Balkinization  

Monday, March 09, 2015

Why Not Judicial Review: The Rule of Law or The Rule of (Politicized) Judges?

Brian Tamanaha

In "Why Judicial Review? Democratic Legitimacy," Jack eloquently advocates judicial review for fragile democracies. Let me offer a brief rejoinder. Here is his key argument:
But courts-- and especially constitutional courts-- offer something that these other institutions cannot. They can offer legitimacy based on the rule of law. What courts can do is issue opinions that say that something is legal or not legal. In so doing, they legitimate the work of the political branches. They offer legitimation when they declare laws and practices unconstitutional or illegal and, equally important, when they uphold the constitutionality and legality of certain laws and practices. The authority of the court to legitimate-- to say yes-- depends on its potential power to say no-- to withhold legitimation. Through the power to legitimate according to opinions that purport to be grounded in law and legal reasons, constitutional courts offer a form of legitimation that no other players-- whether church, army, or capital-- can offer.
This passage is jarring to read in the wake of the intense political-legal debate over King v. Burwell (framed as a statutory question), on the heels of Sebelius, Citizens United, Shelby County, and so on. Many constitutional decisions, though they "purport to be grounded in law and legal reasons," ultimately turn on political considerations like political principles, policy preferences, and anticipated consequences. This runs through constitutional theory as well: Balkin's Living Originalism and Scalia's Fainthearted Originalism diverge on many outcomes along political lines, though both are set forth in legal terms.

Legitimacy based on the rule of law does not come about simply because judges in black robes issue decisions couched in legal terminology. It requires that decisions be determined by the law and appear to be determined by the law. Issues that come before constitutional courts, however, are often the most legally open as well as politically fraught.

Jack observes, "But in the contemporary context -- of many different kinds of societies divided by religion, ethnicity, and language, and with only limited experience in maintaining free institutions -- you may not be able to get good results in fledgling democracies without constitutional courts." This is correct as far as it goes, but it prompts the crucial question: In societies with such sharp divisions (often greater than the Red-Blue divide in America) will constitutional courts issue decisions based on the law? Or will the decisions turn on political considerations and be perceived as political by citizens.

More to the point, granting judges the power to strike legislation on constitutional grounds raises the stakes for the other political branches because constitutional decisions are harder to overcome. This inevitably leads to battles to control who becomes judges (witness the politicization of judicial appointments in the US). In many societies with fragile democracies, courts are also fragile institutions. Giving courts the power of judicial review may increase efforts to undermine judicial independence, making it all the harder for the rule of law to develop.

Finally, it is unsettling to see Jack refer to Bush v. Gore positively at the close of his essay. That was not the Court's finest hour. Nor was it necessarily good for our democracy or for the country that it was so swiftly acceded to with relatively little protest. I'm not sure fragile democracies should take any lesson from the case and its aftermath.

Comments:

I'd be interested in how other countries that use a form of judicial review (South Africa, Canada, Germany etc.) have worked things out. And, to the degree they are different (e.g., possibility legislative override in Canada), how that matters.

Justice Breyer uses the reaction to Bush v. Gore in a positive way too. I'm not that comfortable with that, especially since it was not necessarily true that the ruling had to be the final say. Congress, e.g., had to count the votes.

The fact no senator joined over twenty members of the House to allow even a token challenge (which occurred in a much less problematic case in 2004, perhaps because it was obviously more token) still rankles. Gore asked the senators not to do so, but it wasn't just up to him.

Judicial review is a complex thing with flaws even in this country. Usage in other countries, especially early on, very likely should not just be like our system.
 

While the term "judicial review" is not specified in Article III or elsewhere in the Constitution, the problem beyond judicial review is the question of judicial supremacy horizontally over the Executive and Legislative branches of the federal government. Neither Article III nor any other portion of the Constitution provide for such horizontal supremacy.

I, too, find Jack's reference to Bush v. Gore unsettling, especially with the hindsight of what that decision led to.

 

I would say the basic problem, in a contemporary context, in America, is that politicized judges have already allowed the judiciary's 'constitution' to diverge far from the written document, in order to accommodate power grabs on the part of the political branches. And the political branches do not appreciate one bit any move on the part of the judiciary to end this extreme deference. Any attempt on the part of the judiciary to cease political judging is attacked as 'political'.

But this shouldn't be a problem for a country first starting out, as it takes time for such divergences to accumulate. Presumably the political branches originate a constitution which isn't too far from what they want to do, and don't need judges to engage in much sophistry to permit them to escape the bonds of a document they didn't author.

The long term problem for judicial review in a constitutional republic, is that the power to chose the judges is just too obviously the power to circumvent constitutional limits. The US constitution originally sought to solve this problem by vesting the power to confirm or reject judges in a body composed of members chosen by state legislators. So that the composition of the federal bench was not entirely up to people who owed their sole loyalty to the federal level of government it needed to restrain.

Some such division of power between levels of government, or groups, is clearly necessary. It's said that no man should be the judge in his own case, and history has clearly shown that getting to pick the judge in your own case is scarcely an improvement.
 

"I would say the basic problem, in a contemporary context" ... "this shouldn't be a problem for a country first starting out"

When was this Golden Age in this country? Take the 14A. The "text" was "diverged" when? Or, the 1A? Did the Alien and Sedition Acts, upheld by federal judges, including justices riding circuit, not "diverge" in the 1790s?

"Political" like "judicial activist" is a buzzword w/o context. Each side provides competing views of what the text means. And, not only the "political branches" but the people themselves do not appreciate various things here.

As to the Senate, state legislatures were elected by the same people who now directly elect senators. The Senate isn't a general mass today. It is made up of two senators from each state. The senators are not there because of the "federal level of government." They are there because of the people.

The people elect the President and the Senate. By their actions, they show support of the basic means of judicial review. By the people, then and now, the make-up of the courts change. There is no real evidence that I'm aware of that the 17A is the reason why the text allegedly diverge.

In 1900, when senators were not directly elected, was "the text" upheld? Yet again, when was this Golden Age? When? The nature of the details might change, but not seeing how the 17A changed things in the fashion purported. Also, even w/o the 17A, there was a growing movement for the states to have direct election in all but name. It would have continued.

There is a division of power between federal and state now. There was no "golden age" here. The system developed some and judicial power, like other powers, are more firm given years of precedent.
 

Is there any doubt that CJ Marshall's opinion in Marbury v. Madison was political? I'm not aware that Justices prior to Marshall were as obviously political. And politics has been demonstrated on the Court ever since, by Justices reflecting the politics presidents appointing them. Bush v. Gore was a political 5-4 decision. But George W had not appointed any of the 5 conservative Justices who "elected" him (nor any other of the Justices on the case). And Dick Nixon was "judged" by his appointees (4, as I recall). So what does this say about Brett's last point?
 

Judicial Review Before Marbury
 

I don't know what that 109 page paper is supposed to tell us.
 

All that paper does is set forth the concept of judicial review with the Court pre-CJ Marshall (1801). In other words, Marshall did not "invent" the concept of judicial review. But I remind that neither Article III nor any other part of the remainder of the Constitution as amended specify judicial review. Marshall had served in John Adam's cabinet and was appointed to the Court (with the approval of the Senate, of course) shortly before Jefferson was inaugurated. The politics of Marbury was primarily the circuitous route taken by Marshall in his opinion to get his oars in the political conflict between the federalists and the ant-federalists to justify Marbury's appointment but then to in effect toss out Marbury's appeal on the technical ground that the Court did not have original jurisdiction. Also, from a political standpoint the failure with Marbury getting his commission while Adams was still in office resulted from the failure of Marshall, in his capacity as cabinet member, to act on a timely basis. Marshall did not disclose this potential conflict of interest in his opinion. And of course any suggestion by Marshall in his opinion of judicial superiority over the federal elected branches was in effect dicta. And I remind that neither Article III nor any any portion of the Constitution specify any such horizontal judicial supremacy.

Those interested can check out Jack Balkin and Sandy Levinson's paper detailing the "facts' in Marbury. (That paper was published in Constitutional Commentary in an issue celebrating the bi-centennial of Marbury in 2002.)
 

Democratic and judicial legitimacy are really two distinct issues.

Democratic legitimacy arises from the government enacting the will of a majority or at least a plurality of the people.

Judicial legitimacy arises from enforcing the law as it is written, not as a judge or set of judges would prefer it is written.

You can have one without the other. Unfortunately, American increasingly is losing both.

Obamacare is Exhibit 1.

Enactment of the law is democratically illegitimate because it has been imposed against the will of a plurality to a majority of the people going on five years now.

Enforcement of the law has been judicially illegitimate to date.

Robert's opinion upholding the individual mandate as both a penalty and a tax was sophistry at its worst.

King v. Burwell has the potential to be even more illegitimate. The case involves a completely unambiguous, hardwired provision expressly limiting taxpayer subsidies for Obamacare exchange insurance to “an Exchange established by the State.” Because less than half of the states took the subsidy bribe and declined to establish their own exchanges, IRS rewrote the provision by decree for political reasons to instead read "an Exchange established by the State and the federal government."

