Tuesday, April 21, 2020
If Covid-19 doesn't force us to connect the dots, what will?
Many Founders wanted the Senate to be apportioned by population but when the old rule was each state got one vote, that was too much of a jump realistically, so they compromised. As with slavery (with significant remainders), we managed to move on. We could and should here.
Jared Bernstein's penchant for publishing fiction in his job as progressive economic propagandist has not diminished.
In January 2009, Bernstein and Christina Romer published a white paper supporting the Obama borrow and spend plan pitched as a "stimulus," complete with charts of what the economy would look like if the government did nothing and the economic boom which would result after another government borrow and spend spree. Free market economists and political conservatives delighted in using this chart to show the economic depression following the stimulus was substantially worse than the Bernstein/Romer projection of what would happen if the government did nothing.
Of course, being hysterically wrong is hardly a disqualification for a progressive economic propagandist. After all, the "stimulus" not only passed, but much of it became permanent spending. Mission accomplished.
Now, Bernstein is back with another whopper for the Washington Post entitled The coronavirus is teaching us four big lessons. Will we listen?
The first lesson is "Markets fail." After government house arrest decrees shuttered tens of thousands of businesses, unemployed tens of millions and tanked the stock market, this clown has the audacity to claim the free market "failed" and part of that failure was a failure to recognize climate change. What?
The second lesson is "Functional governance is not a socialist project; capitalism depends on it." After the government destroyed the economy, it printed and badly distributed trillions of dollars attempting to mitigate the damage. The lesson Bernstein draws from this is capitalism cannot survive without the government.
The third lesson is "WITT (we’re in this together), not YOYO (you’re on your own)." After the government destroyed tanked the stock market along with the economy, the lesson Bernstein draws is you cannot depend on the stock market for your retirement and, instead, need to depend on government.
The final lesson is the usual diatribe against Trump.
It is hard to tell of what to be more frightened - Biden's increasing dementia affliction where he offers drivel during policy discussions or Bernstein as a potential propagandist for a Biden administration offering bald faced lies to support the drivel.
Interesting, but the author of the post, and by the way, we could learned it from previous posts, is really overwhelmingly occupied with constitutional structural issues, over substantive issues. For, the latter, are here, always been here, and shall always stay around. Neither, tyranny of minority or majority, wouldn't really solve so many social, political, cultural debates or gaps:
Guns and second amendment. Abortions. Same sex marriage. You know, some claim even that America Was Founded As A Christian Nation ( others would lough simply, see link) . Foreign issues are as hell. Even free speech is debated ( see the cases of "master cake" and others).
So, even if one can find certain structural flaw in the constitution, that wouldn't solve problems. There are courts. And all sorts of groups, petition courts, every Monday and maniac day. The president of the US, has hell of power, constitutionally so. So what ? He is screwed up constantly in courts. Ask Trump and his via de la rosa for reaching travel bans and building the southern wall, and more.
The author bears great talents. He should concentrate it, in more substantive issues with all due respect.
Here in " Take care" titled:
" No, Mike Pompeo, America Was Not Founded As A Christian Nation"
By the way, important ruling yesterday of the Supreme court, concerning unanimous jury. One may reach the ruling here:
And Good summary in "Constitutional Law Prof Blog" here:
P.S: So, we can't even really understand, the intent of the framers concerning the Sixth Amendment, and trial by jury. Hell of debate. In this regard, the author of the post, is right ( as stated in the related article or link).
You know the dots aren't numbered, right? Like the stars in the sky, you're free to draw any constellations you want.
Anyway, you continue to blame the Constitution for the problems generated by our political culture, which at this point barely even bothers to pretend to be following it.
Anyway, you continue to blame the Constitution for the problems generated by our political culture
The two things are connected.
which at this point barely even bothers to pretend to be following it.
I figure Texas, granting 100 senators, should have about 9 in a fair per capita system. If we aren't really following the Constitution, this can be the case any day now.
As is often the case, I very much appreciate Joe's comment. The awful fact is that "we," whether the laity or, what is far worse, the legal academy, rarely think about the hard-wired structural requirements built into the Constitution, so that all of the endless debates about "constitutional fidelity" are about what I call the "Constitution of Conversation," where we will never ever have full closure, and almost never about "The Constitution of Settlement," about which smart lawyers whose bread and butter is imaginative "interpretations" have almost literally nothing to say. Yes, Texas should have about nine senators and California twelve!
