The next Liberty Law Talk is now available. This podcast is a discussion with Adam White, a lawyer in Washington with Boyden Gray & Associates, about the increasing policy significance of what has been a rather staid or predictable part of federal law-making, independent federal agencies. White argued in an important essay earlier this year in National Affairs that these agencies are increasingly seen by the executive branch as a way to implement or foil significant policies apart from congressional intervention. Perhaps the most striking evidence was the National Labor Relations Board's unprecedented attempt to order the Boeing Corporation to…
Archives for November 2012
Conservatives are disappointed and are searching for reasons for the disappointing electoral outcome. In whom or what are they disappointed? A tempting approach is to adopt the inevitableness of changing demographics framework of the left. The left regularly focus on the story of the marginalized—women, minorities, the young and the poor—gaining ascendancy or being victimized. And certainly these four groups were active in this election and were important in delivering the presidency to Obama and perhaps the Senate to the Democrats. It would appear that it is the old white guys who held power previously that are now the victims! But that is delicious revenge for the left. Because it is all about power; you old white guys have had your turn. Now it is our turn.
But there is nothing destiny deciding or inevitable about the impact of these four categories.
My dear friend Henry Olsen has a recent piece that I believe to be gravely mistaken. Inasmuch our disagreement bears on public matters that will be of vital importance in the years ahead, we’ve mutually agreed to noodle over it in these pages. I go first; Henry will comment when and as he sees fit.
I have been doing a series of responses to Cass Sunstein’s criticism of the originalist Supreme Court Justices: See these posts on affirmative action, and commercial speech. This post discusses Sunstein’s criticism of regulatory takings:
This is far from the only area in which they have been doing so. For example, many conservatives believe in strong protection of property rights. They want courts to use the Fifth Amendment’s takings clause to strike down regulations that interfere with property rights — even though some leading historical accounts suggest that when originally ratified, the Fifth Amendment was limited to actual physical takings of property, and didn’t restrict regulation at all. Here too, Justices Scalia and Thomas have made no serious inquiry into the original understanding.
I agree with Sunstein’s position here more than I have in my previous posts. I agree that Scalia and Thomas have not made much of an inquiry into the original meaning here. I also agree with that some leading historical accounts suggest the original Fifth Amendment did not restrict regulatory takings.
But there is more to the matter than this. First, while I agree that the Fifth Amendment passed in 1791 did not cover regulatory takings, the 14th Amendment passed in 1868 may have. I present arguments for this conclusion here. People have recognized that the individual rights applied against the states after the Civil War had a different content than those that existing in 1791. The 14th Amendment enactors also had a more individual rights understanding of government than the enactors of the original Bill of Rights. Further, there is strong evidence that the Takings Clause had become much more embedded into American traditions by 1868 and some evidence that it extended to at least some regulatory takings.
A friend from high school, distressed by the results of Tuesday’s balloting, circulated a prayerful plea that President Obama’s re-election indicates “our nation is in a sinful state” whose consequences we must “suffer” until we repent our “wicked ways.”
This is what Robert Dahl identified as the phenomenon of intensity in politics. Willmoore Kendall and George W. Carey identified its solution: the constitutional regime delineated in The Federalist—which means, Houston, we have a problem.
Having argued that the absurdity rule should apply to the situation where the Constitution allows the Vice President to preside at his own impeachment trial, let me now address more precisely what I think the effect of the absurdity rule on this issue is. For my earlier posts on this issue see here and here.
As Mike Ramsey says, the Constitution discusses the issue with three related sentences of Article I, Section 3. (1) “The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.” (2) “The Senate shall have the sole Power to try all Impeachments.” (3) “When the President of the United States is tried, the Chief Justice shall preside.
Before applying the absurdity rule, one must determine how the constitutional text (without the absurdity rule) applies to the issue of the Vice President presiding at his own impeachment trial. It would seem that the Vice President being President of the Senate means that he would always have the power to be the presiding office. (At the time of the Constitution, the office of president usually was the presiding office of a multimember group of some kind.)
In politics, our myths are more important than our history. The stories that tell us who we are as a nation are the most powerful political tools in times of economic, military or cultural stress. Good or useful myths marshal populist anxieties, giving to people who are fearful of dispossession or political dislocation a story that simultaneously affirms their central role in this nation and explains the causes of their present turmoil. In 2008 the nation needed a useable myth that could tap into American populism and turn this potent political force into a conserving power. Obama’s myth has not created a sustainable narrative of America, but it might have weakened the very capacity of the nation to believe in and live as part of a better story of ourselves.
To my constricted mind, elections are like meteorological events. They happen, at more or less regular intervals. People can’t stop talking about them. If I had a desire to participate actively in either, it wouldn’t make a difference; and so I never have and never will. I’d be grateful if electoral politics and the weather could stay in the background, where they belong; but if they intrude all too much I’ll move, uncomplainingly, to a place where they don’t . In short, I don’t have any actual opinion on Tuesday’s election or its outcome, only a few rain-drenched musings: