Category Archive 'The Constitution'
24 Sep 2020
In the liberal stronghold of the Atlantic, Minnesota Law Professor Alan Z. Rosenshtein warns his fellow lefties that the time of liberal goals being legislated from the bench is drawing to an inevitable close.
[T]he Warren and early Burger Courts painted a vivid, alluring picture of what justice by judiciary could look like. And even if liberals understood, deep down, that those two decades were an aberration in American legal history, the Court has given them just enough victories since then to keep the dream alive. For lawyers and law professors, there is also the simple matter of professional vanity: If the Supreme Court is the vanguard of American justice, then judges, and thus the lawyers who argue before them and the scholars who analyze (and, when necessary, chastise) them, are the nationâ€™s most important professionâ€”the priests and elders of the civic religion that is American constitutionalism.
Fundamentally, though, many liberals loved the Supreme Court for the same reason they loved the law: a vision of universal harmony and justice brought about by reason and persuasion, not the brute forces of political power. Victory in the political arena is always incomplete and uncertain, not to mention grubby. Politics appeals to our baser instincts of greed and fear and competitionâ€”which, of course, is why it is so powerful. By contrast, lawâ€”whether through â€œneutral principlesâ€ or â€œreasoned elaborationâ€ or elaborate moral theories, to name a few of the core organizing ideas of 20th-century legal theoryâ€”holds out the promise of something objective, something True. To win in the court of the Constitution is to have oneâ€™s view enshrined as just, not only for today but with the promise of all time.
But eventually liberals lost faith that the Court would interpret the Constitution in their favor. What started as a trickle of disillusionment grew throughout the 1980s and â€™90s and became a torrent when Roberts became chief justice in 2005 and led the conservative wing to undermine a number of liberal legal priorities, from gun control to campaign-finance law to voting rights. Although many liberal lawyers still dutifully fight in federal court to protect rights where they can, they do so with the increasing understanding that they are simply delaying the inevitable. And legal scholars have gradually given up on the Court as a guarantor of constitutional values, advancing theories of popular constitutionalism or progressive federalism to serve as a counterweight to the Courtâ€™s conservative transformation. Whatever was left of the Courtâ€™s sacred aura as above partisan politics was ripped away by Mitch McConnellâ€™s denial of a vote to Merrick Garland in 2016 and the bitterness of the confirmation hearings over Brett Kavanaugh two years later.
The clearest sign that many liberals are giving up their remaining idealism about the Court is that, for many moderate Democrats (not to mention those on the progressive left), court packing has gone from a fringe theory to not just a viable option but a moral imperative if Joe Biden wins in November and the Democrats take back the Senate.
28 Aug 2018
Robert Reich served as Secretary of Labor under William Jefferson Clinton. He has also been a professor at Harvard University’s John F. Kennedy School of Government. So, you would think that he’s taken a high school Civics course and/or actually read the Constitution. But you’d clearly be dead wrong.
Robert Reich thinks, that because Impeachment is not likely to occur, and even if it did, Trump’s conviction and removal from office is yet more unlikely, he can personally simply invent a whole new process and procedure to set aside 60-odd million votes and the results of a US presidential election.
Impeachment isnâ€™t enough.
Impeachment would remedy Trumpâ€™s â€œhigh crimes and misdemeanors.â€ But impeachment would not remedy Trumpâ€™s unconstitutional presidency because it would leave in place his vice president, White House staff and Cabinet, as well as all the executive orders he issued and all the legislation he signed, and the official record of his presidency.
The only response to an unconstitutional presidency is to annul it. Annulment would repeal all of an unconstitutional presidentâ€™s appointments and executive actions, and would eliminate the official record of the presidency.
Annulment would recognize that all such appointments, actions, and records were made without constitutional authority.
The Constitution does not specifically provide for annulment of an unconstitutional presidency. But read as a whole, the Constitution leads to the logical conclusion that annulment is the appropriate remedy for one.
After all, the Supreme Court declares legislation that doesnâ€™t comport with the Constitution null and void, as if it had never been passed.
It would logically follow that the Court could declare all legislation and executive actions of a presidency unauthorized by the Constitution to be null and void, as if Trump had never been elected.
