The Democrats have passed a new rule that prevents the filibuster from being used to block confirmation votes for all presidential nominations, except Supreme Court Justices. In passing this rule, the Democrats used the Constitution or Nuclear Option to change the rules. The Senate rules require 67 votes to end a filibuster of a change in the Senate rules, which would have prevented the Democrats from changing the filibuster rule. But many people, including yours truly, argue that this Senate rule cannot constitutionally prevent a majority of Senators from changing the filibuster rule. Hence, the name the Constitutional Option. But this maneuver has…
Archives for November 2013
This next conversation is with Richard Samuelson on the constitutional principles that have guided our nation's approach to immigration, that is, until recently. In an essay in the Summer 2013 Claremont Review of Books, (link no longer available) adapted from an academic version published in Citizens and Statesman, Samuelson argues that Our political institutions strive to treat individuals as individuals, who relate to the government on that basis, rather than as parts of groups, castes, or classes. A regime dedicated to protecting the rule of law and the rights of men–including the right of each individual to make his way in…
This year’s Federalist Society convention had it all. Prospective presidential candidates. Potential Supreme Court nominees. Lively debates on issues ranging from the proper role of federalism to the impact of the Obama Administration’s regulatory agenda. Throughout the convention, many speakers, of all ideological stripes, agreed that the Obama Administration has taken a very expansive view of executive and agency power.
The much-ballyhooed $13 billion settlement between the Department of Justice and J.P. Morgan looks like an EU Treaty: pages of burble, plus various annexes. DoJ press release with full text etc. here. As near as I can tell, JPM admits to having had sex in a federally sponsored whorehouse—with private parties, government parties, and parties in between (Freddie and Fannie). JPM’s partners had no idea what was happening to them; they innocently relied on JPM’s assurances that the firm was at all times wearing its due diligence condom. I express no view on the merits (except that in my book they’re all guilty and deserve what’s happened to them). Two questions, though:
Same sex marriage is already not accorded legal status in Indiana. So why all the fuss?
For the uninitiated, the issue of same sex marriage is dominating Indiana’s political discourse. Opponents of legally defining same sex unions as marriages are pushing a state constitutional amendment that would prevent Indiana from giving legal recognition to same sex marriage. Some versions of the amendment would prevent legal sanction of civil unions as well. Although Indiana already has statutes defining marriage as between a male and a female, many fear that, one day, the courts may manufacture a constitutional right to same sex marriage. In several states, including Iowa and most recently New Jersey, state courts declared same sex marriage a constitutional right, taking this important public policy issue issue away from the legislature or the voters. The legitimate worry is that Indiana could be next.
The sesquicentennial of the Gettysburg Address on November 19 requires us to ponder the legacy of the Civil War and Lincoln. This is not some nostalgic romp reenacting Pickett’s charge, but perhaps the decisive political moment of our times. For the best, President Obama will not participate in the official celebration.
This uncharacteristic modesty is appropriate, for Franklin Roosevelt already delivered the Progressive interpretation of Gettysburg and Lincoln’s remarks on the 75th anniversary of the battle, July 3, 1938. FDR’s interpretation of the Address and of the meaning of liberty, equality, and constitutionalism generally have so permeated contemporary thinking that we must confront the original source of these errors in order to free ourselves to understand Lincoln as he thought and acted.
When ordinary Americans reflect at all on their political tradition, the Gettysburg Address invariably stands at the center of those thoughts. Yet there is reason to doubt whether it ought to occupy the same rarified air as the Constitution, the Declaration of Independence, the Federalist, or other celebrated documents in American history. The Gettysburg Address has displaced these other works from their centrality in the American mind, but it shouldn’t.
Recently, Mitch Berman and Kevin Toh have published an article entitled “On What Distinguishes New Originalism from Old: A Jurisprudential Take.” While I don’t know Toh’s work, Berman is a well respected scholar who is a critic of originalism, having penned a widely read article entitled “Originalism is Bunk.” I like Mitch, but I have serious concerns about this new article and so I thought I would write a couple of posts about it.
The article covers a lot of ground in relatively brief space and is quite dense, but its main points can be summarized. A common theme in originalist scholarship is to draw a distinction between the old and the new originalism. The most common distinction is that the old originalism advocated original intent and the new originalism supports original public meaning. Berman and Toh argue instead that the old originalism focused on theories of adjudication – that is, how judges should decide cases – whereas the new originalism is concerned with theories of law – that is, how the law of the Constitution should be understood.
Both aspects of this claim are interesting and the assertion about the new originalism seems novel. Yet, in both cases, I think the claims are mistaken. Finally, Berman and Toh also discuss the theory that John McGinnis and I defend in our new book. I also believe that Berman and Toh mischaracterize that theory.
The New Originalism
Let me start with the Berman and Toh claim that the new originalism is defined by its focus on theories of law. This is a startling claim. While Berman has in his own work been interested in such theories, that is not how new originalist theories have been understood. Nor, in my opinion, is that what such theories are about.
Earlier today, the Supreme Court denied cert in Martin v. Blessing, involving U.S. District Judge Harold Baer’s (S.D.N.Y.) habit of selecting class counsel who promise to reflect a racial and gender “matrix.” (Earlier posts here and here.) Justice Alito’s separate statement appears here. Judge Baer appears to be one of a kind, and the Supreme Court does not sit as a court of error revision—even when, as here, the “error” is blatant illegality. It is incumbent upon the Second Circuit, Justice Alito concludes, to tell Judge Baer to cut it out. The signal should suffice. In a Circuit that’s off the…