The hard-wired" part of the Constitution is just the part they haven't worked up the nerve to violate. It's no different from parts that are being ignored, like the quorum requirement. That's pretty "hard wired", too.
The "hard-wired" rules are those more clearly firm without discretion.
The quorum requirement would seem to fit. But, you say they have the "nerve."
So, no. There are lots of rules that people clearly accept are firm given the text cannot really be reasonably interpreted otherwise. Some are not absolutely enforced. Prof. GM says voting rights enforcement section 2 of the 14A is one problem there.
Then, there are things like equal protection with more play in the joints. Even there, there is a certain core that few disagree with. Thus, we don't have an official pope or something.
Speaking of COVID 19, I am in shock. Our deep blue governor is allowing his house arrest decree to lapse on April 26 and by May 1 we should be mostly back in business.
Bart DePalma and others:
One can find hereby, the reopening timelines announced so far by all 50 states and the District of Columbia ( simply a list of state by state):
Appears as if Trump is going to take the exact opposite approach approach from what Bernstein recommends - free small business from the massive federal regulatory burden.
Expand the relief and make it permanent.
Bircher Bart is just a propagandist not interested in any serious discussion. Berenstein's article is simply the 'jumping off' point for the OP's point, but Bircher Bart delivers a Trump campaign Tea Party pamphlet as a 'response.' He's not trying even an iota to engage anyone here in a serious way. His comment is full of the usual silly-from-the-point-of-view-of-having-a-honest/serious-discussion hyperbole (Biden's 'dementia,' an obvious ploy to counter the fact that Trump talks like a buffoon regularly; calling stay at home orders 'house arrest' [house arrestees would love to play 18 rounds of golf at the city course or jog at the local park, etc)that is, though, natural for someone who just wants to engage in pathetic political propaganda.
The fact that he says things like "progressive economic propagandist," " being hysterically wrong," etc., is more black hole calling the kettle black and every accusation is a confession fare from our Bircher.
His demonstrable factual errors offered as confident premises for his silly theories ("After the government destroyed tanked the stock market along with the economy" [state level 'stay at home' orders started after the Dow tanked: https://www.bloomberg.com/graphics/2020-stock-market-recover-dow-industrial-decline/] are just the cherry on top of the poop sunday this pathetic partisan propagandist offers.
"It's no different from parts that are being ignored, like the quorum requirement. That's pretty "hard wired", too."
Irony of ironies, let's note that Bircher Brett himself has offered an interpretation of the quorum requirement, allowing it to be satisfied electronically, that another Bircher type could say (scream, spittle flecked no doubt) that this is part of a sick political culture not *really* following the text as written.
Least. Self. Aware. Person. Ever.
Joe's comment and Sandy's response are the most important ones I've seen in a while.
I think Sandy's work provides an indispensable function in our system, to act as the Socratic 'gadfly' buzzing about and stinging the complacent on their Founder worship. The Constitution they created just isn't perfect and is fallible.
The one mistake though I think Sandy makes is his call for the imperfections to be addressed through a Constitutional Convention. The problem is: the core, fundamental flaw in the Constitution is its anti-democratic provisions such as the EC, the indefensible Senate, etc., and, the only mechanisms for changing the Constitution will...run right smack into that second one.
This Constitution is 'screwed' as the young people say in the very foundation. There's no way to change it's most basic, fundamental flaw because that same flaw blocks all changes.
The epitome of what Bircher Bart is about, and let's face it, Bircher Bart is representative of 'movement conservatives' and thus plays an illustrative role to those of us who may (quite smartly) not mix in these fetid circles of what these people have to offer, can be found in his use of the term 'house arrest' for the current COVID related 'stay at home' orders.
This is, of course, not a precise, careful, thoughtful term for what he's speaking of. It's of course, quite the contrary. People under 'house arrest' don't go for miles long jogs away from their house. They don't go a few miles away and enjoy a wonderful 18 rounds of golf. They don't, as happened in my neck of the woods, load their kids into their car and drive for a few hours around the city participating in coordinated exhibits of stuffed animals as a 'virtual zoo' or 'bear hunt.'
So, it's an incredibly inaccurate, imprecise term. No scholar would use it (maybe an extremist gender studies scholar), no one who respected the person they were talking about and thought they might disagree with would use it (they especially wouldn't *continue* to use it after the other rolled their eyes a few times).
