Liberty Law Blog

Can Reason Bear Liberalism’s Weight?

by Richard Reinsch / 4 Comments

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“All we ask is that law and policy be based upon reason.” So begins Ralph Hancock’s latest book, Responsibility of Reason: Theory and Practice in a Liberal-Democratic Age. This opening quote was actually delivered by a frustrated political scientist at an academic conference, who asserted “the authority of simple reason” against perceived rubes who doubt its truth or rather its efficacy for impartially reconciling competing claims within a pluralist democracy. Continue Reading →

Obamacare Litigation 2.0

by Michael S. Greve / 0 Comments

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Last week, business owners and individuals from several states sued the IRS and HHS over the agencies’ interpretation and implementation of the Affordable Care Act. The case was engineered by the Competitive Enterprise Institute. CEI’s press release appears here; it contains a link to the Complaint, filed in the federal district court for the D.C. Circuit. This is huge: all of Obamacare hangs on the outcome. Continue Reading →

Lessons from the WW II Japanese Relocation

by Ken Masugi / 2 Comments

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Whenever terrorism strikes America, earnest admonitions about avoiding the Japanese relocation of WW II arise. After all, the thrusting of 110,000 ethnic Japanese, two-thirds of whom were citizens, from their west coast homes into hastily constructed inland relocation centers is unparalleled. Yet, our revulsion at this policy and the Supreme Court’s refusal to condemn it may lead us to the wrong conclusions for our anti-terrorism and immigration policies today. Continue Reading →

Business and Judicial Bias

by Michael S. Greve / 0 Comments

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At the volokhconspiracy, Jonathan Adler takes shots at a law review study by Lee Epstein, William Landes, and Richard Posner, purporting to document the Roberts Court’s unprecedented pro-business bias. The study was reported in a New York Times piece by Adam Liptak. After noting significant methodological flaws in the study (which, admittedly, I haven’t read yet but which seems just as shoddy as the “judicial behavior” literature in general), Adler comments:

Quantitative studies of the Supreme Court’s behavior can be illuminating, but they only go so far, and they have a difficult time accounting for the actual impact of the Court’s decisions.  Not all cases are created equal.  A single case, such as Massachusetts v. EPA (or Wyeth v. Levine, to note another significant business loss in the Roberts Court), may be more significant than a half-dozen cases in which differently aligned interests prevailed.  Ultimately, if one wants to know whether the Court is more or less friendly to business (or any other interest) one should look at the doctrinal result of the Court’s decisions.

My sentiment exactly. Let me add this:

It would not occur to the quant geniuses to code civil rights decisions as “pro-“ or “anti-black,” or civil liberties cases (e.g., search and seizure, death penalty, Confrontation Clause) as “pro-“ or “anti-criminal (killer, child molester).” There, the bean counters go to the norm, not the constituency. When it comes to “business,” they count and write as if there were no norm.

On that theory, every antitrust case that’s won by a defendant counts as “pro-business.” Never mind that under modern antitrust law, business can’t win unless it shows that its practices were pro-consumer, or at least not detrimental to consumer welfare. No one would suspect Lee Epstein of recognizing the difficulty, but Richard Posner?

Or consider such constitutional norms as the Privileges and Immunities Clause (Art. IV Sec. 2) or the Contract Clause (Art. I Sec. 10): they protect commerce and private orderings, presumably for the good of all. But they’ll be enforced mostly by economic actors. In the quant world, the principles fall away, and every successful enforcement action—if such actions could be brought, which by and large they can’t—would count as simply “pro-business.”

I am entirely open to the suggestion that the Supreme Court often does look to constituencies rather than norms. For my part, I can’t explain the Court-created edifice of sex discrimination (including abortion) any other way. Similarly, it’s plausible to argue that in commercial cases, the contemporary Court is looking away from constitutional norms (which it is no longer willing to enforce) and towards hand-crafted doctrines to serve to protect commercial actors. (This had better be plausible; it happens to be my view. See The Upside-Down Constitution.)  All that, though, requires a careful examination of empirics and doctrine. To simply assume effectively norm-free constituency orientation in one context (but not others) is a category error in service of a preconceived result.

Jack Balkin on Originalism and Living Constitutionalism

by Mike Rappaport / 1 Comment

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Jack Balkin has posted an essay from a conference held in Jerusalem on his new book Living Originalism.  One can only marvel at the number of conferences and symposia on the book.

