Greg Weiner’s provocative essays on Congress remind us of another provocateur, a grand old man of constitutionalism who also defends Congress’s powers—George Anastaplo (profiled here). Anastaplo, whom I have known for almost 40 years, would be the classic American individualist—except he deeply respects manners, locality, and community. His extremism may lie in his devotion to the virtue of moderation. Our meetings have often included avuncular advice on topics including how to eat during an APSA convention. A guardian who takes his Hyde Park citizenship seriously, he rebukes local scofflaws–ride your bike on the street, not the sidewalk!–the former cyclist barks at a miscreant. And he has barked at power as well, having been expelled from both the Soviet Union and Greece of the Colonels for his outspokenness. No Chicago slaughterhouse got as much out of a hog, as Anastaplo gets out of a day.
Archives for May 2013
The Upside-Down Constitution: Recent Reviews and Further Reflections
The Upside-Down Constitution sought to spark a more vigorous and forthright debate about federalism and, more broadly, the constitutional order—beyond a federalism of “balance” and a clause-bound, positivist originalism. I’m gratified that a good number of thoughtful lawyers and scholars have accepted the challenge. Early reviews include terrific pieces by Rob Gasaway, sitemeister Richard Reinsch, and Ilya Somin. Recent additions include a review by James A. Gardner (SUNY Buffalo Law School) in the Law & Politics Book Review (more in a sec); by R. Shep Melnick (Boston College) in The Forum; and by Roderick M. Hills, Jr. (NYU Law School) in the Tulsa Law Review.
Alas, Shep’s piece is behind a pay wall and Rick’s, behind a “you-must-buy-the-physical-volume” wall. I have the e-files but can’t link to them without copyright infringement. Next best option: (1) offer to send the file(s) to anyone who asks; (2) give the authors air time on this blog—not nearly as much as they deserve, but enough to give a flavor and to suggest useful lines of further inquiry and debate. I proffer this post in that spirit; with apologies for its inordinate length; and with gratitude to the critics.
Originalism, Restraint, and Conservative Constitutionalism
Greg Weiner has written an interesting response to my earlier post where I explained why I don’t believe there is a conservative case for judicial restraint. I don’t want this debate to continue too long, so I will try to be brief, confining myself to two points. First, the original meaning of the Constitution represents a conservative constitution in the sense I have described: it limited the legislature, it employed traditional principles, it used federalism, and it embedded majority rule in a wider scheme of governing principles. Thus, having the courts follow originalism would have been the way to preserve a constitutional constitution.…
Friday Roundup, May 31st
In our Books section this week James Ely reviews the new paperback edition of The Supreme Court in the Early Republic: The central theme of Casto’s account is that the early Supreme Court justices sought to uphold the policies of the fledgling federal government. Casto maintains that the federal courts in the 1790’s can best be understood as national security courts. The recurring wars between Great Britain and France posed serious challenges for the Washington administration as it sought to chart a neutral course. The Supreme Court lent support to the government in a variety of ways. For example, it extended…
The Bad Gun Dumpster
I have a friend who keeps going to the range with me and then threatening to buy a gun of his own. He has the grudging support of his wife who got drawn in after a round of clays where she hit more than he did.
She has questions, though. And it has been enlightening for me to talk about familiar things with an open-minded person who comes at gun issues basically from what she sees on TV. She was perplexed about many of the exchanges in the current debate.
She listened patiently to my critique of the “bad gun formula of marginal supply controls as recipe for creeping disarmament.” Against scary looking pictures of AR-15’s it didn’t really click. But she was unwilling just to nod and move on. Her need to understand forced me to work a little harder on the details and to appreciate something I had lost sight of.
I realized that those of us who focus on these issues sometimes use rhetorical tools that fail to resonate for folks who are increasingly lured to think in pictures rather than words. This helped me understand why the bad gun formula as a slippery slope to full confiscation argument might not convince some people until you tell the long story and illustrate it in detail. I thought it might be worth doing that here.
Madison’s Majority and Originalism’s Judicial Dilemma, Part III
Mike Rappaport raises some tough questions about the conservative case for majority rule and, with it, judicial restraint. But they strike me as fundamentally consequentialist questions converging from two directions: first, the contingent fact that the Supreme Court happens now to lean conservative and thus might be inclined to confine left-leaning majorities, and second, the fact that majority rule does not necessarily produce conservative results. Both propositions are true. But neither refutes my claim that majority rule itself is a conservative principle even if it sometimes produces unconservative results.
