Monday, 2 April 2012

Why read the minds of the Framers when we can read what they wrote?

In the midst of a rant against Team Red, James Fallows makes the following observation:

As with equal representation for all states in the Senate, real-world circumstances have changed so dramatically in the past 230+ years that the practical-minded drafters of the Constitution would never have suggested that the details of their scheme should be applied, unaltered, in the 21st century. [italics mine]

For the sake of argument, let’s assume that the practical-minded drafters of the Constitution didn’t think that every state should be entitled to equal representation in the Senate forever. If only there had been some way to include provisions in the constitution that expired, could be amended, or only applied to some states—for example, the Constitution could have still guaranteed equal numbers of Senators for each state that existed at the time of ratification, which would have still effected the Great Compromise between large and small states, but might have made no such guarantee for future states, the admission of which were clearly anticipated in the text. That they didn’t suggests that they thought that equal representation of the states in the Senate to be an important value of the constitutional order they established.

And, of course, the Framers designed the Constitution’s scheme to be alterable. If, sometime in the last 230 years, societal consensus had evolved to produce a more Hamiltonian view of the powers of the federal government vis à vis the states, surely the Constitution could have been amended to provide for that consensus to be enshrined into it. The fact the Constitution has laid effectively dormant for 40 years speaks more to the fact judicial whims have evolved to “constitutionalize” changes that in the past would be done by amendment than some inherent difficulty in amending the Constitution in the first place.

Friday, 30 March 2012

Rooting for laundry counterfactual

Assume, for the moment, that the Supreme Court rules that the mandate does not exceed Congress’ powers under the commerce and necessary and proper clauses. (This assumption was probably a safe one for most progressives until Tuesday morning.) The ruling sparks howls of outrage and Republicans win comfortable majorities in Congress this November and Mitt Romney takes the White House.

Congress subsequently determines that Americans can no longer feel sufficiently secure in their homes. Law enforcement, while adequate in some parts of the country, is seriously deficient in others; the rich can hire private security to protect their life, liberty, and property, but no such luck for everyone else. This lack of human security is adversely affecting the national economy; people are losing wages due to injury and death that might be prevented by deterring violent crime. Accordingly, Congress decides, pursuant to its power under the commerce and necessary and proper clauses, to pass a law requiring all Americans over the age of 18 to purchase a firearm. Not just any firearm—because Congress has decided there might be a need to shoot at an intruder from a distance and avoid disturbing the neighbors, the firearm must be equipped with a scope and a suppressor (“silencer”), even though most Americans will never need to shoot anyone at a distance or without waking up the neighbors. And, to ensure that there will not be any shortage of bullets, all firearms complying with the mandate must fire a standard cartridge, so many existing firearms will have to either be retrofitted or replaced to comply. The poor will receive a subsidy sufficient to purchase a firearm meeting these standards. Individuals not presenting proof of ownership of a firearm annually, as part of their tax return, will receive a non-tax penalty for non-compliance, which will be garnished from IRS refunds but otherwise not collected. This law is passed by both chambers of Congress and signed into law by President Romney.

Your challenge, should you choose to accept it: find some way to distinguish the Obamacare case, Florida v. Health and Human Services, from this hypothetical.

Tuesday, 27 March 2012

To live or die on the mandate

As everyone knows, it’s Obamacare Week at the Supreme Court (perhaps the less interesting version of Teen Week on Jeopardy!), and today was the main-event showdown over the constitutionality of the mandate. All observers agree it wasn’t the Solicitor General’s finest hour, but Supreme Court cases aren’t really decided by the quality of the oral argument in most cases, and the SG is playing with house money anyway—across the history of the Supreme Court, the solicitor general usually wins (around 70–75% of the time).

