truly important public policies without extremely good reason (let's call it a "compelling interest").  The proponents in this case offer no such interest:  they offer only a remarkably wooden, non-purposive (or, to be generous, a completely made-up purpose, based largely on the comments of Jonathan Gruber) reading of a single patch of text.

But Stromberg's column illustrates how hard it is to escape the view/hope that suggests that justices live in an apolitical realm where consequences don't matter and the language of complex documents "compels" them to do what they think is really bad for the society. 



Comments:

How many hold " ... the view/hope that suggests that justices live in an apolitical realm ... "? We can (and I do) hope, but the view is not realistic. The political dysfunction of elected officials in recent years can extend to the appointed, for life, Justices.
 

Doesn't your consequentialist evaluation have to factor in the congressional reaction? Unless you really think congress will stand by and do nothing as the health care system implodes, you have to judge the consequences in the light of the sort of compromise congress is likely to pass.
 

If we had a functioning political system, I'd agree with Mr. D'Anna's point. But if there's anything that can be predicted with confidence, it is that the current Republican Party will do nothing that suggests that even a scintilla of "Obamacare" is serving the country well and thus needs only sensible modification rather than evisceration.
 

Scintilla has been one of my favorite words since first learning of it in my first year evidence course (1951). While I share Sandy's comment in response to Larry D., I have a dream, perhaps a nightmare, that Republicans might make a "Nixon in China" political move (no, not the opera) and come up with a single-payer system (like Canada?) that is more inclusive and efficient than Obamacare, so that Republicans can share the political mantel with Democrats' Social Security, Medicare and Medicaid, all in preparation for 2016 that might address the changing demographics causing concern for Republicans - and who better to wear the Republican mantle in 2016 than Mitt Romney, the father of MA's Romneycare that he said during the 2012 presidential campaign differed from Obamacare. What better way for Romney to get the 47% off his back and get back in the run. (Jeb Bush may regret having resigned his lucrative positions.)

"Dream" is one of my favorite songs. Dreams can be helpful when feeling blue. I'm feeling blue (in a blue state state of mind with Republicans controlling Congress), but I wonder how I'll feel if this dream comes to fruition. Of course, if it does during Obama's lame duck years, I assume there would be no veto and Obama could claim credit (in the manner of Sen. Majority Leader Mitch McConnell on the growth of the economy pre- 2014 mid-terms) by saying "This is what I really wanted instead of Obamacare and my strategy worked!"

But another song comes to mind: "To Dream the Impossible Dream." It's time for reality. No, not a "Ghost [i.e., scintilla] of a Chance" although the lyrics of this song end with hope - and change - which takes us back to Obama's 2008 presidential campaign. Imagine, achieving such in his lame duck years. But what might that do for Hillary?
 

I disagree that the decision in Perry was "embarrassing," particularly as an act of judicial restraint. I do think "results" affect judging as does ideology etc. I don't think that is "merely" what goes on.

As to what the coalition "would welcome," I find that naive. I have a certain disdain for them (including members of the academia like Prof. Adler who join it) and think we should bluntly call them out. Perhaps, it's not deemed proper to do that there, so we are stuck with naive sounding circumlocutions.

Anyway, the problem here is that the law is reasonably (probably as intended actually) being applied here. It is wrong to the level of serious breach of judicial practice to strike it down as if it is clearly being applied wrongly.

The fact that doing so will be messy hopefully affects Roberts' (can we hopefully say et. al.?) judgment as it probably did the last time around.


 

A Tale of Two Countries

Back during prehistory, I attended middle school in Florida when they taught a one semester course called Americanism vs. Communism. (The Florida legislature mandated this course after the Cuba Missile Crisis.) The purpose of the class was to compare and contrast the Soviet government with the American government to illustrate the desirability of the latter over the former.

We learned that, under communism, there was no real democracy and rule of law. Rather, a handful of communist party leaders in a committee called the Politburo wrote laws in secret and then sent them to a sham legislature called the Supreme Soviet, who rubber stamped them.

Then, communist party apparatchiks within the vast government bureaucracy would arbitrarily impose these laws as the party saw fit.

If a Soviet citizen attempted to go to the courts for redress, they would find themselves in front of a judge appointed by the party, who would again rubber stamp current party policy regardless of what the law actually said.

We were taught that the communists justified their system as the purest form of democracy because the government was the best expression of the collective will of the people. Because the communist party and the people were one, the party knew what was best for the overall polity. Thus, the will of the party must take precedence over the rule of law.

We were assured that nothing like this could ever happen in America. We enjoyed a true representative democracy where the people elected representatives, who then enacted the will of the majority into law. The Constitution required our president to faithfully enforce and our courts to neutrally apply that law as written. We were a government of laws, not of dictators like the evil communists.

Serious question: Could this course be honestly taught in the United States today?
 

I love these fictional accounts of that golden age in the U.S. where the system worked exactly as the schoolbooks described.
 



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What is spam called in arabic?
 

This comment has been removed by the author.
 

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.
 

Bart, it's hard to imagine that whatever else is going on in this nation we have a legislature rubber stamping the executive's agenda or a judiciary doing the same (as conservatives have crowed about Obama's administration has lost lots of cases in the Courts, including many 9-0 SCOTUS cases). Come on.
 

Mr. W:

If not rubber stamping, what precisely do you call it when a Congress votes for a bill drafted in secret and which almost none of them had read?

If not rubber stamping, what do you call it when a court upholds the bureaucracy rewriting a plain as day law "because it is best for the overall polity?"

Why are you not in the least concerned?
 

What's 'really plain as day" is that our Mr. Myth is versed in "black letter law" which turns out to have gray areas, such as with our Constitution and many laws promulgated thereunder.

Perhaps our Mr. Myth is of the view that any legislator voting for a bill s/he has not read should be impeached. Legislators rely upon staffs. How long might it take for a legislator to read - and more importantly understand - a complicated bill of 2,000 pages; and in addition to research whether the law complies with the Constitution?

[Query: Has our Mr.Myth read all of ACA? I haven't and don't plan to, as I have "people" to do that for me.]

Our Mr. Myth's earlier anecdote of his early life days in former slave state Florida on history/education leaves out the history of Cuba pre-Castro. Did Cuba have an idyllic democracy? What was life in Cuba like for many Cubans in those pre-Castro days? Revolutions happen - and result - in different ways. Consider US policy on Cuba pre-Castro: Was democracy encouraged? I do not praise Castro, but we need a tad more history of Cuban conditions than what was spoon fed to our Mr. Myth at his then vulnerable age. Some of us were spoon fed with the "history" of Teddy Roosevelt, the Rough Riders and San Juan Hill. Yes, there's history and there is history. Perhaps pre-Castro Floridians should have been taught the differences between democracy and the pre-Castro politics of Cuba - including the US role during and especially after the Spanish-American War.
 

Shag:

How long might it take for a legislator to read - and more importantly understand - a complicated bill of 2,000 pages; and in addition to research whether the law complies with the Constitution?

Excellent argument for why it is impossible not to rubber stamp a 2,500 page bill released only 72 hours before a Christmas Eve vote.

Query: Has our Mr.Myth read all of ACA? I haven't and don't plan to, as I have "people" to do that for me.

I actually read several hundred pages of it over several weeks as research for three chapters of my book, Never Allow A Crisis To Go To Waste. Most definitely, the worst drafted and most appalling legislation I have ever read.
 

FWIW, there was a move to impeach a senator in the 1790s, and the general understanding now is that you don't "impeach" members of Congress. Again, I'm not trying to say the answer is totally settled for all time.

http://www.senate.gov/artandhistory/history/minute/To_Arrest_An_Impeached_Senator.htm

There is a constitutional power for expulsion there though do so for having staffs read and analyze the minutiae of bills for generalist legislators doesn't seem a good use of that power.*

I have seen the concern cited before but really even if they have the time to read all this stuff, what of it? Actually reading all the bills (including amendments and rejected alternatives) would mean at best a cursory read over akin to a 3AM college student trying to cram.

And, how would they really understand all of it? We are dealing with some very technical information and minutiae here. It is why there are committees, staffs and so forth.

Mr. W. getting aggravated with BP is a red flag here, but the sentiment is out there. Moderation in all things though. Some level of oversight can be demanded. "Reading everything" is not practical or even advisable.

====

* The trust of amateurs led to an early opposition to judicial review that clashed with legislative supremacy and more causal adjudication.

http://www.barnesandnoble.com/w/lest-we-be-marshalld-donald-f-melhorn/1111920134?ean=9781931968010

In time, trusting judges with more power seemed appropriate. Trusting subordinates with details came before that. The limits of human capability here likely arose under in government's history.
 

edit: "arose EARLY" in government's history.

BTW, the original post added this:

"if one is a libertarian, then what is best is torpedoing the entire legislation"

The Republican Party as a whole is not "libertarian" as shown by a range of their policy proposals, but putting that aside, that's questionable.

There are various types of "libertarian" and as seen by "On Liberty" (cited around here), that still entails some regulation including of things like health and education policy.

Given the level of regulation of health policy now -- health insurance etc. is simply not an unregulated "free market" -- and the general status quo ante, it is unclear just how ideal for "libertarians" it all was.

Of course, that term has various meanings, almost as many perhaps as "originalism."
 

I share Joe's earliest comment on this:

"I have a certain disdain for them (including members of the academia like Prof. Adler who join it) and think we should bluntly call them out. Perhaps, it's not deemed proper to do that there, so we are stuck with naive sounding circumlocutions. "

Based on my experience over the years and especially with the technology of the Internet, that while there may have long been issues with legal academics crossing the line of scholarship into ideology, the various legal blogs (including this Blog) make such crossings more readily available to both the legal profession and laymen. Pre-Internet, it may have been more difficult recognizing such crossings as critiques via law review response would take too long and perhaps discourage critiques, while the Internet readily permits "res gestae" responses ("step on a cat's tail and it instantly yipes"). This can be both a conservative and liberal issue in legal academics. Even "good" scholarship is often criticized as ideology especially by knee-jerk legal academic ideologists, both conservative and liberal. Too often, it has been a result of the movement of originalism (in its evolving forms) since the early 1980s in response to the Warren Court.
 

Regarding our Mr. Myth's response to my question on a legislator reading a bill, Joe's recent comments are incorporated here by reference.

