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Sunday, May 08, 2016

Federalist #1 on Donald Trump

"A dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants."

113 comments:

  1. Maybe, Sandy Levinson can add something in a later edition of his Federalist book.

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  2. I understand there is a "Blame Shag from Brookline for Trump" movement based on my "promotion" of the Cruz Canadacy. I thought the Church Lady on SNL last night was going to blow my cover. But I think it was the shilling by SPAM I AM! for Cruz at this Blog that convinced so many older undereducated white males to vote for Federalist No. 1 (Trump) and not Federalist No. 2 (aka Lucifer).

    If Sandy can't come up with something to add from his recent studies of the Federalist Papers, perhaps a check of Mary Bilder's "Madison's Hand" might. But imagine what the Constitutional Convention might have been like if someone like The Donald was one of the Framers..

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  3. I blame John McCain. How did he lose to Obama when he had such great poll numbers?

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  5. If that's a serious question, suspending his campaign probably didn't help any.

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  6. Seriously, is there a question posed in the post? BB's question was clearly tongue-in-cheek. Is Brett referring to Lucifer?

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  7. Is this quote about Donald Trump or Bart?

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  8. No, it's not about our rural SPAM I AM! who's only a wanna be, whom I have described as a NOAGN* and who his little mountaintop neighbors in CO aptly describe as just another pisshole in the snow.

    *NIT ON A GNAT'S NUT

    Imagine if a Trump-type Framer were also in Congress debating the BOR proposal in 1789 and making clear that the speech/press clauses should not bar anyone from suing when slighted by speech/press.

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  10. Gerard:

    "A dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government.

    Donald Trump?

    Ummm... Trump is offering a very fascist campaign promising firm government run by a strong leader, ruling by decree if necessary, to repel foreigners and their goods and services.

    Hillary Clinton offers far more promises of (collective) rights of the people than does Trump.

    Does this mean that Clinton is more likely to turn into a tyrant than Trump?

    In reality, Hamilton used Federalist 1 to attack Anti-Federalist critics of a stronger federal government. Both Trump and Clinton are the antithesis of Anti-Federalists.

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  11. The Federalist Papers probably have a lot of good quotes for this election though different sides will apply them differently. The very opening sentences seem to apply, again, how would depend your point of view.

    "AFTER an unequivocal experience of the inefficiency of the subsisting federal government, you are called upon to deliberate on a new Constitution [President] for the United States of America. The subject speaks its own importance; comprehending in its consequences nothing less than the existence of the UNION, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world."

    Every surviving Republican general election candidate or actual President except for Dole (which is, honestly, just sad -- no joke) has endorsed Trump. McCain and Romney are on record. Both Bushes "have no plans" to endorse him.

    https://www.texastribune.org/2016/05/04/bush-41-43-have-no-plans-endorse-trump/

    Talking Points Memo has a running count but it's a bit soon to tell. Stages of grief and all. The Federalist was for "the Independent Journal." How much will third parties affect this election? Time will tell, with or without song.

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  12. (Buchanan, who ran for President, is a Trump supporter; on the veep front, so is Palin though Ryan isn't there yet)

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  13. Joe: How much will third parties affect this election?

    Not much.

    The talk among conservatives about running a third party candidate is just talk. There is no candidate or campaign infrastructure and the deadlines for registering as an independent to get on the state ballots are past or will soon be past.

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  14. BTW, Trump is due to get classified materials as the nominee. I guess that isn't as important these days with so much material leaked but worries some.

    The show Veep is dealing with a tied electoral vote situation but yes third parties should not do something like that -- http://www.lawyersgunsmoneyblog.com/2016/05/the-presidential-election-will-not-be-decided-by-the-house-of-representatives

    But, you know, this is a "black swan" election (h/t Brett) and if at least one state goes to Clinton because the Libertarian Party (new member: Mary Matlin) or something gets a few more percentage points and throwing things her way, it would not surprise me.

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  15. "The talk among conservatives about running a third party candidate is just talk."

    Unless the goal is just to sabotage Trump, and assure Hillary wins. In which case they might be able to put together something in a few states that could cost him enough votes to tilt the election to her for sure. Electing anybody else would be a joke even if they had all the time in the world.

    After all, they couldn't even defeat him in the primaries. They're not going to beat him AND Hillary at the same time, on ground they don't control.

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  16. The classified briefings will expose Trump to actual facts about the world and the kind of decisions a US President has to make every day. The experience could bolster his delusions of competence. They might also play on vestiges of self-doubt. Does Trump really want to be President, and if so, why? He craves adulation, like Nero. That's what he's getting from the campaign, and won't get if by some satanic miracle he is elected. It's not at all clear Trump wants the job, as opposed to the glamour of running for it. If the polls don't improve, I guess that he may well effectively throw in the towel in October, and turn of the funding tap from his own fortune. We fought the good fight etc. That's a disaster scenario for down-ticket Republicans: an absentee presidential candidate.

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  17. Brett:

    If Trumpism is the future of the GOP, those of us who believe in limited government and individual liberty may need to start thinking very seriously about sending the GOP the way of the Whigs and forming a new party for the next presidential election.

    From my perspective, Trump and Clinton offer the worst choice for president in American history and either presents a clear and present danger to what remains of our constitutional government.

    We shall see how things turn out this fall.

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  18. James Wimberley has some interesting thoughts.

    The "he doesn't really want the job" idea has been out there for a while & some argued he in effect was throwing the primary election in certain ways. But, darn if the voters made him the presumptive nominee anyhow.

    I can see this affecting the race but Trump has a level of self-delusion (or however we would like to frame it) that mere poll data might not do much.

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  19. My personal hypothesis is that this started out as a lark, and at some point he realized he actually had a shot at it, and he figured, "Why not me? I'd make a better President than any of these morons." And it became a real effort to become President.

    And, why should he care about the polling data? The polling data said he couldn't get the nomination, and here he is. Why should he think the general election polls are any better? I think the real question is, why does anybody else place any reliance on the polls at this point?

    "If Trumpism is the future of the GOP, those of us who believe in limited government and individual liberty may need to start thinking very seriously about sending the GOP the way of the Whigs and forming a new party for the next presidential election."

    I hope you're clear about just how difficult a task that is. The US political system has been deliberately reengineered over the last few decades to make it much more hostile to third parties than a mere "first past the post" system has to be. It's no accident the Tea Party was an effort within the Republican party, rather than a third party push.

    That's no small part of why things have gotten so bad: They no longer fear being replaced, so each party only thinks it has convince its base that it's the lesser evil, not that it's actually good.

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  20. "I think the real question is, why does anybody else place any reliance on the polls at this point?"

    Because poll data didn't suddenly become useless to the extent "any" reliance is foolhardy?

    To clarify a comment, McCain appears to be on the "accepting Trump" side though an article in a local paper said it was somewhat conditional.

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  21. My good eye is in process of un-dilating but glad to see the usual suspects so engrossed in the Federalist Papers.

    The reactions of Republicans to Trump as the presumptive nominee might suggest to the Republican Party that when the GOP primaries/convention hand the Party Donald J.Trump, make orangeade. A song along these lines may make the charts., sung by Carly Fiorina. But some Reublicans might prefer Jonestown Koolaid.

    And Donald's talk of hairspray while campaigning in coal country might suggest to some if he loses the election his starring in the musical of the same name, tying in how he "outdanced" 16 "losers" to get the lead. What a drag that would be.

    SPAM I AM!'s:

    "Trump and Clinton offer the worst choice for president in American history and either presents a clear and present danger to what remains of our constitutional government."

    demonstrates his ignorance on equivalency as well as history (but shows his expertise at hyperbole). An excellent example of equivalency is: SPAM I AM!= Brett.

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  22. ""I think the real question is, why does anybody else place any reliance on the polls at this point?""

    Polling data has, for a long time, shown Trump was the GOP frontrunner. What exactly is wrong with it?

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  23. Brett has pointed out that certain people were at least early on wrong about Trump including pollsters and he translates this to "any" reliance being of little value.