The Constitution also gives Congress and the states the power to amend the Constitution, thereby annulling or altering whatever provisions came before. Here, too, it would logically follow that Congress and the states could, through amendment, annul a presidency they determine to be unconstitutional.
As Iâ€™ve said, my betting is Trump remains president at least through 2020 â€“ absent compelling and indisputable evidence he rigged the 2016 election.
But if such evidence comes forth, impeachment isnâ€™t an adequate remedy because Trumpâ€™s presidency would be constitutionally illegitimate.
It should be annulled.
What Robert Reich has in mind for Trump is the fate of that sinful King of Runazar in Lord Dunsany’s tale, whom the Gods decided must not only cease to be, but must cease ever to have been.
This one is so crazy that I guess even the New York Times turned it down.
27 Sep 2017
William Sullivan, at American Thinker, makes a good effort at dispelling the confusion.
[T]here are the stock defenders of [the NFL players’] actions invoking the First Amendment as an enshrined protection for their actions. Even some unlikelier defenders, such as National Review, have framed this as a free speech issue.
To be perfectly clear, doing so is an exercise in stupidity. The First Amendment provides Americans protection to enact displays of protest, certainly. The question that goes continually and aggravatingly unaddressed is, protection from whom?
It would be wishful thinking, I suppose, to imagine that Americans who support the NFL protesters might take the fifteen or twenty seconds necessary to google and read the First Amendment.
Congress shall make no law regarding an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people to peaceably assemble, and to petition the government for a redress of grievances.
“Congress shall make no law.” The framers inscribed a document related to the powers and limitations of the federal government. Therefore, it is only logical to understand that this refers to the federal Congress. The federal Congress shall make no laws to infringe upon these rights.
So where is the federal law that outlaws kneeling during the National Anthem at a pro football game? If there were such a law, it would run afoul of the First Amendment. But there is no such law.
Also, I’m not aloof to the fact that judicial precedent in case law evidences a much broader interpretation of the First Amendment, suggesting that it applies to the state and local governments as well. Even considering that broader scope raises another question: who is rushing to arrest the kneeling sports star for his violation of any such standing law at the state level? No one.
So what has the First Amendment to do with any of this?
Nothing. Not one single thing. Anyone with half a brain and thirty seconds to digest the meaning of the First Amendment should be able to understand that without difficulty.
Now let’s move on and consider what these National Anthem protests actually mean.
The kneelers argue that they do not mean to disrespect the flag, or those who have fought and died for this country, or America as a whole. Of course, their actions certainly disrespect all of those things, and suggesting otherwise should be ridiculous on its face.
So why, exactly, are they kneeling?
Those kneeling assert that there is an epidemic of white police officers who work their beat every night with the explicit intention to murder innocent black people. They are suggesting that there is an epidemic of institutional white racism in this country going unaddressed, and that the only way to draw attention to this, the Black Lives Matter narrative, is to kneel during the National Anthem at pro football games.
There is no convincing evidence that either claim is true, and it is a malicious narrative that has arguably already led to a death toll among police officers being targeted for their presumably widespread racism and brutality.
The left argues that the players’ demonstrations force me to recognize that this narrative exists, as if I’m not forced to recognize the existence of this narrative with the myriad protests and riots infused with this Black Lives Matter-inspired rhetoric and impetus. They imagine that I and millions of other Americans don’t accept this narrative only because it’s not being adequately thrown in our faces.
I, among millions of other Americans, refuse to accept that. I therefore find those kneeling during the National Anthem in order to advance that narrative despicable, entitled babies for whom I have no respect and who are undeserving of my financial support.
28 Jun 2016
In a recent editorial in Slate, 7th Circuit Appeals Court Judge Richard A. Posner contended explicitly that the opinions of the framers, the history of their arguments, the bases of their decisions, and the actual textual language of the Constitution itself are irrelevant to today’s reality.
I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation (across the centuriesâ€”well, just a little more than two centuries, and of course less for many of the amendments). Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century. Which means that the original Constitution, the Bill of Rights, and the postâ€“Civil War amendments (including the 14th), do not speak to today. David Strauss is right: The Supreme Court treats the Constitution like it is authorizing the court to create a common law of constitutional law, based on current concerns, not what those 18th-century guys were worrying about.
In short, let’s not let the dead bury the living.
