The controversy over the nomination of Chuck Hagel as secretary of defense has reminded us how diverse opinion called “conservative” really is. Certainly “traditional conservatives” and “neoconservatives” have both become rather overwrought. And the president must be smiling while watching the predictable effects of pushing key buttons. The “neocons,” so it’s said, can’t stomach having someone that indifferent to the future of Israel, Iran becoming nuclear, and the military might and resolution required for America to be a leading force for good in the world. The traditional conservatives—which, in this case, include many libertarian followers of Ron and Rand Paul—are thrilled that American foreign policy will finally become properly defensive—the foreign policy of a republic, not an empire. The savings in blood and treasure—for ourselves and others—will be huge. Some neocons—or “national greatness” conservatives—charge that Obama is really all about starving defense to fund health care and other domestic initiatives. He’s about to make us another European country. The problem with that is that the European countries can dispense with defense spending only because they’ve been parasitic on ours.
Archives for January 2013
Quick update on Friday’s post, before launching into today’s clueless musings: approximately 10 minutes after I put the blog to bed, the Supreme Court publicly issued its cert grant in American Trucking Ass’n v. Los Angeles. Thanks to occasional contributor Adam J. White for the alert. On to a case argued this past week before the Supreme Court: Delia v. EMA, presents a Medicaid wrinkle that (if I’m right) poses a constitutional question of considerable import. The justices don’t seem to think so, though. Either they’re wrong, or else I am missing something. The Statute State Medicaid programs will often pay medical expenses for beneficiaries who then seek and obtain recovery from a third…
Some time ago, I commented on the Supreme Court’s increasing doubts about the Solicitor General’s good faith and candor. More in this vein comes from a party brief in a pending certiorari petition. The Court CVSG’s the case (i.e., asked for the view of the SG whether cert should be granted). The SG opposed. From the brief:
The Solicitor General’s position is in keeping with a pattern of apparent reluctance to support review even when substantial factors warranting certiorari are present. The Solicitor General recommended denial in 21 of the 22 invitation briefs filed between August 26, 2011, and November 30, 2012. The Court has granted review in many of those cases; four have already been argued this Term, and another is awaiting argument. Ryan v. Gonzales (10-930); Decker v. Northwest Environmental Def. Ctr. (11-338, 11-347); Los Angeles Cnty. Flood Control Dist. v. NRDC (11-460); Vance v. Ball State Univ. (11-556); Bowman v. Monsanto Co. (11-796). Yet another argued case, Kirtsaeng v. John Wiley & Sons (11-697), presents an issue on which the Court granted certiorari in 2010 over the Solicitor General’s contrary recommendation, but the Court divided evenly in the 2010 case presenting that issue.
Zing. Having looked at CVSG filings over the years, and having read a very fine law review article (link no longer available) on the empirics, I assure you that these numbers are entirely unprecedented. Small wonder: it cannot possibly be the case that every case the justices deem worthy of at least a careful look is a dud. The “no cert ever” posture requires some very fancy footwork.
The case at hand, American Trucking Ass’n v. Los Angeles, 11-798, is a fine illustration. It arises over the preemptive force of the FAAAA (not a typo: you’re looking at the Federal Aviation Administration Authorization Act.) As the petitioners (represented by the excellent Roy Englert, Alan Untereiner, and Leif Overvold of Robbins Russell) note, the SG’s opposition acknowledges that the Ninth Circuit, in the course of creating a broad “market participant” exemption to federal preemption, got it wrong; produced a circuit split; and badly mangled a Supreme Court precedent. Also, the SG acknowledges, the case involves a recurring question under multiple preemption regimes. Still, no cert. Why should the U.S. government defend its own statutes? American Trucking Ass’n was relisted earlier this week; my hunch is that the Court will grant.
Last year on January 11 Law and Liberty launched itself into the legal blog world and much else. Here's the basic data on our successful 1st year: 980,000 Pageviews, 345,000 Visitors. This places us in the top 20 for pageviews among the Law Prof blogs and we're right outside the top 20 for visitors. (We aren't actually listed in the rankings because Law and Liberty isn't edited by a law professor, and we don't have publicly available data). So we're fired up about the first year and even more excited about the year to come. We've been led by the show-stopping…
This past Tuesday, the Brookings Institution held a C-SPANned panel discussion on the federalism implications of state laws that liberalize and de-criminalize marijuana use, possession, and distribution. The unusually informative and wide-ranging debate featured Troy Eid (Greenberg Traurig) and Angela Hawken (Pepperdine)—who, unlike the third discussant (moi), know a great deal about the topic. Moderator-cum-contributor Jonathan Rauch (Brookings) was his usual self—charming, funny, thoughtful. The videotape is here. Since winging it on the panel, I’ve thought some more about the federalism questions and in particular the federal government’s response. Zwei Seelen wohnen, ach, in meiner Brust: I’m torn. This much seems…
Over at the Democracy Blog, Akhil Amar reviews Justice Scalia and Bryan Garner’s book on Reading Law. Amar argues that Scalia and Garner adopt too strong a textualism, criticizes them for misreading William Blackstone’s absurdity canon, and argues that the Vice President cannot preside at his own impeachment trial.
