Andrew McCarthy has been arguing that the Sessions recusal and the appointment of the Special Counsel were not justified. Or to put it more precisely, under proper procedures, this recusal and appointment would have been much narrower. While one justification of the appointment and recusal is that there was an investigation into the Russian connections with the Trump campaign, McCarthy argues that the investigation was merely a counterintelligence investigation and that such investigations involve lawyers in a very limited way. The regulation governing recusals and appointment of special counsels involve criminal investigations, not counterintelligence investigations. As a result, McCarthy argues that Attorney…
Archives for July 2017
We have recently written a paper arguing that the Constitution is written in the language of the law. In particular, the language of the Constitution includes terms, like “Bill of Attainder,” that are patently technical, and terms, like “good Behavior,” that are latently so in that they have both an ordinary and legal meaning but are better interpreted according to the latter. It also includes legal interpretive rules, including those that tell readers when to understand a term in its legal sense or its ordinary meaning sense.
The Constitution’s legal language is significant. Theoretically, it shows that original methods originalism is the correct form of originalism, because the Constitution’s legal interpretive rules are crucial to cashing out its meaning. Practically, the richness of its idiom provides resources to address otherwise unresolvable interpretive questions.
Striking confirmation of our thesis comes from modern originalist scholarship. Much of the best of such work depends on reading the Constitution as written in the language of the law and is inconsistent with reading it as written in ordinary language. In this post and the next we will provide some examples.
John Stinneford has provided a new interpretation of the Eighth Amendment by reading the Clause in the language of law.
The writings of Jason L. Riley span politics, economics, education, immigration, and race, among other subjects. The Buffalo-born Riley has worked for the Buffalo News, USA Today, and, for the last 23 years, the Wall Street Journal, becoming one of the leading conservative journalists in the United States. The frequent Fox News commentator is currently working on a biography of Thomas Sowell. Riley’s first book, which was about immigration, was Let Them In (2008). Next came Please Stop Helping Us (2014), examining the history of failed governmental assistance to black Americans. Templeton Press has just published his third book, False…
Ray Fair, a fine Yale economist, has the best economic model for predicting the outcome of presidential and congressional elections. The model has the virtue of simplicity, weighting incumbency, length of time a party holds the Presidency, and news about the economy on growth and employment relatively shortly before election. It has not been perfect in predicting each party’s share of the two party vote, but it has been good–good enough to be taken seriously outside the academy. The New York Times in fact devoted a whole interview to him, sadly marred by the seeming inability of the interviewer to understand why, Fair, despite being a Democrat, used his model to predict a Republican victory!
But the relative success of his model makes one doubt how strong is democratic accountability for the economic performance of government. Few, if any economists, would say that the news about growth and unemployment shortly before an election is a good proxy for that party’s economic stewardship. Business cycles are not in the control of the government. And perhaps more importantly, the most important policies a government undertakes likely take longer than a few years to bear fruit. Thus, the tax cutting policies of the Reagan era may be largely responsible for the prosperity of the Clinton years as businesses and people invested more.
Recently, the question whether the President can pardon himself has been in the news. I have always found that to be a difficult question. But unfortunately the framing of the question these days often leads people to misunderstand the issue. The Pardon Clause provides the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Defenders of the view that the President can pardon himself argue that there is no limitation on the pardon power in the text of the Constitution. They further argue that the explicit exception for cases of…
Both political right and political left increasingly share a common cause critical of occupational licensing and residential zoning. Signs portend the possibility of a left-right coalition to reform these state- and local-level policies. But bitter national-level polarization would need to be put aside to coordinate a common front at state and local levels.
Looking back at the Americans with Disabilities Act, passed by Congress in 1990, one has to be struck by the extent to which the ADA’s lofty sentiments have been overwhelmed by its adverse results. If it’s true that the road to hell is paved with good intentions, then the ADA is a veritable Autobahn of wishful thinking gone awry. Yet no one seems inclined to reroute the ill-fated traffic; some states are even widening the highway with additional lanes.
I’ve just returned from my annual vacation on my beloved island of Foehr; and as in earlier years Brother Reinsch has invited my random thoughts on what’s up with Krautland. Some bad stuff happened while I was there but frankly, it’s been a relief to spend a few weeks in a functioning, tolerably well-governed country. On the eve of the federal elections on September 24, the Germans are calm, confident, and contented. And basically, I think, they’re right.
Throughout the two-year history of the Massachusetts case in which a young woman was charged with involuntary manslaughter for encouraging her boyfriend to commit suicide, there was a nationwide discussion of the implications of the case for free speech under the Constitution’s First Amendment.