Judge Posner went to Yale (Saybrook College) and graduated Summa in 1959, but it is obvious that Yale only thought him to be a smartass and a proficient sophist. He did not learn wisdom or humility there, and he obviously never studied Cicero, who wrote of Natural Law (De Re Publica, book 3):
True law is right reason in agreement with Nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrong-doing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though neither have any effect on the wicked. It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is, God, over us all, for he is the author of this law, its promulgator, and its enforcing judge.
The framers of the US Constitution tried in their imperfect human way to embody as much of Natural Law (those truths which Jefferson held to be self-evident) in the Constitution and the Bill of Rights as they could. No genuinely intelligent person would believe that Human Nature, Justice, and the fundamental realities of life have changed over the course of a bit more than two centuries simply because men travel with automobiles instead of on horseback or because we write electronically on keyboards and computers instead of with ink and quill pens.
Judges appointed to Federal Courts of Appeal take two oaths. The second of these is precisely the same oath taken by members of Congress.
I, (name), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. [So help me God.]
Judge Posner took that oath, and he is now telling us, openly and in public, that he does not believe that he has a genuine duty to “bear truth faith and allegiance” to that Constitution. He believes instead that federal judges are Platonic guardians, a class of rulers, independent of the (out-dated and irrelevant 18th century Constitution) free to apply their own superior wisdom and to make up the law any way they see fit.
He ought to be impeached and thrown out of office on the basis of that editorial.
12 Dec 2009
Prominent liberal blogger Matt Yglesias is finding that American democracy isn’t working out his way these days, and announces that it’s time to change the rules.
The smarter elements in Washington DC are starting to pick up on the fact that itâ€™s not tactical errors on the part of the president that make it hard to get things done, itâ€™s the fact that the country has become ungovernable. …
You can have a system in which a defeated minority still gets a share of governing authority and participates constructively in the victorious majorityâ€™s governing agenda, shaping policy around the margins in ways more to their liking. Or you can have a system in which a defeated minority rejects the majorityâ€™s governing agenda out of hand, seeks opening for attack, and hopes that failure on the part of the majority will bring them to power. But right now we have both simultaneously. Itâ€™s a system in which the minority benefits if the government fails, and the minority has the power to ensure failure. Itâ€™s insane, and it needs to be changed.
You can see just how badly they taught Civics at Dalton and at Harvard. Mr. Yglesias is clearly unaware that the basic role of the Senate as conceived by the framers was to obstruct the will of the majority and to prevent majorities tyrannizing over the minority.
In Federalist Paper 63, James Madison writes:
I shall not scruple to add, that such an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions. As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next.
26 Mar 2007
Gary Shapiro, in the New York Sun, discusses Barack Obama’s collaboration with Harvard Law School’s ultra-liberal Constitutional Law Professor Larry Tribe in the production of a 1989 Law Review article employing scientific metaphors to justify bizarre and over-reaching interpretations of the Constitution.
You thought liberal Supreme Court justices’ interpretations of the Constitution were bad enough now? Just imagine new Obama-appointed justices following Larry Tribe’s suggestion of applying a little Heisenberg to Constitutional jurisprudence.
Is Barack Obama a space cadet? The man who would become senator of Illinois and a top Democratic presidential contender was credited for editorial or research assistance in a page-one footnote of what may be the zaniest-titled article ever published by the Harvard Law Review: “The Curvature of Constitutional Space: What Lawyers Can Learn From Modern Physics,” authored by noted legal scholar Laurence Tribe.
The 39-page densely argued treatise â€” think “The Paper Chase” meets “Star Trek” â€” argues that constitutional jurisprudence should be updated in a similar way that Einstein’s theory of relativity replaced Newtonian mechanics, a view that would release judges from the original intent of the Founders of America. Published in 1989, with help of the much younger and politically greener Mr. Obama (a few others are also thanked in that footnote), the article is sprawling with references to cultural anthropologist Clifford Geertz and physicists Stephen Hawking and Werner Heisenberg.
In 1990 Mr. Obama became the first black president of the Harvard Law Review. The long-ago article could indicate his views on the Constitution, which, if he is elected, could come into play in such matters as his choice of nominees to the Supreme Court. …
Mr. Tribe employs this analogy to argue for a more expansive view of what constitutes governmental action. He examines legal cases involving child abuse, suburban white flight from suburbs, and abortion, asking what the state’s role was in shaping the legal environment.