Leaving aside the tea leaves, and the wishful thinking that typified people on both sides of the debate going in, the question that strikes me is why the law’s defenders have become so hung up on the mandate question itself. Barack Obama himself campaigned against it in the primaries back in 2008, and even today most people acknowledge that the only real harm from a lack of a mandate would accrue to the insurance companies who’d be stuck taking all comers without getting a mandatory buy-in from the young and healthy, who last I checked were hardly at the top of most liberals’ Christmas card lists. Even there the harm can’t be that great; Obamacare expands Medicaid eligibility substantially, and most of the young and healthy will be staying on parents’ insurance policies well into their twenties (except for, ironically enough, the military’s TRICARE plan). Abolishing the individual mandate wouldn’t get rid of the employer mandate (indeed, neither side is contesting the constitutionality of that). If adverse selection does drive insurers out of business—a big if—doesn’t that just put us one step closer to the single-payer system that liberals (and even some libertarian-leaning conservatives like James Joyner) support?

Wednesday, 21 March 2012

Back to the olden days

Michael Waterstone in a post about a Supreme Court case that I really don’t know anything about one way or another writes about Justice Scalia’s concurrence in the judgment in said case:

But to Justice Scalia, this means that (except for race discrimination, which he views as different for stare decisis reasons), he would limit Congress’s Section 5 power to conduct that itself violates the Fourteenth Amendment. I find this flat out wrong. As a textual matter, Section 5 gives Congress the power to enforce the Fourteenth Amendment by appropriate legislation. If all Congress can do is outlaw that which is already unconstitutional, what is the point?

It would seem to me (at least) that the major point of the 14th Amendment was to confer to Congress and the federal government more broadly the power to enforce, upon the states, at least some of the guarantees embodied in the Constitution that had previously been held under Barron v. Baltimore (1833) not to be so-enforceable, in essence to expand Congress’ enumerated powers to encompass enforcement of the amendment itself (which it would not have, absent the Supreme Court reinterpreting Article I of the Constitution to imply Congress has some sort of power to do things that aren’t listed there and not necessary or proper to do the things listed there).

Perhaps viewed through a modern lens where the judiciary routinely has the backing of the executive and legislative branches to overrule the decisions of state governments, such a power seems rather trivial, but in the context of the 1860s when state laws were rarely challenged by the federal government (and when the scope and powers of the federal government were interpreted so narrowly as to rarely infringe on what the states wanted to do) I think explicitly stating Congress had such a power to enforce a new provision of the Constitution, particularly since the 14th Amendment was only the second (after the 13th) to expand the powers of the federal government at the expense of the states (again, given that the Bill of Rights was generally seen at the time as to only apply to the national government, and that the 11th Amendment had actually reduced the powers of the federal government), is hardly meaningless or self-evident.

Wednesday, 30 September 2009

Roamin' Roman

Roman Polanski is a self-confessed child rapist who deserves to rot in jail.

All this is to say that I really, really don’t get why anyone other than his attorney is defending the guy. The dude was 44 at the time of his offenses, so his indiscretions were only “youthful” in the sense that he wasn’t collecting social security at the time.

Thursday, 6 August 2009


While I can’t say I agree much more with her politics “judicial philosophies” than those of the man who nominated her, nonetheless congratulations are in order for Sonia Sotomayor becoming the first Hispanic and third woman to serve on the U.S. Supreme Court. All I can hope is that in what are likely to be many years on the court that she will come to understand that her job is not to promote a particular party’s political agenda, but instead to act as a bulwark against executive and bureaucratic excess and majoritarian zeal in Congress and the states in the fine, but somewhat spotty, tradition of her best predecessors on that bench.

Tuesday, 14 July 2009

My one and only Sotomayor post

Isn’t anyone else still curious whether or not Sonia Sotomayor is still a secessionist*? Our esteemed governor was—quite rightly—recently ridiculed for his ramblings in that direction, and the idea that someone who could be appointed to the Supreme Court who apparently doesn’t (or at least didn’t) believe that her people should be a part of the United States seems a bit odd. This, to me, would seem to be the more important question than her views on the value of descriptive representation or her apparent inability in Ricci to preemptively read the minds of her soon-to-be colleagues on the Court.

* I realize that the historical circumstances of Puerto Rico’s association with the United States are not entirely comparable with those of the incorporated states, and thus that there is more legitimacy to be given to the idea of Puerto Rican self-determination and to providing some sort of finality of its status.