Regarding my "query," our Mr. Myth has acknowledged reading several hundred pages of the 2,000 page ACA back when for his work of friction. But why didn't he read ACA in its entirety? Was he under pressure from his publisher? And did he pick up the "state exchange" issue in his work of friction? I don't know anyone who has actually read our Mr. Myth's work of friction (I assume Mr. Myth has read it) but if someone out there in the www has, let us know if our Mr. Myth recognized the state exchange issue that he glibly refers to as being very plain in ACA. If he did, then he deserves credit for having an "Addled" mind; if not, then this "failure" demonstrates a lack in his research and attempts at scholarship.


 

This comment has been removed by the author.
 

Shag:

The state exchange subsidy was merely one of many subsidies and penalties Obamacare used to compel states and individuals to participate. When I did my research, there was no problem. The IRS created the problem some time later by illegally rewriting the law to expand the subsidy.

The several hundred pages I read of the bill were the ones where the Democrat leadership delegated sweeping powers to HHS, IRS and IPAB. The rest is dedicated to creating dozens of new bureaucracies, primarily to gather data and run test programs. None of the latter is particularly relevant to the operation of the Obamacare rube goldberg contraption.

Of course, almost no one in the Democrat Congress knew this when they rubber stamped nor did you when you supported Obamacare. Good party members all.
 

Our Mr. Myth's response indicates, as I suggested:

" ... if not, then this 'failure' demonstrates a lack in his [Mr. Myth's] research and attempts at scholarship."

Our Mr. Myth tries to weasel out with his:

"When I did my research, there was no problem. The IRS created the problem some time later by illegally rewriting the law to expand the subsidy."

At the time there was no "problem" that was recognized by either Democrats or Republicans in Congress. The "problem" as presented in the matter before the Court is alleged to be in the wording of a particular portion of ACA, ignoring the ACT in its entirety. The IRS did not create the alleged "problem." If ACA falls on the state exchange issue, it will be because of the of the ACA and not IRS regulations.

If only our Mr. Myth had been more vigorous in his research by reading and understanding ACA in its entirety, then he might have received the conservative "Adler-ation" received by others and finally a notch in his constitutional gun belt. Maybe he can blame his publisher for rushing publication of his work of friction. Consider the sales and royalties if only ....

 

Shag:

The intent behind all the various Obamacare subsidies and fines was to compel states and people to participate. The failure of nearly all of them to achieve their goal hardly grants the bureaucracy the power to rewrite the law by decree or a court to uphold the rewrite because they believe doing so is "best for the overall polity."

We are not yet the USSR...yet.


 

Our Mr. Myth's:

"We are not yet the USSR...yet."

must have him checking his arsenal (as well as checking under his bed for commies in response to his early youth training in FL - courtesy of Cuba's Castro). Our Mr. Myth believes that the 2nd A, a Creator given unalienable right, was designed by the Founders/Framers/Ratifiers for rural groups to challenge state and federal governments. Alas, that's not the history as there was great concern on the part of F/F/R with Shay's Rebellion in structuring the Constitution at the 1787 Convention to include the Militia and Anti-Rebellion clauses. Yes, the bill of rights came a couple of years later (ratified 1791) but did not impact these clauses.

But of course this is just another example of our Mr. Myth's right-wing political hyperbole. Curiously, our Mr. Myth gave Bush/Cheney a free pass over its 8 years of missteps, including falsely yelling in a crowded America of WMDs in Iraq (not to mention a potential mushroom cloud) to justify invasion of that country in 2003, the pits of which lies keep us involved there. No, our Mr. Myth is just another hater of America's first African-American President. Our Mr. Myth should watch out for those chocolates in CO as their impact (a la NYT columnist Maureen Dowd's visit to the Mile High State - of mind - from which she has just recently fully recovered from in time to tan House Speaker Bo(eh)ner's hide on Sunday) can be devastating.
 

On the flip side of executive decrees of law...

Not even the King of England at the time of the American Revolution had the authority to suspend laws unilaterally, the Law Library expert wrote in a memorandum to the Senate committee tasked with responding to President Obama’s recent executive orders on the enforcement of immigration law.

One hundred years before the American Revolution, another British king had “attempted to suspend a number of laws,” contributing to the onset of the Glorious Revolution in England, a senior foreign-law specialist at the Law Library writes in the memo to the Senate Judiciary Committee. “King George III,” the specialist goes on to remind the committee, “was thus unable to enact or repeal any laws unilaterally without the involvement of Parliament.”


http://www.nationalreview.com/article/396261/what-not-even-king-england-could-do-joel-gehrke
 

One of the products of the English Glorious Revolution deposing King James II was the Bill of Rights of 1689, which mandates in pertinent part for this conversation:

That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;

That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal...

That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal...


http://avalon.law.yale.edu/17th_century/england.asp

Of course, our Constitution incorporated all of these mandates.
 

Our Mr. Myth dwells on:

"Of course, our Constitution incorporated all of these mandates. "

from British law pre-Constitution but ignores that the Constitution of 1787 protected slaveowners and slavery and ignores that the bill of rights (ratified 1791) provided yet further protection to slaveowners and slavery. These were also mandates that flew in the face of the earlier draft of the Declaration of Independence in which Jefferson included an admonition of King George for his role in slavery in the Colonies. Of course, the slave-owning signers of the Declaration saw to it that that admonition was removed, a mandate for continuing slavery as "All men are created equal" did not apply to slaves.

J'accuse our Mr. Myth of selective history (aka "law office history-onics") in his attack of the Executive Office. As noted in a prior comment of mine on this thread:

"Curiously, our Mr. Myth gave Bush/Cheney a free pass over its 8 years of missteps, including falsely yelling in a crowded America of WMDs in Iraq (not to mention a potential mushroom cloud) to justify invasion of that country in 2003, the pits of which lies keep us involved there. No, our Mr. Myth is just another hater of America's first African-American President."
 

Shag:

I am not dining on your red herring.

The topic is the power of the President through he bureaucracy to rewrite the laws of Congress and the power of the courts to affirm that rewrite.

I would be glad to discuss that constitutional crisis with you.
 

I think it might well be the Commies in Cuba who come to save us from Obamacare by providing us Amerikans with superior medical care at bargain prices in nearby Havana.

For a lot of Amerikans, it would be worthwhile to risk a raft trip on open waters, considering that the price of treatment in Havana promises to be 1/10th that of treatment under Obamacare or Medicare.

In the meantime, we'll just have to rely on treatment in Costa Rica, Mexico or São Paulo, where the doc fee for a colonoscopy is about $400 in private care (http://www.mundodastribos.com/exame-colonoscopia-preco-como-e-feito.html), compared to a patient cost that varies from $1000 (if insured) to $3000 (uninsured) in the USSA.

cf http://health.costhelper.com/colonoscopy.html
 

I trump our Mr. Myth's red herring j'accuse with his idolatry of the F/F/R who, as I noted, protected slaveowners and slavery with the 1787 Constitution and the bill of rights (ratified 1791) by dredging King Georges' issues with Parliament in the Colonial days and perhaps before, to address what he refers to as a constitutional crisis that came about under that very same Constitution in later years as a result of acts of Congress that weren't vetoed. Obama did not invent the Administrative State, which has been around since at least the late 19th/early 20th centuries. Governing has gotten a tad more complex than. in the late 18th century of the F/F/R. What is the history of various Presidents in dealing with the Administrative State? What has Congress done to limit the Administrative State? What are the stats of the various Presidents on issuing Executive Orders that come under the domain of the Administrative State? What might happen to governance in America with a population of 300+ million and growing if the Administrative State were somehow eliminated?

It is clear that our Mr. Myth's real problem is with President Obama as he was silent during the 8 Bush/Cheney years on that Administration's XOs (which I understand were significantly greater in number than those issued by Obama). Now all of a sudden this is a constitutional crisis. But for the Republican policy of "NO" to whatever the N.O. has tried since January of 2009 some of his XOs would not have issued.

And note that our Mr. Myth also places blame on the powers of the courts. The Supreme Court currently is conservative controlled, which has accommodated Republicans with a number of rulings, including Citizens United that significantly funds Republicans in Congress. Alas, those in Congress (of both parties) have to spend so much time on raising campaign funds that they don't have the time to spend on enacting laws that might do away with the need for the Administrative State.

The Administrative State has had its problems going back to its establishment. Rather than eliminate it, it should be improved. Much has been written in the past several years on the Administrative State, both pro and con. But it is here to stay. Congress should try to fix it. But effective governance in this day and age without the Administrative State would get bogged down, making present day government even more politically dysfunctional.

We've been exposed to our Mr. Myth's proposed simpletonian solutions in threads long archived at this Blog. Let's incorporate here in this thread by reference the comments made by him, me, others on the issue in such archived threads. At this point in time, let's focus on real crises, such as political dysfunction. Some alleged crises are worth wasting - like BENGHAZI, BENGHAZI, BENGHAZI!
 

Shag:

The issue at hand is the power of the President through the bureaucracy to rewrite laws of Congress, not the destructive effects of permitting an unaccountable bureaucracy to write law under a broad delegation of power from Congress. Observing the strong correlation between the increase in regulations and the decrease in GDP growth, small business creation and job growth is all you need to know concerning the latter question.

The Administrative State is fundamentally flawed in that it only exists to create additional regulation and has no real democratic checks. The only credible reform is to return the bureaucracy to an executive role and return the legislative and judicial powers to those branches.
 

Our Mr. Myth informs us:

"Observing the [I'm saving pixels] ..."

does not include the data to support his conclusions, keeping in mind what Obama inherited from the Bush/Cheney 8 years of ineptitude ending with their 2007-8 Great Recession. I asked a lot of questions but all we get from our own Mr. Myth is CRAPOLA.

Once again we have our Mr. Myth's simpletonian view. Perhaps instead of blaiming the Executive and the courts, he should blame Congress. But what is the evidence that Congress would undo the Administrative State?

No, our Mr. Myth's conclusions have him back in The Gilded Age, America's best days according to him.
 

Shag:

You are correct to suggest that Congress is not likely to change the administrative state.

Given that the courts have rewritten the Constitution to permit the regulatory bureaucracy, it will take a constitutional amendment to reverse it.

Because both DC party establishments are progressive and Congress rather enjoys pawning off responsibility of legislation onto the bureaucracy, the likelihood of a super majority of Congress voting for such an amendment is vanishingly small.

