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Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Why Ken Kersch's Book is an Indispensable revelation about our constitutional situation
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Friday, June 07, 2019
Why Ken Kersch's Book is an Indispensable revelation about our constitutional situation
Sandy Levinson
For the symposium on Ken Kersch, Conservatives and the Constitution (Cambridge University Press, 2019).
Comments:
BRAVO, Sandy! Because of eyesight issues I do not plan to read Kersch' book. I have read Gary Lawson's "initial" post which began as a sort of a (hilarious, I thought) confessional as a libertarian/conservative of his ignorance of many of the matters revealed by Kersch, including Lawson's many references to Ayn Rand. I suspect that many libertarian/conservatives of current day may be similarly situated. [Lisa Duggan's book "Mean Girl: Ayn Rand and the Culture of Greed" was recently reviewed in the NYTimes, suggesting some libertarian/conservatives of today.} Lawson indicates that will may be making more posts for the Symposium, perhaps to comment on other posters' comments, in his role as the libertarian/conservative commentator. Might other posters do likewise? I also have read Mark Tushnet's post and enjoyed his focus on the differences between political scientists and legal academics, including how originalism comes into play, or not. Good stuff. But Sandy has gone well beyond with this post with what appear to be relevant insights that Kersch may not have addressed in detail. I am looking forward to more posts from commentators, including as appropriate follow-ups. Query: May we expect current day libertarian/conservatives to 'fess up in the manner of Lawson?
There are various books that provide a study of conservative thought (a book on Justice Clarence Thomas is forthcoming) including one or more on the Federalist Society. The law professor Eric Segall (Dorf on Law) has written a book discussing originalism, which has received some kudos. I have seen books on modern conservative media as well.
This sort of thing is appreciated though a few volumes of this sort of thing is a bit too much for me personally. It also is to be noted that there is some range in conservative thought which is seen among the conservatives on the Supreme Court. Only up to a point, but somewhat -- we saw that, e.g., along the edges at least among recent splits between Gorsuch and Kavanaugh though nothing earth shattering among cases of great note (e.g., Gorsuch has shown more respect for tribal rights). [The complexities of conservative thought might be suggested by a book I'm starting now by Prof. Mary Ziegler, which looks at pro-choice and pro-life thought in the years immediately after Roe v. Wade.] Judge Amy Comey Barrett is an interesting issue too. Brett actually agreed with me somewhat that she might have been a better choice than Kavanaugh. (Then, you know, back to the sniping.) Kavanaugh it is. Thus, unless Thomas or the like retires, I wish her a long stay at her current position.
Well, sure, I might have liked her more, but you simply can't reward those kind of despicable smear tactics with success, so once that began, there was no turning back.
Unfortunate, a more scrupulous and honest opposition might have moved a few Republican votes, rather than hardening the resolve on my side that Kavanaugh had to be confirmed.
As I said, we agreed, and then back to the sniping.
Kavanaugh was chosen in significant part because he was a comfortable entity, including as a result of his partisan record over the years. He was bound to be a more divisive candidate beyond you know me not agreeing there were "despicable smear tactics" against him generally speaking. Thus, e.g., Gorsuch was opposed but the Democrats (even when it was clear he would be confirmed) rested on opposition to his ideology and Garland. Something Republicans would have done, vice versa. A more scrupulous and honest opposition of his nomination would have had more than the senator from Alaska opposing him. But, we have to deal with what is handed to us, including party loyalty no matter who Trump picked except maybe a Miers who was not deemed qualified but many also worried wasn't conservative enough. Thus, I realize I'm stuck with a conservative with views on various issues I oppose. There were many alternatives there than Kavanaugh, and of the short list, she was my choice. She did not have the same partisan troll record, her education and political background was not the usual cookie cutter stuff and found a few of her writings interesting. And, multiple credible allegations of sex offenses, putting aside misleading Congress, wasn't involved. Figure she might have been confirmed 55-45 at least. Plus, Republicans could troll the Democrats a bit since a few senators made comments about her religious views that some deemed wrong. But, well, we went another way.
The second sentence of Gary Lawson's post begins:
"My influences were (and to this day still are) people like Rand; Rothbard; Rand; Mises, Hayek, and the other giants in Austrian economics; Rand; ...." Perhaps this is descriptive of present day libertarian/conservatives. Perhaps Kersch's second book may address present cay libertarian/conservatives who support Trump.
Shag: Perhaps Kersch's second book may address present cay libertarian/conservatives who support Trump.
Such a book would total one line: "Present day libertarian conservatives viewed Donald Trump as the lesser of the evils." Consider our alternatives. The Democrats gave is a felon and influence peddler in 2016 and an array of socialists in 2020. The Donald remains fortunate in his opponents.
