Over at the Volokh Conspiracy, Ilya Somin has a review of the new Star Trek film. Ilya liked the action in the movie, but believed that the movie did not take on the serious questions about the future that the Star Trek shows addressed. I agree with Ilya that the new movie fails to address the serious questions, but I think that was largely true of all of the Star Trek movies – especially the good ones. It was the series – and especially some of the individual episodes – that really addressed these matters. And, of course, it is a…
Archives for May 2013
For the bulk of the last generation, a conjunction of conservative legislatures and liberal courts enabled judicial conservatives to avoid a theoretical tension it is now time to confront: that between original intent and judicial restraint.
The tension was alleviated by the fact that, given the blend of conservatism in the electoral branches and liberalism on the bench, advocates of original intent and judicial restraint reached the same conclusions in 99 cases of 100: If majorities made decisions compatible with constitutional originalism and courts were inclined to overturn them—see Roe v. Wade as the paradigmatic example—the natural default for conservatives was judicial restraint. Conservatives, led intellectually by Judge Robert Bork, preached a doctrine of deference to majorities.
As many readers know, the Solicitor General’s Office has sought cert in the Noel Canning Recess Appointments case. Solicitor General briefs are supposed to be the best of the best, but in reviewing the brief I have found a problem: At the least, the SG’s Office has made an assertion without adequate support and in my view has probably made a misstatement about the history. This post will be getting into some detail, but it is necessary to correct the record.
One of the issues in the Recess Appointments case is whether the President may recess appoint someone to an office that was vacant when the Senate was in session. While I believe the text, structure, and history strongly indicate that he may not, the SG argues the opposite.
While the SG brief repeats many of the old arguments, it does present some new evidence. The most important originalist evidence that the SG offers is the claim that in November 1793, George Washington “recess appointed Robert Scot to be the first Engraver of the Mint, a position that was created by a statute enacted in April 1792. The vacancy arose when the statute was first passed, and was then filled during a later recess after at least one intervening session.” (P. 25) If this claim withstood scrutiny, it would constitute the earliest example of a recess appointment made to an office that had been vacant during the session. But it doesn’t.
Here is a very plausible explanation as to how the recess appointment of Robert Scot was not to a position that was vacant during the session. The statute establishing the mint provided for various officers, including both the Chief Coiner and the Engraver. The statute specifically stated, however, that “it shall be lawful for the functions and duties of Chief Coiner and Engraver to be performed by one person.” 1 Stat. 247. It turns out that Henry Voigt was appointed as the Chief Coiner (through a presidential nomination and consent of the Senate) in January 1793 (during the session of Congress).
Since there was no person serving as Engraver, it is reasonable to assume that Voigt performed both jobs. At a certain point, however, one may assume that President Washington determined that it made sense to fill the position with a separate person. If Washington made that decision during the recess of that year, then the office would have become vacant at the time. Thus, the recess appointment of Scott as Engraver would have occurred for an office that became vacant during the session.
Jonathan Last's book What to Expect When No One is Expecting is the subject of the next Liberty Law Talk. Last, a senior writer for the Weekly Standard, points our attention to below replacement level birth rates evident in countries throughout the world (including America since 2008) and the dismal future it promises if things don't change. In short, Last compels us to wonder who, exactly, will bring the future? However, Last does not come to cast blame on anyone or a particular philosophy, although he notes that our individualism must think more deeply about the requirements of human flourishing.…
Thanks to the vast increase in human productivity over the last few decades economic crises are less easy to discern than they once were. Spain, for example, has rates of unemployment that equal or exceed those of the great Depression in the United States, yet there are none of the distressing scenes, at least so far, which the photographers caught for all time.
It is all too easy to be deceived, however. I have just come back from Madrid and Dublin (I am soon to leave for Lisbon) of which my view is essentially that of a visiting official delegation, driven from the airport to the center of the city and back again, having spent the intervening interval in the pleasant company of prosperous and cultivated people. And the fact is that anyone driving from Barajas Airport to the centre of Madrid would conclude that it was a much richer and better kept city than New York, Paris or London. Such signs of the downturn as I saw in Dublin were subtle and comparative. Going twice to the theatre, for example, I noticed that a third of the seats were not taken, which would certainly not have been the case at the height of the boom when I would have been lucky to get seats at all. (One of the plays was Mrs Warren’s Profession, by Bernard Shaw. What a frightful old windbag he was! That the crisis prevented some hundreds of people from being exposed to his theatrical rodomontade demonstrates that there really is a silver lining to every cloud.)
The One Thomas More, that's the book featured this week in our Books section. Lawyer and More scholar, Louis Karlin, provides an extended review of this book's argument that More, contrary to widespread belief, was not a man for all seasons: In his new book, The One Thomas More, humanities professor Travis Curtright seeks to uncover the real More by eschewing the twin temptations of sentimental hagiography and ideological caricature in favor of serious engagement with More’s life and works in all their complexity. His timing is propitious. On the one hand, scholarship of the past 60 years has made huge…
It was March 27, 1809, three weeks into his presidency, and James Madison stood astride the world when he posted a letter to his predecessor Thomas Jefferson to inquire as to one particular secret of the office: “I forget whether the time piece in the sitting room [needs to be wound] monthly or weekly?”
That was then. This being now, as recently as 1996 the White House employed a presidential attendant several days a week whose actual job—no, really—was winding clocks. The late Senator Daniel Patrick Moynihan suggested that even Woodrow Wilson, champion of presidential government, might not recognize the office today:
A president who wrote and typed his own speeches is now at some removes succeeded by presidents who do not know the names of most of their speechwriters, much less of their lawyers, economists, statisticians, strategists, and yes, as of 1989 the White House demographer. First the president got staff, then the staff got staff. (On the Law of Nations, 107)
The 59th anniversary of Brown v. Board of Education should recall what that great decision did not do—overturn the racial segregation precedent of Plessy v. Ferguson (1896). Only by revisiting Justice Harlan’s classic dissent would segregation and Jim Crow in the law be finally overcome. Moreover such a Court opinion in Brown would have given civil rights laws a principled dignity and as well promoted an originalist jurisprudence that both protected individual rights and restrained government. This jurisprudence would be based on the Declaration of Independence.
Indeed, the brief for Homer Plessy argued that “The Declaration of Independence … is not a fable as some of our modern theorists would us believe, but the all-embracing formula of personal rights on which our government is based.” It is the “controlling genius of the American people.” And prior to the Plessy setback, as Charles Lofgren shows in his meticulous The Plessy Case (1987), this argument helped win anti-segregation suits at the state level.
Indiana has emerged, once again, in the national spotlight of states willing to buck national trends and go it alone for the good of its citizens and future citizens who might take root in its borders. Already a leader in freeing up its tax and labor policies, making it a standout in the Midwest, the Hoosier state halted last week its implementation of the Common Core (CC) education standards. Currently, 45 states have adopted the CC, and it has been championed by leading “reform” minded conservatives like Jeb Bush, Bobby Jindal, and former Indiana Governor Mitch Daniels. CC was tied to Obama’s stimulus funds and his “Race to the Top” initiative that promoted charter schools and tied increased education funding to a state’s adoption of the CC. So much for free choice and competitive state policies.