The Founders envisioned that the states might someday need to bypass a tyrannical national government and granted the states the power to call their own constitutional convention. That is the route reform will need to take.

Unfortunately, even that route will require a near collapse of the political economy like that which preceded the last convention in order to get enough states to act.

We are getting there. Every progressive nation in the world is in some stage of population, economic and fiscal implosion. Japan and the EU have the most advanced case of this malady and we are about a decade behind.
 

Has our own Mr. Myth come up with another constitutional crisis with his:

" Every progressive nation in the world is in some stage of population, economic and fiscal implosion. Japan and the EU have the most advanced case of this malady and we are about a decade behind."

suggesting that America is "screwed" despite Viagra, Cialis, et alia, because of "contraceptives, abortions and SSM." Rick Santorum as a Republican presidential candidate in 2016 might emulate Mike Huckabee's new 4Gs book jump start campaign with his own: "America's Screwed: Contraceptives, Abortion and SSM." I assign our own Mr. Myth to draft proposed amendments to the Constitution that will prevent America from being screwed by requiring such anti-choice amendments - Viagra, Cialis, YES! - but only with anti-choice. Alas, this might run counter to our own Mr. Myth's libertarian views.
 

Shag:

Negative reproduction rates are correlated to three changes in progressive society:

1) The progressive welfare state (especially public pensions) have replaced family as the primary economic resource for people. Where it was previously an economic necessity to have children to support you later in life, the welfare state makes children an expensive luxury and encourages free riding by declining to have children and instead depending on other people's children to pay the taxes to support the welfare state.

2) The advent of birth control enabled couples to engage in sex while choosing not to have children,

3) The slowing economies and growing youth unemployment in progressive countries makes having children even more economically difficult.

A reversal of the progressive political economy can deal with problems 1 and 3.
 

I understand that Rick Santorum has filed for divorce recently because of gays, SSM. Perhaps our Mr. Myth can explain how his "progressive" points (1 and 3) have impacted him personally regarding negative reproduction rates. Or is he a positivist libertarian under his point 2?
 

Sandy:

Sorry for getting off topic. Shag has posed a series of questions which are the subjects of books I am writing on why the progressive political economy is failing and proposed constitutional reforms. I could not resist.
 

At least our own Mr. Myth is prolific on:

" ... the subjects of books I am writing on why the progressive political economy is failing and proposed constitutional reforms."

but this is only the gestation period. Perhaps these will deliver the same success as his earlier work of friction. (I couldn't resist.)

 

It's interesting that Blankshot Bart thought everything was great while Cheney/Bush were invading countries for no reason and driving our country's economy off a cliff, but now that Obama has restored our economy he's screaming about an economic disaster. Blankshot, what planet are you on and how did you manage to connect to Earth's internet?
 

Boehner is sounding like a born again Tea Party rebel in a floor speech repeatedly quoting President Obama insisting that he as President cannot rule by decree.

http://www.dailymail.co.uk/news/article-2910130/Enough-Boehner-fills-House-chamber-drama-lashes-against-Obama-high-stakes-immigration-battle-throws-words-face.html

How many of you here actually believed Obama when he made those comments?
 

For those who have reflected on our own Mr. Myth's riff on courts in connection with the Administrative State, take a peek at Brian Leiter's "Constitutional Law, Moral Judgment, and the Supreme Court As Super-Legislature," his 1/12/15 Hastings College of the Law Lecture. Links are available at Larry Solum's Legal Theory Blog and at the Originalism Blog.
 

A discussion of an something Sandy Levinson has discussed in the past:

"The Push for a Constitutional Convention Is Real—and Possibly Dangerous"

http://www.acslaw.org/acsblog/the-push-for-a-constitutional-convention-is-real%E2%80%94and-possibly-dangerous-0



 

Joe:

Your linked ACS article is perhaps the first discussion I have read on the left taking the state constitutional convention movement seriously and asking all the correct questions.

The Constitution provides for no authority above that of a convention, so once a convention is called it’s not clear that anyone could stop it from proposing any number of drastic changes to how the United States is governed.

Absolutely correct. Article V grants the convention the power to propose amendments, so the delegates are not restricted to the subject matter over which the convention was called.

Libertarian and conservative delegates could offer comprehensive constitutional reform as did the first convention.

Delegates could even choose to alter the rules of ratification as the 1787 convention did, for example by calling for ratification by national referendum.

Precisely! In the book I am working on, I suggest replacing Article V with another amendment lowering the threshold of ratification down to 3/5 of the states, through the legislature or a state convention, then using the new standards to ratify the suggested reforms exactly the way the Founders did the Constitution.

Further, since we’ve never held this sort of convention, no one knows what the rules would be.

We held a state convened convention to draft the current Constitution and can use their precedent.

How would delegates be selected?

Legislatures or state conventions.

How many delegates would each state get?

Equal number.

How many votes would be needed to approve a proposed amendment?

Majority.

And with Congress and 31 state legislatures under full Republican control, the rules could be set in a way that helps right-wing groups enact radical changes that they’d never get through normal legislative procedures.

You do not amend the Constitution through "normal legislative procedures," but the remainder of the point is valid.
 

Our own Mr. Myth's commentary on a new convention would continue the current undemocratic Constitution with his "asked" and his "answered':

***

"How many delegates would each state get?"

"Equal number."

***

So the rural hicks (see Huckabee's 4Gs) would control even beyond the Constitution's continuing undemocratic Senate provisions that Sandy rightly criticizes as contributing to political dysfunction.
 

Shag:

A supermajority of states and a thus a supermajority of the population is still needed to ratify any constituional amendments.
 

Sandy Levinson has been supportive of a new constitutional convention and has discussed some of the details.

I am not aware of each state in the 1787 Constitutional Convention having equal membership. I would think that population would matter. If we take the federal model, each state would get two at large picks & the rest would go by population.

Art. V notes "on the application of the legislatures of two thirds of the several states, [Congress] shall call a convention for proposing amendments."

Coleman v. Miller is a bit opaque given the split of the justices but it seems to suggest that the question is a political question for the Congress to determine. So, if it wished, Congress could "call" the convention here with strings. For instance, the convention can only have the power to discuss campaign regulations.

Realistically, if the right number of states ratify the product of the convention, it would be accepted as the law -- the original convention was assumed to be only about mildly amending the Articles of Confederation.

Anyway, the ides here has had some support from the left (see Levinson).
 

ETA: As with the impeachment of judges case (the meaning of "try"), Art. V. provides certain barebones rules (such as percentages needing to vote for ratification and passage) so THAT wouldn't merely be up to what Congress wants.

But, the nature of the convention "called" seems to be in large part a policy question.
 

Joe:

This process has always been based on states, not population. During the last constitutional convention, the states sent equal numbers of delegates and each state had a vote. In Article V, each state has an equal vote in ratifying amendments.

Art. V notes "on the application of the legislatures of two thirds of the several states, [Congress] shall call a convention for proposing amendments."

Coleman v. Miller is a bit opaque given the split of the justices but it seems to suggest that the question is a political question for the Congress to determine.


Use of the term "shall," means that Congress has no choice but to call a convention and this function is thus ministerial. If Congress refuses to call the convention, the States should be able to compel this ministerial action by a court order.

So, if it wished, Congress could "call" the convention here with strings. For instance, the convention can only have the power to discuss campaign regulations.

Article V expressly states that the convention (not the states or the Congress) has the power of "proposing amendments." The delegates of our last constitutional convention also acted on their own.

Anyway, the ides here has had some support from the left (see Levinson).

Sandy should reconsider. There simply are not enough progressive states to propose, nevertheless ratify, the progressive amendments he would prefer. It is much more likely that a "runaway convention" would run in the libertarian/conservative direction.
 

The "history" of the 1787 Convention is not complete unless the Articles of Confederation requirements are also addressed. The Convention was sort of ad hoc. It did not follow the process for amending the Articles, in particular the Articles' requirement of unanimity of all 13 states. So there was the issue of the legality of the Constitution and its ratification procedure. However, apparently this became moot as those states that had not ratified at the time enough states had under the terms of the process of the Constitution eventually ratified at later dates.

I wonder how originalism looks upon this as presumably originalism if applicable to the Constitution would have been applicable to the Articles. In this day and age, changes from the procedure for amending the Constitution at a Second Convention might be challenged by dissident states unlike back in 1789 when enough states (9?) had ratified the 1787 Constitution. So let' not play fast and loose even before a Second Convention has been called. That's "hicksville."
 

Shag:

In this day and age, changes from the procedure for amending the Constitution at a Second Convention might be challenged by dissident states unlike back in 1789 when enough states (9?) had ratified the 1787 Constitution.

Perhaps.

Remember that the states only agreed to the first constitutional convention because the United States was getting close to being a failed nation. The government was unworkable and the economy was wracked with our first great stagflation before the 1970s. The states really had no alternative to reform.

As I noted above, I doubt that the states today will actually call for a second constitutional convention without similarly dire circumstances.

The implosion of our progressive political economy during the next couple decades should be enough.

In my more optimistic moments, I would hope that the example of the preceding implosion of the EU will be enough to spur action before we follow suit.
 

Perhaps our own Mr. Myth is hinting with this:

"In my more optimistic moments, I would hope that the example of the preceding implosion of the EU will be enough to spur action before we follow suit."

that he'll be passing out cigars before year's end. Good tax planning. If our own Mr. Myth and others, many others, don't get busy soon, what's to become of America? We don't need implosion, we need explosion. JUST DO IT!
 

As a liberal/progressive I have done my share to prevent implosion, and did so without the benefit (or risks) of V or C. Liberals/progressives are stand up guys; we don't conserve our genes. We think of the future, not dwell in the past.
 

Shag:

My wife cannot have children.
 

But then there is adoption, perhaps reducing abortions. And there are surrogates. There are various legitimate ways to be "fruitful and multiply."

Being barren does not convey guilt. Sometimes it is the husband's situation. That should not trigger guilt either. But they can provide strong support for those who do "multiply" to make sure their offspring, our future, have long, healthy, meaningful lives. When I walk through a nearby university campus with students rushing to their next classes, I think to myself, they are our future. Yes, it is important to be "fruitful and multiply," but then we've got to take care that we care for the offspring. This brings to mind FDR's "Second Bill of Rights" 1944 "Fireside Chat." Those who cannot or choose not to multiply can still be fruitful by supporting children's rights.

