Saturday, August 01, 2020
Mark Tushnet and the "Next Age" Struggling to be Born
I don't think the left can "take back" a constitution that was never the left's to begin with. What Tushnet is laying out is how to go about partisan entrenchment, to convert a nominal democracy into a one party state. And he does a good job of that. In fact, I use him as my primary exhibit when I want to point out the left's threats in that regard.
The Constitution is for "We the People," including whatever Brett thinks "the left" means. If Tushnet actually is laying out partisan entrenchment instructional materials, I can understand why a conservative Trump partisan is interested. Might be useful. Fairly atypical hardball theorists are useful as well since they are such prime targets and made out as if they really are median. Not that I take Brett's summary of Tushnet's actual views as something one should take on face value.
Anyway, there is too much in the OP to really respond in a single comment. I will add that after Kennedy retired, I supported Amy Comey-Barrett among those on the short list. She was better for various reasons than Kavanaugh. She also was more intriguing than the somewhat standard white guy conservative type. The dynamics would be different if she was up for RBG's spot.
He publishes here frequently, it's not hard to find his plans laid out. He calls it "constitutional hardball", or "abandoning defensive crouch liberalism".
It all starts with packing the Supreme court.
You are fine with "constitutional hardball," so I can see why you might find him helpful. The guy has been writing for a long time. So, a few phrases or talk of "starting with packing," with your loose usage of facts and language at times -- published here frequently -- needs to be taken with a grain of salt.
The Republicans have played "hardball" regarding the courts for years. That's fine for you -- you might wish they played harder though -- since they are roughly -- as far as things can go realistically -- your people. This includes what amounts to packing. So, it is not quite "hardball" really to respond somehow in kind. At least, coming from someone like MT who is not a median voice from the liberal academy.
The Constitution provides Congress power over the courts in a range of ways. Over the years, it actually did change the number of judges or justices in a constitutional hardball sort of way. This included in some fairly atypical moments.
Brett is mildly concerned at most, it's a bit hot in this room in summer, about Trump at times, so thinks this isn't one of those times. But, published writings for years suggest the validity there. Anyway, as compared to other things, the actual people in power in 2021, let's say the Democrats, doing that remains to be seen.
Those of us who believe in limited government only have one viable means of "constitutional hardball" - an Article V convention of the states. As Roberts, Kennedy, O'Connor, etc, have demonstrated over decades, judges drawn from our progressive legal guild cannot be relied upon to reverse past progressive rewrites of the Constitution or not to engage in a few rewrites of their own.
A very concerned David Super recently noted a recent development in this effort - Governor Scott Walker's proposed mandamus petition seeking to order Congress to call an Article V convention based on past state applications piling up over the past decades. His proposed defenses are unconvincing.
(1) When a sufficient number of states file applications for a convention, Article V commands Congress to call a convention. Congress's power here is ministerial, not legislative or political. Congress has no power to refuse.
(2) Congress need not enact a statute to enforce the requirements of Article V. The judiciary has the power to do so through a mandamus.
(3) While a couple courts have entered questionable opinions allowing Congress to set time limits for state ratification of Congress's own proposed amendments. Article V provides no expiration date for state convention applications.
(4) Super is correct to observe Article V nowhere allows state applications to limit the kind or number of amendments proposed by a convention. Such a convention could replace the old Constitution in its entirety with a new basic law as did the prior convention in 1787.
The professor is worried "special interests" (the People) could ride a runaway convention and reverse over a century of progressive rewrites and erasures of the old Constitution. He is right to be concerned.
"You are fine with "constitutional hardball,""Post a Comment
THAT is known as "the fallacy of equivocation"; Using the same word to mean different things at different points in an argument.
*I'm* fine with the Senate refusing to confirm a Supreme court nominee. (Though I've repeatedly said they should have at least voted him down.) *You're* fine with packing the Supreme court to turn it into a rubber stamp. Therefor we're both fine with "constitutional hardball". Because you're claiming merely refusing to confirm a nominee IS Court packing.
Just like calling not drawing non-compact districts to improve Democrats' prospects "gerrymandering", just not confirming a nominee is now "Court packing"; As usual, redefining words to guarantee the win.