Last Saturday’s Washington Post carried a front-page article on the IRS’s enforcement choices (“IRS targeted tea party groups for tax scrutiny”). We’ll hear more about that matter. Right underneath the IRS piece, still above the fold, the Post had this: “HHS asking firms for money for Obamacare.” Secretary Sebelius, we learn, has called health industry executives and other “stakeholders” for money to promote Obamacare and to enhance enrollment.
The New Deal Constitution at 75
This past Thursday marked the 75th anniversary of two foundational New Deal decisions, handed down on Monday, April 25, 1938: Erie Railroad v. Tompkins, and United States v. Carolene Products. The American Enterprise Institute celebrated this day of infamy with a two-part event. The tape is here.
I strongly recommend it. You may want to skip the first 13 minutes (some clown wisecracking about the dairy industry’s contribution to ConLaw) but you do not want to miss the main events:
Common Law and Constitutional Exceptionalism
The significance of James Stoner’s Forum essay on the common law, with the two responses by Hadley Arkes and John McGinnis, is made even clearer by recent events. Commentary on the sad passing of Judge Robert Bork and three reviews of Akhil Amar’s new book, America’s Unwritten Constitution, by Robert George, Jeremy Rabkin (link no longer available), and Lino Graglia provoke further reflections on the place of law and the courts within constitutional government. At the heart of the dispute is the extent to which legal interpretation, including of course constitutional jurisprudence, can exist apart from political philosophy. And this no mere academic dispute raises the profoundest questions of how we might defend and expand our fading freedoms.
Stoner’s concern for common law is an essential historical inquiry but as well part of a broader attempt to recover the meaning of the American founding for both theory and contemporary practice. Professor McGinnis finds troubling the potentially expanding and arbitrary power in the content of contemporary common law, while Professor Arkes would further develop Stoner’s argument, to embrace specific consequences of natural law reasoning. Among them, and the work of other scholars, they bring out major schools of interpretation put forth by conservative legal scholars.
Power and Constraint
Harvard Law professor Jack Goldsmith has written a very informative, admirably researched book entitled Power and Constraint: The Accountable Presidency After 9/11. Goldsmith tackles an intriguing puzzle: despite a lot of 2008 campaign rhetoric, the Obama Administration has in fact continued (and in a few instances expanded) the Bush Administration’s policies and strategies in the “War on Terror” (and the—liberal—contingents that had sharply criticized the Bush Administration have largely sat still for it). In addition to the usual suspects—such as the fact that the world always looks a lot different from the White House than it does on the campaign…