As many readers know, Jack is an advocate of originalism, but of a different type of originalism.  Under Jack’s view, originalism is compatible with living constitutionalism: hence the title of his book, Living Originalism.  While Jack’s book is innovative and interesting, Jack may be the only originalist who believes that these two positions are compatible.

Jack’s position, however, is also distinctive in other respects.  One can draw a distinction between two different types of interpretive theories: positive theories and normative theories.  Positive theories are theories of the actual meaning of a document.  Normative theories are theories of what it would be desirable for the document to mean.

Virtually all originalists believe that the positive theory of interpretation is originalist.  Some originalists also believe that the normative theory of interpretation is originalist as well, although some originalists do not.  (For example, John McGinnis and I argue that the actual meaning of the Constitution is its original meaning and that this meaning is the desirable meaning as well.)  Thus, virtually all originalists believe that the original meaning of the Constitution is the actual meaning of the Constitution, and reach this conclusion without considering values or normative matters. Continue Reading →

Constitutional Overrides?

by Michael S. Greve / 2 Comments

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Ryan Emanaker (College of the Redlands) has an interesting paper on congressional “overrides” of Supreme Court constitutional decisions. Scotusblog has a summary; the full text, with cites to the literature and a table of cases, is here.

Quick summary: the Rehnquist Supreme Court (the last “natural” Court covered by the study) has “nullified” acts of Congress under the Constitution at a much greater rate than any earlier Courts. However, Congress has also “overridden” those decisions quite frequently. The author counts 41 Rehnquist “nullifications” and 12 overrides (29.3%). That is above the level studies have found for earlier periods, and well above the level typically found for overrides of statutory decisions (under 10 percent, perhaps much lower). Apparently, the author says, “it is actually easier for Congress to override a decision based on constitutional interpretation than it is a decisions based on statutory interpretation.” There’s a healthy “dialogue” between the Court and Congress. Maybe the higher numbers—compared to the past—have to do with the longevity of modern-day justices: if Congress cannot “correct” the Court through appointments, legislation will have to do.

There’s quite a bit of conceptual looseness here. The Court doesn’t run around “nullifying” laws. It says things like, “This goes too far”; or, “You can’t do it this way” (but maybe some other way).” An “override” is when Congress says: “Okay, we’ll try again.”

Interesting pattern of factoids: overwhelmingly, the “nullifications” aren’t about some pro-business crusade. The two largest categories are cases on federalism and sovereign immunity (11 out of 41, or 26.8%) and above all on the First Amendment (17 cases, or 41.5%). Think campaign finance, and think porn. Lo, most of the “overrides,” too, fall into those groups and especially the First Amendment. How about child porn on the Internet? How about banning books in the name of campaign finance reform?

Make of it what you will: that’s where the dialogic action is.

 

David Cameron Takes a Kick in the Ballots

by David Conway / 0 Comments

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‘A kick in the ballots’ is how pundits are describing the blow received by British Prime Minister David Cameron at the polls last week in his country’s mid-term local elections in the rural shires, traditional heartland of support for the Conservative Party he leads.

UK-Independence Party leader Nigel Farage celebrates his party's unprecedented gains last week.

UK-Independence Party leader Nigel Farage celebrates his party’s unprecedented gains last week.

Gleefully administering the blow was Nigel Farage, the ever-exuberant leader of the United Kingdom Party Independence Party (UKIP for short). Continue Reading →

Greg Weiner responds to Stephen Knott and George Thomas

by Richard Reinsch / 0 Comments

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Don’t miss Greg Weiner’s reply in the Liberty Forum section to separate responses by Stephen Knott and George Thomas to his essay, “Congress and Deliberation in the Age of Woodrow Wilson: An Elegy”.

Herewith, an excerpt:

[F]or every instance of presidents acting alone, one can offer others of presidents acting in consultation with Congress according to the constitutional model.  James K. Polk lined up troops on the Mexican border, observed that a state of war already existed, but nonetheless asked Congress for a declaration.  Lincoln, so beloved of devotees of Presidential prerogative, repeatedly asked Congress to ratify what he had extra-constitutionally done.  Perhaps some of the excesses attributed to President Bush were not unprecedented, as Steve notes in his book, even though I would argue the difference lies in reclassifying them as rules rather than as exceptions.  In either case, the fact that other presidents engaged in similar practices does not seem to me to be a defense of them.  On the whole, the examples Steve provides do not constitute either the sole historical pattern or, crucially, an argument that presidents properly act unilaterally in these ways.