I have no doubt that our own Mr. Myth and his wife do indeed love and care for children of relatives and perhaps all children, all of whom are born with innocence. This brings to mind MLK, Jr.'s "I Have a Dream" speech about his hopes for his children.
 

My wife cannot have children.
# posted by Blogger Bart DePalma : 10:48 AM


I thought you were opposed to gay marriage?
 

Presidential Proclamation -- Religious Freedom Day, 2015:

"On January 16, 1786, the Virginia Statute for Religious Freedom was adopted. It was one of the first laws in our Nation to codify the right of every person to profess their opinions in matters of faith, and it declares that "no man shall be compelled to frequent or support any" religion. Drafted by Thomas Jefferson and guided through the Virginia legislature by James Madison, this historic legislation served as a model for the religious liberty protections enshrined in our Constitution."

http://m.whitehouse.gov/the-press-office/2015/01/15/presidential-proclamation-religious-freedom-day-2015

Talking about history.
 

This comment has been removed by the author.
 

Joe, thanks for the link. The portion of Obama's Proclamation you quoted is followed by these sentences:

"The First Amendment prohibits the Government from establishing religion. It protects the right of every person to practice their faith how they choose, to change their faith, or to practice no faith at all, and to do so free from persecution and fear. "

This, together with the VA 1786 statute, suggests that the 1st A's free exercise clause in conjunction with the establishment clause provide for freedom from - as well as of - religion. Query: Has the Court been that specific? I wonder how textualists/originalists view this?


 

Does the 1786 VA statute suggest Jefferson's later (1802) "separation of church and state" statement? I don't think certain textualists/originalists currently on the Court would agree with this view of Jefferson on the establishment clause.
 

Oregon v. Smith suggests the right to "practice" is somewhat more limited than that language might assume. But, the for/from language is standard -- e.g., Everson v. Bd:

"Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another."

Justices and scholarship (including by Andrew Koppelman of this blog) have been somewhat all over the map. Various justices have appealed to history to get them to different places.

Those interested can go to Oyez.com to get a flavor. The history of free exercise has been somewhat slighted over the years. One example where a justice took a broad view would be Justice O'Connor's dissent in Boerne v. Flores.

A "Mr." Sutton was involved in the oral arguments there. A "Judge Sutton's" opinion was accepted for examination today -- same sex marriage will return to the USSC in April.
 

Shag:

The portion of Obama's Proclamation you quoted is followed by these sentences:

"The First Amendment prohibits the Government from establishing religion. It protects the right of every person to practice their faith how they choose, to change their faith, or to practice no faith at all, and to do so free from persecution and fear. "

This, together with the VA 1786 statute, suggests that the 1st A's free exercise clause in conjunction with the establishment clause provide for freedom from - as well as of - religion. Query: Has the Court been that specific? I wonder how textualists/originalists view this?


Quite the opposite.

I am surprised that the Team Obama staffer who drafted this statement actually stated: "The First Amendment prohibits the Government from establishing religion." That is precisely what the Establishment Clause was meant to do - prevent the government from establishing a state religion.

Nothing in the Establishment Clause keeps members of the government from exercising religion in order to protect the public at large from being exposed to religion. Indeed, the Free Exercise Clause expressly guarantees that right.
 

I'm confused. Is it our Mr. Myth's position that the religion clauses of the 1st A (limiting Congress) as incorporated by the 14th A (limiting states) would not limit the federal or state governments regarding individuals claiming freedom FROM religion?

It should be kept in mind that the Proclamation is not a legal brief, setting forth the "history" of the 1st A (and other of the bill or rights) that basically imposed limitations on Congress and not on the states until the Court held that via the 14th A the 1st A's limitations applied to the states. So prior to such incorporation, the 1st A would NOT have prevented a state from providing for an established religion and the free exercise of region. My own state of MA via its constitution had provided for an established religion which was not amended out until (as I recall) around 1837. This is in contrast to the VA views on religion via its 1786 statute.

The establishment and free exercise clauses treated separately aim at different concerns, but treated together, especially following incorporation via the 14th A, make clear to me that freedom FROM religion is protected as well as freedom OF religion. When the bill of rights was passed on by Congress in 1789 and ratified in 1791, there was an awareness that some states did indeed provide for establishments and imposed limitations on free exercise. That was then. It's different now. Jefferson, Madison and VA were prescient in 1786 on religion.
 

This comment has been removed by the author.
 

The Establishment Clause was not incorporated idea never worked for me. Sorry, Justice Thomas. Sorry, Prof. Akhil Amar.

The whole 1A limited Congress; states, e.g., could pass laws abridging speech, such as obscenity laws w/o Congress interfering too. The values of the EC wasn't just federalism. And, what is left when factoring in how establishments tend to burden free exercise or breach equal protection is unclear to me.

"Government" and "1A" tends to mean state and federal action here. Anyway, the state provision here is cited as an important expression of the basic principles behind the 1A. VA could only pass laws applying to VA, but like MA, they added basically "whereas" prologues stating basic principles that apply generally.
 

Shag/Joe:

I think we are discussing different subjects.

The Establishment Clause prohibits the government from founding a state religion.

The Free Exercise Clause prohibits the government from keeping an individual from freely exercising her religion.

Both of these prohibitions are incorporated against the states by the 14A.

When viewed alone or in combination, the Establishment Clause and/or the Free Exercise Clause does not prohibit an individual from freely exercising their religion during government activities or in the public square in order to prevent others from being exposed to the exercise. Indeed, such an interpretation is directly contrary to the mandate of the Free Exercise Clause.


 

That's fine -- I was speaking in general terms anyway, not directly in response to anyone alone.

I don't quite know the problem with the announcement though -- re-reading the comment, it sounds a bit garbled.

"does not prohibit an individual from freely exercising their religion during government activities"

The only issue here is that "government activities," such a public school teacher starting a class leading the students in prayer have been held (correctly) to violate the provisions.

Various USSC rulings also upheld the right to pray privately in school, have religious clubs in public schools and the obligation to treat private religious speech there equally. The trope some have that "God is kept out" (which is hard, I'd think) notwithstanding.
 

Joe:

I understand that the courts rewrote the Establishment Clause over the past several decades.

My personal interpretations of constitutional provisions are always based on the original meaning of the text.

I recognize the effect of progressive judicial rewrites of the law, not their legitimacy.
 

I'm inclined to simply say "unproven" in response to that last comment. Moving on.
 

Here's a variation of our Mr. Myth's view to reflect my view that the 1st A religion clauses and their incorporation via the 14th A provide protection from federal and state governments to those seeking freedom FROM religion:

"When viewed alone or in combination, the Establishment Clause and/or the Free Exercise Clause does not prohibit an individual from freely exercising their freedom FROM religion during government activities or in the public square in order to prevent others from being exposed to religious views. Indeed, such an interpretation is directly contrary to the mandate of the Free Exercise Clause." [Actually "during government activities" in both our Mr. Myth's original and my variation are questionable gray areas as Joe noted.]

What's sauce for the goose is sauce for the gander (in a non-gender sense, however). And freedom FROM religion is also protected by the speech and press clauses of the 1st A (and 14th A). If the religious can proselytize for their causes, so may the non-religious.

As to the "original meaning of the text," decisions of the Court over the years have demonstrated that the meaning is not clear in various factual situations that have been confronted.
 

Re: the penultimate [still my favorite word] paragraph of my preceding comment, take a peek at Leonard Pitts, Jr.'s Miami Herald column "Religion not exempt from free speech." This was in response to the Pope's recent speech in the Philippines responding to the Paris tragedy. Liberals/progressives can link to this column via Daily Kos (as can conservatives/libertarians not afraid of the truth).
 

The same sex marriage cases will soon be front and center. A few links:

"Original meaning, public deliberation, and marriage equality"

http://www.scotusblog.com/2015/01/symposium-original-meaning-public-deliberation-and-marriage-equality-2/

[I read this guy's book on promoting SSM in the mid-90s; living thru history is interesting.]

And, flashbacks to this blog. First, Prof. Balkin explains how same sex "sodomy" is not the same as sibling sodomy for substantive due process purposes:

http://balkin.blogspot.com/2003/07/what-does-lawrence-v.html

Then, he (to me at the time somewhat weakly) suggests the case for constitutional protection of same sex marriage was not yet that strong:

http://balkin.blogspot.com/2005/02/constitutional-theories-of-same-sex.html

The first is from 2003; the second 2005. Significant developments. It is akin to interracial marriage c. 1955, 1957 and 1967.

SCOTUSBlog and ACS Blog has various articles on the cases. Rick Hasen and some others have suggested the wording of the questions presented are notable. Michael Dorf (Dorf at Law) disagreed.
 

At his NYTimes blog today, Paul Krugman takes a rest from economics while in Delhi with "Mongols of the Sea (Amateur Historical Speculation)" which concludes with possible critiques. I've long been fascinated with the Genghis Bangis Khan clan's role in history and understand Krugman's title. But Krugman fails to note that prior to 1492 China had the world's largest navy, which China's leader abandoned as policy, thus making way for small western European nations to become the "Mongols at Sea." I await professional historian comments on Krugman's self-recognized amateur speculative efforts.
 

Re: My China comment in my preceding comment, check out "1492: The Prequel" at:

http://partners.nytimes.com/library/magazine/millennium/m3/kristof.html
 

This comment has been removed by the author.
 

Shag:

Krugman applies the same superficial analysis to military history that he does to macroeconomics.

The Mongols did not engage in world conquest because they had comparatively more horse archers than anyone else. Horse archery had been around for centuries before the Mongols.

Genghis Khan first united the Mongols into a nation state and then developed a military strategy combining the Mongol massed horse archers with Chinese armor for his riders and siege weapons to take down city walls, then he added a command and control system that enabled one general to control tens of thousands of men spread over hundreds of miles. Warfare never saw a comparable command and control system again until Napoleon.

Likewise, the Europeans did not build blue water navies because they had comparatively more herring and cod fisherman. You are correct that the Chinese were the first to employ a mass blue navy and then ceded the seas to Europe by demobilizing it. The Japanese had a thriving fishing industry for over a millennia before they built their first blue water navy in the late 1800s.

