Increasingly, the US government’s many police forces (often state and local ones as well) operate militarily and are trained to treat ordinary citizens as enemies. At the same time, the people from whom the government personnel take their cues routinely describe those who differ from them socially and politically as illegitimate, criminal, even terrorists. Though these developments have separate roots, the post-9/11 state of no-win war against anonymous enemies has given them momentum. The longer it goes on, the more they converge and set in motion a spiral of civil strife all too well known in history, a spiral ever more difficult to stop short of civil war. Continue Reading →
Liberty Law Blog
In the hubbub over Obamacare’s launch (the biggest trial balloon since the Hindenburg), the Kim-Kanye wedding announcement, and other highlights of the week, I missed the publication of Executive Order 13652, entitled the “Regulatory Agency Freedom Initiative” (RAFI). As noted in an earlier post, many government agencies have become profit centers for the government. The EO formalizes and regularizes the distribution of civil fines and forfeitures to government agencies, making all of them fully self-financing. Richard Reinsch was kind enough to send press coverage of this important initiative. Data on one RAFI payment stream (mortgage settlements) appear here.
- Twilight of the American Republic: The new Liberty Law Talk presents a different way of thinking about American Exceptionalism. This discussion with author Justin Litke considers how the twentieth century emergence of an expansive American Exceptionalism relates to the frayed constitutional consensus of the American founding.
- What did Michael Oakeshott think of the American founding? That’s the question taken up by Elizabeth Corey in this week’s feature review essay on Gene Callahan’s book Oakeshott on Rome and America.
- Alberto Mingardi @ Econ Lib on Germany trading its political stability for economic stupidity. Then again, there’s much of that going on these days.
- The Connecticut Law Review features a symposium on firearms and the black community in America . Nick Johnson, frequent contributor to this space, is the lead batter.
- Lawrence Solum: Originalism and Constitutional Construction.
- New feature essay at Reason: How to kill an American city.
- Community building: Smoking pot in Colorado is a local affair.
- Henry Olsen on the white working class and the fortunes of conservatism.
- Sean Collins: Resisting the nudging elite.
[I]t’s impossible for jurists, law professors, and Supreme Court justices — or judges anywhere — to really use history. It simply would not work. Judges have to invent another kind of history: we call it “law office history,” or “history lite.” It’s a necessary fiction, and I don’t consider that to be a bad thing. It’s a necessary fiction for judges and other jurists to get along with their work—they need some kind of history to work with. History is much too complicated to be used effectively by judges and the courts.
Will writes that “Gordon Wood’s remarks, while mixed, were much more accommodating than [Will] expected.” I agree with Will, that Wood was more accommodating than I expected, but still I have real problems with Wood’s remarks.
Most importantly, I can’t tell exactly what Wood is saying. One possibility is that he is saying that originalists (and law professors generally) use history to buttress their cases and therefore they can’t really be true to the history. But that’s ok, because the two enterprises differ. Historians are after truth, but law professors seek to persuade for political and legal purposes. For example, Wood criticizes Scott Gerber’s view that the Framers were committed to the separation of church and state, noting that there were many established churches and other interactions between church and state at the time of the Framing. But then Wood seems to excuse Gerber on the ground that law professors have different purposes.
Well, if that is what Wood means, I completely disagree. Good originalism should follow the actual history and the claim that the Framers were commited fully to the separation of church and state is simply bad history. Originalists are supposed to make accurate claims and I don’t want Wood making excuses for originalists on the ground, well, these lawyers have different purposes. Thanks, but no thanks. Continue Reading →
The current issue of the New York Review of Books contains a delightful yet potentially bewildering interview with Supreme Court Associate Justice Stephen Breyer on the pleasures of reading Proust and other French writers in their original language. Long obsessed with all things French, Breyer has consistently endorsed the incorporation of European jurisprudential insights into American constitutional decision-making in an attempt to refute originalist interpretations of the American legal and political tradition. Judge Richard A. Posner, in a now-famous critique of Breyer, correctly suggests that what is ultimately at stake is a disavowal of the “liberty of the ancients” for a new and “active” liberty and theory of unrestrained democracy embodied in recent studies of European law and political thought. Continue Reading →
“Norman Podhoretz has done us all a service by pointing to the unvarying political content of the proclamation of impending doom. The person making such a statement is asking that power someone else has be given to him or to her.”