Who would use it? Why, a propagandist would. Absolutely. Their goal is to inflame passions, to trade on the political resonance of key terms. 'House arrests' sounds draconian, it has that rhetorical residue, sounds extreme, thereby provoking more extreme outrage for more extreme counter policy suggestions. That's literally the only way the use, and especially continued use, of that kind of hyperbole makes sense.
For years we've seen this person talk like this. He's not a serious person. He's a pathetic, partisan propagandist, and as always, his choice of terms tells you that.
He can't, or won't, help himself in that.
This is not a serious person. These people talk like a Limbaugh show now all the time, they cannot do otherwise.
The February stock market dip you are referencing was in reaction to the possibility the Marist Bernie Sanders might win the Democratic Party nomination. The dip started after Sanders won NH and then NV, then ended when the Bern lost Super Tuesday badly.
No economist doubts the subsequent causal connection between the government responses to COVID 19 and the collapse of the stock market. For example, the NBER working paper entitled The Unprecedented Stock Market Reaction to COVID-19 surveyed the scholarship and concluded: "In our view, the policy response to the COVID-19 pandemic provides the most compelling explanation for its unprecedented impact on the stock market."
Mr. W: People under 'house arrest' don't go for miles long jogs away from their house. They don't go a few miles away and enjoy a wonderful 18 rounds of golf. They don't, as happened in my neck of the woods, load their kids into their car and drive for a few hours around the city participating in coordinated exhibits of stuffed animals as a 'virtual zoo' or 'bear hunt.'
People under "stay at home orders" and on house arrest go where the government tells them they can go and can be arrested for going where the government forbids. Yes, court house arrest orders can and do include family outings.
The analogy is apt.
"No economist doubts the subsequent causal connection between the government responses to COVID 19 and the collapse of the stock market."
Except the collapse happened *before* the government responses Bircher Bart indicated.
Not. A. Serious. Person.
"People under "stay at home orders" and on house arrest go where the government tells them they can go and can be arrested for going where the government forbids."
Except that the latter are focused on 'house' and the latter obviously not.
This is a ostensibe 'text as written' fanatic.
This is not a serious person.
""People under "stay at home orders" and on house arrest go where the government tells them they can go and can be arrested for going where the government forbids."
This is like saying 'people under exile and under protective orders are both told where they can and cannot be!'
This is not a serious person. He's doing exactly what I described with his use of hyperbolic language.
He cannot/will not do otherwise.
Let's remember this:
Bircher Bart and Brett produced, recently, a laughable conspiracy theory: they posited that a Trump appointee, a Trump donor and campaign volunteer, was prosecuting Trump associates to damage Trump.
It was the usual lazy, ridiculous conspiracy type theory they propose, it collapsed under the slightest examination.
Look, they never, ever, owned up to their foolishness here. In fact, they've run from it like a frightened school girl seeing a spider!
So, everything they say from here out should be considered suspect. They cannot even own up to *their own words.* They run from them, scared and cowardly.
*Every time they talk it's reasonable to suspect they are engaging in the same behavior I've described which they run from.*
These are not serious or honest men.
Let it be known: this forum and me are right here.
If they want to offer a defense of that krazy kooky konspicary theory, then here is a forum.
If they want to talk about how that is not indicative of their offerings here, that's available here too.
We're all waiting.
Are you serious? Or pathetic partisan propogandists?
The ball is in your court...
"This Constitution is 'screwed' as the young people say in the very foundation. There's no way to change it's most basic, fundamental flaw because that same flaw blocks all changes."
Perhaps it would take a Convention to focus minds. Then allow a few red states to run with their fantasies. CA, WA, NV, HI, and OR would make a nice nation and we would probably take pity on the interior west once reality set in (on our terms, of course).
Mr Whiskas: I'm in lockdown in Spain, and I'm not allowed to go for a walk, unless I have a dog or am going to the supermarket or pharmacy. More seriously, I commend the four levels of the New Zealand alert system as a framework for thinking about relaxation of pandemic controls: https://covid19.govt.nz/alert-system/covid-19-alert-system/
NZ is on the leaderboard for successful covid policy along with Taiwan, South Korea and and Kerala, which is well-run by nominal communists, Bart. At any any level below the maximum lockdown 4, Kiwis should be prepared to go back to a higher as well as a lower level.