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  24. "Polling data has, for a long time, shown Trump was the GOP frontrunner. What exactly is wrong with it?"

    And if polling data continues to show a Hillary landslide after both conventions, say in August or September, I might have some interest in that. But general election polling before the general election campaign has begun? Are you kidding me?

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  25. No. Shag is the kidder.

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  26. Trump's base of older undereducated while males rely upon "poll dancing" both primarily and generally to measure Trump's popularity, as well as their own. Alas, that won't challenge the changing demographics or Trump's small hands. (See Jon Stewart sharpening the Axe.)

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  27. Would you use insults so freely if you had arguments? I have my doubts.

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  28. Trump cannot be effectively insulted so you, Brett, must feel that you are being insulted.

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  29. "X can not be insulted" is just an excuse for insulting X. But, as it happens, I was born with extremely small hands, so I'm particularly irate about that one.

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  30. Brett, if your comment photo disclosed your hand-i-cap, I would have been more sensitive to your situation in my aims at The Donald. But it is not size that matters in propagating to hold back the changing demographics. Besides, Republican Marco Rubio started it - and on TV - after Marco had been insulted by The Donald. To be fair, Marla thought The Donald was great while married to Ivana, the immigrant. But then Marla was dumped for Melania, aIother immigrant. What the Revengelicals will make of this in the general election, I don't know. I'm still confused with Genesis 1 and Genesis II and Original Sin to try to straighten this all out. Maybe I can brew over this with a Genesee.

    I now understand why in your youth you gave pulling radishes alongside Mexican farm workers with your hand-i-cap, as it was putting you at a competitive disadvantage. I would hope that those workers were sensitive with you. But you overcame this hand-i-cap by mastering the keyboard and not having to deal with the manual carriage return. So in a sense you made lemonade., to your credit.

    In the future, im making references to The Donald's small hands, I plan to note that the reference is not to you in recognition of your sensitivity. Thanks for pointing this out.

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  31. Shag, if you think the problem with denegrating a candidate on the basis of an irrelevant physical characteristic is that in might annoy someone you spar with online, and not that it's utterly irrelevant, you're pretty dense.

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  32. Brett, your earlier response::

    "But, as it happens, I was born with extremely small hands, so I'm particularly irate about that one."

    was taken seriously by me. But it seems you were kidding a kidder. Touche, or rather, touchy, touchy. So you now reveal you are not irate with my references to the issue, relevant or irrelevant, that Republican Marco Rubio raised in a Republican debate about candidate Trump. I'm not sparring with you online or elsewhere, just making small talk. From your comment photo, I should have assumed you have giant hands. You got me good with being irate because of a hand-i-cap.

    Of course, The Donald responded about his masculinity to Rubio in the debate. Apparently The Donald can speak for himself. And I'm glad you are no longer irate. So now i can freely make small talk about The Donald's small hands. That's a relief.

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  33. Donald's talk of hairspray while campaigning in coal country might suggest to some if he loses the election his starring in the musical of the same name, tying in how he "outdanced" 16 "losers" to get the lead. What a drag that would be.Justice They no longer fear being replaced, so each party only thinks it has convince its base that it's the lesser evil, not that it's actually good.

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  34. He craves adulation, like Nero. That's what he's getting from the campaign, and won't get if by some satanic miracle he is elected. It's not at all clear Trump wants the job, as opposed to the glamour of running for it.Donald TrumpI hope it reaches your targetted audience. all the best thank you.Enjoyed looking at this, very good stuff, appreciate it.

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  35. I would have been more sensitive to your situation in my aims at The Donald. But it is not size that matters in propagating to hold back the changing demographics. Donald TrumpI just stumbled upon your blog and wanted to say that I have really enjoyed surfing around your blog posts.Utterly pent content material

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  36. I hope you're clear about just how difficult a task that is. The US political system has been deliberately reengineered over the last few decades to make it much more hostile to third parties than a mere "first past the post" system has to be. It's no accident the Tea Party was an effort within the Republican party, rather than a third party push."Federalist #1 on Donald Trump"thanks for information .

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  37. spam bot evolution!

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  38. "And I'm glad you are no longer irate. So now i can freely make small talk about The Donald's small hands. That's a relief."

    Sure, feel free to attack him on the basis of his race, eye color, national origin. Any characteristic that's utterly irrelevant to the job he's running for. It's not like you take any of this seriously, you're just in it to fling poo.

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  39. It is like Shag's comments are out of left field - ha ha - and have no basis on what Trump says all the time, including his oversensitive (like many a bully -- sorry ... is that unsubstantiated criticism too?) replies to any kidding about him personally.

    Shag clearly takes this seriously as some of his personal remarks about his ire about certain individuals show. The 'just ignore him' Mark Field approach to BP might be better, but up to the person.

    Along the way, he also provides substantive serious remarks about the issues. Talking about hands is not the same thing as talking about "race" or "national origin," though he did that with Cruz too required being Canadian, a clear dig at the birther movement.

    There is the possibility of deeply disagreeing and realizing basic things like this. But, personal distaste sometimes makes this impossible. Just something we have to handle as human beings including in elections, I guess.

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  40. Talking about the size of somebody's hands is the same as race in a very serious respect: It's got nothing to do with the job performance. Trump could be a multiple amputee and it wouldn't have anything to do with his fitness to be President.

    But after all this time, I have to admit it's silly of me to expect Shag to not resort to what he imagines to be witty puns and sly insinuations. If you took that part of what he says away, he'd have very little left to say.

    It just seems to me that he's getting worse as time goes by. But I guess we all age.

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  41. The size of someone's hand -- at the very least when it isn't a matter of an actual issue like an amputee -- is different from race in a very serious respect. Race is a particularly serious basic thing with great weight in this country.

    You ignoring my basic point -- Shag's snark is in response to Trump's own pettiness (or worse) is duly noted and just a tad silly. It is not like he REALLY is saying the size of his hands matters. I can be annoyed at someone or deeply disagree with their politics or beliefs and understand basic things like that.

    Looking at old posts shows me that a decade ago Shag liked to make these little silly digs along with ALSO substantive remarks while ALSO showing he does deeply take "seriously" his targets. Probably too much if comic potshots at someone who was so sensitive about remarks that he brought up the size of his penis in a debate is being compared to talking about a person's race in such as serious fashion.

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  42. Trump started fling poo first. And I thought that Brett would have been upset about Trump's escalatory down opening of his campaign with his attacks on Mexicans, a people Brett worked alongside pulling radishes in his youth in northern MI, unless perhaps Brett experienced something back then that attaches him to those views of Trump on Mexicans.

    And speaking of race, Brett might address Trump's base of older undereducated white males, who are aging not well with the changing demographics (SDT).

    By the Bybee [expletives deleted], references to anatomical parts were racial inspiration for Jim Crow laws.

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  43. One reason it pisses me off is that I do have short fingers. As birth defects go, it's no big deal; I'll never play piano, and have trouble digging coins out of coin return slots, and that's about it. It's even convenient at times that I have the same glove size as my rather petite wife. But Shag goes on about it as though it actually had some relevance.

    "And I thought that Brett would have been upset about Trump's escalatory down opening of his campaign with his attacks on Mexicans,"

    I don't care to humor the pretense that Trump has been attacking Mexicans, as opposed to illegal immigrants who happen to be mostly from Mexico, because Mexico has a deliberate policy of dumping people they don't want into the US.

    A policy which Fox just threatened would be escalated if Trump did try building a wall.

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  44. Brett's claim that:

    "Talking about the size of somebody's hands is the same as race in a very serious respect: ...."

    perhaps is based upon the Cuban-American Republican candidate Marco Rubio having charged Trump with having small hands. Trump responded that he was well-endowed (in a non-financial respect) perhaps feeling his masculinity was being challenged. Later, after Trump's Playboy days statements on his sexual achievements were disclosed, Cuban-Canadian-American Republican candidate Ted Crus, after a Trump semi-attack on Ted's dad during the Indiana primary campaign, declared that Trump was a serial philanderer, etc. So one could take this as supporting Brett's race claim, because Trump's fellow competitors might be considered people of color daring to be racial against Trump? What if the innuendo of "small hands" was a "small mind," would that have been racial? But Trump with his "street smarts' knew better.