The lower courts should have unanimously ruled against the IRS. Instead, only one split panel of the DC Circuit applied the law as written and it was nearly overruled by the en banc circuit court before the Supremes accepted cert.

The Supreme Court is little better. At minimum, there are four justices who for completely political reasons are willing rubber stamp IRS's illegal rewrite of a law of Congress. Who knows whether Roberts and Kennedy will go along with them.
 

Obamacare is Exhibit 1.

Enactment of the law is democratically illegitimate because it has been imposed against the will of a plurality to a majority of the people going on five years now.

# posted by Blogger Bart DePalma : 2:46 PM


Not sure if you're aware of this Baghdad, but Obama has won an election since Obamacare was passed. So your claim that Obamacare was "imposed" is arrant nonsense.
 

BB:

The 2012 election was not a referendum on Obamacare because the GOP was brain dead enough to nominate a candidate who signed off on the program upon which much of Obamacare was based.

The Republicans were not nicknamed the stupid party without reason.
 

The 2012 election was not a referendum on Obamacare because the GOP was brain dead enough to nominate a candidate who signed off on the program upon which much of Obamacare was based.

The Republicans were not nicknamed the stupid party without reason.
# posted by Blogger Bart DePalma : 3:54 PM


Not my problem. The fact that the GOP nominated the guy who created Obamacare is just more evidence that Obamacare was not "imposed".

However, it's good to see we have finally found common ground. You people really are stupid.
 

As I recall, our own Mr. Myth was hand in glove (to put it mildly) with the "stupid party" in 2012. Our own Mr. Myth was probably in agreement with Sen. Lindsey Graham's (Cracker, S.Car. and possible candidate for GOP nomination for president in 2012) assessment of not enough angry ... voters.

Perhaps our own Mr. Myth may go ballistic with his "revolution as the only alternative" if the Court's decision in King v. Burwell goes against the petitioners, based upon his earlier rant on the Court. Query: Should there be judicial review of potential revolutionaries?
 

BB: The fact that the GOP nominated the guy who created Obamacare is just more evidence that Obamacare was not "imposed".

Romney was the sole establishment candidate. The Tea Party split their votes on multiple conservative candidates and Romney won with pluralities.

Leaderless movements like the Tea Party are far better at firing Democrats than they are uniting around GOP candidates.
 

Romney was the sole establishment candidate. The Tea Party split their votes on multiple conservative candidates and Romney won with pluralities.

Leaderless movements like the Tea Party are far better at firing Democrats than they are uniting around GOP candidates.
# posted by Blogger Bart DePalma : 5:00 PM


Teabaggers are not in the majority. They're not even a plurality. They're a fringe group of nutcases.

In any case, your claim that Obamacare was "imposed" is idiotic.
 

BB:

Talk to the 1,000+ Democrats the voters have fired since Obamacare was imposed about the popularity of their signature "achievement."
 

Talk to the 1,000+ Democrats the voters have fired since Obamacare was imposed about the popularity of their signature "achievement."
# posted by Blogger Bart DePalma : 5:22 PM


You go talk to President Obama, bitch.
 

Are we witnessing "pre-emptive ballisticism" on the part of our own Mr. Myth? Is he questioning the validity of judicial review as perhaps unconstitutional in his view as a textualist? If so, is his alternative revolution? Or is all this our own Mr. Myth's typical hyperbole for his new work of friction-in-progress?
 

"the GOP was brain dead enough to nominate a candidate who signed off on the program upon which much of Obamacare was based."

I think the ACA has proven unpopular, however Romney was pretty clear that he opposed the ACA though, it's not like he didn't wok to get that view out there. You had a candidate that was plainly for it and one that was plainly against it in every debate iirc.

One way to think about this is that in the one recent election of the type which has the most turnout and which can't be gerrymandered, the pro-ACA candidate did indeed win.
 

What are the alternatives (other than our own Mr. Myth's "revolution ... ") to judicial review? How about popular constitutionalism and "We the People" as espoused by Larry Kramer (as well as Mark Tushnet?)? Or perhaps might judicial review not be considered as judicial supremacy over the Executive and Legislative branches of the federal government when there are significant differences on constitutional interpretation/construction? Or should it be left to voters over a course of years, sometimes long years, to indirectly impact via elections the "political membership" of the Court?

Are nullification and/or secession responses to judicial review? Has America become a fragile democracy? Is America too big to continue to succeed as a democracy? Sandy Levinson has been exploring this in recent years, perhaps as a follow-up to his concerns with political dysfunction. The current political dysfunction has extended into the Court and the lower courts. Consider recent polling on all three branches.

After considering the alternatives to judicial review, it may be clear that the problem with judicial review is that it is, and has been over time, political. So perhaps the focus should be on how to get the politics out of the Court. Of course political disagreement can be expected in attempting to do so.
 

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Shag:

"How about popular constitutionalism and "We the People" as espoused by Larry Kramer (as well as Mark Tushnet?)?"

The catch phrase "popular constitutionalism" has no real functional meaning.

Or perhaps might judicial review not be considered as judicial supremacy over the Executive and Legislative branches of the federal government when there are significant differences on constitutional interpretation/construction?

Someone has to have the final say on applying the law. If not the courts, who do you suggest?

Or should it be left to voters over a course of years, sometimes long years, to indirectly impact via elections the "political membership" of the Court?

That has not worked to date.

The problem is not judicial review per se, but rather that far too many judges on the courts refuse to enforce the law when it conflicts with their preferred policy.

My suggested approach would be a legislative override where a super majority of the legislature could impeach the offending judge and/or override and rewrite the decision.

The idea of absolute judicial independence is like absolute power, it its absolutely corrupting.
 

Looked over the article Brett supplied, which was interesting, though as Shag notes, it's unclear what it adds to the conversation.

Shag has noted that judicial review is not clearly expressed in the Constitution. The article notes that when judicial review was applied in the states pre-Marbury that clear text is not the only guide. Structural concerns and so forth were also used. I think using such guides -- text and other means used to determine constitutional meaning -- that judicial review is correctly applied.

Also, the article notes that though it was not a unanimous understanding [by the mid-19th Century, however, I believe it basically was], especially in certain cases, there was a general understanding that judicial review was part of the U.S. Constitution. Madison and Jefferson included though Jefferson was upset when it was applied to executive action when his own Administration was involved. The facts of Marbury v. Madison makes it a special case though.

Charles Beard, who was a critic of the Lochner Era usage of the power in his time, ultimately determined original understanding did generally accept judicial review. He wrote a pretty convincing book on the subject.

This doesn't mean the form was as understood today in all ways. Constitutional law develops over time, including in response to a growing regulatory state & a broad acceptance of the role of the courts. Nor, does this alone tie us to a particular path. Anyway, as Shag notes, it is partially "political" in nature. There is no easy answer here, but on balance, I think judicial review has various benefits. It also seems to me a logical application of overall constitutional principle. Various ways can be provided to restrain it -- political question doctrines etc. -- though the text is not clearly going to tell you how to do this. It is going to require weighing of things & overall judgment based on experience.

Other nations have agreed though have not applied it quite the same way. Some in fact have been more expansive, such as having weaker barriers to entry (standing rules).
 

Note that in our own Mr. Myth's response to me he ignored the baiting of his "revolution as the only alternative ... ."

And our own Mr. Myth's closing:

"The idea of absolute judicial independence is like absolute power, it its absolutely corrupting."

presumably was inspired by a vodka commercial (or 2nd hand fumes from one of his DUI clients). And his penultimate [still my favorite word next to fungible] proposal:

"My suggested approach would be a legislative override where a super majority of the legislature could impeach the offending judge and/or override and rewrite the decision."

is unrealistic. Imagine Congress rewriting the decision and it is widely disputed by "We the People." And the proposal ignores the role of the Executive branch.
 

Note that a broad usage of judicial review of various governmental actions is used by both liberals and conservatives these days.

Two opinions by the Supreme Court this week (see SCOTUSBlog) showed this with Justice Thomas particularly in one providing an expansive view on the importance of the courts. This includes as Mr. W. noted, in restraining agency action.

As with John Oliver's piece on Sunday on voting rights of territorial voting rights, some changes might require a constitutional amendment. For instance, legislative vetoes might be a good idea, but Supreme Court cases held they are not allowed.

There is a lot of room, with apologies to Sandy Levinson, for actions in the current system though.
 

BD: "My suggested approach would be a legislative override where a super majority of the legislature could impeach the offending judge and/or override and rewrite the decision."

Shag: "...is unrealistic. Imagine Congress rewriting the decision and it is widely disputed by "We the People." And the proposal ignores the role of the Executive branch."


I am envisioning this remedy being used to correct obviously erroneous cases like the Kelo v. New London case, where there is bipartisan agreement that the decision was wrong.

Congress is perfectly capable of drafting a replacement opinion.

I am modeling this check on Congress' impeachment power. The Founders did not grant the President a similar power to impeach Congress critters and I see no reason to grant the President any role in my proposed check.
 