Older Men and Younger Women
This essay from the Atlantic Magazine website on why older men should not pair with younger women is a highly objectionable one that combines anti-male bias with ignorance. It is not that I think that such pairings are necessarily good – it is a complicated subject – but the analysis in this piece is so weak, and the mistakes it commits are exhibited so frequently these days, that I thought I would point out some of the difficulties. (Hat tip: Glenn Reynolds who has a similar take on it.)
In criticizing pairings between older men and younger women, the piece focuses on the case of 50 year old Johnny Depp and his new girlfriend, 27 year old actress Amber Heard.
I summarize the major arguments of the piece in the numbered paragraphs, and then provide my critique in italics.
1. The pairing of older men and younger women is the fault of men. (This is not explicitly stated, but it is premise of large swaths of the essay.)
This is a common distortion. Older men are not coercing these younger women. Amber Heard wants to be with Johnny Depp. Many people may not like it, but it seems obviously true.
What is missing in this analysis is that not only do men desire young beautiful women, but that women exhibit hypergamy – the desire to pair with high status males (particularly those who are higher status than the women). This desire conflicts with the feminist vision, but it is obviously true in general (if not in every single case).
In fact, the essay shows some evidence for this by noting that when the author has written about this subject in the past, he is “invariably challenged by young women with boyfriends their fathers’ age, demanding that I stop judging their love.”
2. If older men refrained from such relationships, this would benefit the younger women, because “young women come of age surrounded by reminders that they are at their most desirable when they are still at their most uncertain and insecure.”
If women are most desirable at this age, it is not clear we should deprive them of this knowledge. Moreover, if they desire high status men, then depriving these women of these relationships would not help them, but harm them (by their own lights at least).
Shakespeare’s Women and the Rule of Law
Chaucer’s Wife of Bath entertains us with a tale about the question, What does every woman most desire? Plot spoiler: To rule her man. Shakespeare’s comedies respond to this desire.
His comedies portray cunning and attractive women who win the object of their desires and fend off evil that threatens their love (Portia in The Merchant of Venice). The plot could easily lead to tragedy (Romeo and Juliet), but instead powerful will, aided by chance, enables the perfect matches to take place (Midsummer Night’s Dream).
Greg Weiner on Judicial Restraint and Originalism
I enjoyed Greg Weiner’s post on the Judicial Dilemma of Originalism, which has received some attention. Greg does a strong job of describing the conservative case for judicial restraint (as the competitor to conservative originalism). My problem, however, is that I don’t really understand the conservative case for judicial restraint.
Greg writes:
It arises from man’s status as a political animal. It elevates to the status of constitutional principle the conservative’s dispositional distaste for whining, which is not to stigmatize all objections to losing positions as whining. Some objections are legitimate. It is, rather, to say that not all losses before legislatures are to be retried before courts, that part of the price of living in a political community is that one must accommodate oneself to the needs, preferences and tastes of others. One wins some battles but also loses others and one is not entitled simply to stomp off the playground—still less to shutter the playground for others—in the latter case.
Fair enough.
Here is the problem. Majority rule – especially majority rule at the national level – is not really a conservative principle, unless it is significantly cabined by other principles. But judicial restraint toward Congress by federal courts will allow Congress largely to do as it pleases.
I understand why conservatives reacting to the Warren and Burger Courts would have favored judicial restraint. At a time before originalism had become popular, judicial restraint was a powerful way of criticizing an activist court based on a theory that made sense in a democracy. But the fact that judicial restraint made sense at a particular time for conservatives does not mean it is a principled or long term approach when it comes to constitutional interpretation.
City of Arlington: Some Cheerful Thoughts
City of Arlington v. Federal Communications Commission, a big and hugely interesting AdLaw case, was decided last week. I still haven’t fully digested it. (I’ve been busy grading exams and assuring my disconsolate econ grad daughter, of whom I am immensely fond and proud, that there is life after Boston College.) Still: while a conservative-libertarian meme-in-the-making says that Arlington marks yet another triumph for a headless and heedless Fourth Branch, my preliminary noodling has led me to suspect that this may actually be wrong. There’s far more good news here than bad.
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