APAM's suggestion of a one-line book in his 10:36 AM demonstrates that SPAM knows not what evil is. Who can forget SPAM's 2016 Cruz Canadacy accusations, over and over and over again, that then candidate Donald Trump was a fascist. Now SPAM seems to consider a Trump Mussolini style as the lesser of an evil than Hillary, who has not been convicted of any crime, whereas Trump, SPAM's claimed lesser evil, has the protection of the DOJ that a president while serving cannot be indicted for a crime.
By the Bybee [expletives deleted], SPAM's libertarian/conservative chops appear to be along the lines of Gary Lawson reflected in my quote from his post at my 9:25 PM comment.
Shag:
Once again, I noted here and elsewhere that Trump was running a fascist-style campaign of economic nationalism, offering himself as the great leader necessary to set things right. I also warned about Trump's long history of supporting progressive policies. The Democrats nominated a proven felon and partner in a family influence peddling business which amassed a nine figure fortune, who promised to continue the Obama policies destroying the economy. To my mind at the time, this was the WORST choice the major parties offered in American history with no close second place. A true choice between two evils. My ballot remained uncompleted on my desk until a couple days before the election. I chose Trump a couple days before the election for two reasons: (1) I could not vote Libertarian and allow the Clinton crime family to take over the White House and (2) Trump offered a superb list of Federalist Society vetted judges he promised to nominate. At least the judiciary would be safe. While the Donald's politics and diplomacy remain that of a Queens bully, Trump's actual governance pleasantly surprised me. Not only have the judicial nominations been superb, but he stopped the Obama regulatory tidal wave in its tracks and enacted a modest tax reform, allowing the economy to finally recover from the Obama depression. I will happily vote to reelect him in 2020. SPAM's claimed lesser evil, has the protection of the DOJ that a president while serving cannot be indicted for a crime You REALLY do not want to go there. The public disclosures to date suggest Obama and Clinton illegally weaponized the FBI, CIA and NSA to spy on and harass Trump like Hoover did to folks like MLK whom he considered to be subversive. Barr's appointment of US Attorney John Durham, someone with a proven track record prosecuting public corruption, to look into this weaponization is very bad news for the Democrats. Watergate on steroids. By the Bybee [expletives deleted], SPAM's libertarian/conservative chops appear to be along the lines of Gary Lawson reflected in my quote from his post at my 9:25 PM comment. Not close. FWIW, I am a classical liberal, whose closest analog today is the hybrid term libertarian conservative. Ayn Rand offered a very powerful critique of the modern totalitarian government developed nations adopted to varying degrees, then incomprehensibly attacks the individual morality which enables the alternative of classical liberalism to work as a social system. Rand's certitude attracts high school and college students like Lawson back in the day, then you generally grow up out of it. I was more of a nut and bolt systems guy and was instead attracted to the Austrian economists Mises and Hayek, who did superb work explaining how a classicaly liberal free market works. Lawson suggests he missed out on the Austrians.
As compared to Gary Larson, the Far Side cartoonist.
I read the first section of "After Roe" by Mary Ziegler, which covered the pro-life side. Basically, "the road to incrementalism." Interesting. Pro-choice next. There was some news: a "youthful indiscretion" of Mitch McConnell's, in a fashion: he actually in the late 1980s supported a constitutional amendment limiting money in politics: https://electionlawblog.org/?p=105517 (video also available) This is vaguely on topic. Anyway, one other thing that is somewhat related too. Twitter is popular with various law types, including law professors. There are also state judges, including Chief Justices/Judges of the highest level. But, there is an ethical concern about federal judges being there. A state judge recently tweeted her belief that it was appropriate for state judges to tweet in part to inform the public. Twitter is an imperfect means of spreading ideological views. Robert George, e.g., is on Twitter. He criticized Biden for changing his position on the Hyde Amendment.
SPAM shows his ignorance once again on economics, this time with respect to his claim of the "Obama depression" from which Trump, SPAM claims, recovered the economy. Let's compare the Bush/Cheney 2007-8 Great Recession left on Obama's doorstep for 2009 and look at the economic picture as of pre-Trump January, 2017. The way Austria is going is probably reflective of the Austrian economists.
SPAM's 12:48 PM comment is basically another of SPAM's silly rants, including revisionism of his Cruz Daze views on Trump. SPAM is in sinful lockstep with Trump, as are many current day libertarian/conservatives. And "classical liberalism" is passe as noted in the current intra-conservative debate.
" he actually in the late 1980s supported a constitutional amendment limiting money in politics:"
He did at least recognize that it required a constitutional amendment. And youthful mistakes are more easily forgiven if one moves on from them in time.
