Archives for October 2015
The election of Jeremy Corbyn to the leadership of the opposition Labour Party in Britain was conducted in a rather peculiar fashion. All one had to do to obtain a vote in it was to declare on-line that one supported the aims of the party and pay £3 ($4.60). It was rumoured that a number of Conservatives had voted for Mr Corbyn in this fashion, in the belief that Mr Corby was so left-wing that he could never be elected, thus assuring a permanent Conservative government.
Charles Cooke has called for a constitutional amendment to overrule Kelo v. City of London. In Kelo a narrow majority of the Supreme Court read the public use requirement out of the Fifth Amendment’s Taking Clause and allowed the amendment to become a tool of private developers to take property from the politically less powerful. Cooke makes the excellent point that this amendment may unite many conservatives and liberals, because the Kelo decision aided special interests at the expense of the property rights of ordinary citizens.
Passing a constitutional amendment would be good for the republic even beyond the benefit of overturning Kelo and the more expressive one of trumpeting the importance of property rights. Deliberating on and enacting constitutional amendments is good for our constitutional culture.
First, it would rebut the facile and false claim that our constitutional amendment process is so hard that no significant amendments can be passed—a claim often made to justify non-originalism. In fact, the nation passed the transformative sixteenth and seventeenth amendments when there were almost as many states as there are today. In 1971 the twenty-sixth amendment reducing the age requirement for voting to eighteen took less than four months to ratify—the shortest time in the nation’s history.
Second, moving amendments to the front and center of debates would improve our politics.
David Brooks is in an angry and spiteful mood. Perhaps he’s even getting to be a bit unhinged, as history is putting his vision of American conservatism onto its rubbish heap.
About the middle of the morning on Monday, the sixth of May 1776, 45 men assembled at the Capitol in Williamsburg, Virginia. They were members of the House of Burgesses, elected back in the summer of 1774. Having entered the chamber of the House, they sat, silent. Elsewhere in the Capitol there were no signs of the royal governor or his council. Soon the Burgesses got up and went back outside. There they met others who, joining them, reentered the chamber, this time as delegates to the fifth and final Virginia revolutionary convention; this time carrying instructions from the people in their home counties calling on them to instruct Virginia’s delegates in the Continental Congress to declare American independence and to draft a constitution for Virginia.
While such a launching, this little-remembered ritual, may not seem so much to many in the thrall of the apotheosis of the 1787 Constitution, it remains a bright metaphor to illustrate the seamlessness of the transition from colony to country in America generally and in Virginia. This vivid drama of a departure joined with that of a prospect shows how far these Virginians had come since April 1774, even as it puts in relief just how significant the next two months, May and June of 1776, would be, culminating as they did with Virginia declaring its independence, establishing a bill of rights, and, two weeks later, completing a written constitution.
There is happy news from state supreme courts—more justices committed to correct methods of legal interpretation are being appointed. To name just two of the most recent additions: Rebecca Bradley of Wisconsin and Joan Larsen of Michigan as well as a still relatively recent addition, David Stras of the Minnesota Supreme Court All three have fine credentials. Stras and Larsen were professors before ascending the bench, and professors turned judges have often turned out to be the most influential of jurists.
The Federalist Society’s decision to establish chapters throughout the nation is in no small measure responsible for the flowering of state conservative jurisprudence. The Society was founded on law school campuses and then migrated to Washington, as some of its leaders took jobs in the Reagan administration. But creating a presence in the hinterlands then made it possible for lawyers of like mind to focus on the judiciary in their states. All too often, Republican governors had not paid much attention to judicial nominees’ stances on legal interpretation, believing that identification with the Republican party was enough to assure good decisions. But even Republican lawyers emerge from a legal culture that leans decidedly left, and the recognition and awards from that culture move judges to in that direction unless they come anchored in the right. The Federalist Society provides the merry fellowship that helps these jurists resist the temptation to drift.
The increase in the number of justices committed to fidelity to law on state benches has several good consequences.
In a prior post, I said it was not clear whether the Speaker of the House of Commons was required to be a member. A couple of scholars have now supplied evidence that strongly suggests that the Speaker was required to be a member.
Andrew Hyman in a comment to my prior post noted the following from a 1708 law dictionary:
Speaker of the Parliament, is an officer in that High Court, who is, as it were, the common mouth of the rest: and as that honorable assembly consists of two houses, so there are two speakers, the one termed the Lord Speaker of the House of Peers, and is most commonly the Lord Chancellor, or Lord Keeper of the Great Seal of England. The other (being a member of the House of Commons), is called the Speaker of the House of Commons; both whose duties you have particularly described in a book entitled, The Order and Usage of Keeping the Parliament.
Also, Seth Barrett Tillman writes with the following evidence:
At the opening of a new Parliament “the lord chancellor confers first with his majesty, and then in his name commands the commons to assemble in their house, and to choose one of their members to be their speaker.”
Henry Elsynge, The Manner of Holding Parliaments in England 155 (London, printed by Richardson and Clark for Tho. Payne 1768) (First print 1660). And:
At the opening of a new Parliament “the Lord Chancellor confers first with his Majesty, and then in his Name, commands the Commons to assemble in their House, and to choose one of their Members to be their Speaker.”
George Petyt, Lex Parliamentaria: or, A Treatise of the Law and Custom of Parliaments 265 (London, Henry Lintot, Third Edition, 1748).
What Common Core has done for elementary and secondary education, Senator Bernie Sanders (D-VT) wants to do for higher education: eliminate variety, locality and, with them, quality.
Such would be the result of Sanders’ plan—which he touted at last night’s debate—to finance free higher education at all public colleges and universities. The financing is a pipe dream. The new federal funding, for example, could not be used for administrators’ salaries. It’s a classic instance of government-by-press-release—or by socialist—according to which we pretend that disincentives to behavior amount to prohibitions on behavior rather than inducements to creativity in its pursuit.
In my prior post, I argued that it is not clear that the Constitution requires the Speaker to be a Member of the House of Representatives. Here, I thought I would mention two related issues. First, while the Constitution does not require that the Speaker be a member of the House, there is a strong argument that the House Rules do require it. The Rules of the House, adopted in January of 2015 for the two year period, provide The Speaker is not required to vote in ordinary legislative proceedings, except when such vote would be decisive or when the House is…