As readers may remember, I myself have argued that the Vice President cannot preside at his own impeachment trial. I founded that result on a reading of the absurdity canon, although I also thought that there was something to be said for the view that a trial may not refer to a proceeding where the judge and defendant are the same person. See here.
While Amar argues that Scalia and Gardner misread Blackstone, Ed Whelan (link no longer available) and Mike Ramsey defend Scalia and Garner of the charge, claiming that they are not basing their version of the absurdity doctrine on Blackstone. I shall leave to others whether Amar or Whelan and Ramsey are right about this.
Instead, let me say that I agree with Amar that Blackstone had a broader version of the absurdity doctrine than Scalia and Gardner recommend. The question though is whether Blackstone’s doctrine is the proper approach to interpreting the Constitution.
My own view – that of Original Methods Originalism – argues that the Constitution should be interpreted based on the interpretive rules that would have been applied to it at the time of the Constitution. There is no doubt that Blackstone’s interpretive approach was very influential at that time, but I believe that a more textualist version of Blackstone was the dominant approach when the Constitution was enacted.
Recently I visited an exhibition in Paris about Victor Hugo’s spiritualist table-rapping while he was in exile from the Second Empire on the island of Jersey (supposed rationalists in politics are not necessary rationalist in everything, or indeed in anything, else). After leaving Hugo’s house on the Place des Vosges I walked down the rue du Pas de la Mule towards the Boulevard Beaumarchais. It is a short street, full of shops selling expensive trinkets, mostly execrable, to well-heeled tourists. There is also an art gallery on the street with such atrocious paintings that, were bad taste a crime, the owners and their clients would be sentenced to life imprisonment without possibility of parole.
In a New York Times Op Ed last week, Louis Michael Seidman presented an argument for not following the Constitution. Here is my summary of the major aspects of his brief:
1. Our American system of government is broken due to the archaic, idiosyncratic and downright evil provisions.
2. It is irrational to rely on the judgments of men dead for two centuries.
3. Constitutional disobedience may seem radical, but it is as old as the Republic.
4. Given this disobedience, it is not true that we would be reduced to a state of nature if we ignored the constitution.
5. We should follow the good constitutional commands out of respect or because it is better to leave some things as settled.
6. The decisions of the different branches should be defended on a contemporary policy basis.
7. Other countries are held together by long standing traditions. So could we.
8. If this is not possible, then the dream of a country ruled by we the people is impossibly utopian.
In my view, there is so much wrong with this argument that it is hard to know where to start. In this post, let me focus on the two most important problems with the argument. In my next, I will discuss other issues.
Today (Monday), the Supreme Court is hearing arguments in Standard Fire Insurance Co. v. Knowles, its very first decision on the 2005 Class Action Fairness Act (CAFA). Beyond the intrinsic importance of the case, some amicus submissions suggest, or perhaps better partake of, a profound reorientation of conservative legal thought.
Michael Greve’s April 2012 post “Constitutionalism, Hegel, and Us” had several significant points in his short essay masquerading as a blog post. Greve notes that liberal constitutionalism per Hegel’s argument in Philosophy of Right has a problem, a big one.
[P]olitical liberalism (Hobbes, Locke, Kant, and, with some qualifications, Rousseau) confuses civil society with the State. Again, that makes us nervous; but the distinction has a very large kernel of good sense. The principle of liberal constitutionalism, Hegel says, is “endless subjectivity,” or what we call “individualism.” A liberal constitution is a contract among individuals, who consent to limits on their autonomy insofar, and only insofar, as they are consistent with individualist principles. (Think Locke’s Second Treatise.) To state Hegel’s central objection at phenomenological level: you can’t run a free country on that basis.
So we need more than individuals. We need a society of persons constituted by familial, local, religious, and political attachments, recognizing that personhood contains aspirations and purposes that place it beyond the scope of state power. Society “possesses primacy over the state.” The state must serve the ends of the human person. On this basis we can relativize the state’s value.