This is an interesting article about the lawyers in the California lawsuit claiming that the U.S. Constitution requires same sex marriage. Ted Olson (and David Boies) argued that it does. Chuck Cooper argued that it does not. The article talks a bit about how Olson and Cooper are both conservatives and both headed the Office of Legal Counsel during the Reagan Administration. I worked for both of these men. I served under Cooper in the Office of Legal Counsel and then worked for Olson at Gibson, Dunn & Crutcher. Both are excellent lawyers and not surprisingly demanding bosses. The article portrays them differently. …
Archives for January 2013
As previously threatened, I have a few remarks about this week’s Supreme Court argument in City of Arlington v. FCC, asking whether administrative agencies are owed judicial deference—Chevron deference—when they construe the scope of their own jurisdiction. Alas, the argument (transcript here) illuminates little beyond the Supreme Court’s ambivalence and, frankly, confusion about the administrative state.
The next podcast @Liberty Law Talk is with Greg Lukianoff on his new book, Unlearning Liberty: Campus Censorship and the End of American Debate. Lukianoff is a First Amendment litigator-extraordinaire and the leader of FIRE. If you find yourself on campus and under suspicion for telling the wrong joke, supporting the wrong political ideas, or sacrificing to the wrong gods, then Lukianoff and his indefatigable band of lawyers @FIRE will be the best friends you ever have. @Econ Lib, Robert Murphy puts the (expansion) in austerity: By the mid-1990s, the Canadian federal government had been running deficits for two decades, with…
Akhil Amar emails to note a pertinent discussion of the issue from his book America’s Constitution: A Biography:
In the 1798 case of Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378, the Court endorsed the permissibility of the practice that had already taken root, under which proposed amendments were not submitted to the president for his signature or veto. Two main theories have been offered to support this result. Some have argued that the two-thirds rule of Article V should be read as creating an implied exception to the usual rule of presentment set forth in Article I, section 7. On this view, since any proposed amendment has already achieved a two-thirds vote of each house, presentment is unnecessary. Others have argued, more directly, that Article V created its own separate higher-lawmaking track above and beyond the presentment clause rules for ordinary Article I lawmaking. On this view, Article V did not envisage any role for a presidential signature or veto in the case of an amendment proposal emerging from a duly called proposing convention; and an amendment proposal made by Congress should stand on the same footing. In 1861, James Buchanan added his name to the Corwin Amendment (which was never ratified), and four years later Abraham Lincoln appended his own signature to the Thirteenth Amendment. On February 7, 1865, the Senate resolved that Lincoln’s signature had been unnecessary and “should not constitute a precedent for the future.”
Apart from the history, one question is whether the original meaning supports this practice. Although I have written several articles on Article V — e.g. see here, here, and here — I have not studied this issue at length. Still, my take is that presentment is required, although I prefer the Constitution without that requirement.
First, Article I, section 7, clause 3 appears to make clear that the proposed constitutional amendments must be presented to the President. It says
The President has held two news conferences in three days commenting on the coming wave of gun control initiatives. His presentation has been emotional and properly reflects the anguish that we all feel for the victims of gun crime. It also has been a dazzling display of sophistry. I say that because the President is smart. And if he were not smart, I would say that, so far as his gun ban proposals, his comments were a profound display of ignorance.
Responding to the run on guns precipitated by the preliminary proposals floated by his team, the President said that the motivation must be mainly financial. Callous capitalism, that other great evil, had prompted unnamed villains to gin up fear of gun bans in order to make profit. The truth is far more basic.
Everyone here is seeking the best route to personal security. Gun people calculate that within the window of imminent threats government is incompetent and they must protect themselves. From the rhetoric, you would think that gun owners or at least NRA members do not have families and children that they love and want to protect. That of course is absurd.
These people realize the limits of government and have prepared to protect themselves. Private firearms are central to their approach, and that drives the recent run on guns (and those following Obama’s two elections). If you believe you will lose something essential to one of your core needs, you will scour the market and buy up what you can. It does not require blandishments from profiteers.
I was very sad to hear of the passing of Nobel Prize winner and public choice pioneer James Buchanan. As one of the developers of public choice, Buchanan has had an enormous influence on the way we think about politics and a significant effect on the disciplines of economics and political science. Buchanan also had tremendous influence on my own thinking. One of the key aspects of the case for the classical liberal society is that the government does not behave as we would like, but instead acts in accordance with political power. Such political power is a function of some…
The next Liberty Law Talk is a conversation with Greg Lukianoff, attorney and president of the Foundation for Individual Rights (FIRE), about his new book, Unlearning Liberty: Campus Censorship and the End of American Debate. For those who have followed the pathetic censorship episodes on campus the past few decades, you might think that many of these battles had been won. Lukianoff, however, has the proof that free speech, freedom of religion, and freedom of association remain under siege on campus in myriad forms. Unpopular opinions, usually attributed to those held by conservative students and religious students, are frequently targeted…
With a title like The Partisan, we should know what to expect. John Jenkins’s biography on the late Chief Justice loses no chance to paint him in the worst possible light. Rehnquist is a nihilist, dogmatic, cold, distant, a racist, not a hard worker, and dangerously bound to a desiccated judicial philosophy, unless its results would contradict his desired policy objectives, in which case any legal theory will do. This gives the flavor, taken almost at random: “Rehnquist’s judicial philosophy was nihilistic to its core, disrespectful of precedent and dismissive of social, economic, and political institutions that did not comport with…
Recent decades have seen a remarkable growth in America and Europe of secular humanism, along with other less self-conscious and militant forms of religious disaffiliation. Elsewhere there has been an equally striking resurgence of religion, especially Islam. Practically wherever this has happened has witnessed a concomitant upsurge in the persecution of religious minorities who, as often as not, have been Christians, given the size and global reach of their faith.
Within Muslim lands, Christians have been especially subject to persecution. But they are not their only religious minorities to have suffered increased levels of it.
The case of Gérard Depardieu continues to agitate France. The most famous French actor in the world has recently taken Russian citizenship (granted in record time) in protest against high rates of taxation in France. By coincidence he had recently played the role of Rasputin in a film made for Russian television.
Depardieu is a very rich man; he has put his house in Paris up for sale at $66 million, and that is only one of his properties. It is therefore not entirely easy, psychologically, for most of us who live in slightly more modest conditions to see him as a man on the brink of ruin. But like all rich Frenchmen at a time of demagogic attacks on the rich, he fears the most confiscatory of all taxes, the ISF (Impôt sur la fortune), a levy on personal assets that could easily result in someone having to pay more, even much more, than 100 per cent of his income in tax. This would be quite popular in a country in which many people consider all personal enrichment but their own as illegitimate, and in which the ISF is justified as being a manifestation of social solidarity. Solidarité in France is no longer an expression of compassion, but a matter of fiscal policy mandated by the political class. To put it another way, human feeling has been nationalized.