Shag:
The government directed and subsidized subprime home mortgage market took off in 1997 and started its mass default in 2007. If you want to play the "being there" card against Dubya, remember the Democrats controlled Congress when the default occurred.The resulting 2008 recession ended sometime during the first couple months of the Obama administration. The administration's own white paper selling the borrowing and spending spree misrepresented as the "stimulus" admitted, if the government did nothing, the economy would bounce back with standard 3% plus growth, but claimed Obama policies would result in 5% growth and a quick return to full employment. The reality was Obama taxing, spending and regulatory policies ground growth down to 2% (lower than during the post-recession period of the Great Depression) and the percentage of Americans with any sort of work (labor force participation) relentlessly fell until bottoming out in 2015. Only a third of Millennials had full time work. Depression is the correct economic term.
"He did at least recognize that it required a constitutional amendment. And youthful mistakes are more easily forgiven if one moves on from them in time."
Constitutional amendments are proposed for a variety of reasons. James Madison, e.g., thought the First Amendment not really necessary, but some people wanted it and it would provide additional safeguards that again he previously said wasn't necessary since Congress didn't have the power over such things anyhow. But, yes, the established law of the time blocked some of what he proposed in his "youthful" days of forty-something.
SPAM seems to have a memory problem. Back in 2007 SPAM, like a rat deserting a sinking ship, deserted Bush/Cheney because of the economic catastrophe they permitted to be brought to bear with two wars not paid for nor disclosing WMD, as well as two tax cuts. This is more SPAM revisionism. Clinton left a surplus for Bush/Cheney. The Bush/Cheney Great Recession was its "MISHIGAS ACCOMPLISHED!" with the two wars still going on. SPAM attempts with a feeble hop-scotch to a depression. Once again SPAM displays his ignorance in economics. The economic upswing started by Obama has continued in positive fashion despite Trump (although that may be changing).
SPAM denies being influenced by Ayn Rand so is it coincidence that SPAM's libertarianism of selfishness uber selflessness meshes with Rand and her greed is good? (SPAM discover himself in reading the review of the recent book on Rand, "Mean Girl," which may be descriptive of many of today's libertarians.) Perhaps SPAM is having another wet dream that The Gilded Age of the late 19th century were America's best years and SPAM's MAGA.
Shag: "MISHIGAS ACCOMPLISHED!"
You are becoming hysterical. The Afgan and Iraq Wars cost less than 1% of GDP and had zero to do with the mass default of the government directed and subsidized subprime home mortgage market. Now take your meds and a nice nap before dinner.
The Bush/Cheney disastrous 8 years historically would have placed it at the bottom of the scales of effective presidential administrations. But Bush/Cheney lucked out with Trump/Pence.
SPAM ignores the debt created by Bush/Cheney for reasons previously noted. SPAM was presumably impressed with George W's aircraft landing on a carrier with a really, really, really premature "MISSION ACCOMPLISHED" banner for the TV audience. That turned out to be hysterical, as the wars continued on and no WMD discovered. I took my meds for hypertension and cholesterol. As for SPAM, unfortunately there are no meds for his ignorance of economics and humor. Oy Vey! As to Mitch McConnell's youthful days of seeking an amendment to limit campaign funding, that was before his father in law, the father of his bride, made gifts of millions to them. A scandal is surfacing about Mrs. Mitch as Sec'y. of Transportation concerning her dad's transportation business and its connection in China, what with the trade war Trump started. Mitch and Mrs. Mitch raise questions about the separation of powers. Just imagine the pillow talk.
"But, yes, the established law of the time blocked some of what he proposed in his "youthful" days of forty-something."
Still does, thankfully. And now that I'm 60, I'm allowed to call forty-something "youthful".
"on a carrier with a really, really, really premature "MISSION ACCOMPLISHED" banner for the TV audience."
On a carrier which had literally accomplished its mission, and was headed home.
Perhaps Brett feels its was just a coincidence with George W's mission in Iraq and his flying mission that day landing on the carrier" That it is common that naval vessels host such a banner, literally, when heading home from whatever the carrier's mission was? All for the cameras and TV? Literally, Brett is figurative. The tag team of Bert and Brat are now our own "Mishi" and "Gas."
By the Bybee [expletives deleted], when did the story surface that the carrier had literally accomplished its mission? Was it after it became clear that the Bush/Cheney mission in Iraq was not really, really, really accomplished, continuing on after Saddam's downfall with no revelations of WMD that supposedly justified that mission?
CBS:'Mission Accomplished' Whodunit
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"After the news conference, a White House spokeswoman said the Lincoln's crew asked the White House to have the sign made. The White House asked a private vendor to produce the sign, and the crew put it up, said the spokeswoman. She said she did not know who paid for the sign. Later, a Pentagon spokesman called The Associated Press to reiterate that the banner was the crew's idea. "It truly did signify a mission accomplished for the crew," Navy Cmdr. Conrad Chun said, adding the president's visit marked the end of the ship's 10-month international deployment." Not that I expect the claim that it was Bush's idea to ever go away...
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