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  46. Linda Greenhouse's NYTimes column today reviews the blame CJ Roberts for Trump game, focusing on ilya Shapiro and Randy Barnett, also noting Jack Balkin's take at this Blog, but no mention of Orin Kerr. It's probably more accurate to blame Ilya and Randy for Trump with their libertarian conspiracy theory. Randy is the self-appointed head of HIS Republican Constitution's "Lost and Found Department." Alas, Randy could not place blame on deceased Justice Scalia (a fellow originalist) who snuffed out in Raich Randy's efforts to cure his chronic case of WickBurn with homegrown (intra-state) ganja.

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  47. The Originalism Blog provides a link to Herbert Hovenkamp's New Rambler review of "American Amnesia: How the War on Government Led Us to Forget What Made America Prosper," by Jacob S. Hacker and Paul Pierson. Reading this review is a reminder of the amnesia of SPAM I AM! who wants to return to America's future The Gilded Age of the late 19th century, claiming those were America's best days. Hovenkamp fills in some of the history that the authors did not address and elaborates on the blame for this amnesia, including references to libertarianism and its inseparable Ayn Rand. In the words of the pre-politics Ronald Reagan, "Progress is our [America's] most important product." (The printer-friendly version fills 4 pages.)

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  49. Shag:

    The Greenhouse op-ed is a tutorial on how totalitarians view the Constitution.

    Randy Barnett noted that, instead of enforcing the Constitution's limited powers (what he calls the Republican Constitution), Roberts employed the progressive strategy of "judicial restraint" to rubber stamp a progressive Congress acting beyond its powers (what he calls the Democratic Constitution).

    (Try actually reading Restoring the Lost Constitution and Our Republican Constitution and before commenting on them further out of obvious ignorance).

    Apparently viewing constitutional law as politics by other means, Greenhouse translates Barnett's comments and those of other critics that Roberts was rewriting the Constitution and the Obamacare statute into a complaint that "Chief Justice Roberts...isn’t sufficiently political in the right direction" and demands to enforce the law as written as "judicial activism" or outright "derangement."

    The thesis of Hacker and Pierson's American Amnesia: How the War on Government Led Us to Forget What Made America Prosper that "The mixed economy was the most important social innovation of the twentieth century. It spread a previously unimaginable level of broad prosperity" is nothing more than a defiant scream in the face of increasingly unavoidable reality.

    With the advent of populism and then progressivism, which in turn incorporated fascism and socialism, every expansion of government size and power has reduced GDP and employment growth, until our GDP is now barely growing at all and the percentage of Americans with work is falling.

    Mr. Obama is the first American president who never presided over a single year of 3%-plus economic growth or a growing percentage of Americans with work. Instead, average growth since the recession ended in the beginning of 2009 has been around 2% and is now falling while the percentage of Americans with work has been in a constant slide.

    And this American economic depression is the best performance among the totalitarian political economies in the developed world.

    Totalitarianism does not work boys and girls.

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  50. Where does one start with all the examples of hyperbolic overstatement at best, nonsense at worst, in Bart's latest screed? The proverbial mosquito in the nudist colony comes to mind.

    Should one start with the especially laughable connection of Randy Barnett's work to 'enforcing the law as written?' Whatever one can say about Barnett's work, that it adheres closely to the actual written text of the Constitution (as opposed to structuralist implications and assumptions galore with a healthy heaping of Barnett's political philosophy imported in text be damned) is especially funny.

    Or should one start with the laughable assertion that he doesn't give the Constitution a political reading? He's one of the most ideological on the Volokh Conspiracy which is itself a self consciously ideological assortment of legal scholars.

    Of should one start with the incredible statement that "every expansion of government size and power has reduced GDP and employment growth?" Does Bart need me to once again show him the GDP growth average for the 1960s, the era of the libertarian boogeyman New Frontier and Great Society, a growth comparable to his vaunted laissez-faire* 1890s Gilded Age?

    Or should one once again laugh at the facially ridiculous, and deeply offensive for those who have had to live through actual regimes of the type, characterization of the US and Western nations as 'totalitarianism?' (though these screeds might make one long for a gulag or other form of speech repression that exists in actual totalitarian societies).

    It's really hard to say.

    *The asterisk is because Bart's vaunted period of 'laissez-faire' was, rather tellingly, one in which blacks, women, gays, Asians, etc., faced government sponsored repression of even the most basic rights of property, association, commerce, etc., all obtusely hand waved away by Bart so he can concentrate instead on the horrors of minimum wage compliance or licensing requirements for land development.



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  51. SPAM I AM! emerged from his Rip Van Winkle snooze to repeat his crapola. But he does not say that he agrees with Ilya and Randy on blaming CJ Roberts for giving the Republicans (including, of course, conservatives and libertarians, AND the Tea Party) Trump. I long ago read Randy's "Lost Constitution ... " and rejected it. As for his "Our Republican Constitution," I do not plan to read it, as Jack Balkin's review gives it proper treatment making it unnecessary to read Randy's personalization of the Constitution to his political republicanism. SPAM I AM! might attempt to challenge Jack's critical view, which with historical critiques demonstrates Randy's CHUTZPAH.

    And it's obvious SPAM I AM! suffers from amnesia with his mis-history and 18th century economics.

    By the Bybee [expletives deleted], other than Hoover's dumping the Great Depression on FDR's lap, how many Republican Presidents started off with anything like the Great Recession that Bush/Cheney dumped on President Obama? With the economic hole of 2007-8, the economy under Obama has fared well. However, there continues the inequality gap that started with Saint Reagan. If Obama had a 3rd term, he could lessen that gap. But the traditions of the Republican Party as pointed out in Hovenkamp's review gave us that gap and that is the underlying continuing Republican agenda.

    {To be continued upon return from the Thursday liberal, some progressives, lunch.]

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  52. Trump is going to general election mode -- the Muslim thing? just a thought. Self-funding? Nah. This sort of thing is seen by some as crafty ... when Trump does it. When someone else does it, they are lying to the rubes. Ironically, Trump's label for Cruz was "Lying Ted." (Colbert last night had the Trump insult czar on; good bit).

    Trump isn't releasing his tax returns though (guess that's "pending" too) -- Rachel Maddow had a good segment yesterday on that, including reminding us that "I am not a crook" was Nixon arguing he did not wrongly profit from public service. OTOH, turned out he was being audited and didn't pay a lot of taxes he should have. HRC released hers. But, , ¯\_(ツ)_/¯ ... can't be "sure" Trump is unreliable here. So, it's acceptable. Plus, he's being audited. IRS et. al. says that doesn't matter. But, who are you going to believe, right? [insert IRS bashing here]

    Anyway, remember when it was the conservative golden age at the USSC. For instance:

    http://balkin.blogspot.com/2007/06/it-was-supreme-court-that-conservatives.html

    Liberals were crafty though:

    http://balkin.blogspot.com/2007/07/originalism-is-for-progressives.html

    Ha ha! And, now Roberts is basically the modern day William Brennan. Hannibal Smith from the A-Team couldn't be more gleeful of a plan coming together.



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  53. John Dingell ‏@JohnDingell 8m8 minutes ago

    Either my hearing aid is failing me or Paul Ryan just called Trump "a very warm and genuine person."

    Either scenario needs to be fixed ASAP


    Don't think Shag tweets but with John Dingell and the likes of Elizabeth Warren, the void has been filled, I'm sure.

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  55. Mr. W: Should one start with the especially laughable connection of Randy Barnett's work to 'enforcing the law as written?' Whatever one can say about Barnett's work, that it adheres closely to the actual written text of the Constitution (as opposed to structuralist implications and assumptions galore with a healthy heaping of Barnett's political philosophy imported in text be damned) is especially funny.

    Read Restoring the Lost Constitution (the better of the two) and Our Republican Constitution and learn something about why the Constitution was designed as it was. There is nothing ambiguous about the Constitution's intentional textual limitation of Congress to a set of enumerated powers.

