They’re Baaack

US Supreme Court

Now that the Supreme Court is back in session, do you feel better? I do, a little. The docket for the 2015-2016 Term so far contains about 40 cases half the expected load for the Term. There is the usual smattering of Eighth and Fourteenth Amendment cases, which cannot end well. But there is also a gratifying number of cases (13 by my count) that (1) are about something real (money) and (2) pose difficult FedCourts-ish questions. Those cases may go right or wrong. But at least the justices will behave like lawyers, not oracles. Herewith three favorites, along with intrepid predictions.

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Seeking a Power Agenda

US Capitol Building, Washington DC

Conventional wisdom holds that the Speakership of the House is an impossible job because the Republican caucus is ungovernable. On this narrative, compromise is profane, and conservative purists outflank any constructive proposal leadership makes, thus rendering it toxic to the opposition. The purists are the proverbial bidders in Burke’s “auction of popularity”: “If any [leader] should happen to propose a scheme of liberty, soberly limited, and defined with proper qualifications, he will be immediately outbid by his competitors, who will produce something more splendidly popular.”

Alas: What’s a speaker to do? 

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A Nonoriginalist Challenge to Birthright Citizenship for Illegals – Part II: The Original Meaning

Having stated my political view that the United States should allow a large amount of legal immigration, I now turn to birthright citizenship: the idea that any person born in the United States should automatically be a United States citizen.  While I will develop this point later, it should be noted at the beginning that these two issues do not necessarily coincide.  One can favor immigration, even illegal immigration, and still be against birthright citizenship.  As I will explain later, I hold a version of this position.  Similarly, one could favor birthright citizenship and be against much immigration. The first sentence of…

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Reducing the Power of Paramilitary Unions is a Civil Rights Issue

The Department of Corrections in New York State has tried to fire many prison guards for unjustified force against inmates. They are generally unsuccessful because of the union contract. It gives substantial job protection rights to the correction officers, including the right to arbitration. Arbitration rarely results in dismissal because unions have a hand in picking the arbitrators.

The inability to dismiss bad apples in turn creates a culture of impunity. The inattention of numerous guards permitted two notorious murders to tunnel out of an upstate New York State prison. Two prison employees actively aided their escape. The result was not only millions of dollars in costs to New York State, but nights of terror for nearby residents with natural born killers on the loose. And then the guards brutalized inmates with no connection to the escape in a search for scapegoats to cover up their own misfeasance.

Reducing the power of public unions in paramilitary forces, like correction officers and the police force, is one of the great civil rights issues of our time.

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Amateur Hour

KEENE, NH - SEPTEMBER 30 (Photo by Darren McCollester/Getty Images)

A while ago, I was driving back to Indiana from the place of my birth and America’s most dysfunctional city, Chicago. As thoughts of Greek-style pensions for public employees, exorbitant property taxes, and sky high murder rates were passing through my consciousness, my car began emitting a strange noise on the expressway. It grew louder, and my stomach sank. It was a flat. The car wobbled onto a nearby exit ramp, and I slowed to the shoulder cursing my lousy luck.

Thankfully I had just renewed my Triple-A membership (after debating to myself whether or not the fee was worth it), so my luck held in the end. The incident led me to ponder the fact that it would not have occurred to me in my distress to try calling a real estate developer, a neurosurgeon, or a former CEO for help. That is to say, anyone lacking a background in auto repair.

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A Bien Pensant Pope

Pope Francis waves from the Speakers Balcony at the U.S. Capitol building following his speech to a joint meeting of Congress (Photo By Douglas Graham/CQ Roll Call).

The Pope’s recent address to a joint session of Congress was greeted ecstatically, though (or perhaps because) it was notable mainly for its secular rather than for its religious pieties. It was the speech of a politician seeking re-election rather than that of the spiritual leader of a considerable part of mankind; as such, it seemed like the work not of a man intent upon telling the truth, however painful or unpopular, but that of a committee of speech-writers who sifted every word for its likely effect upon a constituency or audience, appealing to some without being too alienating of others.

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The Price of Civilization

children and dead

Is it possible to have civilization without killing?

J.R.R. Tolkien and George Martin approach this question in very distinct ways but they seem to agree the answer is “no.” Both believe that civilization needs the office of the knight: Because some seek power maliciously, others must unite ferocity and gallantry. “Fantasy” may be their genre, but there is a certain realism that runs through the civilizational stories these two authors have produced.

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Don’t Further Politicize the Court

Rick Hasen has called for making Supreme Court appointments  an important part of 2016 political campaign. What is distinctive about his argument is that he drops all pretense of appointing justices based on their jurisprudence or methods of legal analysis. He just wants a series of left-liberal results that he characterizes as civil right decisions, although some of these results, like overruling Citizens United, actually take away civil rights exercised against the majority. He wants to further politicize the Court.  He is kind enough to quote me as arguing for depoliticization: The Court should act apolitically by applying the same formal methods in highly contested constitutional cases that it does in garden variety cases, such as the bankruptcy code.

Hasen dismisses this possibility and in particular the most important tool for doing so– originalism. But his arguments are very weak. He observes that at times Scalia and Thomas—both originalists—disagree. But of course no methodology eliminates all disagreement, even if  it depoliticizes that disagreement by forcing justices to look at the empirical facts rather than to their preferences. And in any event Scalia and Thomas have some of the highest rates of agreement of any two justices on the Court.

Hasen also argues that terms like equal protection are sufficiently vague to permit alternative legitimate methods of giving effect to the Constitution.  But he makes no effort to legitimate or even describe these methods other than to argue that they can help achieve what he views as good political results.

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A Nonoriginalist Challenge to Birthright Citizenship for Illegals – Part I: Embracing Legal Immigrants

With immigration – both legal and illegal – being the subject of debate these days, I thought I would blog a few posts on the issue generally and on the 14th Amendment Citizenship Clause in particular.  To sum up my positions, I strongly favor legal immigration, I believe the original meaning of the Constitution requires birthright citizenship for the children of illegal aliens born in the United States, but I believe that a reasonably strong nonoriginalist argument can be made against such birthright citizenship for illegal immigrant children.

To begin, I favor legal immigration.  The United States is a country of immigrants and it has been greatly enriched by such immigrants.  The nation should allow large number of immigrants to enter its borders.  Sadly, the welfare state probably makes it necessary to allow fewer immigrants in, but still large numbers should be admitted.

Not only do I favor immigrants based on public policy reasons, I also sympathize with them.  I think of myself as coming from a family of immigrants, with three quarters of my grandparents being immigrants.  And my wife, and her family, are also immigrants.

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The American Revolution and the Pamphlet Debate: A Conversation with Gordon Wood

Pulling Down the Statue of King George III at Bowling Green in Lower Manhattan.This next edition of Liberty Law Talk is a conversation with the great American Founding historian Gordon Wood on a new two volume collection entitled the American Revolution: Writings from the Pamphlet Debate that he has edited for Library of America. We discuss these foundational debates between British and colonial statesmen that contested the nature of law, sovereignty, rights, and constitutionalism and would serve as the basis of the revolution and lead to the creation of America.