Agreed with Sandy on the unwisdom of the Founders' animus against political parties, Allow me to advertise my personal case against algorithmic democracy: http://www.jameswimberley.es/Articles/Arrow%20democracy.html Short take, we absolutely need political parties to assemble sets of consistent policies. The means-ends relationship means that Condorcet circular majorities are not only an unavoidable theoretical risk, as Ken Arrow showed, but actually likely in practice.
James, Spain is not the US. Even in the most serious 'lockdowns' here you can, unlike a person under 'house arrest,' leash your dog and go on a multi-mile walk/jog right now. Our Bircher is just tossing careless propagandist hyperbole as usual.
To me, the chief 'unwisdom' re the Founders and political parties is less their antipathy for them and more their naivete in not seeing how they would come to be and operate. Checks and balances in the separation of powers has proven useless in the party system, note how GOP congresscritters provide no check or oversight on Trump because he is their 'party leader' (cult of personality).
"Bircher Bart and Brett produced, recently, a laughable conspiracy theory: they posited that a Trump appointee, a Trump donor and campaign volunteer, was prosecuting Trump associates to damage Trump."
You're going to have to be less opaque; Trump has had a number of his early nominees turn out to be RNC moles; It's a consequence of being an outsider, and an insurgent: He lacked a handy list of people to appoint, had no 'shadow cabinet', and so had to get advice from the Republican establishment. Not just because they did have lists, but also because the Republican Senate could refuse to confirm nominees. Even now, McConnell is keeping the Senate 'in session' to prevent Trump from making any recess appointments; Denying Trump nominees outside the judiciary has been almost as high a priority for the Senate leader as pushing through the judicial nominations; McConnell doesn't particularly want Trump to get full control of the Executive branch, I think he still views Trump as a temporary aberration to be endured until he's gone.
Many of Trump's early nominees had to be fired, because they were only in the administration to undermine it. Well, he was an insurgent who'd run against the party establishment, kind of to be expected. The RNC did not really like Trump, came close to openly opposing him in the general election.
So, give me a name, (I can't think of anybody who fits all the points you laid out at the same time.) and we'll discuss it.
Over the past couple years, I noted that Justice would not normally investigate or certainly prosecute the procedural crimes with which the Witch Hunter General, er, special prosecutor prosecuted a number of Friends of Donald. This set off W and started his slide into paranoia and irrational anger.
Forget it, he's rolling
BD: "People under "stay at home orders" and on house arrest go where the government tells them they can go and can be arrested for going where the government forbids."
Mr. W: This is like saying 'people under exile and under protective orders are both told where they can and cannot be!'
Good heavens, you actually made a valid analogy!
Yes, Virginia, like "stay at home orders," protective orders, house arrest and even exile are situations where the government places limits on your right to travel and perform acts under threat of force.
The COVID 19 house arrest orders do indeed forbid things like going for walks with and without dogs. Youtube is filled with videos of police harassing and arresting people for doing things like walking on the beach. Both NYC and CA cities actually implemented Nazi style citizen watches to report violations like this to the government for prosecution.
Birchers now feign amnesia, but they confidently asserted the kooky krazy konspiracy theory that the US Attorney in NY was prosecuting Michael Cohen and Lev Parnas in order to push them to reveal harmful information on Trump. The US attorney in question donated thousand of dollars to the Trump campaign, volunteered on his transition team and was appointed by Trump. It's a ludicrous theory, they made it as they usually make these theories: ignorant of basic facts about the persons and situation involved, a theory formed on cynical assumptions and feverish conspiratorial general predispositions.
It's the same type of loony thinking that has people referring to 'stay at home orders' as akin to exile or house arrest.
These are not serious people.
"you actually made a valid analogy!"
This is a lunatic unable to differentiate between house arrrest and exile and the 'stay at home' orders where I regularly job for miles, my friends play golf, go out to eat (curbside), to the grocery store, etc.
Lunatic partisan incoherents cannot grasp simple, basic, fundamental distinctions. This, of course, is the essence of extremism though. These are today's conservatives.
An interesting thread topic would be whether those put out of business and/or unemployed have viable civil money claims against the executives and governments who issued the "stay at home" decrees and the people and organizations who published the apocalyptic models governments used as a pretext to issue these decrees.
