When Deference Is Dereliction

Section 3331 of the United States Code prescribes the oath of office for the House of Representatives. Rep. James E. Clyburn (D-S.C.) has taken it 11 times, which is enough to commit to memory its opening pledge—to “support and defend the Constitution of the United States against all enemies, foreign and domestic; [to] bear truth faith and allegiance to the same.” Anyone who promises to do the same thing 11 times can probably find a shortcut, and Clyburn has evidently identified one: outsourcing constitutional protection to another branch of government.

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The President’s Disregard for Constitutive Norms

Respect for our constitutive system can be as important as positive constitutional law.  Positive constitutional law is written and, if a plaintiff has standing, is likely to be enforced by the judiciary.  Our constitutive system, by contrast, is either unwritten or at least unenforced by the judiciary.  Order in this system is maintained by the statesmanship of the political branches.

Peter Schuck, a supporter of the President and proponent of immigration reform, has ably articulated the problems of the President’s executive order on deportations as a matter of positive law.  But whatever its positive legality, the President’s decision to defer the deportation of millions of undocumented immigrants does not respect our constitutive system.

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Defining America Down

It was inevitable that some supporter of President Obama’s would come along and compare his executive action on immigration to the most famous executive order of them all, President Lincoln’s Emancipation Proclamation. Yale law professor Bruce Ackerman has done the honors, and his comparison is, not to put too fine a point on it, weak.

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Flemming Rose on the Aftermath of the Mohammed Cartoon Crisis

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This next podcast is with the Danish journalist Flemming Rose, foreign news editor at Jyllands-Posten, on the controversy he ignited in 2005 when he published cartoons satirizing the prophet Mohammed. His new book, The Tyranny of Silence, offers his reflections on the conflagration that ensued, including a jihadist’s attempt to murder one of the cartoonists with an axe. Rose received the protection of Danish security services after threats were made on his life. Not bowing to intimidation, Rose has spent the last decade highlighting the dangers of foregoing a commitment to freedom of speech. Our interview delves into these experiences…

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The Meaning of the Equal Protection Clause

Over at the Originalism Blog, Andrew Hyman has a post discussing the meaning of the Equal Protection Clause.  While modern law treats the Clause as protecting against all unequal laws, that is not the way the language reads.  The language says no state shall deprive any person of the equal protection of the laws.  Thus, the language says there is a category called “the protection of the laws” and the Clause requires that this protection be equal.

When one looks at the traditional understanding of the protection of the laws, it turns out that it means something like the remedies that are provided to protect people’s legal rights.  For a seemingly exhaustive discussion of the evidence for this, see Chris Green’s two articles here and here.  Thus, the Clause does not protect against all unequal laws, but instead of the failure of the state to protect people’s preexisting rights.

Under this interpretation, the Equal Protection Clause was about ensuring that the law protected all persons equally.  Thus, it prohibited sheriffs in the former confederate states from looking the other way when blacks were lynched.  (One important question  that this interpretation raises, which I do not discuss here, is how equality is protected under the 14th Amendment. )

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EPA’s Greenhouse Gases Regulation Meets Federalism

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Under the Constitution, states have no right to “interpose”—that is, to block the enforcement of supreme, validly enacted federal law. However, with the arguable exception of the judges in each state, state officials are under no obligation to execute an affirmative federal command issued to them. They cannot be ordered to accept federal funds or to establish an exchange. The ACA illustrates the salutary force of this constitutional precept: grand federal schemes gang aft agley. The next big illustration could and hopefully will be the regulation of greenhouse gases under section 111(d) of the Clean Air Act (CAA), coming very soon in this theater.

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On “Payback”

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Empowered by the elections of 2014, Republicans face the question common to all who have had revolutionary changes imposed on them: Are we to accept what was done to us so as not to further revolutionize our environment, hoping our restraint will lead our adversaries to restrain themselves whenever they return to power?

Senator Harry Reid (D-Nev.), who, as Minority Leader pioneered the filibuster of appellate judicial nominees—vide, Miguel Estrada—and then as Majority Leader abolished the rule that allows it, had this to say in the wake of the midterms: “This is not get-even time.” Just as understandably, Senator Orrin Hatch (R-Utah) argues for teaching “these blunder-heads that they made a big mistake” by giving them “a taste of their own medicine.”

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The Emptiness of Empathetic Judging

Dahlia Lithwick has recently complained that the Supreme Court is made up of elites. Hers is not the usual complaint of conservatives that the justices are writing their elite values into the Constitution rather than following the law. It is rather that the justices evince selective empathy—only for elites. According to Lithwick, we need justices who will decide in favor of non-elites on empathetic grounds.

If justices were to follow Lithwick’s advice, the rule of law would disappear. Particularly in disputes that rise to the level of the Court, both parties may deserve empathy. For example, Lithwick praises Sonia Sotomayor’s defense of preferences  in Schuette v. Coalition to Defend Affirmative Action. And surely minorities striving for success who may gain admission to elite colleges because of such programs deserve our empathy. But why don’t those who are denied a place because of their race deserve our empathy as well?  Feeling provides no plausible rule of decision.

In fact, because empathy tends to focus on the seen rather than the unseen, à la Bastiat, it can profoundly mislead us.

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Free Markets, Racial Equality, and Southern Prosperity: The Rise and Fall of Lewis Harvie Blair

Lewis Harvie Blair remains one of the most curious and frustrating figures of post-Reconstruction Virginia. Blair, called by historian Charles E. Wynes one of the forgotten voices of opposition to segregation, distinguished himself by exposing the failure of “New South” industrial development and illustrating the economic benefits of racial integration. The Richmond businessman and writer held that the only way to rebuild industry in the South was to integrate all public-facing facilities and schools, invest in the education of workers, and reinstate the protection of African Americans’ civil rights.

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Frozen: Politics in Disney Movies

I like to keep up with various types of popular entertainment.  So while I don’t have little children any longer (and don’t have grandchildren yet), I try to watch the well regarded animated films.  Frozen is a very popular movie these days and so I caught it the other day on cable. It was ok – no Lion King, but not bad.  What struck me about it was the injection of current politics. Frozen appears to be intended for a mainly female audience, with the focus on two sisters, one of whom finds love in the end. Like many traditional fairy tales, the…

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