- Daniel Patrick Moynihan, Coping: Essays on the Practice of Government
“We’re nearing the edge of a cliff, and our window to turn things around, my friends, I don’t think it is long. I don’t think it is 10 years. We have a couple of years to turn the country around or we go off the cliff to oblivion.”
- U.S. Senator Ted Cruz, speaking to the Values Voters Summit
Call it what one will. “Populist” works. So does “alarmist.” But “conservative” does not—not to describe the doomsday rhetoric that has overtaken a certain strain of political figures who nonetheless claim exclusive title to that label. Cruz is one; Glenn Beck (“the violent left is coming to our streets … to smash, to kill, to bankrupt, to destroy …”) another. It is too given to the cult of personality, to the concentration of power, to convulsions anathema to the very idea of conservatism. Continue Reading →
we should follow the Constitution’s original meaning because the Constitution is a good one that protects individual rights, democracy, and limited government. But the goodness of the Constitution is based not just on our evaluation of the Constitution, but also on the fact that it was enacted through a beneficial supermajoritarian enactment process that generally leads to desirable constitutional provisions.
Instead, it is argued that the reason to follow the Constitution’s original meaning is that it is the law. This is an extremely common argument, but alas it is far from obvious. While it is possible that an argument can be made on these grounds, it will require a great deal of work.
One problem is that if the Constitution were an extremely undesirable document – if it required or authorized harsh and brutal treatment – then there would be good reasons for not following it. For example, if a law required slavery, the mere fact that it was the law would not be a good reason for following it. (Of course, there might be other reasons for following the law, but not simply that it was the law.) Continue Reading →
In the New York Times, Linda Greenhouse defends nonoriginalism by attacking a straw man of originalism. This is par for the course, and Mike Ramsey does a great job of showing that Greenhouse’s understanding of originalism is pretty deficient. Public meaning originalists focus on the words in the Constitution, not on the speculative intentions of what the framers of the law might have expected or hoped. Even intentionalists focus on the intended meaning of the terms and they place significant weight on the ordinary meanings.
But there is more going on here than a simple misunderstanding of originalism. There is also a misunderstanding of the reasons for originalism. Here is the most important point: Originalism is not about advocating a dead constitution or opposing constitutional change. It is about how constitutional change should occur. Constitutional change should occur through the amendment process where it can be enacted through a genuine consensus of the nation rather than through the political judgments of a majority of the Supreme Court.
Second, Greenhouse’s argument assumes that the dynamic understanding of the Constitution will lead to good results. Her example of allowing women to be judges is the example upon which she focuses — one that everyone today agrees with. But what would Greenhouse do if the results are not good ones, according to her lights? Greenhouse normally gets very upset if the Court does not adopt some nonoriginalist change that she favors. If the Court seeks to reverse a previous nonoriginalist change in favor of the original meaning, my memory is that she gets even more upset. But imagine what she would do if the Supreme Court attempted to depart from a provision of the original meaning that she favored – say, if the Court concluded that children born to illegal aliens in the United States were not entitled to be deemed citizens, because of changed circumstances. Continue Reading →
That doesn’t happen every day: a non-profit shop, Ted Frank’s excellent Center for Class Action Fairness, has two cert petitions pending in the Supreme Court, and both are on this week’s re-list watch.
Marek v. Lane presents the question of whether a class action settlement that provides cy prez relief that’s of absolutely no use to the class—and no other relief to that class—is nonetheless fair, adequate, and reasonable. Answer, no. (I’ve discussed the case in an earlier post.)
Here’s the QP in Martin v. Blessing:
Whether an objecting class member – whose antitrust claims have been waived by a settlement negotiated by class counsel appointed by a racially conscious class-certification order – has standing to challenge the class-certification order and, through it, the antitrust settlement.
By way of background: the district judge in this case appointed a class counsel who would promise to staff the case in accordance with the racial and gender “metrics” of the class. Why would the judge do that? Because he thought it was a good idea; because he thought he could; and because, apparently, he always does that. The Second Circuit (which, to me, looks more and more off the reservation) denied standing to dissenting class members (CCAF’s clients).
“Relist” isn’t cert, but it does mean (usually) that the justices are taking a careful look at the petitions. As they should.
(Disclosure: I serve as a member of CCAF’s Board of Directors).
The Brookings Institution’s Elaine C. Kamarck and Sheila P. Burke have published a research paper on the implementation of the Affordable Care Act. It’s classic Brookings: judicious, competent, useful. The piece contains an overview of which states are where in terms of expanding Medicaid and establishing health care exchanges. As a rule, Republican-led states are nowhere. Continue Reading →