Executives do not have the power to decree law and governments do not have the power to deny the rights to liberty and property without due process and possibly just compensation.
The modelers appear to fit neatly in the categories of people who yell fire in a crowded theater when there is no evidence of a fire.
The necessity defense becomes less viable every day as the actual mortality rate, both as a percentage of population and of the infected plummet into normal infectious disease levels.
If the Founders, and many probably were not, were naive about parties, they soon learned otherwise. Thus, the creation of an opposition party to the ruling Federalists with James Madison as a key player.
And, as voting became more egalitarian, that became ever more clear. The Founders had a chance to live and learn & we have even more history and experience to learn from. To the degree certain aspects of the Constitution work less well because of parties, we can and should change it though it has enough play that many modern realities can fit within its terms.
"Denying Trump nominees outside the judiciary has been almost as high a priority for the Senate leader"
Trump law again -- it is always someone else. Trump and his team himself aren't significantly responsible here too. It's McConnell.
As to recess appointments, the Supreme Court held that generally speaking the recess has to be at least ten days long for those to count. The conservatives on the Court (minus Kennedy) argued intrasession recess appointments in general are unconstitutional. There are various reasons for not wanting the Senate to be in recess that long, including the opposition of many in the public of them being away in the time of an emergency.
Keeping recess appointments out is likely some factor but that would be true for any Senate really, they are practicing their constitutional power and in the modern era, recess appointments are really a bit out of date anyway. Also, Trump is as experience shows basically bluster there. What appointments really are being blocked by not having a recess? With how the Trump Administration creatively, many say illegally, used the temporary appointment process especially.
That example btw not only shows the kind of silly things our Birchers will conclude based on their fevered conspiratorial mindsets, it also demonstrates their complete lack of intellectual integrity.
They were upset about what they saw as politically motivated prosecutions of Trump associates. But recall that during the impeachment process Bircher Bart said 'well, the chief law enforcement officer quite naturally should be looking into evidence of malfeasance even if it's by his chief domestic political rival.' Bircher Brett went further, he said it was a good thing for officials to use their office to selectively target their political rivals as long as there is some evidence of malfeasance, that's how we can 'burn the house down.'
Now, the US Attorney is indeed a law enforcement official. And there is a crap-ton more evidence that Michael Cohen and Lev Parnas were up to malfeasance. But when it came to these cases they turned their so-called principles on a dime and cooked up a krazy kooky konspiracy theory about politically motivated prosecutions which they then hypocritically decried.
These are not serious men.
"An interesting thread topic would be whether those put out of business and/or unemployed have viable civil money claims against the executives and governments who issued the "stay at home" decrees and the people and organizations who published the apocalyptic models governments used as a pretext to issue these decrees."
This man (too generous, a man stands behind what he says, this creature does not) is ostensibly a lawyer. Let him file these suits and be laughed out of court on record for us all to see. Kooky krazy konspiracy theories don't play out well in the real world outside of the fevered swamps of the right wing intertubes.
he was an insurgent who'd run against the party establishment
I seriously offered a true out of the box, for someone truly "against the party establishment," idea -- trade a 60 something moderate (Garland) that Chief Roberts on down among conservatives said would be a good pick for Obama for various things.
This was ridiculed. Instead, he basically delegated the appointment of judges to the party establishment judicial nomination committee (aka the Federalist Society). Kavanaugh is a prime example here.
Trump once made some noises about being truly against the party establishment, such as that time on guns, but nothing really came of it. In the long run, the party establishment is generally fine with him on policy. The run amounts to largely tone in practice. Well, some degree of competence and ugliness too. But, in the long run, the party establishment is not too upset -- he didn't really block anything they want.
The party establishment has had little problem embracing Trump once he won the nomination. He's enjoyed the employment of top establishment officials, and GOP Congresscritters not only avoid any meaningful oversight of his administration they happily run interference for it.
The only thing 'anti-establishment' about Trump is he's a buffoon lunatic conspiracy theorist type unable to comport himself with even a semblance of professionalism (or even coherence often). But, that's the GOP base right now.
Generally, law enforcement and prosecutors consider two things: (1) Is there substantive evidence of a crime to start an investigation or go to win at trial? and (2) Is the proven crime serious enough to warrant an investigation or trial?