 

I think our own Mr. Myth gets his "history" from those now defunct (I think?) "Big Little Blue Books" advertised in broadsheet newspapers of my youth, with prices ranging from 5-10 cents for the most part per item. Our own Mr. Myth's praise/clim:

"Warfare never saw a comparable command and control system again until Napoleon."

neglects what happened to them.

As for our Mr. Myth's attempt to smear Krugman, those who read the blog I referenced are well aware, beyond its title, that he self-proclaims amateur historian ranking only, whereas our own Mr. Myth tries to portray himself seriously as not only a historian but as an economist (as well as with other disciplines), a jerk of all trades but master of none. Apparently the closing paragraph of Krugman's blog item, if actually read by our own Mr. Myth, though tongue-in-cheek, struck too close to home personally. Krugman was taking a break from serious economics discussions to provide a little levity while in Delhi. I don't rely upon his history or especially that of our own Mr. Myth.

 

Shag:

Krugman does not need any help from me to discredit himself as either a historian or macroeconomist. The good professor is a one man target rich environment for ridicule by anyone with a passing knowledge of either subject.
 

Our own Mr. Myth stands behind the "Austerians" both in Europe and here in America who have been WRONG, WRONG, WRONG with their economic remedies especially post-Bush/Cheney Great Recession of 2007-8. If our own Mr. Myth has "passing" knowledge of economics, it is the gaseous variety. As is obvious, "Austerians" also lack a sense of humor. which is not a matter of speculation.
, as they cry out "The sky is falling!"
 

Shag:

There are no "austerians" in the EU or the US.

The supposedly austerity minded German government takes and spends nearly half of its GDP and has a massive public debt of 76.9% of GDP.

American government at all levels spends about 39% of GDP and our federal debt alone (including Social Security IOUs) is 100% of GDP.

Its a 100% progressive world across the OECD.


 

Our own Mr. Myth responds with this "The sky is falling!':

"Its a 100% progressive world across the OECD."

But let's limit this to the US and ask for our own Mr. Myth's proposed solutions for the US's contribution to his claimed "progressive world." Then we can examine whether his solutions are "Austerian."

By the Bybee [expletives deleted], consider the impct of Gov. Brownback's crippling tax cuts on Kansas' fiscal situation. Contrast this with Mitt RMONEY's blaming of Obama for the increasing income inequality during his Administration. (Presumably Obama's expected call for taxes on the rich in his upcoming State of the Union speech was urged by RMONEY's effort to drive the GOP Clown Car for 2016, with RMONEY attempting to atone for his '12 campaign not to worry about the 47% by now curing poverty. Of course RMONEY hasn't said how he might accomplish this. Naturally the other Clowns vying to ride in the GOP Car are critical of RMONEY. But RMONEY's former running mate Paul RAYN - who's not running - also is focusing on alleviating poverty by cutting expenditures for the poor.)

As I have noted on earlier occasions, our own Mr. Myth needs NyQuil for his chronic "Hayek" condition.

Meantime, let's celebrate MLK, Jr. Day.
 

"Selma" concerns one famous moment in the MLK story. Another includes the famous the Letter from Birmingham Jail. Lesser known is that MLK's sentence there was later UPHELD by the Supreme Court:

http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1601&context=facpubs

It is left to a dissent to mention MLK's name.

http://www.law.cornell.edu/supremecourt/text/388/307
 

I don't plan to see Selma, unless it is available on TV without charge. I'm not a moviegoer. The last time I saw a movie in a theatre was in 1968, "The Producers." I lived through the events in Selma from Boston. History can be distorted in movies and this is disturbing to me especially when the events have occurred during my lifetime when I understood them. As a Kid, I went to the movies frequently, being exposed to cowboys and indians, the Great Depression, WW II. Later on I became aware of factual distortions in these movies. I know much about genocides, the Holocaust, such that I don't watch movies on the subjects when routinely provided free on TV. Even with fiction, many times the book is better than the film. But that's me. Hopefully the very young will see Selma and get interested in the various events in the Civil Rights movement pre- and post-Selma and be able to separate historical revisionism from fact. The base of the current Republican Party may question the cinematic showing of Selma even though the Selma events led to the shift in that Party. While the role of LBJ in the movie may be questioned, the events on the ground in Selma were captured in real time and some constituting that base may feel shame.
 

History as portrayed on film should be taken with a healthy grain of salt. Didn't see "Selma" yet myself.


 

In honor of Citizens United's fifth anniversary:

http://www.nybooks.com/articles/archives/2014/sep/25/how-corrupt-are-our-politics/

Prof. Teachout is covered here, including her appeal to history. I find that informative but not conclusive. But, as with religion, this shows the varied usages.

---

A taste:

"As Teachout makes clear, the framers themselves predicted that corruption would be a constant threat. George Mason, for example, warned that “if we do not provide against corruption, our government will soon be at an end.” It was a preoccupation of the founding debates. In James Madison’s notebook from the summer of 1787, “corruption” appears fifty-four times. As Teachout puts it, “corruption, influence, and bribery were discussed more often in the convention than factions, violence, or instability.”

SSRN etc. provide articles by Teachout for those interested in further reading.
 

Teachout out teaches Justice Kennedy and his fellow conservatives on corruption.
 

Before this thread enters the archives of this Blog, some who know little of Hayek as well as those who suffer from a chronic case of "Hayek," might learn a tad by reading Jonathan Crowe's "Radicalising Hayekian Constitutionalism." A link to this short (11 pages) paper is available at Larry Solum's Legal Theory Blog. I started reading it yesterday afternoon but needed my Holmes (Sherlock, not the Justice) magnifying glass. I hope to finish this morning. I imagine our own Mr. Myth will have difficulty with the content and may in defense point to the fact that the author is an Australian.
 

Shag:

Thank you for the excellent Crowe article. This is a progressive who understands Hayek and can distinguish between classical liberalism based upon a constitutionally limited government (what I term a Free Market Republic) and anarchy.

Our Constitution as written (if not as currently enforced) erected three walls between government power and our liberty:

1) A representative democracy.

2) Checks and balances on government power expressly defining limited powers and then effectively requiring a supermajority consensus to exercise those defined powers.

3) A bill of rights removing entire areas of individual liberty from infringement by government power.

Crowe correctly concludes that various parts of the first and second walls can be subverted to limit liberty, then erroneously concludes that a Free Market Republic cannot implement Hayek's vision of a limited state and the only alternative is anarchy - eliminating the state entirely.

Constitutionally limited government is perfectly viable if actually employed. Constitutional solutions to progressivism and all the other totalitarian "isms" include:

1) State the new constitutional provisions in clear and categorical language and expressly limit the courts to employing original meaning interpretation.

2) Restore and reinforce checks and balances.

3) Limit what government can tax, borrow and spend.

4) More comprehensively define the areas of individual liberty which government may not infringe. Particularly, reduce the Mill harm principle to a workable constitutional provision.

 

The Supreme Court just did something that should not be "obfuscated."

It granted a petition, covering four defendants, to determine the legitimacy of the Oklahoma lethal injection protocol.

Should say for three -- they denied a stay of execution for one of them, and he was then executed before his petition for cert. was granted.
 

I did finish reading the article and it is a worthwhile read. But I don't understand how our own Mr. Myth can classify the author as a progressive, unless a progressive from Australia is in fact a conservative but perhaps not quite a libertarian. The author seems to emphasise [Australian spelling as it, like the Mother Country doesn't, like Zs") the difficultly for Hayekians to avoid anarchy as compared to Hayek constitutionalism, stating at page380 "Hayekian constitutionalists in the contemporary era may have to become reluctant anarchists."

The author does not resolve this, calling for more discussion, pointing out at page 389, "The advent of anarchism, should it ever occur, will not be the end of the struggle for liberty. The battleground may shift from public to private institutions, but the broader fight will not be over."

Also, in the very first paragraph of the article at page 379, the author states: "Hayek is widely regarded as a conservative figure, although he famously rejected the label.3"

And the author states at page 383: "Hayek's view of property, therefore, differs importantly from libertarian natural rights viewpoints, such as those of Nozick and Rothbard, which endorse a broadly Lockean account of the link between property and self-ownership.24." [Potential GOP '16 candidate Mike Huckabee believes in natural rights, recently stating that laws are made by God, who apparently "wrote" the 2nd A; but who with taste can believe that "grits and gravy" would God's favorite cuisine?]

There is quite a bit covered and to be unpacked in this compact article, including "what ifs" benefits in the case of no state that cannot be supported empirically. The author does recognize at page 384: "There is not a single case of a modern state where constitutional government and the rule of law has prevented the imposition of a vast array of administrative regulation."

So my question is, is our own Mr. Myth a reluctant anarchist of a Hayekian constitutionalist, or does he swing back and forth?
 

Shag from Brookline said...

"But I don't understand how our own Mr. Myth can classify the author as a progressive"

Easy. One of the necessary elements of the progressive state is the unelected regulatory bureaucracy. No non-progressive would use the term "radical" to describe Hayek's proposal to eliminate the regulatory bureaucracy.

"Hayek is widely regarded as a conservative figure, although he famously rejected the label.3"

Hayek is an economic libertarian. That means that he would fit into either the libertarian or conservative camps, as that latter term is understood in the United States.

"Hayek's view of property, therefore, differs importantly from libertarian natural rights viewpoints."

Hayek's insights concerning how individuals in a free market gain the knowledge necessary to run the economy and why a government cannot duplicate that mechanism is one of the most profound economic analyses of the 20th century.

Hayek attempted and ultimately failed at applying that insight to the democratic enactment of law. He eventually conceded that a constitution was needed to protect liberties from government infringement. The economist may not have conceded that these liberties were "natural," but he certainly maintained that they were fundamentally necessary. Tomatoes, to-mah-toes.

"There is not a single case of a modern state where constitutional government and the rule of law has prevented the imposition of a vast array of administrative regulation."

In every single case, the constitution as written did not prohibit a regulatory bureaucracy or, as in our case, was reinterpreted to eliminate the prohibitions.

So long as you have a society based on the rule of law, though, you can draft a constitution to prohibit an unelected regulatory bureaucracy from imposing law by decree.
 

I'm convinced that Hayekianism has turned into a cult. Hayekian constitutionalism doesn't have even a toehold in the modern world of constitutions. So if Hayekian constitutionalism cannot pass muster, what is the alternative for Hayekian hypotheses? Can it be anything but anarchy?

