Allen Weinstein, R.I.P.

Allen-WeinsteinEven for those who have not been through an undergraduate academic program, the figure of the biased historian is well known. In the hands of biased historians, the past morphs into an ideological axe to grind. Methodology is the tool that forces the facts to conform to their theory, and that jettisons any stray facts that don’t fit.

But this was not always so. Once upon a time, there were historians whose intellectual probity led them to follow the evidence no matter where it led, even if it damaged their own “side.” Professor Allen Weinstein belonged to this almost extinct group. Weinstein, who taught at Smith College, Georgetown, and Boston University, and who was for three years the National Archivist in Washington, died last week at 77.

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My Reactions to King v. Burwell

I am a strong opponent of Obamacare.  But once I realized that a decision in King v. Burwell denying subsidies to people who purchase insurance under the federal exchanges would not help the cause of repealing Obamacare and might hurt it, my attitude towards the case changed.  I felt much less politically invested in the issue and could more easily view it in an impartial manner.

Thus, I read with a relatively open mind the opinions by Chief Justice Roberts and Justice Scalia in the case.  Although I am a formalist (albeit a soft formalist), I do believe that conflicting provisions in a statute can render it ambiguous and that purpose is permissibly used to resolve an ambiguity – two key premises of Chief Justice Roberts’s opinion.  But in the end, I concluded that Justice Scalia had the better of the argument by a significant margin. 

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We Must Be Forced to Be Free


Many things will be said in the coming days about the Supreme Court’s holding in Obergefell v. Hodges, better known as the same-sex marriage case.  I don’t think I can in general improve upon the dissents written by the four Supreme Court justices—who object to the sweeping and poorly reasoned argument offered by Justice Anthony Kennedy as the “reasoned judgment” of a “bare majority” of his colleagues.  But I think I have something to add to the discussion regarding Kennedy’s understanding of his role as a Supreme Court justice.

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The Incautious Justice Kennedy

While many have celebrated the result in Obergefell v. Hodges, fewer have praised the craftsmanship of Justice Anthony Kennedy’s opinion. That is as it should be because the opinion is longer on sentiment and empathy than legal analysis. And yet it is now as much a part of the United States Reporter as the most well-reasoned judgment. Thus, it is worth looking at its doctrinal implications, none of which are happy.

First, Kennedy consciously removes the historical constraints on the Court’s ability to declare new fundamental rights.  Washington v. Glucksberg (1997), the most important modern substantive due process case, required fundamental rights to be deeply rooted in the history and tradition of America. Whatever else can be said about it, same-sex marriage does not begin to meet that test. Kennedy says correctly that some other substantive due process cases did not meet that test either (Roe comes obviously to mind). While Kennedy does not quite say that he is overruling Glucksberg altogether, its relevance has been gravely weakened. Justices seem free to look to their views on the nature of justice rather than history to discern new fundamental rights.

While some libertarians in the past have been enthusiastic about this development, it is unlikely the Court will use this power to pursue economic liberties. I think this development is likelier to revive claims that some other social rights, like the right to assisted suicide, are also constitutional ones.

Kennedy also gestured to the equal protection clause in his decision.

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The Sharing Economy versus the Centralized State

Taxi drivers in France rioted yesterday to prevent Uber from competing with them.  They attacked vehicles on the mere suspicion that they were working for that company. They broke windows on cars carrying tourists. It was a kind of economic terrorism. Even a left-liberal rock star was upset!

France is one of the most heavily regulated and centralized states in the Western world. But Uber represents the new forces of decentralizing competition that it may ultimately be powerless to block. While the French government appeared to take the side of the violent strikers today, it will have difficulty in stopping this kind of competition without deploying coercion unacceptable in a democratic society.

Uber is essentially an app that connects people who want to make a mutually beneficial transaction. Other apps will connect those who want to make other transactions—for plumbing, gardening or housework. These services will be less expensive than current services, whose cost is inflated by  regulations, not least of which are those designed to protect incumbents.

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Departmentalism versus Judicial Supremacy – Part IV: The Argument Based on the Constitution Being a New System

In my last post, I noted that the advocates of departmentalism do not rely on pre-constitutional practice to found their view.  Instead, they tend to argue that the Constitution adopted a new system, one in which each of the branches is equally entitled to interpret the Constitution. The problem with this argument is that it lacks support.  The Constitution both relied upon the preexisting English and state systems as well as establishing some innovations.  The question for departmentalists is to show that the Constitution actually adopted departmentalism. Here is what I regard as the basic textual problem with arguing that the new…

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Pondering the Immigration Imponderables

The relationship between personal experience and public policy is not at all straightforward, and of no aspect of public policy is this more true than that of illegal immigration. In Europe, the question is daily put before us by newspapers, magazines, blogs, radio, and television, with dramatic pictures of desperate illegal immigrants trying to reach our shores across the Mediterranean, many of them drowning en route.

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Musings on Our Ersatz Legislature

The United States Supreme Court decides only about 80 cases per term. (Why 80? There are 39 days for oral argument and they really can’t be bothered to sit still for more than two cases a day, or to add argument days.) That’s what any decent county judge handles in a week. Now, granted: normal judges just handle stupid stuff, like who goes to jail for how long or who owes money to someone else. In contrast, the Supreme Court’s business is really heavy, brother—so heavy that the Court has again left a ton of hugely important decisions for the end of…

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