In a recent speech in Bolivia, Pope Francis voiced his indictment of what he calls “the globalization of exclusion and indifference.” Speaking of what he believes to be problems universal to Latin America, he wishes, “May the cry of the excluded be heard in Latin America and throughout the world.” But who, I wonder, are they listening to?
Just when I thought was done with Departmentalism vs. Judicial Supremacy, they pull me back in again! In my last post, I quoted Abraham Lincoln’s famous statement about Dred Scott in his first inaugural: “if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers” (emphasis added). I noted that one might interpret this as expressing the view that a series of decisions might…
My previous posts on this topic, I & II, reflected on the reasoning and fallout from the judicial mandating of parity in school funding in the Lone Star State. In this final post on the topic of Edgewood, I will elaborate on the unfortunate legacy of that decision, and speculate about the reasons for its continued vitality as a precedent.
Judicial activism is bad in the abstract because it alters the proper balance of power among the branches of government, diminishes democracy, and abuses the rule of law. In the case of Edgewood, the problems are not just abstract, but concrete.
At the end of the day, the best and most deeply committed collectivists ought to be advocates of a small and limited government. Why? Because the state isn’t the only collective; it’s just the most obvious one. State collectivism received a devastating critique in James R. Otteson’s recent book (reviewed here), and I want to supplement Otteson’s case: In addition to the solitary individual staring down the centralized bureaucracy, we can think about the collections of individuals in civil society who are greater than the sum of their parts.
Last month I had the pleasure of presenting a paper at the International Conference on Artificial Intelligence and Law. It was fifteenth such conference held every two years. Artificial Intelligence and Law thus is a discipline that is already thirty years old. Because of the exponential increase in computation (doubling in power about every 18 months), the theoretical advances made over the years at such conferences are now yielding practical results.
In this initial post, let me mention the most interesting practical application of AI to law at the conference– A Legal Citation Recommendation Engine. This program embeds a research mechanism within Microsoft Word. As a lawyer types his or her brief or memo, the program suggests case law and other material relevant to its arguments. Thus, the program acts as real-time, imbedded virtual legal research assistant.
The inventors of the product hope to distribute a prototype by next year. The program seems relatively rudimentary now. But at their beginning speech-to-text programs were also rudimentary and made many errors in transcription even when I used my PC and an excellent microphone. Now I use such programs to dictate all e-mails into my smart phone even with ambient noise.
My first post underscored how state courts became the next stronghold of judicial activism after the Warren Court. This has been particularly true with regard to school funding measures. In Texas, the school funding fiasco was unleashed by judicial creativity in order to get an egalitarian result.
Part One of my review of Overruled: The Long War for Control of the Supreme Court summarized Damon Root’s presentation of libertarian constitutionalism as an alternative to liberal Progressivism, and to what Root sees as excessively conservative federalism. Overruled takes particular aim at constitutional federalists as unjustifiably impeding the proper reading of the Constitution and the protection of unenumerated rights against state abridgment.
Like most libertarian constitutionalists, Root believes that the Fourteenth Amendment’s Privileges or Immunities Clause, properly read, justifies judicial enforcement of unenumerated rights, including unenumerated economic rights. The Supreme Court has repeatedly rejected such a reading, initially in The Slaughterhouse Cases (1873) and again in New Deal-era decisions like United States v. Carolene Products (1938). Root insists that such cases be overruled, and that advocates of federalism give up their wrongheaded efforts to limit judicial interference with the rights of local self-government.
I have long believed that the House Republicans should be using their impeachment power against the IRS. I thought that they should have seriously considered impeaching Lois Lerner (although I suppose there is question whether she was a constitutional officer). I certainly believe that they should consider whether to impeach IRS Commissioner John Koskinen and other relevant IRS officials. (Note: the House impeaches or accuses; the Senate tries the official and can convict with a two thirds majority.)
It is true that an impeachment of the IRS Commissioner will not directly affect the President or the White House. But it is important to use the tools that the Congress has to police wrongdoing and impeachment is one of them.
Impeachment will punish the wrongdoing of officials in an entirely constitutional way. The accused person will have the spotlight on them and their acts will be exposed to the public. If they are removed from office, they will be in disgrace. Moreover, the media will find it much harder to ignore the issue, both because of the unusualness of an impeachment and because of the drama that it establishes. Impeachment will command the attention of the country in a way that simple oversight hearings do not.
Amid all the controversy surrounding the recent SCOTUS decisions, it is easy to forget that federal courts do not have a monopoly on judicial activism. State courts—and in particular state supreme courts—can and do make bad decisions, often cleverly insulating themselves from further appellate review by resting their decisions on “independent state grounds.”
Supreme Court pundits generally have the Court’s members pegged along a simple political spectrum, with “liberal” denoting one side and “conservative” the other (with Justice Anthony Kennedy endlessly dancing from one side to the other). The assumption is that constitutional interpretation falls along a simple liberal-conservative continuum. Damon Root’s new book, Overruled: The Long War for Control of the Supreme Court, suggests that this binary view is too simplistic. A third approach, libertarianism, presents a theory of limited government power that is indebted to, and yet distinguishable from, post-New Deal liberalism and traditional social conservativism. Like most constitutional conservatives, libertarians call…