A Yale-trained lawyer who earned his Ph.D. in mathematics at New York University, Elisha Kobre, said Mr. Tribe is “making a reasonable â€” but debatable â€” legal point that courts should intervene not only when government directly infringes individual rights but also when people are adversely affected by existing social structures that he asserts have been created or perpetuated by the government.” Mr. Kobre added that while Mr. Tribe’s physics analogy did not particularly add to or enlighten a point that others have made before, it was nice to see a lawyer managing to incorporate ideas of science into legal theory. …
If Mr. Obama captures the White House, he might not curve space but may settle for setting aside a high-altitude seat on the Supreme Court for his former teacher, Mr. Tribe, who is the Carl M. Loeb University Professor at Harvard.
Whether James Madison and the other Founders would have had such a benign view of Mr. Tribe’s theory is another matter, though.
Read the whole thing.
05 Oct 2006
Ann Althouse this morning, quotes a colleague asking rhetorically (and disingenously): What is the rational basis for banning same-sex marriage?
It’s perfectly possible to propose a rational debate on this kind of question, but when one finds that the debate’s proposer has already engineered the grammar of the proposition around so as to make the ordinary status quo appear in the guise of some intended innovation and aggression against the rights of others, it is apparent that there is a certain effort underway to fix the outcome of the debate before it has begun. “How dare some people suddenly compel the legislature and the courts to ban Gay Marriage!”
Of course, we all know that the precise opposite is the case.
Marriage is a human institution existing immemorially, even from times preceding the organization of the state itself, long prior to the creation of individual American states or the United States. The state never created marriage, but merely recognizes marriage as an estate, i.e., as a recognizable status conferring a number of customary privileges and immunities.
That marriage consists of the union of one man and one woman has been its definition for at least the entirety of the Christian era, some two thousand years. The innovation consists of the revolutionary demand that the definition of this most fundamental of human institutions must be modified to confer equality of status on homosexual relations in accordance with the wishes of a contemporary minority.
The increased popularity of monogamous homosexual relationships over the two decades following the arrival of the AIDS epidemic seems to many of us a positive development, but it is far from clear that the fashion would survive the removal of the health threat. Is two decades of anything a sufficient basis to modify the most fundamental institution of human society?
Liberalism has triumphed in the jurisprudential debate about the law’s treatment of homosexuality since the time of the Wolfenden Report. The consensus of opinion these days holds that Mill was correct. Absent some demonstrable harm to others from private action, the state has no right to interfere with the private conduct of consenting adults. Homosexuals have a right to do as they like in private, and the rest of us are obliged to respect that right. We owe them our tolerance.
We do not, however, owe homosexuals our applause and approval.
Just as it is possible to be a law-abiding and unoffending member of the community, and indulge in homosexual acts with another consenting adult in private, it is also perfectly possible to subscribe to religious or other opinions which take a negative view of homosexuality.
Alteration of the definition of marriage to include homosexual liaisons would, in fact, confer both public recognition and approval upon those liaisons in a form which the majority of American are not voluntarily willing to concede.
There is nothing coercive in declining to consent to the adoption of a new and revolutionary definition of marriage. But the forced participation of an unwilling national majority in the public recognition and celebration of unconventional liaisons would be indubitably coercive.
No one is “banning Gay Marriage” by prohibiting homosexuials from conducting whatever private ceremonies or taking whatever personal and private view of their own relationships they like. It is simply the case that a majority of Americans are declining to share those particular views or to recognize those particular ceremonies as meaningful to themselves in the same way.
I obviously disagree with the proposed “state interest” approach to analysis. But if I were compelled to argue in that form, I would observe that a state constitutional amendment defining marriage as it is traditionally understood, as the union of a man and a woman, should be perfectly constitutional. States obviously have a right to define legal concepts and institutions. They have a particularly good right to do so, when they are making no change whatsoever, but merely identifying what has always been understood to be the case.
The obvious line of attack for the left will be via the Equal Protection Clause. But there is no inequality to it. Everyone has just as much right to marry anybody else as he ever did. Arguing that you want to do something different and call it marriage, and you want everyone else to call it marriage, too, and they won’t, and you don’t like it, does not mean you have been treated unequally.
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