Archives for May 2012
Very soon, quite probably within a decade, we will confront a constitutional collapse. Unless we revamp the constitutional order in major respects, it will simply seize up or keel over (pick your metaphor)—in what way and with what consequences, no one can say. By “Constitution”, I do not mean the formal, written Constitution, which will survive for the foreseeable future. Rather, I mean what scholars sometimes call the “small-c constitution.” It encompasses, in addition to the formal arrangements, institutional patterns and practices that are (1) longstanding; (2) central to the political system’s operation; and (3) too entrenched to be broken by…
Jeremy Bailey, author of Thomas Jefferson and Executive Power, reviews for Law and Liberty Charles Thach's The Creation of the Presidency, 1775-1789: A Study in Constitutional History. Thach's work is widely hailed as a classic study of the creation of executive power by the American Constitution. Bailey notes the central movement of the book as follows: For Thach, the key move was not making an executive branch but rather making that branch independent of Congress. This may seem like old news, but Thach reminds us of at least one important implication: “There is no need to cross the Atlantic to find…
In response to “Black Studies: ‘Swaggering into the Future,’” Naomi Schaefer Riley penned “The Most Persuasive Case for Eliminating Black Studies? Just Read the Dissertations.” To put it mildly, her piece generated no small amount of controversy, ending (or beginning) with her dismissal from The Chronicle of Higher Education’s blog Brainstorm. Both in print and online Ms. Riley tells her side of the story in the Wall Street Journal. She ends her remarks with the following:
My longtime familiarity with the absurdities of higher education did not, I confess, prepare me for this most absurd of results. The content of my post, after all, is hardly shocking; the same thing could have been written 30 years ago. And perhaps that’s the most depressing part of all this. Despite the real social and economic advancement that has been made by blacks in this country, the American faculty is still stuck in the 1960s.
Consider the following modest proposal: a Marxist read on the Riley kerfuffle. It’s a return to the 1960s, but it’s not about race. It’s about economics.
Here’s the argument: Criticizing a single tenured academic does not threaten that academic’s income nor the income of his colleagues. If someone is criticized, then that could be fantastic for the discipline, and for that academic, too (file the criticism under to power, speaking truth). However, if the entire discipline is criticized, then, from an economic point of view, professors have a problem, for at least two reasons.
Huzzah: my seminal law review article by the above-captioned title (6 Charleston L Rev 15 (2011)) has made the LSN: Judges (Courts) (Topic) Top Ten. The piece deals with the Supreme Court’s “business cases” and the idea, peddled with dreary predictability at the conclusion of each Term, that we are well on our way toward a judicially engineered plutocracy. Here’s the gist of it: Upon inspection, the notion that the Roberts Court’s jurisprudence heralds a restoration of unbridled capitalism — or, more modestly, of reliable rules of the road for commercial actors — proves untenable, if not downright absurd. It is true that…
Recent disputes over the Patient Protection and Affordable Care Act go to the most basic of political issues, the proper goal of government.
The nature of the political good may seem a question for the seminar room, but the answer is what distinguishes libertarians, liberals, and conservatives. More specifically, it’s what accounts for the disputes over Obamacare.
According to libertarians, the basic political good is freedom, understood as a setting in which people make their choices and pay for them. What’s available for choice is what people can provide for themselves, together with whatever other people decide to make available. Such a view leads libertarians to oppose government-prescribed health care of any kind.
Liberals agree that the basic political good is freedom, but see it as a setting in which people make choices and receive social support for them. They note that a lack of options can limit freedom, and propose that goods everyone wants, or that facilitate choice in general, be made freely available. Thus, for example, they believe that government should provide for universal health care, since everyone wants to be healthy, and good health facilitates active autonomy. They also believe that personal choice should prevail over collective moral preferences, so Catholic employers should be required to make free birth control pills available to employees who want them.
Conservatives in contrast view the political good as maintenance of an overall way of life that has been found good through experience and reason. That way of life will generally include freedom, but it won’t put it first because freedom by itself doesn’t tell us what it’s for, and if we don’t know what it’s for we can’t resolve conflicts among claimed freedoms. So to make sense, freedom has to be part of a larger system of goods that gives it direction, setting, and meaning.
My post on The Greater Originalist, which argued that following precedent was consistent with originalism, prompted some comments by Andrew Hyman and Tim Sandefur. Here I will briefly articulate my theory of constitutional precedent (developed with John McGinnis) and then respond to their questions.
My view of precedent is as follows. First, I argue that the Constitution itself allows for precedent. In particular, the original meaning of the Constitution contemplates common law precedent rules that are binding on judges. But the Constitution also allows Congress to enact precedent rules that would displace the common law rules.
Second, I argue on policy grounds that the best precedent doctrine would be an intermediate one that follows the original meaning except in limited circumstances when the benefits of precedent outweighs the benefits of following the original meaning. This doctrine, however, should employ rules to identify the situations when precedent should be followed, and should not allow judges to employ a balancing test to determine whether to employ precedent.
One of the precedent rules that I defend would have judges follow precedents that have the same degree of support that a constitutional amendment would require. In that situation, the precedent would have many of the characteristics of a constitutional provision. Of course, a constitutional amendment would be superior, because it would have been actually enacted. But overturning precedents that have such strong support also has serious costs.
If a criminal defendant is informed by his defense counsel to reject a plea-bargain and go to trial under the advice that the facts giving rise to the charges wouldn't support the length of the prison term offered in the plea deal, and the defendant accepts the advice, goes to trial, and is convicted of a much lengthier prison term than that offered under the plea deal, did he receive ineffective assistance of counsel? Yes, according to Justice Kennedy writing for the majority in the recent case Lafler v. Cooper. Hadley Arkes at Right Reason (link no longer available), notes in…
The New Republic’s Jeff Rosen has flushed me out (again) as a “leader” of a “Constitution in Exile movement” seeking the overthrow of the United States government, or at least the New Deal. My game is up, and the force of the indictment demands both a specific admission of sins and an exculpation of my duped followers—including half the D.C. Circuit and, quite possibly, the Chief Justice of the United States. In attending to those solemn obligations, I have changed the order of the counts of the indictment for purposes of exposition, and I have added links to buttress the evidence against me; the original (May 4) text appears here.
John Marshall’s opinion in Gibbons v. Ogden, I argued in an earlier post, is manifestly inconsistent with Justice Thomas’s textualist-originalist concurrence in Wyeth v. Levine. Only one of the decisions and opinions can be right on the question of federal preemption; and the conflict arises not from some wrinkle in the statutory scheme but from differing jurisprudential commitments. Mike Ramsey’s eloquent Originalism Blog post notwithstanding, I still think that I’m right, that Marshall was right, and that Justice Thomas was wrong. I harp on the disagreement because I fear that textualist originalism won’t let the Constitution do what it is supposed to do.