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 Ghosts of Presidents Past: A Conversation with Stephen Knott

rush

Presidential power scholar Stephen Knott discusses in this latest edition of Liberty Law Talk his book Rush to Judgment: George W. Bush, the War on Terror, and His Critics, recently released in paperback form by University Press of Kansas. Knott has a point in this book. He argues convincingly that the vituperative critics of George W. Bush’s use of executive power, in many instances, were willfully ignorant of the historical use of these powers. Past presidents, ranging from George Washington, Thomas Jefferson, James Madison, Abraham Lincoln and certain presidents in the twentieth century, defended and exercised powers similar to those…

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Charles Beard: Living Legend or Archaic Icon?

Charles Austin Beard (1874-1948) was a more complicated and interesting thinker than the Progressive sage commemorated during the centennial of his An Economic Interpretation of the Constitution of the United States. Perhaps that’s the problem with writing a book with a thesis so simple and straightforward as to discourage careful consideration of the work as a whole.

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Civic Literacy and Civic Engagement

American Citizenship

Though Constitution Day has come and gone (it was September 17), it may still be appropriate to honor the enactment of our Founding charter by looking into the question of “civic literacy” and “civic engagement.” By the first, I mean knowledge largely about American history and political institutions. The second is meant to denote participating in the political process, passively by voting and actively by contributing to and working on campaigns, trying to influence others’ votes, attending political events, contacting officials, signing petitions, and writing letters to the editor.

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There’s No Such Thing as a Constitutional Free Lunch

Constitutions are supposed to create a framework of good government that cannot be easily upended. As Justice David Brewer remarked, the Constitution is supposed to protect “Peter sober from Peter drunk.” Or to use the canonical analogy from classical literature, a good constitution functions like the ropes that prevent Ulysses from throwing himself into the sea in response to the sirens’ call.

Frequently, however, the United States Constitution is criticized for its inability to accommodate the current preferences of the people.

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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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