Since Brown v. Board of Education (1954), the U.S. Supreme Court has viewed itself as the enlightened molder of social consensus, leading the recalcitrant political branches to reach progressive outcomes demanded by social justice. Sometimes (as with desegregation) the Court manages to get in front of the parade of public opinion, and sometimes (as with same-sex marriage) the Court forces unruly voters to accept a particular end result. But, as with abortion, sometimes the Court miscalculates, becoming enmired in an intractable political dispute. And in Regents of the University of California v. Bakke (1978), the Court—fueled by the conceit of its superior wisdom—divined a “solution” to disparate race enrollments in higher education that has proven to be a quagmire.
Archives for December 2015
With Donald Trump carrying the Republican brand in the primary season so far, thereby defining conservative/libertarian thought in the popular mind, there certainly is trademark confusion about what is conservatism these days. In this context, it should come as no surprise that Arthur C. Brooks’s The Conservative Heart: How to Build a Fairer, Happier, and More Prosperous America has met with mixed reviews. Social conservatives find little in it about their core issues: their opposition to abortion and same-sex marriage. Meanwhile, more libertarian types have called it too accommodating to the welfare state. Even yours truly gave a somewhat mixed review…
I hope the Republican Congress will take up the President’s proposal on Monday night to declare war on ISIL, or Islamic State (IS). As discussed by Ilya Somin and Mike Ramsey, the better constitutional view is that, with narrow exceptions, armed conflict must be authorized by Congress. The previous authorization for war, which came after 9/11, does not clearly concern IS, which did not exist in 2001. Although IS may have grown out of some elements of Al-Qaeda, it is not obviously the kind of organization connected to the 9/11 attacks to which the Authorization for the Use of Military Force of 2001 continues to apply.
A war resolution also would provide greater long-term credibility to the United States’ commitment to fight IS. With little more than a year remaining in his second term, President Obama is now a very lame duck. Getting Congress on record would show our allies that we are in this fight for the long haul.
And importantly, a congressional declaration of war against IS would also strengthen the case for treating those who pledge allegiance to IS, such as the terrorists of San Bernardino, as enemy combatants, who are subject to military justice for war crimes and to more summary procedures at trial. They would not receive the right to counsel at the time of arrest or other benefits of the American criminal justice system that can interfere with the gathering of timely intelligence. Ex Parte Quirin – the World War II case that upheld military tribunals for American saboteurs working for Germany – makes clear that such treatment is legal. But its holding may well depend on the fact that the United States had declared war against the Axis powers for which those enemy combatants fought.
“But it is certain that the political philosophy of modernity will not be able to emerge out of its contradictions except by becoming aware of its theological roots.”
This sentence concludes Giorgio Agamben’s new book, Stasis: Civil War as a Political Paradigm. Agamben seems to have his finger on the pulse of history with the Paris killings raising the specter of a theologically inspired civil war.
In a prior post on the Chicago Police Shooting of Laquan McDonald, I stated that the circumstances of the case “suggest massive corruption.” Now more information is coming out indicating how corrupt the system was. It is certainly true that Chicago Rahm Emanuel acted to keep the video of the shooting from public view until after his re-election. In fact, city lawyers waited until a week after his election to get final approval for the $5 million settlement with Mr. McDonald's family, even though the settlement had been "substantially agreed upon" weeks earlier. But that a politician apparently took action to…
In what way does the federal courts’ “exclusive jurisdiction” under certain federal statutes—here, the Securities Exchange Act—differ from their general “federal question” (or “arising under”) jurisdiction under 28 USC 1331? That was a totally great FedCourts exam question until last Tuesday, when the Supreme Court heard arguments in Merrill Lynch v. Manning. Now I have to invent a new question. How dare they.
On the day before the Pearl Harbor anniversary (which he did not reference), President Obama admitted that “Our nation has been at war with terrorists since Al Qaeda killed nearly 3,000 Americans on 9/11,” including horrors that his Administration previously dismissed as workplace violence. While much of what he said seemed to deny the reality of war, the last fourth of the speech raises the key question of what Muslims owe the rest of the world in this time of war.
Yesterday was the 82nd anniversary of the Twenty First Amendment, repealing Prohibition, which had been imposed by the Eighteenth Amendment just fourteen years earlier. Repeal was a happy day, not only for those who drink alcohol but also for the many people saved from a culture of violence that the illegal business of evading Prohibition generated.
Beyond its good social consequences, the repeal of Prohibition has implications for constitutional theory. Many critics of our Constitution contend that the amendment process, which requires two thirds of Congress and three quarters of the states for enactment, is too strict. Moreover, critics claim that its excessive stringency has become even clearer as more states have joined the union. This argument is often used to support the claim that originalism needs to be discarded, since we need judges to update a Constitution whose amendment process is inadequate.
But Prohibition and its repeal provide a riposte to that claim. As Mike Rappaport and I argue in Originalism and the Good Constitution, the rapid consensus that the Eighteenth Amendment was a mistake supports our position that the amendment process is not too strict. As stringent as Article V is, it still permitted enactment of a provision that was quickly admitted to be a costly failure, illustrating the dangers of a less stringent amendment process. And at the time there were forty-eight states in the union—just two fewer than we have today.
More generally, as we note in our book, reviewing the history of proposed constitutional amendments also casts doubt on the argument that Article V is too stringent.
My French brother-in-law recently sent me links to videos of two young French Muslims of North African descent inveighing against crimes committed in the name of religion. They were unmistakably angry and sincere. Interestingly, they said it was up to us—that is to say, we, the Muslims of France—to counteract the evil that was besmirching the name and reputation of millions of our coreligionists. It was a brave performance, because neither of them disguised himself. They probably know many people who—to put it mildly—disagree with them. One could easily imagine them being targeted by extremists. My brother-in-law (whose son was in…
Editor’s Note: The following is Alex Pollock’s testimony to the Senate Judiciary Committee on the subject of Puerto Rico’s fiscal problems, delivered December 1, 2015.
Mr. Chairman, Ranking Member Leahy, and Members of the Committee, thank you for the opportunity to be here today. I am Alex Pollock, a resident fellow at the American Enterprise Institute, and these are my personal views. Immediately before joining AEI, I was President and CEO of the Federal Home Loan Bank of Chicago from 1991 to 2004. I have published numerous articles on financial systems and credit crises, including municipal debt crises.
The government of Puerto Rico, having run a long series of constant budget deficits, has accumulated a very large debt which according to its own statements, it cannot pay.