Tuesday, 2 June 2009

In which I attempt to apply rationality to the irrational

John Sides ponders psychological explanations for the alleged murderer/assassin of George Tiller’s behavior, noting recent research on the motivations of extremists:

Is there some salient new “threat” that would have heightened Roeder’s concern about Tiller? Lots of research suggests that threat is a crucial motivator of violence. ... However, I’m not sure what the threat is in the case of [alleged assassin] and Tiller. Some have suggested that Bill O’Reilly’s criticism of Tiller is to blame.

I’ll freely admit that if I owned a commercial television network I wouldn’t give Bill O’Reilly a platform to express his views (as, for that matter, I’d cancel any programming that featured latter-day Know Nothing nativist Lou Dobbs or someone who spends most of his program, as far as I can tell, whining about the guy who kicks his ass in the ratings in the same timeslot—namely, Keith Olbermann).* Sides goes on to explain this theory is lacking too, in any event.

There is a reasonably plausible threat hypothesis, however; for the first time in eight years, there is a Democratic, pro-choice president in the White House who just happens to have nominated a left-leaning, presumably (if we are to believe the White House’s spin machine) pro-choice candidate to a vacancy on the Supreme Court, which is where (for better or worse) our political system has decided abortion policy is to be decided. I’d imagine if you’re just a wee bit crazy to begin with that might activate the super-crazy neurons a bit, even if it’s just related to hearing people on the news yammer on about the nomination “reigniting” the abortion debate.

Then again, maybe his dog told him to do it.

* Clearly my network would go out of business for lacking viewership, but nobody ever believed I had much television programming acumen anyway.

Sunday, 19 April 2009

Thoughts on NAMUDNO

Over at OTB, I explain why NAMUDNO is not the name of Ricky Martin’s latest attempt at a musical comeback.

Update: More on NAMUDNO here for those interested in the case, which judging from the comments at OTB is... nobody.

Tuesday, 3 March 2009

DC Talk

As you might expect, I am in complete agreement with my occasional co-bloggers James Joyner and Steven Taylor that while in principle the residents of the District of Columbia ought to have the right to vote for representatives (and, for that matter, senators)*, the proposed way of doing so—by passing a piece of ordinary legislation, allegedly pursuant to Congress’ plenary police powers over the District—is so blatantly unconstitutional I’m almost surprised members of Congress can vote for it while maintaining a straight face.

While I’m not convinced that we actually need a separate capital district in this day and age—other federal republics, such as Canada and Germany, seem to function perfectly well without a distinct federal district—as long as we have one we really ought to follow the rules. And, as I’ve noted before, the rules themselves are not so onerous as to justify bypassing them—if they were, the Constitution never would have been amended to give D.C. residents the right to choose presidential electors in the first place, during an era when the idea of granting voting rights for the district’s largely African-American population was much more politically contested than it is today.

* Note that this is a subtly different statement than “D.C. should have the same representation as a state,” a dubious proposition at best; there is no reason why D.C. residents couldn’t be treated as residents of Maryland (or for that matter Virginia or Wyoming or California) for the purpose of reapportionment and voting in federal elections but not otherwise be subject to state law.

Wednesday, 5 November 2008


So I assume the usual suspects at APSA will now be calling for a boycott of all future meetings in California.

The sad thing is that I agree with the boycott ringleaders on policy but it’s hard to take their specious arguments against the 2012 New Orleans meeting as being motivated by anything other than uninformed or outdated stereotypes of how New Orleanians would behave, as if there are absolutely no gay and lesbian couples in New Orleans today who have successfully dealt with the lack of a legal right to have their relationship with their life partners legitimized by the state. If, as a social scientist, you want other social scientists who aren’t fully committed to your personal crusades to take your public policy arguments seriously, you need to present at least some sort of data in support of your arguments.

Saturday, 13 September 2008

The power of language

I’ve always thought cooperative federalism was something of a misnomer, that whole “national drinking age” thing being just the tip of the coercive dimension of that state “cooperation”; now, via Jacob Levy, comes word of an SSRN article on uncooperative federalism.

Tuesday, 20 May 2008

Money money, yeah yeah

The Court of Appeals for the D.C. Circuit has upheld a lower court ruling that the Department of the Treasury is required to make U.S. paper currency accessible to the blind; although the most recent changes to the higher-denomination bills have made various denominations of currency more distinguishable by people with limited vision, all the bills remain the same size and have no tactile features that distinguish the bank note denominations.

