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…
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.
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.)
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…
Is there some connection between republican government and nastiness? For politics in America is a nasty affair, is it not? Oh, I don’t mean it’s nasty the way Syrian or Ukrainian politics are nasty. Rather, they’re nasty in the way that politics in Britain and Canada aren’t nasty.
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.
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.
Legal 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.”
In NFIB v. Sebelius, the Chief Justice applied a saving construction to the Affordable Care Act’s penalty, and treated it as a tax, to uphold its constitutionality. (Thom Lambert has a great piece in Regulation Magazine on this topic). But, the Chief Justice placed limitations on the application of the saving construction. The first such limitation stated that because the cost of the “tax” is less than the cost of insurance, a person has a legitimate choice, and there is no coercion:
In a letter to Harold Laski, Justice Oliver Wendell Holmes famously wrote:
I always say, as you know, that if my fellow citizens want to go to Hell I will help them. It’s my job.
And he meant it. Beyond such obvious examples of this philosophy, such as Buck v. Bell, where Justice Holmes upheld a law requiring the sterilization of those deemed mentally incompetent (even if there was no real evidence they were mentally incompetent), I was recently reminded of this quotation when I taught Giles v. Harris.