    Of should one start with the incredible statement that "every expansion of government size and power has reduced GDP and employment growth?" Does Bart need me to once again show him the GDP growth average for the 1960s, the era of the libertarian boogeyman New Frontier and Great Society, a growth comparable to his vaunted laissez-faire* 1890s Gilded Age?

    Feel free.

    The post-WWII period before the Stagflation (1946-1972) was a period of sharply lower spending as percentage of GDP, lowered effective taxes (eliminating the WWII taxes, increasing deductions and then lowering nominal tax rates), and mass deregulation (eliminating most of the New Deal and all of the WWII directions of the economy). The part of the period with the highest GDP growth was the part of the 1960s you like to cite, which followed all these liberalizations of the economy.

    This post WWII period was bracketed by the Great Depression and the 1970s stagflation, when mass expansions of government size and power sharply lowered GDP growth.

    (1930-1939)Great Depression 2.08% annual per capita GDP growth.
    (1946-1972) Post WWII 3.77%
    (1973-1982) Stagflation 2.02%

    Or should one once again laugh at the facially ridiculous, and deeply offensive for those who have had to live through actual regimes of the type, characterization of the US and Western nations as 'totalitarianism?'

    Totalitarian political economies ALL share the following elements:

    1) Unlimited government - No recognized limits on preferred exercises of government power (See the Greenhouse article and your own view of the "constitutionality of Obamacare).

    2) Absolute Bureaucracy - A bureaucracy exercising all three government powers.

    3) Direction of the economy

    4) Redistribution of wealth from those who create it to those the government prefers.

    Before you misdefine a totalitarian political economy as one where the government directs everything, remember that no such political economy ever existed. Totalitarian governments actually attempt to use government power to solve what each of them believes are economic or societal problems and only differ as to what they consider to be problems and their preferred exercises of government power. What all totalitarian governments share is a belief that there are no natural or legal limits on their preferred exercises of government power.

    Envision an ideological continuum with classical liberalism on one end recognizing natural liberties and limits on government power and totalitarianism on the other end which does not recognize natural or legal limits on preferred exercises of government power.

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  56. "There is nothing ambiguous about the Constitution's intentional textual limitation of Congress to a set of enumerated powers. "

    That's not all there is to Randy Barnett's legal philosophy, but even there of course there's ambiguity since most existing federal programs have been found to be supported under those enumerated powers, it's just that Barnett would like to read them differently (with extra-textual elements like an 'action/inaction' distinction in the commerce clause). But it's worse that that: unenumerated powers seem to exist: for example, where is the power to restrict immigrants to the nation? It's not there, it's been considered an implied, inherent power by the courts. This example could, of course, be multiplied.

    I see you just dodged the point about the high average growth in GDP in the 60's by choosing other time periods.

    As to totalitarianism, no government directs everything and no government directs nothing, either. It's a matter of scale or degree, and to say that the modern US or the European nations of today are in the same category as Nazi Germany or Stalinist Russia is ridiculous hyperbole.

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  57. "where is the power to restrict immigrants to the nation"

    Art. 1, sec. 9:

    "The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person."

    The assumed need of this provision would suggest there was such a 'power' in place. I think there were various textual hooks, the Commerce Clause (especially those coming in by ship -- see, e.g., Gibbons v. Ogden) often being helpful. But, yes, some general implicit sovereign power is appealed to as well.

    http://www1.umn.edu/humanrts/immigrationlaw/chapter2.html

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  58. Mr. W: of course there's ambiguity since most existing federal programs have been found to be supported under those enumerated powers,,,

    Progressive courts exercising "judicial restraint" to rubber stamp federal programs in clear excess of the powers granted to Congress does not make the textual enumeration of those powers "ambiguous." (See, e.g., delegation of legislative and judicial powers to the absolute bureaucracy in clear violation of the Constitutions grants of all those powers to the Congress and judiciary.)

    it's just that Barnett would like to read them differently (with extra-textual elements like an 'action/inaction' distinction in the commerce clause)

    Extra textual?

    The CC reads in pertinent part: "The Congress shall have Power...To regulate Commerce...among the several States"

    The grammar of the text assumes the pre-existence of commerce to regulate and in no way can be honestly interpreted to grant Congress the power to compel us to engage in the government's preferred commerce.

    As to totalitarianism, no government directs everything and no government directs nothing, either.

    Agreed. A government which directs nothing is no government at all and, thus, not on my continuum. The totalitarian comparison of limited government with anarchy has always been a red herring.

    the modern US or the European nations of today are in the same category as Nazi Germany or Stalinist Russia

    All of these nations enjoyed constitutions which nominally guaranteed individual liberty and limited government power, but none of them allowed their constitutions to bar their preferred exercises of government power. The distinction between a classically liberal and a totalitarian political economy is that the former recognizes limits, while the latter does not (even if they claim to).

    Like Shag, you are a totalitarian because you do not recognize any constitutional limits on your preferred exercises of government power. You have spent hours in conversation with me over the years claiming that all manner of facially unconstitutional exercises of government power are permitted by the Constitution merely because a progressive court declined go enforce the Constitution as written.

    Shag did not even bother denying this.

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  59. A profile of SPAM I AM! suggests that in his early years he had trouble making friends because he didn't like to share, so SPAM I AM! declared himself a libertarian. So then SPAM I AM! instead of progressing retrogressed. Everybody else was out of step. He knew his rights. He did not have to share. His libertarian Constitution Preamble started with "I, the Person, " as there was no "we" in Constitution. He thought he could upset people by calling them progressives but they all laughed at him. He came upon dictatorial, and they still laughed, even more heartily. Now he calls out those laughing as totalitarian, resulting in gales of laughter, as he rattles off Caesar's Rome, Hitler's Nazi Germany, Stalinist Russia. The laughing gets louder and louder. [What was it Orin Kerr said at the VC about SPAM I AM!'s complaints at that Blog?] Occasionally SPAM I AM! goes full anarcho-libertarian by suggesting "armed revolution" as an alternative to our dysfunctional government pursuant to absolute individual rights under the 2nd A as he thinks it is written.. And SPAM I AM! latched onto the Cruz Canadacy, one of the 17 in the GOP Clown Limo, hoping it might lead to a return to the gold standard and the good old days of The Gilded Age which he continues to claim were America's best days. SPAM I AM! is still in the Anger stage with his grief from The Donald's trouncing of his Canadian Cuban Capo in Indiana. But based upon his many past flip-flops he will fold like an accordion and sing the praises of The Donald. Alas, even the neighbors of SPAM I AM! in his rural small mountaintop community in CO recognize just another pisshole in the snow.

    This profile is one that fits many self proclaimed libertarians who in recent years have strained at gnats to claim that the Constitution was written as a libertarian document. But libertarians measured by the achievements of the Libertarian Party barely get under the low bar set for them. That could be because libertarins had few friends in their formative years because they did not want to share. Perhaps those libertarians who now claim the Constitution of the 18th century was libertarian might consider how that Constitution protected slavery supports libertarianism.

    So we can expect SPAM I AM! to repeat over and over and over and over totalitarian claims and we can continue to laugh. America is not going back to the gold standard or return to The Gilded age. Rather, what the pre-politics Ronald Reagan said: "Progress is our [America's] most important product.

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  60. "delegation of legislative and judicial powers to the absolute bureaucracy in clear violation of the Constitutions grants of all those powers to the Congress and judiciary"

    That's a great example, but not for your argument but against it. First, the bureaucracies are not delegated legislative or judicial powers, they're granted executive powers to implement laws which Congress passes. They cannot implement anything contrary to the law Congress passes, in fact in many court cases the judiciary has stopped them when they tried to do so.