Our own Mr. Myth comes up with another myth regarding his proposed legislative impeachment and/or override for certain court decisions:

"Congress is perfectly capable of drafting a replacement opinion."

This is an our own Mr. Myth LOL classic moment. Contrast 9 members on the Court who might not agree on a decision compared to 435 in the House and 100 in the Senate who might not agree on a rewrite decision. And would it be wise to extend some impeachments to include the House?

While the President is not involvement in the impeachment process, surely there should be veto right with respect to a rewrite decision by Congress. Limiting constitutional interpretation/construction to the judicial branch and to the legislative branch under our own Mr. Myth's super majority proposal would discriminate against the executive branch.

Our own Mr. Myth sates that his remedy would be:

" ... used to correct obviously erroneous cases like the Kelo v. New London case, where there is bipartisan agreement that the decision was wrong."

How would our own Mr. Myth's remedy define "obviously erroneous cases"? And just how "bipartisan" is that agreement on Kelo? And would the remedy provide some sort of a statute of limitations as to when the remedy might apply? And might the rewrite decision of the legislature give rise to a case or controversy under Article III?

I'm aware that our own Mr. Myth is working on his new work of friction that may include his suggeste proposal. I'm just trying to help him out to avoid more LOL moments. Perhaps before this thread is forced into the archives of this Blog, our own Mr. Myth might favor us with the language of his proposal so some commenters more constitutionally astute than I may provide meaningful suggestions such that his proposal can be examined for how it might function with the entire Constitution.

By the Bybee [expletives deleted], how has impeachment been used against a sitting Justice or judge based upon an official opinion written by a Justice or judge? Here's a portion of Wikipedia's take on Justice Chase that may be helpful:

"The acquittal of Chase — by lopsided margins on several counts — set an unofficial precedent that many historians say helped ensure the independence of the judiciary. As Chief Justice William Rehnquist noted in his book Grand Inquests, some senators declined to convict Chase despite their partisan hostility to him, apparently because they doubted that the mere quality of his judging was grounds for removal. All impeachments of federal judges since Chase have been based on allegations of legal or ethical misconduct, not on judicial performance. For their part, federal judges since that time have generally been much more cautious than Chase in trying to avoid the appearance of political partisanship.[13]"

I'm not so sure of the current accuracy of the last sentence, however.
 

Shag:

Contrast 9 members on the Court who might not agree on a decision compared to 435 in the House and 100 in the Senate who might not agree on a rewrite decision.

An opinion is simply an interpretation of law. A body tasked with writing laws and amendments to the Constitution is perfectly capable of drafting a bill of revision.

While the President is not involvement in the impeachment process, surely there should be veto right with respect to a rewrite decision by Congress.

Why?

The Congress is the branch closest to the people, representing localities and states. For this reason, the Constitution grants Congress the vast majority of governmental power and the ability to check the presidency. Likewise, it should have the power to check the judiciary.

And would the remedy provide some sort of a statute of limitations as to when the remedy might apply?

Under the proposed amendment I drafted for my book, Congress would have five years after the Supreme Court entered an opinion to enact a bill of revision.

And might the rewrite decision of the legislature give rise to a case or controversy under Article III?

No. A bill of revision would be the final word and could only be modified through an amendment to the Constitution.

I'm just trying to help him out...

I appreciate that. You posed some very valid concerns.

how has impeachment been used against a sitting Justice or judge based upon an official opinion written by a Justice or judge?

Impeachment has not been used in this manner before and I decided not to take that route with my suggested amendments.

When a higher court reverses one of their opinions, it generally has a chastening effect on the judge. I am hoping a Congressional bill of revision will have the same effect.
 

Our own Mr. Myth originally came up with this:

"My suggested approach would be a legislative override where a super majority of the legislature could impeach the offending judge and/or override and rewrite the decision."

He seems to be modifying his approach now with this:

"An opinion is simply an interpretation of law. A body tasked with writing laws and amendments to the Constitution is perfectly capable of drafting a bill of revision."

A "bill of revision" by a legislative super majority seems more than a tad different than "override and rewrite decision."

As to Congress being perfectly capable," often it is Congress' imprecision with legislation, even Amendments, that might lead to the court opinion being challenged; in that case, Congress might rewrite such legislation to be more precise. But would it have retroactive effect?

Query: Would the proposed super majority action during the statute of limitations period undo retroactively the court opinion? Might that constitute a "taking" under the 5th A or other provisions of the Constitution?

I wish others would jump in to remedy problems with our own Mr. Myth's proposed remedy in order to perfect it.

 

Shag:

The bill of revision would be binding on both the judiciary and Congress itself and can only be changed by amendment to the Constitution.

"Query: Would the proposed super majority action during the statute of limitations period undo retroactively the court opinion? Might that constitute a "taking" under the 5th A or other provisions of the Constitution?"

Can you clarify that question?
 

Here's a clarification. If a party to a Court decision prevails with some financial benefit - property, money - as a result of the decision and within the 5 year period under the proposed remedy by the super majority this is undone by a rewrite of the decision or a bill of revision [our own Mr. Myth did not volunteer a clarification of any difference in his changing terms], what will be the impact on that party? In other words, will the undoing by the super majority of Congress of the Court decision have retroactive effect upon the parties to the case? If so, then there may be a taking per 5th A. But even if no such financial benefit is involved, retroactive application of the rewrite decision or bill of revision would have to be considered and weighed with other provisions of the Constitution for consistency. (Over a 5 year period there can be 2-3 election cycles.)

But I would hope that our own Mr. Myth would provide a clarification regarding his apparent change from a rewrite decision to a bill of revision. And if, as stated by our own Mr. Myth a bill of revision would be binding on the Court and on Congress " ... and can only be changed by amendment to the Constitution" then certain limits would have to be included in what presumably would be the amendment to the Constitution that would provide for the proposed remedy. Perhaps our own Mr. Myth has reached the point where he can provide the form of such a proposed amendment to see how it fits within the structure of the Constitution. I don't recall a response to this from an earlier comment of mine:

"How would our own Mr. Myth's remedy define 'obviously erroneous cases'?"
 

Off topic (why not?)":

I recently thought of the radio and later TV program "You Are There," recapturing events from the past. Before Stephen Colbert starts his new stint replacing Letterman, I wish he should host a series titled "I Was There," restoring his Colbert Nation persona temporarily, to take advantage of recent Bill O'Reilly revelations. Colbert would provide the narration for certain historic past moments, closing with "I was there, I saw pictures."

Stephen, all I ask for is a tip of the hat but no finger.
 

Shag:

Here's a clarification. If a party to a Court decision prevails with some financial benefit - property, money - as a result of the decision and within the 5 year period under the proposed remedy by the super majority this is undone by a rewrite of the decision or a bill of revision [our own Mr. Myth did not volunteer a clarification of any difference in his changing terms], what will be the impact on that party?

My proposed amendment is limited to cases interpreting the Constitution.

I am unsure how an interpretation of the Constitution can be considered to be a taking.

But I would hope that our own Mr. Myth would provide a clarification regarding his apparent change from a rewrite decision to a bill of revision.

A bill of revision is simply what the amendment would call Congress' rewrite of the Supreme Court decision.

"How would our own Mr. Myth's remedy define 'obviously erroneous cases'?"

My proposed amendment would allow 3/5 of Congress to revise a Supreme Court decision. If you can get 3/5 of that fractious body to agree that a Supreme Court decision is wrong, it will almost certainly be "obviously erroneous."

And if, as stated by our own Mr. Myth a bill of revision would be binding on the Court and on Congress " ... and can only be changed by amendment to the Constitution" then certain limits would have to be included in what presumably would be the amendment to the Constitution that would provide for the proposed remedy.

What limits do you propose and why?
 

With regard to our own Mr. Myth's proposal, he asks:

"What limits do you propose and why?"

I haven't seen a proposed amendment as yet, merely general concepts of our own Mr. Myth. This is not my proposal. But our own Mr. Myth has put it on the table. The angel/devil may be in the details of a proposed amendment to the Constitution that might come to be known as:

"CONGRESSIONAL REVIEW OF JUDICIAL REVIEW."

By the Bybee [expletives deleted], I note that our own Mr. Myth's super majority is 3/5ths, not 2/3rds. Of course the latter would be more super than the former.


 

The title of this post by Brian,

"Why Not Judicial Review: The Rule of Law or The Rule of (Politicized) Judges?"

seems to be answered by our own Mr. Myth with a Politicized Congress by means of a super majority of 3/5ths. Might it be easier to require a 3/5ths requirement for judicial review involving constitutional interpretation/construction by amendment to Article III?

Our own Mr. Myth states:

"My proposed amendment is limited to cases interpreting the Constitution."

So it would not apply to cases involving statutory interpretation?
 

Off Topic: Andrew Koppelman and Sandy Levinson (with a cite of Jack Balkin) were two of the signatories of one of the amicus briefs in the SSM cases:

http://www.supremecourt.gov/ObergefellHodges/AmicusBriefs/14-556_Legal_Scholars_Stephen_Clark.pdf

The brief has a section on original understanding. The brief along with others can be found via the SCOTUS website.
 