I’ll agree with the basic proposition that making major changes to the bills yet again would probably be a bit of a pain, but surely the Bureau of Engraving and Printing could punch some little holes or make some raised dots on the existing bill designs without compromising their usability in existing vending machines.

Friday, 16 May 2008

Defining judicial activism

My OTB co-blogger James Joyner considers the question of what constitutes “judicial activism” as part of the broader debate over California’s same-sex marriage decision yesterday. The admittedly imperfect definition I use—and, kids, this is the one that’s the right answer on my American government exams—is “a tendency for judges to oppose the will of other courts or branches of government.” Mind you, that activism has a long and proud history and not one confined to liberal justices either.

In the case of California, given that just a few years ago the people of that state, acting as its lawmaking body through its public initiative process pursuant to its constitution, decided to legally define marriage as involving one man and one woman, I think you can fairly characterize the California court’s ruling as “activist.” That doesn’t mean it’s the wrong ruling under the constitution and laws of that state, but it’s not deference to either the will of the people or the executive branch either.

Tuesday, 13 May 2008

Having a gay old time

The debate over the proposal before the APSA to move the 2012 annual meeting out of New Orleans due to the state’s voters’ approval of an anti-same-sex marriage initiative has hit the rumor blogs.

I didn’t bother to keep a copy of the message I sent to APSA from the website regarding the proposal—silly me expected it would be copied to me once it was sent—but I generally made the argument that both proposals on the table (either an outright policy of avoiding states that had passed anti-same-sex-marriage constitutional amendments or some sort of bizarre “case-by-case consideration” provision that reeks of committee-generated compromise) were fundamentally stupid and missed the point if the stated goals of the proponents—namely assuring the legal protection of individuals who are part of legally-recognized same-sex-married couples who attend the meeting—were the actual goals of the exercise. I also associated myself in my comments with the statement made by my colleagues at Tulane in their entirety, although I was not a signatory of their letter and my signature was not solicited.

My admittedly non-expert understanding of the legal situation—as someone who is neither gay nor in any sort of marriage-like partnership—is that legal recognition of same-sex marriage or an approximately equivalent status is confined to (within the realm of North America) Massachusetts, Vermont, and Canada. Of these places, there are perhaps a half-dozen or so cities capable of hosting APSA, and only one of them is in the United States (Boston, the site of the 2008 meeting). The symbolic opprobrium of anti-same-sex marriage constitutional amendments is, in practice, insignificant; California, Illinois, and New York authorities are no more likely to recognize a Massachusetts same-sex marriage than Louisiana’s authorities. So, in reality same-sex-married couples from the states and provinces that recognize such things are no more “at risk” of legal troubles in New Orleans than they would be in San Francisco, Chicago, or New York City.

If members of the APSA want to protest the symbolism of these amendments or just don’t want to be seen in retrograde states that don’t comport with their vision of a just and liberal society, they should be honest and forthright about that position rather than hiding behind outlandish hypotheticals that really don’t distinguish between the “enlightened” and “backward” states—and given the success of Oregon’s anti-same-sex-marriage ballot measure, that distinction is far narrower than most of us would care to admit.

Update: You can also have at the discussion here if you so choose.

Saturday, 5 April 2008

The Liptak Effect

Rick Hasen notes that Linda Greenhouse’s replacement as the New York Times’ Supreme Court reporter will be Adam Liptak. Somehow referring to Supreme Court justices as going Times-native as suffering from “The Liptak Effect” doesn’t roll off the tongue quite as easily.

Friday, 14 March 2008

Academics, titles, Germans, and Nazis (oh my!)

Tyler Cowen notes a recently-changed German law (previously shared over on the right and also noted by James Joyner) that made it illegal for anyone with a doctorate from a non-E.U. university to call themselves a doctor.

As someone who’s discussed academic titles excessively in the past, I found this turn of events somewhat interesting, but I found this part of the original WaPo piece more noteworthy:

Under a little-known Nazi-era law, only people who earn PhDs or medical degrees in Germany are allowed to use “Dr.” as a courtesy title.