If the answer to either question is no, then law enforcement and prosecutors generally does not proceed unless there is an alternative political motive.
These are the bases for all of my previous comments on these topics, which speak for themselves.
Now, go post another three or four rants, then go back to hiding in your hole to escape your imagined plague.
"the people and organizations who published the apocalyptic models governments used as a pretext to issue these decrees."
Let's not forget that after 9/11 Bircher Bart pulled up his skirt, grabbed his pom poms, and was the loudest cheerleader for our invasion of Iraq, along with other restrictive government measures like warrantless surveillance, indefinite detention, extraordinary rendition, torture, etc. on the now ridiculed prediction that Iraq had WMDs and was an imminent 'mushroom cloud' danger to the US. The number of people killed in 9/11 < to those killed by COVID, and the Iraq invasion cost us *trillions* of dollars and thousands of lives.
This is not a serious person.
"Is there substantive evidence of a crime to start an investigation or go to win at trial? and (2) Is the proven crime serious enough to warrant an investigation or trial?"
The US Attorney in question already won his case against Cohen, that guy is sitting in the pokey right now.
But Bircher Bart decried his prosecution with a ludicrous conspiracy theory, too lazy to look into the facts about the prosecutor in general he went to his usual paltry, pathetic propagandist krazy kooky konspiracy mindset and kooked up one that was demonstrably laughable upon even cursory investigation. On the other hand, when Trump obviously targeted his chief political rival on far flimsier evidence he sung a different tune, contriving every and any possible doubt (actually, it was even more ridiculous: even after the WH quasi-transcript was released demonstrating otherwise Bircher Bart literally said there was 'zero evidence' that Trump ever asked for Biden to be investigated, this is the kind of lunacy he pulls out of his rear in his partisan rear-guard propaganda activity regularly).
This is partisan incoherent. This is not a serious man.
BD: "Is there substantive evidence of a crime to start an investigation or go to win at trial? and (2) Is the proven crime serious enough to warrant an investigation or trial?"
Mr. W: The US Attorney in question already won his case against Cohen, that guy is sitting in the pokey right now.
Cohen is not an example of these principles.
Cohen is a person guilty of unrelated substantive crimes, who was collateral damage of the failed investigation of Trump. I never claimed he was innocent.
Cohen was not on anyone's radar until the Democrats targeted Trump for "colluding with Russia" and "violating campaign finance laws" through the otherwise legal act of paying a past hook-up for her silence. Cohen was alleged to be Trump's agent for both.
The special prosecutor handed the case against Cohen over to the US Attorney because Cohen's actual and imagined campaign finance crimes fell outside of Mueller's portfolio. However, Cohen officially received a deal for assisting the SP in its investigation of Trump. While waiting for sentencing, Cohen unofficially became a very active talking head on Democrat media attacking his former client. No, this jaded criminal attorney does not believe in coincidences.
Since his comment did not address it in any way I repeat:
Bircher Bart decried his prosecution with a ludicrous conspiracy theory, too lazy to look into the facts about the prosecutor in general he went to his usual paltry, pathetic propagandist krazy kooky konspiracy mindset and kooked up one that was demonstrably laughable upon even cursory investigation. On the other hand, when Trump obviously targeted his chief political rival on far flimsier evidence he sung a different tune, contriving every and any possible doubt (actually, it was even more ridiculous: even after the WH quasi-transcript was released demonstrating otherwise Bircher Bart literally said there was 'zero evidence' that Trump ever asked for Biden to be investigated, this is the kind of lunacy he pulls out of his rear in his partisan rear-guard propaganda activity regularly).
This is partisan incoherent. This is not a serious man.
" Barr warns of Justice Department intervention if state lockdown orders go 'too far' "
Trump has had a number of his early nominees turn out to be RNC moles;
Trump can never fail. He can only be failed.
Yes. Trump has failed and various of his minions failed him. Moving past that.
"RNC moles" here is more sloganeering. Basically, you need actual competent people, not a bunch of Kayleigh and Jared types, in government and this clashes with high Trumpism.
This is separate than the problem being "moles" but it fits the conspiracy mindset.
The state of Missouri, filed lawsuit against China ( due to the pandemic of course). Here (to the lawsuit itself):
I imagine the AG for MO is just throwing some red meat to his base there knowing legally that's not going to go far. Trump's mishandling of this has meant his faithful have to find someone or thing else to blame and a foreign one or things is always well accepted by those folks.
