Archives for March 2017
I was talking about the Take Care Clause today and I realized that there was an important connection between the original meaning of two clauses I had never previously recognized: the Take Care Clause and the Equal Protection Clause. Most people don’t see much of a connection, but there is an important connection as to the original meaning: they are both about prohibiting executives from not enforcing the law. While the modern meaning of the Equal Protection Clause is that it protects against unequal laws, the probable original meaning is different. The Clause provides that no state shall “deny to any…
I expect if one were to ask Republicans in the House of Representatives and Senate (and the White House) whether they want Obamacare replaced, all, or close to all, would give a hearty “yes.” Where things break down is what replacement proposal could get majority support in the House, and the requisite majority or supermajority in the Senate.
House Speaker Paul Ryan’s and, apparently, the White House’s assessment as well, was that moving last week’s proposal to the right to satisfy members of the Freedom Caucus in the House would lose the pivotal votes in the Senate, and insure defeat there.
Reading the social critic Camille Paglia is like watching Keith Moon play the drums. Moon (1946-1978) was the manic drummer for the British rock band The Who. His playing was mercurial, brilliant, and unpredictable. Moon would play to the vocal instead of the beat, drift in and out of the proper time, do mind-boggling fills at odd moments, and yet through it all maintain a kind of swirling order in the chaos.
Like Moon, Paglia is manic, idiosyncratic, and sprawling. Yet at the core, her critique is chugging in a central direction. Free Women, Free Men: Sex, Gender and Feminism, Paglia’s new collection of essays, shows the pop culture polemicist recreating some of her greatest hits about sex, art, and feminism.
Over the past several years, I have given some thought to the old independent counsel statute. I have argued that the statute both had constitutional and policy defects. Here I want to elaborate a bit more on one of the alleged defects. One of the problems with the independent counsel (IC) is that this official seemed to be too powerful. The IC would investigate, would usually find some type of violation, and then could prosecute. The defendant would then be faced with the risk of a criminal trial and a severe sanction or would be pressured into a plea bargain. Either…
The race for the presidency of France seems to have been scripted by our television news channels—which is bad news for democracy, whose natural ground is common sense. Every week gives us a mass of news, reversing that of the week before. This is by way of telling readers that what I write today could easily be wrong tomorrow. And as I’ve mentioned before on this site, a variety of outcomes are still possible, even as the first round of the election approaches in April.
The threatened filibuster by the Democrats of Judge Neil Gorsuch seems irrational if its purpose to help create a Supreme Court more friendly to Democratic commitments. Almost everyone expects the response by the Republicans will be the so-called nuclear option by which they use their majority to end the filibuster rule for Supreme Court nominations. The Republicans believe that filibustering a mainstream judge in the first year of a President’s term is illegitimate. Given that in 2013 the Democrats eliminated the filibuster for lower court and executive appointments, they will also regard themselves fully justified in taking a similar action themselves. And the Republicans will be acting within their constitutional rights: as Mike Rappaport and I have shown, the Senate majority must have the authority to change supermajority rules by majority vote.
The elimination of the filibuster leaves the Democrats in a worse position for the rest of President Trump’s term. The most obvious reason is that they then cannot filibuster the next nomination— the one likely to fill the seat of Justice Ginsburg or Justice Kennedy.
Between the breathless whispers that Judge Neil Gorsuch intends to impose either medieval Catholicism or, worse, Oxford sensibilities from the bench through the mechanism of natural law and the fear that he might otherwise glide into the legal positivism of which Justice Scalia was unreasonably accused lies another possibility: The Constitution can neither be interpreted through natural law nor reduced to positive law. It is more profitably understood as fundamental law.
Ken Levy, law professor at LSU Law School, makes a strange case against originalism in his New York Times editorial, “The Case Against Originalism.”
First, the setup:
Textualism says that when interpreting the Constitution, judges should confine themselves to the words of the Constitution. Originalism says that if the words are at all unclear, then judges need to consult historical sources to determine their meaning at the time of ratification, and the correct application of these words to new cases should clearly follow.
Here’s what I call the Shakespeare test. I substitute “Shakespeare play” and related words for the “Constitution.” The point is simply to judge whether, and to what extent, a proposed method of reading the Constitution differs from what we’d use when reading something more familiar. (It doesn’t need to be a Shakespeare play. It could be a baseball rulebook, or a math textbook, or the newspaper. Whatever.)