This is entirely correct.

The ruling in Bush v. Gore was, of course, a criminal act; it was uniformly denounced by legal commentators as having no basis in law, and the majority was so embarassed by it that they tried to claim that it was not precedent. They knew they were breaking the law by making the ruling. They thought they wouldn't get caught, and so far they've gotten away with it.

We know from a careful count of the votes months later that Gore got the most votes.

We know that the five tratiors on the Supreme Court (and yes, they were traitors) voted to *prevent votes from being counted*, overriding a controlling state Supreme Court ruling (which said to count *all* the votes), when there was no justiciable federal question.

We know what the motivation of the criminals on the Supreme Court was, because they stated it: they claimed that if the votes were counted, it would present a "cloud over the legitimacy" of Bush's Presidency.

Here in reality, of course, it is the very failure to count the votes which created the cloud over Bush's legitimacy.

This sort of "judicial review" -- ignoring the facts, ignoring the law, but paying close attention to which political party the judges are members of -- is what gives judicial review a very, very bad name.

If we're going to have decisions based on raw, lawless political considerations (as we so often do), those need to be made by the political branches where we can vote them out, rather than by unaccountable political hacks wearing black robes and claiming "lifetime" appointments.

(In fact, judicial appointments are supposed to be for the period of "good behavior", and so the majority should have been impeached for Bush v. Gore -- that's what Madison would have called for, and he wrote the impeachment provision -- but judges pretend to have lifetime appointments.)

The problem with having unaccountable, lawless, fact-free rulings emanating from the judicial branch is that it discredits the entire legal system. And when the entire legal system is discredited... we have a big, big problem.

We're well on our way to having a completely discredited legal system in the US at this point. I won't list the *hundreds* of other pieces of grossly lawless behavior by the "legal system" in the US, but if you've been following the news, you'll know some of it -- from the ability of DAs to simply let people commit murder (or defraud millions of people), to the abuse of grand juries, to the abuse of "national security" as a blanket excuse for doing anything whatsoever, it goes on and on.

This issue was discussed almost a century ago in _Theory of Social Revolutions_ by Brooks Adams. He explains: If it is possible for the political branches to override the judicial branch (as they can in Britain), then they take the blame when they do so for naked political reasons, and the judicial branch retains integrity.

If it is not possible for the political branches to override the judicial branch, they instead *subvert* the judicial branch, which is what happens in the United States. Then the entire judicial system loses legitimacy.

Which is what's happening right now, and I think it's very dangerous.
 

A comment on the British system.

Parliament can simply overrule the courts. However, doing so requires that Parliament *state* that it is specifically overruling the courts, taking on judicial duties. They can't do so in an implied, underhanded, or sneaky fashion.

This creates a powerful disincentive to do so for naked political reasons -- the political backlash is tremendous.

On the other hand, if the courts are doing something which is lawless and widely hated, Parliament can overrule them with great fanfare and popularity.

Checks and balances. Which is what we do *not* have right now in the US, with the current norm against impeaching Supreme Court justices for lawless, political, fact-free, precedent-breaking (but not admitting it), dishonest "rulings".
 

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"If it is not possible for the political branches to override the judicial branch"

They can override it. When courts make statutory rulings, the political branches can do it.

When courts make constitutional rulings, the political branches can do it too. States have repeatedly amended their constitutions to address the issue. The feds have a limited number of time, clearly. Often however state actions not deemed to violate the federal constitution, e.g., are later deemed to violate state constitutions. Many a criminal defendant get ultimate relief.

But, repeatedly, the courts don't really totally block alternative paths. There is often another way to do things. So, a broad gun-free schools law is deemed beyond federal power? Draw it somewhat more narrowly to use spending power or something.

Also, the courts do not put their rulings in practice by their lonesome. Negatively and positively. So, one ruling on school prayer isn't going to cement the policy nation-wide. Congress, if it wanted to, didn't have to count the votes in 2000 w/o challenge. etc.

More can be said but another way political branches control the courts is by appointment. Over time, new judges with a different view of things are appointed. So the Warren Court followed into the Burger Court etc. with different views of how the Constitution means in practice.

We have "checks and balances" in the U.S. It might be done in a better fashion & we might need better judges (need to do a better job appointing them). Another way is possible. For instance, Canada allows a legislative override of certain types of rulings on rights (though it was rarely done).

Ultimately however, the courts often aren't our biggest concern in this country. King v. Burwell, e.g., wouldn't matter much if Congress had the wherewithal to edit what is supposedly really just some oversight probably. [Not that I think any edit is necessary.] They could have done that long before now if Republicans let them. The Supreme Court isn't helping there (well, let's see what they do), but it is not like there is no possible "check" or "balance" there.
 

While I agree with neroden's criticism of the current Court, I don't see that as an argument for changing the system. I see that as an argument for making the Court no longer corrupt.
 

The current Court's concept of corruption (Citizen's United) suggests that Mark's:

"I see that as an argument for making the Court no longer corrupt."

may not win the day until the composition of the Court changes. And this could come about more quickly than efforts to amend the Constitution.

While judicial review often results in problems, perhaps of greater concern is the concept of judicial supremacy over the federal elected branches.


 

also if the justices are really "traitors," that sounds like a high crime or misdemeanor.

If the political branches don't think so, would they restrain the courts if something BP's repeal mechanism was in place? Canada has something like that & barely uses it. The court's rulings on things like abortion and euthanasia don't seem mild either.

How would Mark Field make the Court less corrupt? Appointments? Impeachment?

 

A suggestion. If others aren't going to provide comments, perhaps an open thread can be provided so people can provide comments to other posts.

Andrew Koppelman flags the amicus brief he signed, which I cited earlier. Briefs in support of the challengers & neither party are presented being added here:

http://www.supremecourt.gov/ObergefellHodges/AmicusBriefs/

Many of these briefs are repetitive though some provide special perspectives. The "Historians of Marriage and the American Historical Association" brief, e.g., helpfully provides a look at the developing nature of "traditional" marriage.

I do think there needs to be a brief just about the development of same sex unions -- William Eskridge and others have written about this topic. It provides a window into "tradition" and the developing nature of things that has applications to constitutional principles overall.
 

My view on making the Court less corrupt, as a starter, would be to have the "Code of Conduct for United States Judges" extended to the Justices. Here's a link to the Code:

http://www.uscourts.gov/uscourts/RulesAndPolicies/conduct/vol02a-ch02.pdf

(Of course there would be the issue of enforcement - by whom - against a Justice.)

Appointments are another means, although imperfect. Impeachment of Justices as I understand it has not been used following the House Chase-ing the impeachment tail in the early 19th century. And amending the Constitution can take a long time to succeed, assuming that it can be amended, as it may open the door to a Convention that will address many constitutional issues other than the judiciary. Perhaps via the free speech/press clauses of the 1st A there can be more exposure to the voting public of problems with the Court.
 

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My suggestion to extend the "Code of Conduct ... " to the Justices would have to be reconciled with Article III, in particular its "good behavior" clause. Would such an extension of the "Code ... " in effect address "good behaviio"? Is the matter of "good behavior" addressable only by impeachment? Could such an extension be accomplished by the Court (unanimously? majority?) or might an amendment be necessary?
 

A few scholars argue "good behavior" provides an alternative route to impeachment (assassination on this Ides of March deemed in bad form) removal. Does "good behavior" suggest a special responsibility (achievable by statutory guidelines? advisory guidelines?) that is somehow self-executing? Is the term "good behavior" also used for certain term of years offices? Does it have special meaning in the judicial context?
 

Consider this proposed amendment to reform the judiciary:

Section 1. The judicial power shall include interpretation of statutes, treaties and this Constitution, but such interpretation shall be limited to the original meaning of the language of the law as it was commonly understood at the time of its enactment. To the extent that the original meaning of the law is uncertain, the judiciary shall construe the language against the reviewed government exercise of power. This section shall have retroactive effect and all prior judicial decisions exceeding the foregoing limits have no precedential value.

Section 2. Congress shall have the power to review and revise a judicial interpretation of this Constitution by the Supreme Court within five years after entry of the order of the Court. A bill revising a judicial interpretation shall originate in the House of Representatives and must be approved by a three-fifths vote of both the House of Representatives and the Senate. A bill of revision is not presented to the President of the United States and the President may not disapprove it. A bill of revision so approved is final and may only be changed by an amendment to the Constitution.

Section 3. Amendments to the Constitution may be proposed by a three-fifths vote of both Houses of Congress or by a majority vote of a Convention called by the legislatures of three-fifths of the several States. Proposed amendments ratified by the legislatures of or conventions called by three-fifths of the several States shall become a valid part of this Constitution. The People of each State shall choose the delegates of their ratifying convention by special election. This section replaces Article V of this Constitution in its entirety.


 

If original meaning (whatever that means) was useful, that sort of thing can add to judicial power as seen by the activism (used in a neutral sense) of justices like Thomas. Alternative judicial review mechanisms have been shown to be more restraining. Since in practice original meaning is repeatedly unclear, the fallback would be used a lot. Or, courts will fudge and pick and choose original meaning, likely, since they do that now.