Point 2 is not good. Stare decisis is not mandated by the Constitution. It's a good policy, the right policy, but not mandated.
I want to carry this over from the last thread, because Mark Field snuck in at the last second to say this, apparently.
Stare decisis is absolutely mandated by the Constitution. The Seventh Amendment directly references the common law system, and the framers understood the "Judicial Power" to mean the British common law system, which included stare decisis. Indeed, Kavanaugh's Ramos opinion even cites direct statements from Hamilton in the federalist papers, though I don't particularly think that carries much weight.
Further, Article III authorizes one Supreme Court and the creation of inferior courts. What does the word "inferior" mean? It OBVIOUSLY means stare decisis. Why would any court be "inferior" without a system of stare decisis that binds it to precedent. Courts that aren't bound to a system of vertical precedent are not inferior; they are co-equal.
So yes, stare decisis is absolutely a constitutional mandate. Mark is just dead wrong on this.
"Basically, you need actual competent people"
You mean, like the sort of people who will write a memo urging somebody be fired, then use that firing as a pretext to appoint an independent council?
"What does the word "inferior" mean? It OBVIOUSLY means stare decisis. Why would any court be "inferior" without a system of stare decisis that binds it to precedent. Courts that aren't bound to a system of vertical precedent are not inferior; they are co-equal."
Stare decisis can just mean each court will follow its own precedents, right? I mean, it can't just be exactly a system of vertical precedent because according to it the SCOTUS is supposed to follow its own precedent.
Stare decisis can be used for both meanings. When used of the Supreme Court, it means that the Court will usually follow its own previous precedent, and for lower courts that they will follow their own previous precedent ("horizontal"). It this sense it's a rule of prudence and discretion.
It can be also used to mean lower courts must abide by higher court decisions ("vertical"), but IMO that's an imprecise and basically wrong use. Lower courts have to follow higher courts within the same jurisdiction not as a matter of prudence but as a matter of power.
The first usage certainly is not "mandated by the Constitution", as was claimed, since the phrase doesn't appear in the Constitution at all. It's possible to construct a (weak) argument for constitutionalizing the doctrine, but the truth is that the courts choose to follow "horizontal" stare decisis or not. The very fact that courts can choose not to follow it pretty conclusively demonstrates that it's not "mandated". Unless "mandate" means "follow precedent when you decide you should and not when you decide you shouldn't".
The second usage would be intrinsic to the idea of "inferior" courts, but as I said, I think that's more a matter of power.
Reference is made in Federalist 78:Post a Comment
"To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them."
But, to cite the person referenced earlier, the wider truth probably is thus: "The doctrine reflects respect for the accumulated wisdom of judges who have previously tried to solve the same problem."
Sneaky Mark speaks of "mandates" and I'm inclined not to press the point. From first to last, the general and reasonable understanding of the Constitution is that stare decisis should be followed. This "does not mean, of course, that the Court should never overrule erroneous precedents." I quote the other Brett again, but the basic principle is bland. The argument is over details.
But, whatever the Constitution mandates across the board (the 7A references a specific matter; inferior courts as noted also follow stare decisis within their own courts and even beyond the courts there is a limited form of stare decisis in practice -- see, e.g., OLC memoranda or Hinds precedents of HOR; originalism is originalism etc.), the "judicial power" has always been seen as containing within it the principle of stare decisis.
I reckon it need not be that way. What is compelled as compared to very good constitutional policy is something talked about here in the past. Relatedly, for instance, the current mere majority rule is not compelled by the Constitution. I don't think it is a constitutional violation if it was determined (I'll leave it open by whom -- the Supreme Court or Congress, especially regarding lower courts) that certain decisions would need to be by let's say a 6-3 Court or even a unanimous three judge panel.
This might be controversial to some people. For instance, Congress limited lower federal courts habeas review & some lower court judges felt this was an unconstitutional restraint on their power to develop law (roughly, a clear error rule was set forth, so inferior courts had less power to overturn state court judgements if current Supreme Court doctrine wasn't clear on the point).
Anyway, to toss it in, I like what Justice Harlan said on judicial restraint in his Griswold v. Connecticut concurrence. Given the Court's treatment of his opinion in Poe v. Ullman, maybe it can be deemed to have persuasive effect.