    Furthermore, even one to assume arguendo that there are legislative powers being exercised, there is NO text in the Constitution which bars the Congress from delegating any authority whatsoever in agencies if it so desires to do so. You're likely thinking of Art. I Sec. I "All legislative powers herein granted shall be vested in a Congress," but it contains no language barring the delegation of any, some, none or all of those powers if the Congress so chooses as long as the Congress retains ultimate power. If I say 'all decision making powers while I'm gone will be in older daughter Sara' then, if after I leave older daughter Sara says to her younger siblings that they should listen to their middle sibling while she watches TV, all the decision making power still resides in Sara because she can at any time overrule the middle sibling. Now, if I wanted the regime you want I could have been clear: 'Sara, you will be in charge, and don't delegate to your middle sibling.' Our Founders put no such language in the Constitution, your reading is extra-textual.

    "The grammar of the text assumes the pre-existence of commerce"

    No it doesn't, not at all. See, you're reading that assumption into the text, it's not there. The Constitution uses the words 'power to regulate' and, as I've shown, dictionaries of the day and today define regulate as the power to direct or control which includes the power to compel or prohibit. You actually know this because you conceded that when the word is used in other parts of the Constitution (the regulation of the military for example) it CLEARLY includes the power to compel as well as prohibit, you just tried to do some weaseling that in 'that context it means something different.' At best you've retreated from the 'text as written' to context, at worst you're just making up bull as usual.

    "The totalitarian comparison of limited government with anarchy has always been a red herring."

    It's actually *exactly* what you're doing, it's a bunch of silly hyperbole. And it helps show why you're being so silly. You take the modern US power to regulate wages or demand licenses to develop property and cry tyranny, but of course the anarchist takes your 'classic liberal' society and cries tyranny. You're both being uncommonly silly. It's as if the anarchist thinks a one mile per hour wind is the same as a hurricane and you think a 10 mph wind is one.

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  61. "All of these nations enjoyed constitutions which nominally guaranteed individual liberty and limited government power, but none of them allowed their constitutions to bar their preferred exercises of government power. "

    Then the jig is up right here, because the modern US doesn't have a 'nominal' constitution, federal and state laws are struck down by our judiciary for exceeding Constitutional limits commonly. Here's a (partial) list btw:

    https://www.gpo.gov/fdsys/pkg/GPO-CONAN-2002/pdf/GPO-CONAN-2002-10.pdf

    "Like Shag, you are a totalitarian because you do not recognize any constitutional limits on your preferred exercises of government power."

    Let me stop you right there on two grounds: one, I recognize all kinds of constitutional limits on government power, laws that violate the Constitution and its Amendments, laws that are ex post facto, or bills of attainder, involve unreasonable searches or abridgments of free speech or the right to keep and bear arms, etc., etc., etc., are all laws I'd oppose. If a law passed tomorrow which made it retroactively illegal for Cruz superpacs to have spent large amounts of money and authorized warrantless searches of their premises for evidence of the same while also barring any organization member to possess a firearm, that would be a law that, politically, I'd find amusing but which I'd oppose because it violates numerous rights which I believe government cannot violate (even if I'd 'prefer' it on some political, personal level).

    But second, and more importantly, the fellow who cheerleaded the Bush administration's contention that the executive could unilaterally, and following whatever process it desired, designate as an enemy combatant, capture and indefinitely imprison citizens doesn't get to criticize anyone else for supporting 'totalitarian' government powers.

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  62. that the executive could unilaterally, and following whatever process it desired, designate as an enemy combatant, capture and indefinitely imprison citizens doesn't get to criticize anyone else for supporting 'totalitarian' government powers.
    # posted by Blogger Mista Whiskas : 5:57 PM


    Don't forget the torture.

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  63. Jack Balkin's new post on "judicial constraint" is interesting, especially it's take on the potential impact of such on New Originalism. Jack identifies two prominent New Originalists, Randy Barnett and Larry Solum, who seem to be moving in the direction of "judicial constraint"as a counter to "judicial restraint" for libertarians and conservatives challenging liberals. Jack is described a a New Originalist, but he has some doubts on such an approach, at least under the New Originalism with its "construction zone" when interpretation does work to discover original public meaning of a provision in the Constitution. Jack brings in another prominent New Originalist Keith Whithington, who might have a different view from Randy and Larry. This post demonstrates that not only are the various types of originalism in disagreement with each other, and that there may be disagreements among the New Originalists. Jack suggests that New Originalism's "construction zone" may be a problem for "judicial constraint." This just might lead to reverting to earlier versions of originalism.

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  64. BD: "delegation of legislative and judicial powers to the absolute bureaucracy in clear violation of the Constitutions grants of all those powers to the Congress and judiciary"

    Mr. W: That's a great example, but not for your argument but against it. First, the bureaucracies are not delegated legislative or judicial powers, they're granted executive powers to implement laws which Congress passes. They cannot implement anything contrary to the law Congress passes, in fact in many court cases the judiciary has stopped them when they tried to do so.


    Seriously?

    Enacting the 178,000 pages of law in the Federal Register is an executive function?

    The Obamacare bureaucracy waived or completely rewrote dozens of provisions in the Obamacare statute. Just today a court reversed the bureaucracy's unconstitutional and illegal self appropriation of your tax money to bail out the Obamacare exchange insurers losing hundreds of billions of dollars.

    Furthermore, even one to assume arguendo that there are legislative powers being exercised, there is NO text in the Constitution which bars the Congress from delegating any authority whatsoever in agencies if it so desires to do so.

    Allow me to introduce you to Section 1 of Article I: "All legislative power herein granted are vested in a Congress of the United States...

    This is an express and exclusive grant of all legislative power to Congress. There is no weasel room here.

    "All legislative power herein granted" covers everything.

    "Are vested in Congress" means not vested in the executive or the judiciary.

    There is no power to delegate anything.

    BD: "The grammar of the text assumes the pre-existence of commerce"

    Mr. W: No it doesn't, not at all.


    Have you taken basic elementary school grammar?

    "to play with the toy" presupposes the existence of the toy.

    "to drive the car" presupposes the existence of the car. Etc, etc.

    Good heavens!

    I repeat:

    Like Shag, you are a totalitarian because you do not recognize any constitutional limits on your preferred exercises of government power. You have spent hours in conversation with me over the years claiming that all manner of facially unconstitutional exercises of government power are permitted by the Constitution...

    BD: "All of these nations enjoyed constitutions which nominally guaranteed individual liberty and limited government power, but none of them allowed their constitutions to bar their preferred exercises of government power. "

    Mr. W: Then the jig is up right here, because the modern US doesn't have a 'nominal' constitution, federal and state laws are struck down by our judiciary for exceeding Constitutional limits commonly.


    I try to use the language precisely and I used the term their preferred exercises of government power" for a reason.

    Totalitarians have no problem using the law to defeat exercises of government power which they oppose. This is not out of a respect for the rule of law, but rather an exercise of power politics against those who still have that respect.

    But second, and more importantly, the fellow who cheerleaded the Bush administration's contention that the executive could unilaterally, and following whatever process it desired, designate as an enemy combatant, capture and indefinitely imprison citizens doesn't get to criticize anyone else for supporting 'totalitarian' government powers.

    Hitting a nerve?

    You may recall that I repeatedly cited the relevant language of the Constitution and the law of war in our discussions of the war powers of the President and Congress. In a nutshell, the president exercising his plenary CiC power directs a war and may only be checked by Congress exercising an expressly delegated power.

    You again refused to enforce the Constitution as written.

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  65. Kasich -- who GM might have voted for (he voted R in Indiana and not Trump or Cruz) as of now won a delegate in WVA with three left to be apportioned. Trump got the other 30. http://www.nbcnews.com/politics/2016-election/primaries/WV


    Never say die!

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  66. I try to use the language precisely and I used the term their preferred exercises of government power" for a reason.

    # posted by Blogger Bart DePalma : 10:31 PM


    This made me lol. No one makes up imaginary definitions for words more often than you.

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  67. "Enacting the 178,000 pages of law in the Federal Register is an executive function?"

    Yes. Who said that implementing large and complex laws is simple?

    "Just today a court reversed the bureaucracy's unconstitutional and illegal "

    This *undercuts* your argument as it shows that the judiciary is quite willing to police the bureaucracy when it's implementation crosses the line into legislation.

    "There is no power to delegate anything."