Note that our own Mr. Myth did not respond to this question:

"So my question is, is our own Mr. Myth a reluctant anarchist of a Hayekian constitutionalist, or does he swing back and forth?"

Brett at this Blog has self-proclaimed as an anarcho libertarian. Perhaps our own Mr. Myth is reluctant to so self-proclaim himself but he seems to have hinted at this possibility over the years.

Our own Mr. Myth on "natural rights" fails to understand what is involved, to wit, universality. There is a lot of mouthing off on "natural rights," whether with references to the Declaration of Independence or even by stretching the Constitution. But what are these "natural rights"? There seem to be religious connections. Of course, religions compete not only with each other but with non-believers. And history to the current times says a lot about the "contributions" of religions to warring factions. So are "natural rights" God given rights that apply to all, even non-believers? Hayekians in America lean to "natural rights" contra to Hayek's views, suggesting the cult formations of Hayekianism.

The author's part III. "The Problem of the State" (pages 384-5) sets forth his "negative argument" and his "positive argument" for the state. It is difficult summarizing these "arguments" so I suggest a careful read of these two pages. The author recognizes concerns some have with a stateless society and then sets forth how anarchists respond to such concerns. The author closes this part with: "It may, of course, turn out that a stateless society would be even worse, but it is unreasonable to simply assume this."

The author takes up in part IV. "Imagining Anarchy" (pages 386-8) to examine the stateless society and fitting into it Hayek's views. Would a stateless society be worse, or not? He closes this part with this: "The result would be imperfect, but it might b better than what we have now."

The author is not a progressive, at least in the American sense. A read of the author's part V. "Conclusion" (pages 388-9) makes this clear. He is a Hayekian mentored by his colleague Suri Ratnapala who has devoted his career to constitutionalism along the lines of Hayek.

Yes, Hayekianism is a cult. Hayek's economics don't work in the modern interdependent world nor does his constitutionalism, nor will stateless societies.


 

Shag:

Hayekian constitutionalism doesn't have even a toehold in the modern world of constitutions. So if Hayekian constitutionalism cannot pass muster, what is the alternative for Hayekian hypotheses? Can it be anything but anarchy?

Think about what you are saying for a moment or two.

Anarchy is a society without government. Such a society has never existed. Every society in history has always had a government from a tribal chief to the modern nation state.

Hayek supported a constitutionally limited government, which presupposes a government - not anarchy.

The fact that the modern progressive nations have largely gutted constitutionally limited government hardly means that "Hayekian constitutionalism cannot pass muster," any more than the prevalence of monarchy made our constitutionally limited government impossible back in 1788.

Establishing and maintaining our liberty against authoritarianism is a never ending battle.
 

Is our Own Mr. Myth wet-dreaming about a utopian Hayek constitutionalism coming into existence? Where? When? How - by revolution? Does our own Mr. Myth envision a "spontaneous" Hayekian limited constitutional convention?

With regard to our own Mr. Myth's view of anarchy, perhaps there are different varieties of anarchy as there are different varieties of libertarianism. Speaking of libertarianism, check out this link:

http://www.slate.com/articles/arts/the_dilettante/2011/06/the_liberty_sca

at Slate for Stephen Metcalf's "The Liberty Scam - Why even Robert Nozick, the philosophical father of libertarianism, gave up on the movement he inspired."


 

Shag from Brookline said...

"Is our Own Mr. Myth wet-dreaming about a utopian Hayek constitutionalism coming into existence? Where? When? How - by revolution?"

Hayek's constitutionally limited government is what we enjoyed before the 1930s and is hardly impossible to restore.

The implosion of the progressive political economy across the world over the next 20-30 years will either result in a return to limited government or the rise of a more virulent form of totalitarianism like last century's fascists.

In my more optimistic moments, I hope that America can reverse course before the implosion.

"With regard to our own Mr. Myth's view of anarchy, perhaps there are different varieties of anarchy..."

Anarchy has no other meaning apart from the abolition of government like atheism has no other meaning than a disbelief in God. They are absolute terms.

"...as there are different varieties of libertarianism."

Libertarianism is limited government. Unlike anarchy, that term can cover a great deal of terrain depending upon to what degree you believe government should be limited.
 

Shag:

Slate's Stephen Metcalf assumes the central fallacy and internal contradiction of progressivism and socialism - the only true liberty is submission to the collective will as expressed by the state - in order to take pot shots at Robert Nozick's libertarian utopianism.

Liberty is best understood as the ability of the individual to live as he or she pleases so long as they do not harm and thus deny liberty to others. This is not a difficult concept to understand and should be the ruler to measure whether a government policy does or does not infringe on liberty.
 

Here's our own Mr. Myth's latest myth:

"Hayek's constitutionally limited government is what we enjoyed before the 1930s and is hardly impossible to restore."

So our own Mr. Myth thinks Plessy v. Ferguson was fine? Consider how little before the New Deal [wink, wink, that's what he meant by the 1930s] and especially before the Warren Court short shrift was given to the rights of minorities under the bill of rights. Yes, once again our own Mr. Myth shows his true colors. I suppose our own Mr. Myth is of the view that with Brown v. Bd. of Educ. whites were deprived of their Jim Crow liberties.

Yes indeed, Hayekianism is a cult. Now what steps does our Mr. Myth plan for what he describes as a not impossible utopian wet-dream of restoring the Hayekian constitutionalism pre-New Deal here in America. (I'm sure our own Mr. Myth recalls the threat of the Tea Party [aka Faux libertarians] against the federal government re: Obamacare "Don't touch my Medicare!"

By the Bybee [expletives deleted], the author points out (page 381): "Hayek is not dogmatic about the limits of the state - for example, he supports a guaranteed minimum income for those who cannot provide for themselves - but he insists that state action be subject to stable limitations." Was Hayek just horsing around?

 

Shag:

Once again, a constitution requires the rule of law to be effective.

When racist and/or progressive authoritarians openly violate the Constitution, the problem is not with the Constitution, but rather the authoritarians.
 

And here's a further myth by our own Mr. Myth:

"When racist and/or progressive authoritarians openly violate the Constitution, the problem is not with the Constitution, but rather the authoritarians."

in defending his earlier myth after I pointed out a major flaw. Since the beginning of the 1930s to date Amendments 20 through 27 have been added to the pre-New Deal Constitution. Perhaps our own Mr. Myth could the point to how any of these impacted negatively Hayek constitutionalism that existed before the 1930s. None of these Amendments adopted as of the time Brown was decided (1954) was involved in that unanimous decision.

So, according to our own Mr. Myth's latest myth, the fault lies not with the Constitution but with " ... racist and/or progressive authoritarians ...." Pray tell, Mr. Myth, who were the progressives on the Court agreeing on the decision in Plessy v. Feruson? The Constitution was apparently perfect in the Hayekian limited constitutional sense but it was these authoritarians who were at fault. Imagine, this fault continued from 1896 to early 1954. Consider the conservative control on the Court during this period. Were they the racists referred to by our own Mr. Myth in his new myth?

Our own Mr. Myth is obviously a Humpty-Dumpty constitutionalist.


 

Shag from Brookline said...

Since the beginning of the 1930s to date Amendments 20 through 27 have been added to the pre-New Deal Constitution. Perhaps our own Mr. Myth could the point to how any of these impacted negatively Hayek constitutionalism that existed before the 1930s.

The amendment process did not gut the Constitution's walls between government power and our liberty since 1932. That was the work of outlaw progressive governments enacting unconstitutional laws and progressive courts refusing to enforce the Constitution to reverse those laws.

who were the progressives on the Court agreeing on the decision in Plessy v. Feruson?

When precisely did I blame Plessy on progressives?

I made a general statement identifying the two general flavors of authoritarians on the judiciary who have declined to enforce the Constitution's limits on government power. I used the "and/or" connector because progressives have often also been rabid racists.

"The Constitution was apparently perfect in the Hayekian limited constitutional sense..."

I never said our Constitution as written was perfect or it was what Hayek would have written.

I merely observed that Hayek argued for a constitution limiting government power and protecting things like the freedom of contract and to own property. America had a Constitution which largely achieved these goals for 150 years while it grew from a colonial backwater to the most successful nation state in history. Thus, the argument that the type of constitution for which Hayek called is impossible to achieve is clearly untrue.

but it was these authoritarians who were at fault. Imagine, this fault continued from 1896 to early 1954. Consider the conservative control on the Court during this period. Were they the racists referred to by our own Mr. Myth in his new myth?

Those we call libertarians today were called liberals back when Plessy was decided. Conservatives of that era were often authoritarians.
 

Our own Mr. Myth's " ... and/or ... " connector referenced "racist" on one side and "progressives" on the other side as Constitution violating "authoritarians." Perhaps his omission of "conservatives" was intentional self-defense. It seems clear that the "racists" were the conservatives on the Court in Plessy.

And is this yet another myth of our Mr. Myth:

"Those we call libertarians today were called liberals back when Plessy was decided."

Were there any such "liberals" on the Plessy Court? If so, then they were also racists (excepting Harlan, J. if he was such a "liberal" as he was in dissent in Plessy).

Granted, our own Mr. Myth did not say "perfect," rather, he said:

"Hayek's constitutionally limited government is what we enjoyed before the 1930s and is hardly impossible to restore."

As Tonto said to the Lone Ranger, "What you mean 'we,' Kemo Sabe?" Some didn't enjoy it. And our own Mr. Myth has failed to elucidate on how to restore what he now calls an imperfect Constitution. Why restore the imperfect, unless imperfection is a "liberty" enjoyed by whites via Jim Crow for so many decades after after the Civil War Amendments?

By the Bybee [expletives deleted], did Hayek publish a version of his constitutionalism?

For those interested, this link:

http://plato.stanford.edu/entries/friedrich-hayek/

is to the Stanford Encyclopedia of Philosophy on Friedrich Hayek. Check out his views on Social Justice in Part 5.
 

Shag:

Were there any such "liberals" on the Plessy Court?

Apparently only Harlan.

"What you mean 'we,' Kemo Sabe?" Some didn't enjoy it.

Agreed. Socialists then progressives relentlessly attacked the Constitution's checks on government power.

You can read the progressive writings on the subject in American Progressivism: A Reader.

http://www.amazon.com/American-Progressivism-Ronald-J-Pestritto/dp/0739123041

Pay special attention to Woodrow Wilson.
 

