You know it doesn't make much senseThere ought to be a law againstAnyone who takes offense At a day in your celebration. Awright: the lyrics get smarmy as Stevie Wonder’s song continues. But it’s a sensational arrangement that brings back fond memories of many a happy disco night. (More in that vein? Here, from German TV at the time. Mature immature audiences only.) So far as quoted, moreover, the lyrics fit the occasion: if ever we are to celebrate March 23 (Obamacare Day), they’ll have to make us. Call it the Individual Celebration Mandate. On the occasion of this birthday (Obamacare’s third),…
Archives for March 2013
Remembering the weight of modern ideology: In this week's featured review, Liberty Fund Senior Fellow Peter Mentzel considers Anne Applebaum's latest book, Iron Curtain: The Crushing of Eastern Europe 1944-1956. Mentzel notes that a prominent feature in Iron Curtain is the author's discussion of the evisceration of civil society: Importantly, the utter destruction of civil society in Eastern Europe was not simply a political strategy on the part of the communist parties to eliminate any possible rivals, though it was that too. More importantly for Applebaum, totalitarian ideology dictated that the numerous groups and clubs that made up civil society not…
Over at Slate, Eric Posner has a piece attacking the D.C. Circuit’s Recess Appointment decision in Noel Canning. Posner writes:
But here’s the point. It defies belief that the founders intended to constrain recess appointments by using the word “the” rather than “a”, or by using the word “happen” rather than “exist.” If the founders had feared that the president would abuse the recess appointments power in order to create a tyranny, they would have made their intentions to constrain the president a bit more explicit.
In fact, we know next to nothing about what the founders intended because of the paucity of contemporary documents revealing their intentions. We can surmise that they wanted the president and Senate to share the appointments power but also that they recognized that the president might need to make appointments to keep the government running when the Senate was out of session. Both the court’s and the Obama administration’s readings of the clause are consistent with this general purpose, so it is idle speculation to draw on the original understanding to resolve the dispute.
Policy makers and economists of various stripes have had a field day since the onset of the last financial crisis blaming the downturn on market failures and proclaiming new regulatory fixes. Never mind that most of the mainstream either did not anticipate the collapse or had even preached perpetual boom, they were brimming with solutions. That fact has set a few members of the economics profession on edge and in one case, has inspired an important new contribution to thinking about markets. What is the right way of conceiving the relation of public policy and law to economics?
Commentators have missed the most significant element of Sam Tanenhaus’s controversial essay “Original Sin: Why the GOP is and will continue to be the party of white people.” Unfortunately both Tanenhaus and his critics have missed the major point about John C. Calhoun—Tanenhaus by overstating his influence on the right and him and his critics by missing Calhoun’s influence on our political understanding generally.
Earlier this month, the Federalist Society held its always-excellent Annual Student Conference in Austin, Texas. Among the highlights: a panel on federal grants and transfers, featuring Lynn Baker (University of Texas Law School), Sam Bagenstos (Michigan Law School), and yours truly. Graciously moderated by Judge Edith Jones (Fifth Circuit). The tape is here. Professor Baker’s remarks provide a concise summary of the state of the law on federal spending after NFIB v. Sebelius. Sam Bagenstos elaborates on the theme. Plus, he has a truly terrific, eminently fair-minded paper on the Medicaid piece of NFIB here. (He presents an “uneasy defense”…
My previous post on Arguments from the Future touches on an extremely important issue — the Rhetoric of Judicial Opinions. Originalism has an extremely powerful rhetorical appeal. Most people regard the original meaning of the Constitution as the real Constitution. Therefore, when someone seeks to depart from that, they are at a disadvantage.
There are a variety of moves that nonoriginalists have used to deflect this attack. One is to bring up something of a red herring. They interpret originalism as reflecting merely the expected applications of the framers — the specific applications of the constitutional clauses that the framers expected to occur — and then argue that those expected applications are not the Constitution.
But obviously this deflection is insufficient. It does nothing to address the more plausible types of originalism, such as original public meaning, that go beyond the expected applications.
Stuart Taylor, Jr. has an interesting essay in the March American Spectator analyzing the rules of both federal and state courts that permit frivolous lawsuits to move forward by delegating to private individuals the governmental power to issue summons. As Taylor notes, “Anyone can, with little more than a court filing fee, require anyone else to respond to any charges—no matter how far-fetched—without even having a judge read them, let alone find them to be legitimate and in good faith.”
The jury system is like democracy, the worst system in the world except for all the others.
Quite often when giving evidence before a jury I have wondered how much they were taking in or even paying attention. Certainly they never dressed for the occasion; they looked rather as if they had popped out to the convenience store on a lazy Sunday morning to get something they had just run out of. Like most of the contemporary population most of the time, they looked a mess. It is probable that the defense would have objected to a juror who looked too well-dressed.
Usually on any jury, though, there are one or two jurors who take notes with fierce concentration; I presume they dominate or prevail upon their fellow-jurors in the deliberations to come, though in this I may be mistaken, for even now no one knows what goes on the jury room. At any rate juries, at least in my experience, rarely pass verdicts that are patently absurd or fly in the face of the evidence. Somehow, despite the fact that juries nowadays almost always contain people with attention deficit disorder, the terminally bored, flibbertigibbets, the drugged, the plainly idiotic, the too-young-to-care, the dreamers and the incapable (among others), they arrive at a sensible conclusion. In a way it is not only surprising, it is inspiring.