Now available in print: Michael S. Greve, “Our Federalism Is Not Europe’s. It’s Becoming Argentina’s,” 7 Duke Journal of Constitutional Law & Public Policy 17 (2012). Alternative title: “We will pay our debts—in pesos.” Among the more salient points and predictions: bailouts of lower-level governments in the U.S. won’t take the form of rescues of individual states (this isn’t Europe). Rather, they will take the form of across-the-board—and in that minimalist sense programmatic and rule-like—financial assistance, probably under some already existing statutory framework. A bailout of teacher pension funds under No Child Left Behind is an option, as is the federal…
Archives for September 2012
Garett Jones at Econ Log matches unemployment benefits with a timeless beer song: 99 weeks of unemployment benefits on the wall, you take one down, spread it around, and it raises unemployment by how much? Ted Frank directs our attention to the lengths the Justice Department will go to in order to defend the use of disparate impact theory as a tool in civil-rights litigation. When States Go Broke: a new faculty book podcast by the Federalist Society featuring David Skeel and Richard Hynes. See also the book of the same title edited by Skeel and Peter Conti-Brown. It's good to live in…
TOCQUEVILLE 2012: Quick Thoughts on the 175th Anniversary of What’s Still the Best Book on Who We Americans Are.
Alexis de Tocqueville wrote the best book ever written on America and the best book ever written on DEMOCRACY. The first volume was published in 1835, the second in 1840.
Alexis de Tocqueville was born into a French aristocratic family after the French revolution that had overthrown the French hereditary aristocracy and replaced it with various forms of republics and empires.
So Tocqueville lived in a kind of privileged moment. He could look back to the aristocracy and aristocrats with all their virtues and vices, and he could look forward to the progress of democracy and democrats with all its virtues and vices. His greatness as a writer was being an aristocratic critic of democracy and a democratic critic of aristocracy.
This book is now 50 years old! Amazing. I first read it in 4th Grade and it quickly became my favorite book as a child. It had so much in it – science fiction, a love of liberty and individuality, an appreciation of learning, the need for the good to fight evil, and the possibility of victory. Over the years, I have read and reread the book at different points in my life, always gaining something new from it. Once I developed libertarian ideas, I looked back on the book with special fondness because it showed that I had valued…
Recently Justice Clarence Thomas reflected on the American condition and its relation to the Constitution. He focused far less on specific legal issues and more on the enduring love of country “we the people” give it. He described how the founding documents still speak to us today, in particular those lovingly displayed at the National Archives, the site of the public interview conducted by Yale law school professor Akhil Amar.
The coverage in the Washington Post and New York Times emphasized different aspects of the conversation. The Times probed his views of religious diversity in America and on the Court.
The Post had a more interesting albeit incorrect take, that Thomas had admitted a flaw in the Constitution’s treatment of slavery and race, as though this was news. Thomas allowed that blacks were not perfectly part of “we the people.” Might this flaw in the Constitution confirm the hypocrisy of the “we hold these truths” of the Declaration? Moreover, the alleged admission might clash with Thomas’s opposition to race-preference policies. Might not then his original understanding approach to jurisprudence be fatally compromised? After all, following Justice Thurgood Marshall, why not begin celebrating the Constitution following the passage of the Reconstruction Amendments?
In this post, I continue my earlier discussion of the Origination Clause through a review of Jack Balkin’s views.
Jack Balkin analyzes the Origination Clause issue in accord with his general approach to constitutional interpretation. Jack writes:
My reading of the history is that today’s practice of using shell bills is not consistent with the original expected application of the Origination Clause. The House was quite jealous of its prerogatives for many years. Nevertheless, shell bills are consistent with the words of the Constitution: “the Senate may propose or concur with Amendments [to “Bills for raising Revenue”] as on other Bills.” Shell bills are Senate amendments to House revenue measures, and in other bills the Senate may strike as much of a bill as it wants to when it amends it.
So the question is whether twentieth century practice– and judicial precedents–have altered the best construction of the text so that it differs from the original expected application. If so, it would not be the first time this has happened.
I am not certain how to interpet Jack’s claim. Based on what he says in the post and on his general interpretive approach, I interpret him to claim that the original public meaning of the Origination Clause is actually quite minimal. The early broad interpretation involved a “construction” of the Clause and the later narrow interpretation was a different construction. Both constructions are constitutional because the minimal original meaning does not conflict with either. (If I have misunderstood his position, I welcome correction.)
In the Massachusetts Senate race, incumbent Scott Brown has “gone negative” on his Democratic challenger, Harvard Law School Professor Elizabeth Warren. Professor Warren gained fame as the godmother of Dodd-Frank’s Consumer Financial Protection Bureau, which as we speak is rendering capitalism safe by engineering financial products that never occurred to any consumer or financial institution and by simplifying mortgage disclosure forms in a mere 1,099 pages. Senator Brown has targeted Mrs. Warren’s phony claims of “Indian” heritage; her $350,000-plus salary at HLS; her work for an insurance company in matters involving (yikes) asbestos; and other trivia. What he hasn’t said and probably won’t say: she is a nag. A scold. An ideologue. An advocate of a nanny state beyond a Swedish socialist’s wildest imagination. A bureaucratic Bruegel who paints an America of victims—pathetic figures in a landscape of unremitting hostility. Also, Professor Warren is an economic idiot.
This next edition of Liberty Law Talk is a conversation with Mitchel Sollenberger and Mark Rozell on the use of ‘czars’ by American Presidents. Sollenberger and Rozell are authors of The President’s Czars: Undermining Congress and the Constitution. The conversation places this twentieth century presidential phenomenon in constitutional, political, and historical context. We focus on exactly what constitutes and defines a public official being labeled a czar. Of course, most importantly is the constitutional legerdemain engaged in by presidents who create and appoint czars, outside of the senate confirmation process, to exercise power in a manner that is accountable to…
Should, as the saying goes, the road to hell be paved with good intentions, a good stretch of it by now must surely run through Afghanistan, courtesy of the US tax-payer. It does provided war journalist Douglas A. Wissing is correct in what he contends in his absorbing, if at times repetitious, new book, Funding the Enemy: How the US Taxpayers Bankroll the Taliban. Built to win the hearts and minds of the Afghan people after America invaded their country in the wake of 9/11, the stones used to pave this metaphorical road have been the many actual roads and other development projects that US tax dollars have been used for to undermine support for the Taliban. In reality, argues Wissing, a not inconsiderable proportion of these tax dollars has gone into financing and revitalize them.