An assumption against the government power being asserted would be another means of judicial activism, this time against popularly passed legislation or the acts of local officials. The power can be, e.g., upholding racial equality or a neutral safety measure.

The revision mechanism puts fundamental rights up to a vote & it doesn't even have the veto mechanism as a check. It also doesn't have the check of a later court (e.g., Plessy/Brown) changing its mind. Only an amendment is possible. Though the opinion being overruled might have special significance to the Senate or President, the House is given special authority here.

But, we are told that it will rarely be done, since a supermajority is necessary which requires bipartisan support that overrules a court ruling, which is likely to have special respect.

If so, as in Canada etc., it is unlikely to be much of a restraint. That is, as with the original meaning aspect etc., if we actually want that sort of thing. As Shag notes, the text might be open to some revision.
 

Joe:

Section 1: Even when cherry picking from different sources of original meaning, the judiciary is still be restricting itself to that meaning. The progressive construct of an organic common law constitution rewritten by progressive jurists would be outlawed and prior progressive rewrites of the law would have no precedential value. (The latter is an instruction to conservative jurists who give stare decisis priority over the text of the law.) More importantly, where the text of the law is vague, the law will be construed against the exercise of government power and in favor of liberty.

Section 2: Both judicial review and my proposed legislative revision decide the meaning of the law by a vote. The revision mechanism grants a supermajority of elected representatives the ability to check the unelected and largely unaccountable courts. I do not anticipate that Congress will often enact bills of revision, but the threat will hopefully moderate a Supreme Court which has ignored Section 1 of the Amendment.
 

If they "cherry pick," there is loads of opportunity there for activism. Not that I think original understanding deserves such special place in an amendment akin to the 9A as a "rule of construction" in the first place. The supermajority mechanism offered is flawed partially for the reasons I noted.

I appreciate the effort of providing a detailed text like that, truly, but don't think much of it on the merits.
 

Joe:

Section 1 of this proposed amendment will not be standing alone.

In the book on which I am working, I will be proposing nine other amendments that categorically limit government power in ways which will be hard for even progressive jurists to work around.

It is not enough to enforce the old Constitution as it was written because the drafters could not conceive of our present progressive socialist political economy.

We need a constitutional convention to both restore and reinforce our Republic.
 

Section 3 or our own Mr. Myth's amendment proposal by replacing Article V would eliminate this anti-democratic proscription of Article V:

" ... and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

"Originalism" might suggest that this proscription is non-amendable.

The percentage reductions in Section 3 from those in Article V should be explored for their anti-democratic effect, to wit, how many low population states could put an amendment into effect. (I assume our own Mr. Myth has run some numbers in this regard in coming up with such reductions, playing cutesy.)

I'll have comments later on Sections 1 and 2, but for now I would aske if under Section 2 a bill of revision would have precedential value?

OOPS! I note from another comment that another 9 amendments are to be proposed in our own Mr. Myth's work of friction in progress. This makes it difficult to fully evaluate his proposed judicial reform amendment, especially when he shows his bias with this:

"It is not enough to enforce the old Constitution as it was written because the drafters could not conceive of our present progressive socialist political economy."

Perhaps the drafters could not conceive of subsequent circumstances that have arisen since 1787 for which they had not provided guidance.

This "game change" suggests that our own Mr. Myth doesn't have his constitutional ducks lined up as yet and is employing Gerard's technique on tossing constitutional thoughts out there to see what others think. But this is in extension our own Mr. Myth's silly game of blaming, progressives, socialists, etc.

So my game will be (or always has been?) to show how silly he is.
 

Since the original Constitution overrode the unanimous amendment rule of the Articles of Confederation, I find getting around the Senate provision somewhat doable. One way is a two-step. First, you amend & remove that provision. Second, you put a new one. You can also change what the "Senate" does ala the weakening of the House of Lords.

There was a sort of amendment w/o consent rule involving the British Parliament & it was removed via such a two step approach. The method was later upheld in a fox hunting related case. Anyway, again, given how the 13 states was ratcheted down to 9 in our own Constitution, it is somewhat hypocritical to make that provision a total bar for all time.
 

Shag:

Section 3 or our own Mr. Myth's amendment proposal by replacing Article V would eliminate this anti-democratic proscription of Article V: " ... and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

The idea that a constitution can make all or part of its provisions unchangeable or effectively unchangeable by the people is absurd. See the abandonment of the unanimity requirement to change the Articles of Confederation.

Our current multitude of smaller states can easily defend their position in the Senate against any amendment to change the composition of the Senate set out in Article I, Section 3.

 

Shag:

I had planned to bounce my proposed amendments off a variety of academics and attorneys I respect, just not quite yet.

As for "blaming, progressives, socialists, etc.," The first 2/3 of the book lays out the robust data showing that the current hybrid of progressivism and socialism in effect across the OECD, most recently in the United States under Obama, is uniformly failing across the world and is unsustainable.

Last week, I finished collecting the real GDP and per capita GDP normalized for inflation over the history of the United States. Both figures grew at a sprint from 1790 through 1889, then started falling off in cycles starting in 1890. Growth basically halved during establishments of progressive government followed by GDP expansions (albeit at a lesser pace than in 1790 through 1889), when the political economy was partially liberalized. GDP growth has nearly collapsed since 2008 with the advent of Euro-style progressive socialism under Obama. No country in the OECD under this political economy is growing at anything near a sustainable rate any longer.

 

Keep in mind that our own Mr. Myth thinks that The Gilded Age were America's best days. He has expressed as his mindset:

"We need a constitutional convention to both restore and reinforce our Republic."

Like in those good old days? This seems to be confirmed by his abacus economic analysis that includes this:

"GDP growth has nearly collapsed since 2008 with the advent of Euro-style progressive socialism under Obama."

Of course our own Mr. Myth overlooks the 2007-8 Bush/Cheney Great Recession that started the Obama Administration in the hole. And our own Mr. Myth overlooks the performance of so many factors that have improved in the economy since then despite the openly announced goal of Republicans from day 1 of the Obama Administration to say "NO" to everything Obama, including the latest King Cotton + his 46 Boll Weevils letter to Iran. Our own Mr. Myth tries to heap blame on Obama while ignoring the fact that Bush/Cheney inherited a surplus when "elected" by the Court 5-4 in December 2000, squandered with two unpaid wars, one of which was founded on lies, two tax cuts for the wealthy, all leading to big deficits, and culminating in the aforesaid 2007-8 Bush/Cheney Great Recession.

So it's obvious that our own Mr. Myth is indeed engaging in another work of friction.

HMMM. Who might be that " ... variety of academics and attorneys [he] respect[s], just not quite yet" that he may bounce his crapola off? More important, is that respect mutual?

.

 

With respect to Joe's "hypocritical" point, this is from the close of Prof. Thomas Reed Powell's Vagaries and Varieties in Constitutional Interpretation (1956, Columbia Univ. Press - available Google Books), at pages 214-215:

***

This study of vagaries, variations, and irregularities in the constitutional law manufactured by the judges should not close with mention of others on which judges have never passed. The first has to do with the written work. The Articles of Confederation provided that the union created thereby should be perpetual and that no change should be made therein except by the vote of the Congress and ratification by the legislatures of all the thirteen states. The Framers provided that the proposed Constitution should go into effect after the ratification by conventions in nine of the thirteen states. I at one time assumed that reatifications by conventions instead of by legislatures rendered the Constitution forever unconstitutional under the Articles of Confederation. I have since changed my mind. The legislatures participated by calling the conventions, one somewhat belatedly. Congress approved of transmission to the states though rather pro forma. But the national government was organized before Rhode Island and North Carolina ratified. This was secession by eleven states. The Constitution did not become constitutional the other two states duly ratified. It then became constitutional though the ratification was somewhat the fruit of coercion."

***

[To be continued]
 

[Continuation]

***

Even though all the thirteen original states duly ratified the Constitution in form, there was enough economic coercion on Rhode Island and North Carolina to make their adhesion far from their wholly free will. Also, in the aftermath of the War between the States, there was complete coercion to secure ratification of the Fourteenth Amendment from the six unreconstructed states. They were not to be represented in Congress until they ratified, and the legislatures that ratified were chosen by an electorate with qualifications and disqualifications specified by Congress and administered by military governors. Even if the end might have been achieved by wholly disregarding these southern states, that was not the method chosen. Another blot on the constitutional escutcheon is the assumed consent of Virginia to the creation of West Virginia as an independent state. One might even suggest that the separation of the thirteen colonies from the mother country contained elements of the extralegal. Fortunately, even in tracing the titles of real estate, there is not infrequently needed the saving grace of prescription. Prescription may need to be invoked in making acceptable the course of constitutional history and of constitutional law."

***

There seems to be a non-medical prescription for hypocrisy but it may not ensure doing no harm.
 

Check out Douglas Linder's "What In The Constitution Cannot Be Amended?" at:

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/unamendable.html

And those further interested might Google "Un-amendable Constitutions" for comparative purposes.
 

