Stan Evans, RIP

Stan Evans died this past week at the age of 80. Other, much closer friends have celebrated and will continue to celebrate his lasting contributions to the cause of liberty. I miss the man because he was never one for a conservative pity party; always willing and eager to go one more round; deeply serious and at the same time hilarious, at hard-to-match levels. Two memories stand out: A few years ago the Philadelphia Society invited me to give a talk on (what else?) federalism. What they didn’t tell me was that Stan would introduce me. So we sit down at…

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Meaning and Consequences in King v. Burwell

Supreme Court Hears Case Challenging Obama's Affordable Health Care Act

Jack Balkin has made an interesting observation about the argument in King v. Burwell:

One of the strongest arguments for the government’s position in King v. Burwell has been based on consequences: if the Supreme Court denied insurance subsidies to customers on federal exchanges, the consequences will be disastrous both for insureds and for the states.

But he goes on to note that not all the justices agree on the consequences, pointing out that unlike some of the other justices, Scalia thinks that Congress would fix the statute if subsidies become unavailable on federal exchanges. Balkin thinks this disagreement may prove a problem for the success of the government’s argument. I think the disagreement provides yet another reason that arguments based on such consequences have no place in the judiciary’s determination of the meaning of a law.

In my view, the meaning of a statute, like the meaning of a constitutional provision, is established at the time it was enacted.

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Promising Developments on Sexual Assualt and Due Process

Injustice And Discrimination

I want to mention two additional developments in the sexual assault area that suggest that people are beginning to protest and push back against infringements of due process and fairness.

First, 16 members of the University of Pennsylvania Law School faculty have written an Open Letter criticizing the University’s new procedures for investigating and adjudicating complaints of sexual assault.  The letter refers to the pressure placed on the University to adopt these procedures under threat of withdrawal of federal funds, but notes that the procedures undermine “many protections long deemed necessary to protect from injustice those accused of serious offenses.”  The 16  faculty members comprise a politically diverse group with both liberals and conservatives significantly represented.  This Open Letter builds upon the momentum of another such letter from members of the Harvard Law faculty.

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Obamacare Meets Rudy

Yesterday’s extended argument in King v. Burwell brought moments of something bordering on joy and gratitude. The exchanges between Justice Elena Kagan and Mike Carvin, both at their very considerable best, stand out: serious questions, serious answers; obvious mutual respect. No matter whose side (if any) you’re on, that’s the way the system is supposed to operate. Give thanks when it (still) does. And then, there were moments that made your heart sink: JUSTICE SCALIA: What about Congress? You really think Congress is just going to sit there while—while all of these disastrous consequences ensue. I mean, how often have we come out…

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Honor the Man, Not the Demi-God

abe

In his Second Inaugural Address, Lincoln reprises the brevity and complexity that has made his Gettysburg Address so well known and so cherished. He also reprises the Biblical allusions and spirit that animated some of that earlier speech. But the tone is strikingly different. For us, the speech rings tragically in our imaginations because of its author’s fate—known well to us, but as yet unknown to him. Lincoln’s Second Inaugural is framed in terms of eternity and clouded by the inscrutability of God’s mind. It takes this perspective because of his very different aim: unity in the aftermath of approaching victory.

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Lincoln’s 700 Words of Biblical Meditation

Lincoln's 2nd

A hundred and fifty years ago today, as the sun broke through the clouds shortly after noon on a wet Washington day, Abraham Lincoln, with one hand raised and the other on an open Bible, took the presidential oath of office for the second time. The speech he just gave had been received by an enthusiastic crowd on the East Portico of the U.S. Capitol. It took about six minutes. Then the oath. Then he said, “So help me God,” bent forward, and kissed the Bible to conclude the solemn ceremony.

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Breathing Homer’s Pure Serene

Why Homer Matters is the best book about literature I have read in decades. Significantly, its author, Adam Nicolson, is not a tenured professor at some famous university or even an independent classical scholar. And this difference shows, all to the benefit of the reader.  An accomplished sailor, Nicolson has endured gales and felt the spume and spray of sail, like Odysseus. He has faced the cold steel of a dagger point against him on the plains of the Levant, not unlike the warriors of Troy.  He is not some old, bald head, annotating lines from his study, but instead advances our understanding of the poems through his own travels and personal discoveries from a life fully lived.   Particularly in this age when so much literature is refracted through the prism of political correctness, it is invigorating to read a book so loud and bold in its reassertion of the centrality of these canonical texts to seeing our own world.

That is not to say that the book is not learned. Nicolson has a comprehensive understanding of the most important aspects of Homeric scholarship.

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The Dismal Performance in Federal Policy-Making: A Discussion with Peter Schuck

govt fails

Peter Schuck comes to Liberty Law Talk to discuss Why Government Fails So Often. Like James Buckley and John DiIulio, Schuck doesn’t have much good news for the large majority of Americans who are disgusted with the performance of the federal government and its ability to devise and execute policies. Schuck notes that in April 2013, only 28% of Americans had a favorable opinion of the federal government. Many have tried to explain this phenomenon with various government affirming answers, but Schuck is forthright in the book and this interview when he states that the best answer is that the…

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Why Should ‘Electoral Integrity’ Exclude Freedom of Speech?

George Washington ready to party.

In Citizens Divided: Campaign Finance Reform and the Constitution, Robert C. Post, the dean of Yale Law School, makes it his task to “elaborate a constitutional framework in which First Amendment doctrine and campaign finance reform can be connected to each other in a coherent and theoretically satisfactory manner.”

Despite its title, Citizens Divided is not so much about the controversial 2010 Supreme Court case of Citizens United v. Federal Election Commission as it is a discourse on the debate about the constitutionality of campaign-finance regulation—a debate that has raged since the Court’s seminal decision in Buckley v. Valeo (1976).

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Why Can’t a Man Be More Like a Woman?

In My Fair Lady (based on George Bernard Shaw’s Pygmalion), Professor Higgins asks why can’t a woman be more like a man?  But these days, the sentiments underlying that question are more likely to be reversed.

In this article, a 50 year old woman laments the behavior of men.

There seems to be a gender imbalance, vis-a-vis [appearance]. All the women I know are tolerant of middle age showing itself in a chap. We quite like a late flowering, in fact: the silvering, the smile lines, the coming of bodily sturdiness.

By contrast, she notes that 50 year old men favor younger females:

It’s true that men don’t see me any more. It’s sobering to walk down the street observing how the 50-year-old men behave, paying attention to what they’re looking at as they stroll along. They are not looking in shop windows. They are not looking at me. They are looking at women half their age.

The suggestion is that men are somehow more superficial and really inferior.  Women are after substance; men are after looks.  And so, why can’t men be more like women?

But this story is a mirage – a false tale that our age seems to repeat.

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