    Sure there is. All power is vested in Congress, who can then use it however they like, including delegating (besides, as I've shown, it's not delegated as the power ultimately resides in Congress who can overrule the bureaucracy at any point).

    ""to play with the toy" presupposes the existence of the toy.

    "to drive the car" presupposes the existence of the car."

    Let's set aside your attempt to beg the question by using examples with the determiner 'the' in it rather than as the commerce clause is written. Because you're missing the point which is that the word 'regulate' is the key. Regulate means the power to direct or control, and that is not limited by an 'action/inaction' distinction. If I have the power to direct or control purchases, for example, I have the power to order the purchases, forbid the purchases, etc. The 'action/inaction' distinction is not part of the meaning of the word regulate, it is an extra-textual assumption you're attempting to sneak into the text.

    "Totalitarians have no problem using the law to defeat exercises of government power which they oppose."

    This is like a nonsense sentence, 'totalitarians (you do get the root of that word, right) 'oppose a lot of exercises of government power, that shows they are totalitarian!'

    "the president exercising his plenary CiC power"

    Here we see the supposed libertarian invoking 'plenary' (which means 'unqualified, absolute') powers for a single official based on a single clause about the President being in charge of the armed forces. It's a sad joke indeed.

    You've no sense of the complexity and ambiguity of the Constitution 'as written,' and you depart from the text when it suits you. The people have repeatedly and roundly rejected how you'd like to do things, you scream tyranny and would like, in turn, to impose your own tyranny of a-textual rule by lifetime appointed government official. The quote from the Federalist leading off this discussion really does seem to be about someone like you (though with considerable more pull with the people).

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  68. Btw-I found many good points about textualism (or at least some of its professed adherents) in this post from Lawyers, Guns and Money, perhaps others here will enjoy:

    http://www.lawyersgunsmoneyblog.com/2016/05/textualism-is-not-a-theory-of-constitutional-interpretation

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  69. "The assumed need of this provision would suggest there was such a 'power' in place"

    Yes, but this is my point: that power is not explicitly in the text. That's the case in other areas too. One can't just 'enforce the document as written,' one must make reference to powers suggested, implied, pre-existing, unenumerated, etc., and by the very nature of those they are not going to be clear in their object, scope, etc.

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  70. Some of the comments of that LGM posts look interesting too.

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  71. Jack offers an excellent analysis of the movement to replace the progressive "judicial restraint" rubber stamp with "judicial constraint," which is really the thesis of Randy Barnett's new book. Jack defines the two terms:

    Judicial restraint means deferring to the political branches about contested questions of constitutional law. Judicial constraint means that judges act consistently with the Constitution's original meaning.

    Jack overstates the difficulty of determining original meaning, but is correct that the Constitution as written does not require the judiciary to apply Randy's proposed "presumption of liberty."

    This was one of the problems which convinced me that we need a constitutional convention to make a number of the implications of the Constitution express.

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  72. Personally, I think the major need for a constitutional convention is to fix some of the structural issues with our current one. Such as expecting the federal government to be restrained by a judiciary staffed by the federal government.

    I mean, it was a great constitution, but even if we magically managed to return to legitimate constitutional interpretation, everybody knows how we got into this mess, and retracing those steps to get back into it would be a very fast process.

    You can make all sorts of implications express, but a judiciary that's ignoring express things right now isn't going to find that much of a speed bump. We need a judiciary appointed by people who actually have some motive to want the federal government restrained. I've suggested handing over the role of constitutional court and impeachment to a body of state Governors.

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  73. If you are following the FBI's criminal investigation of Clinton and her aides, keep an eye on the Judicial Watch civil suit against the State Department which is moving toward court ordered depositions under oath and the Russian government which is reported contemplating whether the released 20,000 hacked Clinton emails.

    https://www.lewrockwell.com/2016/05/andrew-p-napolitano/perfect-storm-legal-misery/

    This latter problem places Clinton under constant threat of blackmail by a rival and sometimes enemy government and disqualifies her for the presidency.

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  74. Brett: You can make all sorts of implications express, but a judiciary that's ignoring express things right now isn't going to find that much of a speed bump.

    My proposed amendments not only categorically reestablish and reinforce the structure of our government, but also expressly limit judicial review and provide congressional override and impeachment remedies to judicial overreach.

    I hope that the progressive legal community will do as they are expressly told after a constitutional convention rejects the current system.

    If not, the only remaining remedy is laid out in the Declaration of Independence, except that such a revolution is more likely to resemble the French rather than the last American one.

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  75. This comment has been removed by the author.

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  76. Such as expecting the federal government to be restrained by a judiciary staffed by the federal government.

    Perhaps, we can have state judiciaries be appointed by the feds. Many things state judiciaries handle are merely state questions covering lots of ground. Cf. Madison's desire for Congress to have a legislative veto of all state laws.

    I mean, it was a great constitution, but even if we magically managed to return to legitimate constitutional interpretation, everybody knows how we got into this mess, and retracing those steps to get back into it would be a very fast process.

    When was this golden age? Brett once noted there never was but he keeps on talking about "return" which confuses me. We got here because modern society led to more need for regulations and government, 300M in a world of billions much more interconnected etc. different than a fraction of that with a more local world. Also got here since the nation determined (though shades of this was there from our origins) more oversight of local laws was needed ala the 14A etc.

    You can make all sorts of implications express, but a judiciary that's ignoring express things right now isn't going to find that much of a speed bump.

    "Ignoring" is in the eye of the beholder though again compared to what? A hundred years ago? Guess that went okay ... if you were a certain sort of person.

    We need a judiciary appointed by people who actually have some motive to want the federal government restrained.

    We do - e.g., not having the federal government selectively denying benefits to same sex couples in states that by their laws determined they should obtain public marriage benefits. The problems with that even on state "rights" grounds was suggested during the lead up to the Windsor decision.

    What you mean is 'in the way I want them to be restrained.' Also, yes, we need to amend the Constitution if we want a less powerful federal government. The Constitution itself was written to expand its power as was multiple amendments.

    I've suggested handing over the role of constitutional court and impeachment to a body of state Governors.

    Your anti-federalist sentiments are duly noted.

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  77. "but also expressly limit judicial review and provide congressional override and impeachment remedies to judicial overreach."

    That would be just peachy if the chief problem we had with the judiciary was it illegitimately limiting the power of the federal government. Does that happen occasionally? Sure. Not really all that often, though.

    The chief problem we have with the judiciary is it illegitimately permitting federal usurpations, while wrongly limiting the power of the states. And your proposal would just exacerbate that.

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  78. Brett: I mean, it was a great constitution, but even if we magically managed to return to legitimate constitutional interpretation, everybody knows how we got into this mess, and retracing those steps to get back into it would be a very fast process.

    Joe: When was this golden age?


    We never had one. The first century of judicial review suffered from government racism and the following century and a half from progressivism.

    That does not mean we cannot enjoy our first golden age of judicial review in fairly short order. Better late than never.

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  79. "but is correct that the Constitution as written does not require the judiciary to apply Randy's proposed "presumption of liberty."

    Which is what I was saying about him being a-textual.

    "This was one of the problems which convinced me that we need a constitutional convention to make a number of the implications of the Constitution express."

    So I guess even you concede the written text is open to ambiguity more than you'd like. Which was my point all along.

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  80. "everybody knows how we got into this mess"

    Yes, our nation faced crises either made by our 'states rights' philosophy (slavery, civil war, Jim Crow) or surpassing it (the Great Depression), crises which called for the kind of 'collective action' our federal government was created for.

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  81. "You will hear of wars and rumors of wars, but see to it that you are not alarmed. Such things must happen, but the end is still to come. Nation will rise against nation, and kingdom against kingdom. There will be famines and earthquakes in various places. All these are the beginning of birth pains."

    The Kingdom of Constitutional Justice is upon us. Be on guard.

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  82. BD: "but also expressly limit judicial review and provide congressional override and impeachment remedies to judicial overreach."