Next, some of Knott’s illustrations seem more complicated than his presentation here.  Yes, Washington issued a Neutrality Proclamation, but this was hardly an uncontroversial constitutional act.  Moreover, when juries rejected his Administration’s attempt to try people for violating it, he was compelled to go to Congress for legislative authority to back it up.  Similarly, a miffed Washington did indeed refuse ever to return to the Senate for advice and consent in person after doing so on the Indian treaty, but this was because the Senate—which then had constitutional kishkes—irritated him by refusing merely to accede quickly to his wishes.  Washington reasonably withheld documents pertaining to the negotiation of the Jay Treaty; it is far more difficult to see him simply circumventing the Senate by reclassifying it as an “executive agreement,” as for example, President Bush did in concluding an agreement with the government of Iraq. 

Throughout Knott’s analysis, it seems to me there is a danger—see Burke on this point—of mistaking exceptions for rules.  Jefferson intended the Louisiana Purchase to be the former—a big exception, to be sure, historic in scope, but one committed over grave constitutional reservations, surely not intended to set a precedent.

Reading Writing Grading

by Ken Masugi / 0 Comments

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ruggles-of-red-gapReading several M.A. thesis drafts has put me in a prickly mood about the quality of student writing. But now I can junk the “Track Changes” feature, since automated editing software can replace my nitpicking, surgery, and triage. Ed X, a nonprofit online education site founded by Harvard and MIT, plans to “make its automated software available free on the Web.”

David Lebedoff, who wrote what appears to be a fascinating comparison of  George Orwell and Evelyn Waugh, fears this device might yield this correction of the Gettysburg Address. (See the comment by “Madwoman” at 10:34 a.m. Saturday, who reports pedagogic malpractice by a teacher who relied on a computer program and marked down a student for errors in a quoted passage. ) Continue Reading →

Friday Roundup, May 3rd

by Richard Reinsch / 0 Comments

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  • The May Liberty Forum is now available and features a great exchange among Greg Weiner, Stephen Knott, and George Thomas on the need for Congress to re-assume its full powers of deliberative government. Weiner asks if we are all Wilsonians now?

Neoconservatives, it should be said in fairness, brought the 28th President’s ideology through the front door in the plain light of day in the form of a moralized and expeditionary foreign policy.  What few noticed is what got simultaneously smuggled in the back: a constitutional philosophy that suppresses Congress, elevates the Presidency and replaces deliberation and an awareness of human frailty—once staples of conservative thought—with moral certitude and an emphasis on power concentrated in the daring man of decisive action.   Those who prefer simpler political pleasures—liberty is one, prudence another—have reason for concern.  For them, this is a season for a reassertion of legislative prerogatives, of the not merely equal but paramount role the Framers assigned to the most—indeed, the only—deliberative branch of government: Congress.

In his response essay “Congress, Heal Thyself” Stephen Knott responds with both historical and constitutional challenges to Weiner’s depiction of the supremacy and inherent moderation of Congress. George Thomas notes the complexity of presidential power in the Constitution and further wonders if the self interest of Congress in transferring its powers to the executive branch and avoiding full accountability for its decisions now outweighs its formal constitutional obligations

Today, we may ascertain more clearly China’s strategic intentions – the black box – by examining its current leader’s statements. Xi Jinping, before and after assuming the presidency of the People’s Republic this past March, made a series of speeches, the themes of which were a “China Dream.” “This dream can be said to be the dream of a strong nation. And for the military, it is a dream of a strong military,” Mr. Xi said in December 2012 on board a guided-missile destroyer. “To achieve the great revival of the Chinese nation, we must ensure there is unison between a prosperous country and strong military.”This is certainly an affirmation of Blumenthal’s assessment in the book; but the book itself reveals very little in the way of China’s strategic intentions, despite evidence in open sources.

  • Ken Masugi, long-time contributor to this site, will devote his considerable constitutional learning to Law and Liberty as a guest blogger for the month of May. Ken tells me that he has pursued failed careers in academia, federal and state government, and the think-tank world. He is adding blogging for libertylawsite to his list of accomplishments.
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