The law was modified in 2001 to extend the privilege to degree-holders from any country in the European Union. But docs from the United States and anywhere else outside Europe are still forbidden to use the honorific. Violators can face a year behind bars. ...

The German doctor rule has been in effect since the 1930s, but it has been only sporadically enforced in recent years.

That changed last fall, when an anonymous tipster filed a complaint with federal prosecutors against seven Americans at the prestigious Max Planck Society, which operates 80 scientific research institutes across Germany. Federal authorities forwarded the complaint to prosecutors and police in at least three states, who decided to take action.

Shouldn’t all of the laws passed under Nazi rule have been repealed anyway, either during the postwar occupation or the subsequent transfer of sovereignty to the Federal Republic in the west? One wonders what other oddities emanating from Hitler’s Reichstag are lurking in modern German law.

Wednesday, 13 February 2008

Free at last

The 5th Circuit Court of Appeals has struck down Texas’ anti-sex-toy law, presumably also invalidating the previously-mocked similar law on the books in my former home state, Mississippi.

Thursday, 29 November 2007

C-L: seemingly random "Oxford lawyer indicted"

Ole Miss booster and multi-millionaire class-action lawyer Dickie Scruggs and a number of his associates were indicted yesterday on federal charges stemming from allegations Scruggs attempted to bribe a Lafayette County judge into steering additional attorney’s fees his way in an insurance lawsuit. Scruggs in recent years has set himself up as an unofficial and unelected fourth branch of Mississippi government, using the court system to both influence public policy and enrich his firm with contingency work for the state attorney general’s office, as the C-L story indicates:

Scruggs, the brother-in-law of U.S. Sen. Trent Lott, is best known for his handling of mass litigation on behalf of the state of Mississippi, first involving asbestos and later involving tobacco.

His success in winning Mississippi’s landmark tobacco settlement led to his portrayal in the film The Insider, starring Russell Crowe and Al Pacino.

Then-Attorney General Mike Moore, who portrayed himself in the movie, hired Scruggs to handle the litigation on the state’s behalf – a move later criticized by some because Scruggs and other lawyers received millions in legal fees.

More recently, Scruggs has handled litigation against State Farm Insurance Co. over its handling of Katrina claims.

C-L columnist Sid Salter further explains how this scandal might affect the future careers of both Lott and Moore, Lott’s presumed heir apparent:

Exactly how does one divorce Dickie Scruggs’ historical status as Mike Moore’s largest campaign contributor and Moore’s award of the state’s lucrative tobacco litigation to Scruggs from a discussion of Mike Moore’s political future? It’s the same as ignoring the fact that Scruggs is Trent Lott’s brother-in-law.

Scruggs decided to make himself a major player in Mississippi politics by making huge campaign contributions, loans to candidates, starting and funding PACs to take down candidates he didn’t like and to keep trial lawyer-friendly candidates in power in the state House.

Nothing wrong with that. The business and medical community do the same thing and take their lumps for it. But it is what it is.

The next sob story will be that Dickie’s indictment is about Bush administration persecution of trial lawyers and a rehash of Paul Minor’s problems.

Wednesday, 13 June 2007

Mo. Supreme Court to Clayton: Blight This

The Missouri Supreme Court yesterday ruled that the city of Clayton can’t seize and hand over several parcels of land in downtown Clayton to private developers who are too cheap to pay market value for land to expand Centene Corporation’s headquarters. According to the article, Centene may look elsewhere instead, but unless they’re willing to go somewhere that’s genuinely blighted—say, about 70% of the city of St. Louis—they’re probably bluffing.

Monday, 30 April 2007

What Kathryn Johnston's death can teach us about government

Jason Kuznicki earns quote of the day honors for this statement; but, you should go read the whole thing:

[T]he state enforcement of private moral conduct almost inevitably produces an even greater moral evil than the conduct we aim to repress. Far from leading to a more moral society, the use of force to police the private conduct of adults achieves just the opposite; in the name of opposing libertinism, the prohibitionists run squarely into something far worse.