Our own Mr. Myth's proposed Section 1. provides:

" ... but such interpretation shall be limited to the original meaning of the language of the law as it was commonly understood at the time of its enactment."

I can imagine how originalists of the various theories of originalism might not agree on what this means, i.e, the original meaning of such Section 1 including determining how such is commonly understood. It would seem that if Section 1 were enacted, subsequent originalism theories would not be covered.

Query: Might the adoption of Section 1 on originalism be construed as an admission that the Constitution pre-Section 1 did not provide for how it was to be interpreted/construed?

Here's another doozy in our own Mr. Myth's Section 1:

"To the extent that the original meaning of the law is uncertain, the judiciary shall construe the language against the reviewed government exercise of power. "

Does this provide guidance to the judiciary? Is there intended some sort of a presumption, including conclusive?

And even doozier, Section 1 provides:

"This section shall have retroactive effect and all prior judicial decisions exceeding the foregoing limits have no precedential value."

Imagine the turmoil this would cause jurists and attorneys in determining its application. Can retroactive effect have economic impact on cases decided before the expiration of the 5-year statute of limitations referenced in Section 2 of our own Mr. Myth's proposal? Imagine the difficulties in determining what judicial decisions would have no precedential value. Imagine the proliferation of "law office" history that might result. On the plus side, however, excessive stringing of citations may be reduced.

 

I will not go into the question of Civil War matters, which is somewhat another conversation. Prof. Amar et. al. has defended those & there are ways to go about it. Such acts might be a blot on the Constitution's reputation, but on balance, the alternative would have been more. Admitting this is a matter of opinion in some parts.

There is also a basic rule of things being settled by history. New times might result in new developments there. So, as I said recently, I don't think the 1865 ends certain questions for all times.

The quote suggests that the Constitution was only "constitutional," I presume under the Articles of Confederation, until each state actually consented. So, we had around a year of unconstitutional government.

Madison in Federalist 40 admits that the Constitution Convention "departed from the tenor of their commission" (slyly put) by only requiring a nine state ratification scheme. He relied on the "absurdity" of the rule.

It seems to me that in effect a "new form of government" was formed. It was a sort of mini-constitutional revolution. The Declaration of Independence suggests this is our right.

If changing one aspect of one aspect of the Constitution in this form is a "revolution," so be it. I do think there is another way of looking at it. Since the set-up is "absurd" as is (Madison strongly opposed the current rule fwiw), I think we should use any reasonable means to get around it.

The "two-step" rule I suggested to me seems reasonable. If not, if a supermajority of states agree except for let's say seven or whatever, it would be much less of a "revolution" than the original 9/13 rule.
 

Shag:

Query: Might the adoption of Section 1 on originalism be construed as an admission that the Constitution pre-Section 1 did not provide for how it was to be interpreted/construed?

That would be correct. The folks who drafted and ratified the Constitution did not pay much attention to the judiciary.

Here's another doozy in our own Mr. Myth's Section 1: "To the extent that the original meaning of the law is uncertain, the judiciary shall construe the language against the reviewed government exercise of power. "

Does this provide guidance to the judiciary? Is there intended some sort of a presumption, including conclusive?


Later amendments will expressly define fundamental rights, which will determine the level of scrutiny employed in this passage of Section 1.

And even doozier, Section 1 provides: "This section shall have retroactive effect and all prior judicial decisions exceeding the foregoing limits have no precedential value."

Imagine the turmoil this would cause jurists and attorneys in determining its application.


Good. My purpose is to reverse the current progressive socialist political economy the way the Constitution reversed the original confederation.

Can retroactive effect have economic impact on cases decided before the expiration of the 5-year statute of limitations referenced in Section 2 of our own Mr. Myth's proposal?

The passage above lifts the obstacle of stare decisis from the courts reversing previous judicial rewrites of the Constitution. Stare decisis has no effect on congressional bills of revision.

Imagine the difficulties in determining what judicial decisions would have no precedential value.

What problems? Read the text and apply the original meaning of the words.

Courts do this hundreds of times each day with contracts, wills and statutes. There is nothing particularly inscrutable about the Constitution, especially after my other amendments clean up the ambiguities in provisions like the Ninth Amendment.
 

The Framers provided for another "fraction" method with the 1787 Constitution's 3/5th rule. Did that improve upon rights under the Declaration of Independence beyond rights of slaveowners and slavery?

Rather than mini-revolution, Powell referred to this as "secession by eleven [out of the 13] states," which may be relevant to Sandy's current concentration as fractions can lead to political dysfunction.

The unanimity provision in the Articles of Confederation proved to be be absurd. But it should be kept in mind that the Constitution went beyond the Articles in protecting slaveowners and slavery and the Bill of Rights still further provided even more protection to slaveowners and slavery. So the Framers continued with a tad of absurdity as it took a Civil War to get around the absurdity of slavery, which brings us to "another conversation" for another time.

I note that with his several responses, our own Mr. Myth has not commented on his proposed reductions to amend the Constitution and whether he has run the numbers to see how this benefits the the low population states. We've got to be careful where we step.
 

More on the Senate:

http://www.lawyersgunsmoneyblog.com/2015/03/abolish-the-senate
 

Our own Mr. Myth with this:

"There is nothing particularly inscrutable about the Constitution, especially after my other amendments clean up the ambiguities in provisions like the Ninth Amendment."

paints himself as a Moses-like prophet about to descend from his CO Monticello ["little mountain" in Italian, H/T Joe] with tablets containing amendments to the Constitution that will restore America's best days with The Second Gilded Age.

But will originalists greet him with open arms following his response to my: "Query: Might the adoption of Section 1 on originalism be construed as an admission that the Constitution pre-Section 1 did not provide for how it was to be interpreted/construed?" with his:

" That would be correct. The folks who drafted and ratified the Constitution did not pay much attention to the judiciary."

suggesting that originalists have been wrong, perhaps even stupid., making it necessary to provide for retroactive effect for originalism via Section 1.

But our own Mr. Myth emerges like a constitutional stellina ["little star" in Italian] illuminating constitutional law's 220+ years: A CO miracle on a par with its legalization of recreational pot soon to be bookending rainbows of our restored Republic. CIAO!
 

Shag:

Original meaning interpretation was the standard when the Constitution was drafted and ratified. The founders saw no need for the Constitution to expressly require courts to use a standard which was already in place.

Today, the need is perfectly clear.


 

Were there "standards" for constitutions when the 1787 Constitution was framed? Isn't it amazing that originalism wasn't a topic in the Court until many, many years later? How many of CJ Marshall's opinions can be supported by originalism?? A national bank?
 

May we expect our own Mr. Myth to come up with yet another amendment, this time to respond to Will Baude's Op-Ed in the NYTimes "Could Obama Bypass the Supreme Court?" suggesting a response to a Court decision in favor of petitioners in King v. Burwell?
 

Shag:

May we expect our own Mr. Myth to come up with yet another amendment, this time to respond to Will Baude's Op-Ed in the NYTimes "Could Obama Bypass the Supreme Court?" suggesting a response to a Court decision in favor of petitioners in King v. Burwell?

I already anticipated your wish.

My first Amendment re-leashes the executive to reverse our budding dictatorship.

I am still working on the last section of the amendment, where I am taking Sandy's idea of a vote of no confidence and am attempting to make it work in our non-parliamentary system.

The problem with both impeachment and a vote of no confidence is the margin for enactment.

If the Constitution require a high margin like that required to convict after impeachment, a political party supporting dictatorship can block it t protect their president/dictator.

Unfortunately, the Democrats are rapidly becoming such a party. Recent Gallup polling found that a plurality of Democrats agree with Mr. Baude that their president should be able to ignore the courts.

https://thecitizenpamphleteer.wordpress.com/2015/02/21/yes-it-can-happen-here/

Conversely, if the Constitution requires only a majority vote of no confidence of the House and Senate to force elections, then we could become Italy with constantly changing governments.

 

So will our own Mr. Myth take aim at Article III's "case or controversy" provision? Will he specifically provide for judicial supremacy horizontally over the federal executive and legislative branches?

Our own Mr. Myth displays his usual animus towards President Obama and may even come up with even more colorful amendments. I accuse our own Mr. Myth of AUI (amending under the influence). I'm not so sure that Sandy is pleased by the reference to him by our own Mr. Myth.

But note that our own Mr. Myth continues to ignore his running of numbers on his proposed super majority reductions question posed to him.

Maybe at this Blog we need a "no confidence" vote on our own Mr. Myth's use of comments to enhance his upchucking work of friction in progress. Doesn't he have his own blog?
 

Shag:

Article II, Section 3 commands that the President "shall take Care that the Laws be faithfully executed."

Obama is already in violation of that command by ignoring the plain language of his own statute limiting taxpayer subsidies to "exchanges established by the States."

If/when the Supremes hold that "exchanges established by the States" actually mean "exchanges established by the States," Obama cannot decline to execute the law because all conceivable plaintiffs were not part of the suit.

Shag, doesn't any of this rampant lawlessness bother you as a former attorney?
 

I remain in active status as an attorney in MA, 61 years this fall.