Our own Mr. Myth's:

"Apparently only Harlan."

seems to be only his guess that Harlan, J. was the only "liberal" (aka at that time - 1896 - a "libertarian") on the Plessy Court. How many Pinocchios does our own Mr. Myth get for this? Ah, but that's the nature of most of his research.

And our own Mr. Myth's response to some didn't enjoy the pre-1930s Constitution:

"Agreed. Socialists then progressives relentlessly attacked the Constitution's checks on government power

he raises again the question as to Brown v. Bd. of Educ. (1954). Was Brown such a relentless attack on the Constitution? Man up, Kemo Sabe, was Brown a relentless attack on the Constitution by socialists and progressives? And just what were these alleged checks on government power post-1920s? Of course our own Mr. Myth will have to scramble back on his earlier comments on Brown to avoid even more Pinocchios. As to Woodrow Wilson, we all know his anti-negro views as a son of the South. But he served in the late 19-teens, not post the 1920s, when our own Mr. Myth claims such relentless attacks on the Constitution took place. Alas, lack of consistency is our own Mr. Myth's hallmark.

By the Bybee [expletives deleted], note that our Mr. Myth fails to respond to this:

"And our own Mr. Myth has failed to elucidate on how to restore what he now calls an imperfect Constitution. Why restore the imperfect, unless imperfection is a 'liberty' enjoyed by whites via Jim Crow for so many decades after after the Civil War Amendments?"

Will our own Mr. Myth spearhead a call for a Hayekian limited constitutionalism convention? That would make even less of an impression than "Call for Philip Morris" by the bellhop Johnny back in the 1930s-40s radio days of my youth. [Note: my first cigarette was a "Twenty Grand" when apparently I might have leaned libertarian with that choice; but I got over it, as it was just smoke and mirrors.]

 

In case Joe missed it, in today's NYTimes Op-Ed "Legalized Bribery - Zephyr Teachout on Sheldon Silver, Corruption and New York Politics" Teachout zephyrs in before the big storm later today. Powerful stuff beyond NY politics.
 

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Thanks. I plan to read her book at some point. For now, I read "Joy in the Morning" by Betty Smith. Takes place in 1927-8 and a major character is going to law school. Semi-autobiographical.

The USSC just heard a case regarding judicial races. The oral argument did not lead one to be overly optimistic about things. I did think the advocate for the law did a pretty good job showing why judges justify higher test.

As to Silver -- guy had a long run. Time to go.


 

Shag:

Plessy and Jim Crow were facial violations of the 14th Amendment, not examples of an imperfect Constitution.

You do realize that progressives were either eager supporters or enablers of Jim Crow for decades?

http://reason.com/archives/2006/05/05/when-bigots-become-reformers

http://www.independent.org/publications/tir/article.asp?a=947

http://www.nationalreview.com/articles/345274/progressive-racism-paul-rahe

After a brief flirtation with equal protection in the Brown I decision, progressives simply changed the victims and beneficiaries of their government imposed racism.
 

Now our own Mr. Myth focuses on Brown I, suggesting that the civil rights movement it generated warped the Constitution, e.g., with the Civil Rights Acts of the 1960s. Surely by now our own Mr. Myth cannot ignore that Brown I, its progeny, the civil rights movement, the Civil Rights Acts of the 1960s, resulted in the shift of the base of the Republican Party to whites from the former slave states, still the base of the Republican Party. Perhaps they were secret libertarians all along, doing no harm to other libertarians including in the North. Our own Mr. Myth cites to extreme right wing sources. But what is clear is that our own Mr. Myth, and perhaps most libertarians, show their true colors by "accepting" Brown I but in effect rejecting what followed with the civil rights movement, thereby justifying the change in the Republican Party's base that continues to this day to be the solid South former slave states.

And our own Mr. Myth's:

"Plessy and Jim Crow were facial violations of the 14th Amendment, not examples of an imperfect Constitution."

has to be put in a timeline as it took at least 8 decades before Brown came along in early 1954( unanimously) to start to unravel these violations based upon the facial features of African Americans.

Alas, our own Mr. Myth cannot backtrack from his earlier myth:

"Hayek's constitutionally limited government is what we enjoyed before the 1930s and is hardly impossible to restore."

with his now defense of those long term "facial violations" of the Constitution pre-1930s.

And note that our own Mr. Myth continues to duck elucidating how Hayek's constitutionalism might be restored. Perhaps our own Mr. Myth might suggest reparations of some sort for the 8 decades of such "facial violations" of the Constitution pre-1930s.

By the Bybee [expletives deleted], here's our own Mr. Myth's most recent myth:

"After a brief flirtation with equal protection in the Brown I decision, progressives simply changed the victims and beneficiaries of their government imposed racism."

Our own Mr. Myth overuses the word "simply" quite frequently, perhaps the product of his simpletonian mind. Who are these victims, who are these beneficiaries of his allegation of racism? Spell it out, Mr. Myth, if it's so simple. But our own Mr. Myth should keep in mind income/asset inequality in doing so.

Query: Do other libertarians share the views of our own Mr. Myth's self-proclaimed libertarianism?

 

Today's NYTimes features an article on the conservative (aka libertarian) Koch-Bros $889 million budget for 2016. Maybe this will inspire Zephyr Teachout to contribute another Op-Ed to the NYTimes to point out what the conservative 5 of SCOTUS wrought with Citizens United giving a further leg-up to income/asset inequality. [Now Republican blame Obama for the income/asset inequality gap. That's CHUTZPAH!]
 

Eric Posner's Blog provides a link to his Slate article on flip flopping which references his and Cass Sunstein's paper on that topic. This brought to mind Big Joe Turner's "Flip, Flop and Fly," with its lyrics unrelated to the Slate article available here:

http://www.lyricsmode.com/lyrics/b/big_joe_turner/flip_flop_and_fly.html#!

Both political parties flip-flop, as do SCOTUS Justices, as noted by Posner, perhaps flying by the seat of their pants.
 

b. January 27, 1955

Happy Birthday CJ Roberts.

Have a piece of cake and Madeira wine, just like CJ Marshall.
 

Dail Kos on Mitt RMONEY quotes from a WaPo article:

"Now, Romney speaks openly about his service as a lay pastor in the Mormon church; recites Scripture to audiences; muses about salvation and the prophet; urges students to marry young and 'have a quiver full of kids'; and even cracks jokes about Joseph Smith’s polygamy."

This might suggest that our own Mr. Myth could support Mitt since Mitt encourages breeding to fill the coffers of what may be a major problem for the Republican Party that our own Mr. Myth has recognized. Imagine, mixing religion and humor. I guess Mitt now figures that the "prophet" is no longer a loss, applying his Bain Financial skills that added to his bane in 2012. And I await those jokes Mitt cracks about the prophet's polygamy. Could it be that the prophet was a libertarian (liberty to marry many) rather than a libertine (merely do the nasty with many)? Maybe we'll have to dunk Mitt with ice cubes to separate church and state if he actually decides to run.
 

Larry Solum at his Legal Theory Blog posts on his "What Should Count as an Originalist Case for a Right to Same Sex Marriage" triggered by the VC discussions between Orin Kerr and Ilya Somin that is a great read for both adherents of originalism and non-originalism. Solum is a new, new originalist. As to his own view on the questions he raises, he says "I don't know" the answers.

By the Bybee [expletives deleted], Solum makes reference to the impact of "social norms" as they change (such as with respect to SSM) on constitutional interpretation/construction. Hmmm. Hayek stressed "social norms" in his writings on constitutionalism. Do libertarians recognize their right to SSM, but might be concerned (a la Mil)l that it might cause harm to others who believe that marriage is limited to a man and a woman? Is this a libertarian conundrum?
 

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Zephyr Teachout participated on the panel of Larry Wilmore's the "Nightly" last night (1/28/15) which focused on the Koch Bros $889 million 2016 campaign "Dark Money."

Query: Should the Supreme Court consider post-Citizens United "Judicial Notice" on whether Congress can consider possible corruption in enacting campaign funding laws?
 

http://lsolum.typepad.com/legaltheory/2015/01/what-should-count-as-an-originalist-case-for-a-right-to-same-sex-marriage.html

"Different theorists want to draw the line at different places."

Indeed. As to social norms, I earlier provided two links to 2003 (Lawrence v. Texas) and 2005 (same sex marriage deemed not yet clearly protected by the Constitution via reasoning I found at the time weak) by Prof. Balkin.

His view of "due process" itself doesn't only recognize application is "influenced by changes in social norms" but argues that they directly change over time the liberty protected. Rights here develop in part by social recognition such as the right to have sex outside of marriage. Much has changed here even since 2005.

Changing "facts" also is important here -- the facts on the ground, in our scientific knowledge etc. all affect the rights of same sex couples and GLBTQ individuals. Scalia's question to Ted Olson about "when" same sex marriage became a right comes off as simplistic at best.

In the real world, the "constraint" function of originalism has been shown to be dubious. It also clashes with "fixed" prong. What if the "fixed" text and meaning is not constraining? What if it is not really fixed? What if original understanding requires "due process" etc. to develop over time? If this gives "too much power" to the judges, is it their job to resist it? The policy is set by the document -- it is not their job to resist it, right?

Finally, as to "require" vs. "can be affirmed," the reality is the latter. You have some who don't care much about originalism. So, the determining factor will be those in the middle who need it to be originalist friendly enough to work.

Factoring in the text, overall principles and changing facts, same sex marriage works here as some have pointed out. The fact Ben Franklin or something would be surprised is not the determinant here.

"Don't know" is a useful bit of humility.
 

Larry Solum has posted at his Legal Theory Blog:

"More on Originalism and Same Sex Marriage"

which responds to Orin Kerr's response to Solum's earlier post on the subject of the view of originalism on the constitutionality of SSM. (I haven't read Kerr's response.) Solum's response is quite lengthy and detailed. He "tags" certain of Kerr's approaches as "Populist Originalism" that Kerr describes as currently, today; and also to "Batshit Crazy Quasi-Originalism." These are tags applied by Solum, not by Kerr. Solum points out, as he did in his earlier post, that neither Kerr nor Somin are originalists. It should be kept in mind that Solum is addressing the question of whether originalism can support constitutionality of SSM. (As I noted in my earlier comment on Solum's original post, Solum does not take a position on this as it requires a comprehensive study, including of the public meaning of the privileges or immunities clause of the 14th A, among other provisions in the Constitution. Solum references both Kurt Lash and Randy Barnett who may have differing views especially on the p/or/i clause as it might be applied to this SSM issue. Solum also makes passing reference to Mitch Berman, a non-originalist, but without mentioning Berman's 1989 article "Originalism Is Bunk."