    Brett: That would be just peachy if the chief problem we had with the judiciary was it illegitimately limiting the power of the federal government. Does that happen occasionally? Sure. Not really all that often, though. The chief problem we have with the judiciary is it illegitimately permitting federal usurpations, while wrongly limiting the power of the states. And your proposal would just exacerbate that.


    Exacerbate how?

    Here are the pertinent parts of my proposed Amendment 1:

    Section 4. The judicial power shall include interpretation of this Constitution, Laws of the United States and Treaties, but such interpretation shall be limited to the original meaning of the language of the law as it was commonly understood at the time of its enactment. To the extent that the original meaning of a provision of this Constitution is uncertain, the Courts shall construe the language against the reviewed government exercise of power. Laws and Treaties which are vague or self-contradictory violate due process and are void. This section shall have retroactive effect and all prior judicial decisions exceeding the foregoing limits have no precedential value.

    [Express requirement of original meaning review, a presumption against the exercise of government power, the prohibition of courts filling in the blanks of badly written laws, and the elimination of stare decisis]

    Section 5. Congress shall have the power to review and revise a judicial interpretation of this Constitution by the Supreme Court within five years after entry of the order of the Court. A bill revising a judicial interpretation shall originate in the House of Representatives and must be approved by a three-fifths vote of the Members present in the House of Representatives and the Senate. A bill of revision is not presented to the President of the United States and the President may not disapprove it. A bill of revision so approved is final and may only be changed by an amendment to this Constitution...

    Section 8. The House of Representatives may impeach, and the Senate may try and remove from office, the President, Judges or other Officers of the United States for failing to enforce or abide by this Constitution, the Laws of the United States and Treaties by a five-ninths vote of the Members present.

    [Expand impeachment to include failure to enforce or abide by the Constitution and lower the threshold to remove the impeached officer]

    Section 9. All citizens of the United States shall have standing before the Courts to enforce the limits of this Constitution on government power.

    [The government may no longer abuse standing to prevent the courts from reviewing unconstitutional policy with diffuse injury]

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  83. BD: "but is correct that the Constitution as written does not require the judiciary to apply Randy's proposed "presumption of liberty."

    Mr. W: Which is what I was saying about him being a-textual.


    Randy is offering a reasonable interpretation of the text of the Ninth Amendment.

    Randy's error is his assumption that he can employ reason to convince the progressive legal community to enforce a constitutionally limited government when not expressly commanded to do so. I believe only express constitutional commands will succeed.

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  84. Whereas I believe not even express constitutional commands can succeed, so long as judges are chosen by people who do not perceive that success as being in their own personal interest. I think you're seriously underestimating the power of bad faith, and the ability of legislators and Presidents to pick people who will reliably demonstrate it.

    The only real solution is the place the selection and disciplining of the judiciary in the hands of people whose institutional interest will drive them to chose judges who will enforce constitutional limits on somebody else's power. Bias in judicial selection is inevitable, all you can do is channel it in less damaging directions.

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  85. Brett:

    Are you advocating that the federal judiciary runs for office in regularly scheduled elections?

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  86. I'm a little late to the skirmishes today, but am slowly catching up. SPAM I AM! (10:21 AM) threatens:

    ***
    I hope that the progressive legal community will do as they are expressly told after a constitutional convention rejects the current system.

    If not, the only remaining remedy is laid out in the Declaration of Independence, except that such a revolution is more likely to resemble the French rather than the last American one.

    ***

    This goes well beyond his earlier claims of "armed revolution" as an alternative to political dysfunction. Should we assume that SPAM I AM! in making this threat is well read on the French Revolution and the Reign of Terror that followed?

    What kind of an atmosphere would this threat be for a second constitutional convention? Might it be an open carry convention? Suth a convention might turn out with progressive changes. Would libertarians/conservatives of the ilk of SPAM I AM! go off in that French Revolution manner?

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  87. "Are you advocating that the federal judiciary runs for office in regularly scheduled elections?"

    No, I thought I was clear above: I think that the federal judiciary should be selected (And disciplined) by state level elected officials, who normally exercise state level powers otherwise. This would give them a strong incentive to select judges who'd enforce limits on federal power, because doing so would enhance their own power.

    This would make the federal judiciary somewhat useless for limiting state abuses, of course, but that's what an elected state level judiciary would have to take care of.

    The basic principle is that you can't trust somebody to select the judges who rule on how much power they get to exercise. It's a conflict of interest.

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  88. SPAM I AM! (9:18 AM) expounds on Jack's post on judicial constraint, judicial restraint and New Originalism

    ***

    Jack overstates the difficulty of determining original meaning, but is correct that the Constitution as written does not require the judiciary to apply Randy's proposed "presumption of liberty."

    This was one of the problems which convinced me that we need a constitutional convention to make a number of the implications of the Constitution express.

    ***

    If SPAM I AM! were actually knowledgable on the decisions of the Court over its 220+ years history, he would be aware of difficulties in interpreting/construing the Corporation, including in the Court's early years much closer in time to the 1787-91 Constitution.. As to Randy, perhaps Randy could explain that the liberty inspirations of the DOI excluded slaves, Native Americans and others; besides, with the adoption first of the Articles of Confederation and then the 1787 Constitution, the DOI was more inspirational than law, assuming it was ever governing law.

    Jack in his post made references to non-New Originalist originalists MacInnes and Rappaport who object to the New Originalism's construction zone; they earlier adhered to original intent originalism and stick to it as Ye Olde Originalists, which may bring originalism full circle as originalists continue to disagree.

    SPAM I AM!'s convention proposal is rehashing several threads of the not so distant past at this Blog. Perhaps with the political demise of the Cruz Canadacy SPAM I AM! is getting back to his shilling for his commercial project, to wit, another work of friction. SPAM I AM! has added several comments pursuing this course, so far repetitious of his shilling in past threads. DUI legal business may be slow now and he may have too much time on his hands. Hey, but shilling for bucks is the libertarian way.

    In the last sentence of the quote of SPAM I AM! he refers to implications of the Constitution. Perhaps he might identify what he thinks are implications and how he makes such determination. Many may disagree with his determinations of implications. So such disclosure would help to consider if they should be made express. What if SPAM I AM! cannot gin up a second constitutional convention? Might he consider "armed revolution" as an alternative?

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  89. "This would give them a strong incentive to select judges who'd enforce limits on federal power, because doing so would enhance their own power."

    To the extent they don't want the feds to have the power (as they do, including because the voters themselves do or since problems aren't their concern any more / makes sense to have a national body handle it).

    This proposal could increase federal power, especially given current political trends, such as those areas where conservatives support broad power, particularly in a strong president.

    "This would make the federal judiciary somewhat useless for limiting state abuses, of course, but that's what an elected state level judiciary would have to take care of."

    Do wonder how that would apply to let's say states that want broad gun controls or campaign finance regulations. OTOH, some argue putting judges up to a direct vote raises various problems and support a federalist system involving national rights and powers.

    "The basic principle is that you can't trust somebody to select the judges who rule on how much power they get to exercise. It's a conflict of interest."

    But, you want to do just that -- the people are by elections directly selecting the people who rule on how much power they get to exercise. For instance, the power to deny people the right to own a gun. The current policy checks power. The people only indirectly select federal judges who check the abuses of people providing a check and balance function. Some states do have direct election of judges, but this itself has various problems.

    The current system shifts things to a national level to some degree. But, the collective action problems warrant that as Federalist argues. Plus, there are checks and balances on the process. We the People vote for the President using an electoral process that limits simple democracy, who is him or herself is checked/balanced by the Senate, which is selected state-wide by two equal votes. etc.

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  90. The federalist system the original constitution set up was actually close to what I'm describing, as you had federal judges being confirmed by a Senate whose members were selected by state legislators, not elected. The 17th amendment changed that.

    Question: Has the federal government gotten weaker or stronger since the 17th amendment?

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  91. Your proposal has state institutions directly selecting federal judges.

    I don't think it is "actually close" to having the national President select judges with the national Senate having a checking power over it which in practice could had even less effect without the unnecessary norm of senatorial courtesy developing.