Is our own Mr. Myth seeking a discussion of Article II, Section 3? Where was our own Mr. Myth during the 8 Bush/Cheney years on this topic? In particular where was he when that Administration lied about the reasons for invading Iraq?

By the Bybee [expletives deleted], what is the impact upon a President under Article II, Section 3 IF Congress does not provide sufficient funding for faithful execution? Perhaps our own Mr. Myth as a textualist thinks such funding is beside the point. But that's his simpletonian view of the Constitution. Perhaps Our own Mr. Myth would want Pres. Obama, in the manner of a recent Sen. Lindsey "If I Were President" Graham (Cracker, SCar) statement to send in the military to command Congress to provide the funds. So maybe our own Mr. Myth will reach into his magic amendment bag with an amendment proposing upon the President an ABSOLUTE obligation even if Congress fails to provide sufficient funds, including shutting down the government as Republicans have accomplished in the past.


While our own Mr. Myth is an attorney, and knows King v. Burwell is pending before the Court, he states:

"Obama is already in violation of that command by ignoring the plain language of his own statute limiting taxpayer subsidies to 'exchanges established by the States.'"

openly displaying his animus towards Obama BEFORE the Court has ruled on the matter in King v. Burwell. Yes, our own Mr. Myth enjoys playing judge and jury.

Our own Mr. Myth follows up with an "If/when" on King v. Burwell that suggests a forecast by him (and we all know how successful his prognostications have been [cue to BB] challenging the point of Will Baude's Op-Ed. But our own Mr. Myth might feel more secure pulling another amendment our of his magic amendment bag that would extend the "case or controversy" clause for the benefit of non-parties similarly situated to prevailing parties in a case or controversy.

And our own Mr. Myth still does not respond to this:

"But note that our own Mr. Myth continues to ignore his running of numbers on his proposed super majority reductions question posed to him."

Perhaps he fears a response would demonstrate his animus towards President Obama.
 

Shag:

"what is the impact upon a President under Article II, Section 3 IF Congress does not provide sufficient funding for faithful execution?"

The president enforces the law with every penny which Congress appropriates. No exceptions, waivers or royal dispensations for those the president favors.

BD: "Obama is already in violation of that command by ignoring the plain language of his own statute limiting taxpayer subsidies to 'exchanges established by the States.'"

Shag: openly displaying his animus towards Obama BEFORE the Court has ruled on the matter in King v. Burwell. Yes, our own Mr. Myth enjoys playing judge and jury.


You only need a passing knowledge of the English language to understand the phrase "exchanges established by the States" and to know that the President is openly violating this statutory provision. The only thing the Supreme Court can add is whether it approves of this lawlessness.

"Perhaps he fears a response would demonstrate his animus towards President Obama."

Have I ever shown an unwillingness to hold Mr. Obama to task for his various violations of the Constitution and laws of Congress?

I find dictatorship to be reprehensible. Why don't you?


 

[cue to BB]

# posted by Blogger Shag from Brookline : 3:14 PM


These poll numbers are GREAT news for John McCain!!!
 

Once again our own Mr. Myth does his "Dick-Tater" schtick. In effect he admits his animus towards President Obama. But he ducks and weaves on the Bush/Cheney 8 years when he was in lockstep with that Administration. How many died as a result of Obamacare as compared to the Bush/Cheney lies justifying the invasion of Iraq?

And our own Mr. Myth's:

"The only thing the Supreme Court can add is whether it approves of this lawlessness."

may be suggesting reversion to his "revolution as the only alternative ... " mode if the Court rules against the petitioners.
 

This post by Brian is a response to Jack Balkin's post on judicial review. Jack's post did not provide for comments. There have been extensive comments on Brian's post. Judicial review continues to be a controversial issue among legal academics beyond Brian and Jack. While I have issues with judicial review for reasons I have stated in comments, is there an alternative to judicial review? My next read (later today) will be Helen J. Knowles' "Remember, It is the Supreme Court that is Expounding: The Least Dangerous Branch and Popular Constitutionalism" may provide an answer. Larry Solum at his Legal Theory Blog provides a link to this short double-triple(?) spaced 15 pages. This paper is noted as: "Work in progress; please do not cite without author's permission." Green Bag had an interesting short article recently on the use of such limitations on "published" papers. But I don't have a problem with referencing it without comment. I may be in for a big surprise. But I have enjoyed other papers of Knowles in recent years.

One last point before this thread enters the Balkinization archives:

Our own Mr. Myth's hyperbolic paranoia is vividly on display in the course of this thread. But despite having his magic bag of amendments, he hasn't pulled out as yet an amendment that would address the fact that neither Article III nor the remainder of the Constitution utilize specifically the term judicial review. Hamilton and Madison have dueling views in the Federalist Papers on the role of the judiciary under the Constitution of 1787. Alas, Hamilton survived that duel but not his 1804 duel with almost-President Aaron Burr. (Query: Does the current interpretation of the 2nd A support dueling?)
 

The Constitution does not say in so may words that the federal courts can overturn congressional (or even state, which was a controversy into the 19th Century) statutes but Madison on down thought it followed from the text. Madison and Hamilton might have greatly disagreed later on, but they still agreed on that.

When Jefferson wrote to his friend Madison, e.g., after McCulloch v. Maryland etc. to complain about his troublesome cousin, Madison reaffirmed that he agreed with judicial review. The devil is how it was applied & he did disagree some there.

One way that the assumption was put into practice was the first Judiciary Act (which Marbury v. Madison found faulty in a limited way) where the Supreme Court was given limited jurisdiction. This is telling -- the SC did not have wide power under the law to hear cases, e.g., even if the lower court upheld governmental power.

But, if a state court (and contra Madison's wishes, the system put in place was thought to put most of the responsibility there, in part by requiring state judges to swear an oath to uphold the Constitution) did strike down a law on constitutional grounds -- practice judicial review -- the Supreme Court was given jurisdiction to take the case.

This is all something of a thought experiment since judicial review has wide acceptance, text alone is not the only way to determine meaning, etc. But, as one of my comments noted, there are lots of ways how it can be applied. For instance, it is not presumptive that when Congress enforces the 14th or 15th amendments that they are limited by the floor set forth by past court cases. If, e.g., Congress determines as an act of discretion that disabled people should get protections under the Equal Protection Clause, it very well might do that even if the Supreme Court deemed that not obligatory under the text.
 

ETA: My final proposal in fact clashes with current doctrine (see, e.g., Kimel v. Florida Board of Regents, but the closely decided vote there underlines there is no one clear "right" answer there.


 

Joe, when you reference " ... Madison on down ... " are you referring to Framers, Ratifiers, or persons coming after them? Can you clarify? The records of convention proceedings don't say much about Article III or judicial review in particular. (I haven't checked Madison's notes on the Convention that came to light decades later - and which may have been "edited" by him in the interim. We do have Madison's and Hamilton's views in the Federalist Papers. But their views are not necessarily indicative of the views of a substantial number of the Convention delegates. Focusing on these two delegates is a problem in assessing the intent of the Framers (as Paul Brest has pointed out most effectively in his critique of "original intent" originalism).

Today, judicial review is accepted by many. But popular constitutionalism has made some inroads. Knowles' paper looks at judicial review and is critical of popular constitutionalism. (She does not go into the history of judicial review.) Her focus on Bickel's book and articles reveals her view that Bickel believed in judicial review but was concerned with the concept of judicial supremacy, resulting perhaps with Bickel's "passive virtues" that might limit the course of a court's judicial review. Regarding Bickel's "passive virtues," Obamacare and King v. Burwell came to mind, although Knowles did not make such a suggestion in her draft paper.

Perhaps Mark Tushnet might post on the question of popular constitutionalism at this Blog.
 

As always, a "for what it is worth" tag should be provided given my views on original understanding.

And, you are right to note that the issue did not get that much play. Judicial review was not a major issue of the day. But, yes, various people who referenced the subject in those areas did assume it. Charles Beard provides one early summary of the evidence.

Brett's article is to my understanding a fairly standard discussion on how it was accepted by federal judges in the 1790s. The justices, e.g., upheld a carriage tax as an indirect tax, but as with those in the Republican party of the day that supported a judicial review of the law, they assumed power to strike it down if necessary.

The kernel of support here along with the shallow practice in place doesn't really tell us much about its application really. There are a range of hard questions there. And, there were some dissenters in respect too.

So, if someone wants to challenge the presence of judicial review, they are not w/o a basis. But, it seems as much found in the text as various things. Plus, it seems to be partially a matter of basis understanding of republican thought. This gave the text an assumed meaning not compelled by its terms.
 

Joe's closing sentence:

"This gave the text an assumed meaning not compelled by its terms."

can perhaps be illustrated by Heller handed down by the Court (5-4) some 200+ years after the bill of rights was ratified.

By the Bybee [expletives deleted}, Larry Solum gave Ms. Knowles' paper his "Highly Recommended!" I concur without asking her. She has the ability to writing very concisely and be readable at the same time. She has written some excellent short articles on originalism in recent years, pointing out that the Court's historical references in opinions/decisions can at times be wanting.
 