Solum has also mentioned our host Jack Balikin in each post but not in great detail . Some have referred to Jack's originalism as "light." I have referred to it as "cross-dressing originalism" based upon his concept of "living Originalism" with a foot planted in each world of constitutional interpretation/construction. Maybe Jack will jump into the fray.

One of the problems with originalism of all stripes is the need to force fit cases into that theory/theories; if originalists cannot do this, then originalism is flawed (which I think it is in any event - but don't take my word for it, check out Mitch Berman's article).

It is said that it takes a theory to beat a theory. Is this actually a constitutional canon? If so, it can shoot blanks.
 

I found that "bunk" article cited on a previous entry of his blog, but it's 95 pages long. Another was only five:

http://www.fed-soc.org/publications/detail/originalism-in-a-nutshell

Not being as interested in originalism as Shag, that is more up my speed. But, scholasticism can be interesting, especially when the monks run things.
 

The title of this post of Sandy's, to wit, "Obfuscating what judges do," might be befitting of the debate between Orin Kerr and Ilya Somin at VC, neither of whom is an originalist, which Larry Solum is "moderating" as an originalist. After all only Justices Scalia and Thomas are avowed originalists (when convenient) on the Court.

It is worth paying attention to what Solum says about "Populist Originalism." Solum in a sense confirms Somin's recent book on the failings of many voters to understand what is going on in the political world. It's like many claiming to be libertarians more as an affectation rather than based upon a study of libertarianism. (How can one be against "liberty" unless one takes liberties with the real meaning of "liberty"?)

Originalists do not like to challenge Brown v. Bd. of Educ. (for what I think are obvious reasons). But they end up pretzel shaped in trying to demonstrate that the decision fits with originalism, or at least one of originalism's several theories. Otherwise, the theory collapses even without another theory.

I await Kerr's response to Solum, especially on what Solum tags as "Batshit Crazy Quasi-Originalism" argument of Kerr.
 

This goal becomes increasingly important the later one goes in a political regime. Online Lawyer Marketplace But at this point in history it may be possible that no one, not even Romney, can manage his increasingly fractious party.
 

Joe's:

"Not being as interested in originalism as Shag, that is more up my speed. But, scholasticism can be interesting, especially when the monks run things."

has been weighing on me. My interest in originalism is how it arose. When I finished law school in 1954, originalism was not prominent whatsoever. Looking back, it seems clear to me that the movement began as a response of conservatives (including libertarians) to the Warren Court and in particular the Warren Court's foundational Brown v. Bd. of Educ. in 1954, which started the civil rights movement that led to the Civil Rights Acts of the mid 1960s. Ed Meese, Reagan's AG, came to the forefront in the early 1980s with original intent of the Framers/Ratifiers. The Federalist Society was established about the same time. Paul Brest pointed to the problems with determining group intent with his splendid article. This resulted in a shift of theories that seem to continually evolve. With the advent of legal blogs on the Internet, we hear from a lot of the "monks" Joe refers to, evidencing significant legal academia competition in the search for the Holy Grail of constitutional interpretation/construction., producing a lot of "law office history." Two of the major cases before the Court this term involve Obamacare and SSM. The "monks" are not silent (nor do they wear sackcloths). Yes, the competition is keen. The battle between originalism and non-originalism has been fueled, perhaps contributing to the political dysfunction that exists not only with the elected branches but also with the Court. Some of the "monks" want to be the first out there. This stirs up the competition. It is fairly easy identifying the political ideologies of many of the "monks" who seem to have no doubts about their positions. But how helpful is this competition? Will Justices be influenced? As I understand it, there are only two confirmed originalist on the Court and they are not consistently so. (I understand that some Justices place very little stock in the proliferation of amici briefs filed with the Court.) How about the general public? Interpreting the Constitution over the years has not been a simple matter, especially with changing circumstances. Controversy will continue, especially as the Court has become even more politicized than in Mr. Dooley's days. And even the "monk" have become more politicized. And Thomas Edsall at the NYTimes recently noted the extent of political polarization with respect to the major political parties. Might this result in the law being "a ass" (or "an ass" per VC's Eugene)? Can we expect more "monks" to jump into the fray? Stay tuned.
 

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A contributor to this blog at Concurring Opinions cited the debate over at Volokh Conspiracy. He notes:

"“Originalism” is now the legal equivalent of “organic produce.” We know that it’s better than non-originalism and non-organic, but we have no idea what the difference between them is."

Now? I think the die was cast a long time ago there. And, it really isn't as bad as all that. Unless "originalism" means "conservative legal results."

I realize many in the '80s thought so. But, that's popularity for you. The darn hippies are trying to take over the movement. They aren't the real originalists though.

They might use history to show how original understanding would get to where they want to go in the same basic way as you. But, they are doing it wrong. Somehow.
 

Is Whole Foods a sponsor at Concurring Opinions? "Organic" calls for a higher price but is ill-defined and misused frequently, somewhat like originalism. Years from now the problems with the Constitution will be blamed on "originalist sin."

By the Bybee [expletives deleted], was the Garden of Eden "organic"? Even if, it did not stop "original sin."
 

Some interesting discussion of a somewhat obscure issue:

http://electionlawblog.org/?p=70021

I skimmed Buckner F. Melton, Jr.'s article & it underlines how even fairly simply historical points can be confused and confusing (here related to the power to impeach senators, which was brought up sometime here in a recent comment).

Adds to the limitations of originalism. It does make things more interesting.
 

Paul Krugman's blog at the NYTimes has a post "Bad Tayloring" that addressed the "taylor rule" in economics which Krugman factually disparages. But I was especially amused by this line of Krugman:

"But the future isn’t what it used to be."

Out of curiosity I "Googled" and there were quite a few hits. I just did not recall the line before.

Originalism isn't what it used to be. The "dead hand" should not control the future as if the future is a dummy. A recent article in the Science section of the NYTimes focused on "star dust" obscuring a closer view of the "Big Bang" (which according to the TV show of that name took place 14 million years ago). Perhaps the "monks" in academia in their efforts to unearth public meaning back when in the much, much shorter history of the Constitution and its various amendments might have a different kind of "star dust" in mind with their new discoveries in history. But these "monks" may be more astrologers than astronomers; either way, some originalists are spaced out.


 

In fairness, I should note that I haven't discerned ideology in Larry Solum's new, new originalism; rather, he seems to take the scholarly approach.

I would apply the same to Kurt Lash, although I am not quite sure of which theory of originalism he falls in. He has critiqued McGinnes and Rappaport's new book on originalism in a review "Originalism All the Way Down?" I recently read Lash's "The Sum of All Delegated Power: A Response to Richard Primus, 'The Limits of Enumeration.'" While Lash praises Primus' article, he rejects Primus' thesis challenging the "internal-limits canon" of the Constitution: "By noting the Supreme Court's failure to offer a fully elaborated argument, Primus's article provides the occasion for scholars to fill this gap.

"As this Essay demonstrates, however, the gap is easily filled." (Pages206-7, from Lash's "Conclusion::The Canon and the Text.])

Lash ties together the original Constitution and the Bill of Rights (particularly the 9th and 10th As) as belt, suspenders and jockstrap to demonstrate indeed the "internal limits canon." Lash makes a strong argument, which can be worrisome on claims of dual sovereignty limiting the federal government.

[Lash's Essay is available at the The Yale Law Journal Forum.]
 

P.S. to my pior comment: Gerard should check out Kurt Lash's Essay on the Bill of Rights for his current book project.

P.P.S.: The title of Lash's critique on McGinnis and Rappaport's new book on originalism ends with a question mark. On another thread at this Blog, I was curious as to the meaning of "All the way down." One thing that came to mind was Stephen Hawking's "Turtles all the way down." Take a peek at Wikipedia:

http://en.wikipedia.org/wiki/Turtles_all_the_way_down

But after further review, I came to the conclusion that Lash was playing on a similar title of a colleague's paper without the question mark. At the time, it wasn't clear to me whether Lash was an originalist. His more recent Essay suggests he is (but doesn't indicate which theory of originalism). In any event, Lash is very strong on history in his writings.

I wonder what Lash's views are on Brown v. Bd. of Educ. as supported by originalism.

By the Bybee [expletives deleted], the NYTimes has an interesting timeline on the Civil War as well a separate piece on the influence of abolitionism on the 13th A. CBS's feature of "The More You Know" comes to mind. But we're getting more and more "historical discoveries," which has originalism evolving. Maybe our host Jack Balkin has it right with "Living Originalism." The "monks" in legal academia are perhaps amateur "archeologists" on such discoveries (aka law office history) as compared to disciplined historians.
 

Speaking of historians, over at the Legal History Blog its Sunday book review feature provides links to reviews of recent books on the role of history.
 

Paul Krugman has an interesting item on his NYTimes blog: "Floor Waxes, Dessert Toppings, and Blogging" that starts off with Andrew Sullivan's withdrawal from blogging to the broader issue of blogging, that should be heeded by many bloggers to have their bloggings become more meaningful - don't just shoot from the hip every time a thought comes to mind put some thought into it.
 

Larry Solum at his Legal Theory Blog weekly feature "Legal Theory Bookworm" recommends "Judging Statutes," by Robert Katzmann.

This is followed by Solum's occasional "Lexicon" feature, this week on "Textualism." [This feature is aimed at law students, according to Solum, but it should be welcome to practitioners as well.]

These postings back-to-back may be coincidental, even though they relate to each other, especially with King v. Burwell soon to be argued before SCOTUS.

At this Blog, Timothy Jost has just posted "The Amici Briefs Supporting the Government's Position in King v. Burwell." Those interested in the post, especially those who may link to some of such Briefs, might check out Solum's Lexicon on "Textualism" as well as the description of "Judging Statutes."

I'm not a conspiracy theorist and accept all of these posts as coincidental but relevant.
 

Over at Concurring Opinions Ronald Collins has an interesting interview of Dean Erwin Chemerinsky.
 

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Doesn't your consequentialist evaluation have to factor in the congressional reaction?

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