    It is true that originally state legislatures selected senators, though these legislators were chosen by the same people who elect senators now. The overlap was seen as early as the Douglas-Lincoln campaign where legislative races were tied to support of one or the other party. Thus, even then, legislators would have to take into consideration the desires of the voters when choosing the senators involved in the process.

    The "question" appears to confusion correlation with causation -- the modern national state would have been greatly expanded regardless for the reasons addressed above. Likewise, the 17A only formally set into place what was already developing informally. The push for direct democracy would have made the legislature here in effect a rubber stamp ala the pledged electors of the Electoral College.

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  92. Brett: I think that the federal judiciary should be selected (And disciplined) by state level elected officials, who normally exercise state level powers otherwise. This would give them a strong incentive to select judges who'd enforce limits on federal power, because doing so would enhance their own power.

    Interesting idea. Have to think on that one.

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  93. Kikipedian on the 17th A includes this in the section "Ratification by states":


    "The Utah legislature rejected the amendment on February 26, 1913. No action on the amendment has been completed by: Florida, Georgia, Kentucky, Mississippi, South Carolina, or Virginia."

    https://en.wikipedia.org/wiki/Seventeenth_Amendment_to_the_United_States_Constitution

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  94. OOPS! That's "Wikipedia."

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  95. I know two very different people online who I know for sure are from S.C. Very different people. Hint: one told me she "is not really into that 2A thing." The person who was? Someone she knows with a 2A focused practice in MA. shrugs.

    There is a "kikipedia" in Germany and another that appears to be an Asian on Twitter.

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  96. Back to the Federalist # 1 quote of this post, consider the WaPo article yesterday - Friday the 13th - "Donald Trump masqueraded as publicist to brag about himself," by Marc Fisher and Will Hobson.

    Those old enough to remember "Harvard Blues," vocals by Jimmy Rushing and backed by Count Basie, might remember Rinehart, perhaps an inspiration for the Donald. The late George Frazier wrote the lyrics. If only he were here today to take on the Donald.

    By the Bybee [expletives deleted], I had noted in an earlier thread that Gary Trudeau's "Yuge!" "30 years of Doonesbury on Trump" is scheduled to be released on July 5, 2016, about two weeks prior to the GOP convention. This might be a coffee table book that Tea Pertiers would crack open and at least look at the drawings.

    The press has reports that a President Trump would make things tough for Bezos, the owner of the WaPo, in spite of the 1st A speech and press clauses. Might Trump take steps to try to stop the release of "Yuge!" so close to the GOP convention? Perhaps #NEVERTRUMP should make bulk purchases of "Yuge!" for distribution to delegates.

    For background on "Harvard Blues,"including Rinehart, check this:

    http://harvardmagazine.com/2002/09/i-love-my-vincent-baby-html

    Unlike Rinehart, Trump is not a most indifferent guy. Trump's self-promotion fits the libertarian profile.

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  97. BREAKING NEWS! Big Casino (Adelson) will be giving a big hand to Little Casino (Trump).

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  98. There was a tradition where you couldn't promote yourself, in fact, the game was that you were asked to run/serve & accepted out of duty. Some of that was clearly for show even if Hamilton (who wrote F1) didn't like Burr totally throwing the norms out the window in his early example of a modern politician.

    Trump decided to take out the middleman here, the one you feed the lines to. It's part of his appeal --- you can trust him to do everything, especially if the rules are treated as mere suggestions. It's okay when he does it. If some other person acted like this, supporters would see him as a scam artist lying to the rubes.

    Trump is just a sly old dog. Will he burn us? Shrugs. If you can't gamble with Trump, why even go to Atlantic City?

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  99. We will return to our regularly scheduled hit reality show The Donald after this news break reporting on the Obama Justice Department cooperating with the Clinton crime family in keeping the FBI from questioning Clinton consigliere Cheryl Mills about her role in various Clinton felonies.

    http://www.nationalreview.com/article/435393/hillary-clinton-e-mails-Cheryl-Mills-DOJ

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  100. This campaign season will soon be flashback central. Remember dial-up Internet?

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  101. Speaking of Burr, did he "auction" his weapon that did in the author of Federalist # 1 at some point? I'll Google after lunch to check on its whereabouts. Possibly with the "Clinton crime family" referenced by that prominent criminal lawyer* SPAM I AM! whose descriptives should shock a responsible CO Bar. But recall his recent hyperbole about a possible French type revolution if ....

    Actually a small subset, DUI defense - high times in the Mile High State (of mind).

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  102. Shag:

    None of your dowager queen in waiting's crimes bother you in the least, do they?

    The fact that a candidate for president of the United States is very likely subject to blackmail by the Russians, Chinese and God knows who else who hacked her server does not give you even a moment's pause, does it?

    Corruption from top to bottom.

    This is why you also cannot see the anger at the corruption.

    Shag, most revolutions are far closer to the French variety than the relatively genteel American Revolution.

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  103. SPAM I AM!'s premise that "The fact that ... " has not been established as a fact. I do recognize the anger but it is attributable the corrupted minds of haters, many of who fear the changing demographics, like Trump's base as well as the base of the beached Cruz Canadacy.

    And SPAM I AM! on revolutions, as I noted earlier, goes well beyond his earlier "armed revolution" as an alternative to political dysfunction. His now threats of revolution French-style if libertarian/conservatives don't get their way is hyperbolic. SPAM I AM! is a mere lemming. He can compete with Trump on Pinocchios.

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  104. Here's a link to a NYTimes article on the pistols used in the Hamilton-Burr duel:

    http://query.nytimes.com/mem/archive-free/pdf?res=9901E7DA1139E733A2575AC0A9609C946097D6CF

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  105. Here's an excerpt from that WaPo article on Trump masquerading:

    ***

    Trump did not describe using false identities to promote his brand, but he did write about why he strays from the strict truth: “I play to people’s fantasies. People may not always think big themselves, but they can still get very excited by those who do. That’s why a little hyperbole never hurts. People want to believe that something is the biggest and the greatest and the most spectacular. I call it truthful hyperbole. It’s an innocent form of exaggeration — and a very effective form of promotion.”

    ***

    We are used to SPAM I AM!'s hyperbole at this Blog. "Truthful hyperbole"? Promotion, yes, self-promotion.

    Trump's base of older undereducated white men may wish they grew up like Trump. Then they wouldn't be so angry. Perhaps Trump's lifestyle might be described as MegaloMelania.

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  106. This is why you also cannot see the anger at the corruption.

    # posted by Blogger Bart DePalma : 12:46 PM


    Scum like you supported the Cheney/Bush war criminals. I don't give a fuck if you're angry about Clinton.

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  107. This comment has been removed by the author.

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  108. bb/shag:

    Do you really think playing the race card or seeking sympathy for jihadi terrorists is really going to distract people from our corrupt government's lies, influence peddling and crimes? The Clintons are demonstrably the leading American practitioners of these dark arts.

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  109. "The fact that a candidate for president of the United States is very likely subject to blackmail by the Russians,"

    When Captain Hyperbole feels the need to qualify 'the fact that' with 'very likely' it speaks volumes.

    "Do you really think playing the race card or seeking sympathy for jihadi terrorists is really going to distract people from our corrupt government's lies, influence peddling and crimes?"

    No, I think the fool things that come out of your party's nominee will do that. And what's interesting is it's clear you're thinking (and worried about) the same.

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  110. "Randy is offering a reasonable interpretation of the text of the Ninth Amendment."

    When the guy who keeps urging that the Constitution be interpreted 'just as written' puts so much stock into an expansive theory based on the Amendment about UNENUMERATED rights you have to laugh a bit.

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  111. Do you really think playing the race card or seeking sympathy for jihadi terrorists is really going to distract people from our corrupt government's lies, influence peddling and crimes? The Clintons are demonstrably the leading American practitioners of these dark arts.


    # posted by Blogger Bart DePalma : 12:57 PM


    No. but I do think the fact that your candidate is a despicable scumbag, and hated by much of the electorate, will help Clinton a lot. What is really a killer for your side is that many of them agree with me about Trump, but very few on my side agree with your view of Clinton.

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