Thursday, 26 April 2007

Blighted my ass

Radley Balko takes note of my hometown’s inability to convince a Missouri Court of Appeals panel that an area of downtown Clayton is ‘blighted’. Quoth Balko:

The idea that expensive office buildings there could be “blighted” is laughable.

Indeed; the corner of Hanley and Forsyth is pretty close to the least blighted area in the St. Louis MSA by any plausible definition of the term.

Thursday, 19 April 2007

Binge and purge

TigerHawk talks eminent sense about the legal drinking age:

On the drinking age, I think the right answer is now and always will be obvious. Individuals should be able to purchase alcohol on their own account starting at age 19, which would liberalize the current law considerably and still allow for the policing of unsupervised drinking among high school students. In addition, teenagers older than, say, 15 should be able to drink in the company of their parents, either in private or in restaurants. Responsible drinking has to be taught. One can’t help but believe that the current generation binges because it has had no opportunity to learn that responsibility from the people in the best position to teach it to them.

The only thing I might add is that I’d prefer some sort of policy that got colleges and universities out of policing student prohibition. Lowering the drinking age to 19 would continue the temptation for “student life” officials to (largely ineffectually) regulate all alcohol consumption by students, regardless of age. I’m not sure what the exact solution to that conundrum is, but I am certain that I’d rather have freshmen drinking openly than “out of sight” in the basement of some frat house or off-campus apartment.

Thursday, 22 March 2007

The rational basis test

Julian Sanchez succinctly explains the rational basis test as applied by the courts:

Now, understand: For a law to be “rationally related” to a legitimate state purpose, it’s not necessary that it actually achieve that purpose, let alone achieve it without bringing about various ancillary harms in the process. It’s enough that a sane legislator might reasonably believe it to contribute to the relevant goal.

In other words, whenever the Supreme Court strikes a law down while claiming to apply the “rational basis test,” they weren’t actually applying the rational basis test. Case in point: Romer v. Evans, in which the court laid the foundations for Lawrence v. Texas by essentially applying heightened scrutiny to discrimination against gays and lesbians—even though they claimed they were simply applying the rational basis test.

Wednesday, 11 October 2006

The Black Primary

The New York Times reports on the bizarre case of Democratic party operative Ike Brown of Noxubee County, Mississippi, who faces a federal lawsuit under the Voting Rights Act for suppressing the voting rights of whites. Probably the most fascinating passages in the article, which read like something out of a 1960s era lawsuit with the races reversed:

Mr. Brown is accused in the lawsuit and in supporting documents of paying and organizing notaries, some of whom illegally marked absentee ballots or influenced how the ballots were voted; of publishing a list of voters, all white, accompanied by a warning that they would be challenged at the polls; of importing black voters into the county; and of altering racial percentages in districts by manipulating the registration rolls. ...

The Justice Department’s voting rights expert is less reserved [than local white residents]. “Virtually every election provides a multitude of examples of these illegal activities organized by Ike Brown and other defendants, and those who act in concert with them,” the expert, Theodore S. Arrington, chairman of the political science department at the University of North Carolina at Charlotte, wrote in a report filed with the court. ...

There are so few whites in the county, Mr. Brown suggests, that the tactics he is accused of are unnecessary to keep blacks in office.

“They can’t win anyway unless we choose to vote for them,” he said with a smile. “If I was doing something wrong — that’s like closing the barn door when the horse is already gone.”

Of course, the key point of practices like the white primary in most of the South wasn’t to prevent blacks from outvoting whites per se—even in the early 20th century before extensive outmigration of African-Americans, whites typically outnumbered blacks in most counties outside the “black belt” plantation counties—but instead to ensure that blacks and lower-to-middle class whites would not form cross-racial voting coalitions in support of white or black candidates that would displace the local elites from office.

Assuming white block voting for white candidates, even in a county that’s 75% black like Noxubee white candidates could win elections with 30–40% black support depending on the turnout ratio… so, if techniques like pressuring blacks through appeals to racial solidarity to also block vote against white candidates breaks down, the illegal tactics Brown is accused of orchestrating would be very helpful in maintaining and/or expanding control of elected offices.

þ Rick Hasen.