Debating War to Secure Peace

Freedom is not free

President Obama told the nation that he, on his own presidential authority, has committed the American people to actions in the Middle East that common sense calls war. But he did not call it war. He directed those actions against persons who call themselves Islamic but who he said were not Islamic, who rule a state with the (often enthusiastic) consent of its people but who Obama said were not a state. He said that allies largely would carry this campaign’s weight. But the countries he mentioned have made clear that they will do no such thing. This makes no sense, and augurs further disasters abroad.

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From the Rule of Law to the Triumph of the Will

 

shutterstock_203668402The arguments by which the Obama administration is countering lawsuits that seek to limit Obamacare subsidies to participants in “exchanges” established by states—a limit that is specified in the Obamacare law itself—have raised the outcome’s stakes. Administration officials argue that the plain, unmistakable, uncontested language of the Affordable Care Act (ACA) is less important than what they want the law to mean, and that hewing to its words would deprive millions of people of the subsidies that the administration had granted them regardless of those words. Therefore the courts should enforce what the administration wants rather than what the law says.

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The Ascent of Originalism: A Conversation with Michael Rappaport

Good Constitution

The many schools of originalism all face the same questions: does it merely perpetuate the dead hand of the past? What about the exclusion of women and blacks at the Founding? What does one do with the mountains of non-originalist precedent? This next podcast with our own Mike Rappaport, prompted by his new book that he co-authored with co-blogger John McGinnis entitled Originalism and the Good Constitution, focuses on the rise of originalism as an intrepretative methodology for Constitutional Law and attempts to answer these and other questions with a new framework called original methods originalism. Our discussion thus focuses on…

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Benghazi and the Constitution

With the creation of a special congressional committee to investigate the 2012 attack on the U.S. consulate in Benghazi, the three branches of government will soon head for a constitutional collision. Obama administration officials, past and present, will resist the call to testify. They will respond to congressional subpoenas by claiming executive privilege or asserting their right to avoid self-incrimination. To get answers to its questions, the committee may hold Obama officials in contempt. Under today’s misconceived system of judicial supremacy, the courts may decide the winner. If the original understanding of the Constitution prevailed, Congress would probably prevail. But investigations has become yet another matter where Washington, D.C.’s practices have strayed far from the Constitution.

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The Root of the Discretion to Kill

President Obama announced a few days ago that he will release some parts of the secret memorandum by which the U.S. government authorizes itself to kill whichever U.S. citizens it deems terrorist enemies. He did so to give political cover to Senate Democrats disinclined to approve an appellate judgeship for David J. Barron, who authored that memo for the Justice Department’s Office of Legal Counsel. The document is a refined version of that by which the government authorized itself to kill U.S. citizen Anwar Al-Awlaki three years ago (which the New York Times summarized here.)

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The Fog of Constitution-making

From a Canadian perspective, America looks a wee bit like a unitary state and not a federal country. In Canada, provinces can opt out of the Charter of Rights, Quebec has its own immigration policies, and so on. Remember Trent Lott? He belonged to something nasty called the Mississippi Sovereignty Commission. Sovereignty… The word gave me pause. I turned to the web site of my native province to see how it described Canadian federalism. What it said was that Canada was a federal country and that provinces were sovereign within their sphere of competence, as defined by the British North America…

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The President’s Non-enforcement Power

the-once-and-future-king-20141

Are there any limits to the president’s discretion not to enforce a law? Conservative scholars think so. I say they’re wrong, and that we are witnessing the rise of what I call crown government in The Once and Future King. Where conservatives see a constitutional crisis, I see the inevitable working out of the pathological logic of presidential government.

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Thomas’s Full-Throated Originalism: Ralph Rossum Responds

I am grateful for the thoughtful commentaries and kind words that Keith Whittington, Lee J. Strang, and Adam White have provided on my essay on Clarence Thomas’s jurisprudence of constitutional restoration. Since all three commentaries address the low value that Thomas, as an originalist, places on stare decisis, I will begin there.

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Puzzling Questions

the-once-and-future-king-20141Legal scholarship is too often a game of small ball, where vast efforts are expended in pursuit of minimal gains, like a game of football with 50 downs, or trench warfare where lives are expended for mere inches. How vastly more interesting are Sir Thomas Browne’s puzzling questions. “What Song the Syrens sang, or what name Achilles assumed when he hid himself among the women, though puzzling Questions, are not beyond all conjecture.”

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