Here's a teaser, the very short Conclusion:

"Is there a role for originalism in the interpretation of the other parts of the Constitution that do not include an explicit reference to originalism, including to determine whether states can prohibit same sex marriage? In order for the constitutional text as a whole to be given its true meaning, originalism cannot strictly govern what equal protection and other parts of the Constitutions outside of the Seventh Amendment mean."

to Suja A. Thomas' short paper (10 pages single spaced) "Text-Bound Originalism (And Why Originalism Does Not Strictly Govern Same Sex Marriage." The abstract and a link is provided at the Originalism Blog. The discussion of the 7th A is key. The author's view seems to be that the Framers specifically framed the 7th A with text employing concepts of originalism fixation, but not elsewhere in the Constitution.
 

Speaking of amending the Constitution, Larry Solum has a post at his Legal Theory Blog on Jonathan L. Marshfield's "Decentralizing the Amendment Power" with an enticing abstract. Alas, it's 67 pages in length, so I haven't downloaded the paper as yet. Query: Is our own Mr. Myth an example with his magic amendment bag?
 

I'm not convinced that the 7A is quite as restrictive as that article suggests.

The "preserving" of the "right to jury" as truly in place in 1787 is not really possible given how much has changed since then. In practice, even if certain basic rules remain, it will not be exactly the same.

Also, a key genius of the "common law" is its flexibility over time. The "rules of the common law" is a general command, but it is not really more "originalist" as far as it goes.

Anyway, in this important season for Jews and Christians, how to properly apply old texts and the changing ways this is done (the same sex marriage issue shows this -- both the Presbyterian Church and various federal courts have set new rules in place recently applying old texts to current understandings) continues to be a matter of deep debate and contemplation.

I will end therefore with a discussion RBG helped formulate in honor of Passover:

http://blogs.ajws.org/blog/2015/03/18/justice-ruth-bader-ginsburgs-passover-reflection/?utm_source=ajwshomepage&utm_medium=click&utm_campaign=ajwshomepage
 

Joe's:

"Anyway, in this important season for Jews and Christians, how to properly apply old texts and the changing ways this is done ... "

has been the historic (and philosophic) role of hermeneutics, perhaps a role also for applying not so old texts.

But I question Joe's reading of Thomas' paper:

"Also, a key genius of the 'common law' is its flexibility over time. The 'rules of the common law' is a general command, but it is not really more 'originalist' as far as it goes."

based upon the Court's interpretation of common law in the 7th A as being English common law back in the timeframe of 1791 (aka originalism fixation), not the flexibility of the common law since, including in the states.

While I'm not convinced with Thomas' approach, perhaps it will be further explored. Can we expect a response from originalists? If Larry Solum were to post on this paper at his Legal Theory Blog, I would anticipate an editorial comment.


 

I think it might be more a matter of textualism -- the article appears to focus on the text ("preserving" etc.) -- but granting how the courts have applied it, they might be wrong.

The combination of religious and legal interpretative might be best seen by the writings of John Noonan, now a senior federal judge. I, e.g., glanced at his 500+ page book on the Jewish and Catholic understanding of contraceptives. Impressive work.
 

I just finished reading a terrific article by Robert Post and Amanda Shanor "Adam Smith's First Amendment" focusing on the speech clause of the 1st A and the trend of commercial speech in the courts to diminish regulations. The article is a short 18 pages single spaced. A link is available at Larry Solum's Legal Theory Blog with Solum's "Highly Recommended." Here are the article's closing two sentences:

"Because speech is everywhere, Sherman's procrustean aspiration to subject all speech to a single set of rules can lead only to doctrinal chaos. Worse, it threatens to revive the long-lost world of Lochner and destroy the very democratic governance the First Amendment is designed to protect."

That's Paul Sherman (see note 26) who has an article in the same issue of the Harvard Law Review Forum as the Post et al article. I haven't checked yet whether Sherman's article is available via SSRN.

Obviously the 1st A is taking on a greater deregulatory role of businesses by conservatives not only via the speech clause but also by means of the free exercise clause (Hobby Lobby).
 

Paul Sherman's article "Occupational Speech and the First Amendment" (19 pages) is available at:

http://cdn.harvardlawreview.org/wp-content/uploads/2015/03/vol128_Sherman.pdf

I have downloaded the article and plan to read it later today.
 

A recent thread at Dorf on Law regarding same sex marriage led me to note that the "right to marry" is not to be judged in a vacuum. This is partially why it is not rank arbitrariness to protect same sex marriage but not polygamy.

As Burt Neuborne (who was recently interviewed by Justice Sotomayor and shamed a bit by Floyd Abrams as quoted by Concurring Opinions) notes, "no" in the 1A cannot and never was taken literally.

How we regulate is hard & some of the more libertarian approaches to "commercial speech" etc. address reasonable concerns. For example, used to be you could ban abortion advertising. Not providing truthful information such as alcoholic content on beer labels is problematic. With apologies to Holmes, the free market, up to a point (underlined!), does reflect our constitutional values.

And, commercial or professional speech should not be a means to skip over basic rules -- the ideological regulation of abortion services here as shown in a recent 4CA case involving ultrasound information comes to mind.

A one side fits all rule is not appropriate, all the same, even if we recognize protection of "commercial" speech is important.
 

ETA: One balance here addressed by one of the articles is disclosure rules, which is a form of compelled speech. Some are against that sort of thing. Prof. Adler of the four words King v. Burwell fame has written against requirements of GMO disclosures since they are misleading somehow. Justice Thomas (contra Scalia) is against it is campaign regulations.

I'm sympathetic to the "one rule" brigade here. My heart doesn't really like limits on speech. But, it doesn't work. There are regulations, so we have to do the hard work regarding drawing lines. Allow some limits, e.g., in schools w/o penalizing kids for holding banners with silly messages about marijuana.
 

I have read Paul Sherman's article. It contains critiques of the Post et al article as did the latter's article of the former. [I enjoyed and appreciated the interplay.] The issues raised remain to be resolved. The interplay of libertarian speech concepts are noted by Sherman as demonstrated by the Court's 1st A decisions starting in the 1990s. Post et al stress potential returns to Lochner era economic views with Sherman's broad proposals for occupational speech. The 1st A supports lies (not all lies are libelous). With the Internet, there are many opportunities for garbage (lies) dumps by so many without actual clean-up. The 1st A provides rights (including to lie) without speakers' responsibilities. We have to await what the Court may do on the issues raised by these articles. Will there be a "Wild, Wild West" of the 1st A to match a similar potential for the 2nd A?
 

I'm unsure about its argument, but regarding the 7A issue, she also provides it here:

http://www.acslaw.org/acsblog/why-originalism-does-not-strictly-govern-same-sex-marriage
 

On the off-topic topic on this thread of amending the Constitution, James E. Fleming has a short (5 pages single spaced) essay "Is It Time to Rewrite the Constitution? Fidelity to Our Imperfect Constitution." (Larry Solum's Legal Theory Blog provides a link in it's post on this essay with Solum's "Highly Recommended." The essay may serve as a tease to check out publications noted in footnotes by posters at this Blog and from the conservative/libertarian side.

It's not clear to me that there is any strong momentum for a constitutional convention.
 

On the off-topic topic of originalism on this thread, Joel Alcea's essay "Originalism and the Rule of the Dead" is highly critical of both Randy Barnett and Jack Balkin. Alcea closes with this:

"Legal conservatives would do better to hold hard to the principles that have served them well, to safeguard that which it has been their special duty to defend. They would do better to insist on the rule of the dead."

Alcea's critique does not include all originalists in the "New Originalism" or the "New, New Originalism;" just Randy and Jack. Randy has long conservative chops. But Alcea is critical of Randy's individual sovereignty of the living: "And just as the logic of living constitutionalism--like any theory that accepts the dead-hand argument--eventually leads to the cashiering of the Constitution altogether, Barnett's philosophical assumptions leave him but a step away from a libertarian version of living constitutionalism." [At least libertarians would be showing good taste!] Jack is being critiqued because he is a liberal and not a really real originalist.

Alcea does not get into the "New" or "New New Originalism" with its interpretation/construction distinctions when the meaning of the Constitution at the time of originalism's fixation is not clear. I wonder why?

A link to Alcea's essay is available at the Originalism Blog. The print version is a tight 7 pages. There are no footnotes.
 

Further off-topic, this time on Sen. Ted Cruz's recently announced presidential run that just might be a short cruise (Tom-foolery intended). It has since surfaced that Cruz has been listening to country music (rather than classical) since 9/11. This reminded me of the late renowned jazz drummer Buddy Rich being wheeled into surgery being asked by the nurse if he had any allergies; Rich responded: "Country music!"

Alas, we don't have Buddy with us, other than in spirit, so we have to "Imagine" his rim shots as Cruz provides his GOP base with his Canadian Crude.
 

Some good Dixie Chicks music would do Cruz good. Apparently, he too isn't really ready to make nice.

With apologies to Mr. Trump, yes, he's qualified to run:

http://www.vox.com/2015/3/23/8275573/ted-cruz-canada


 

With the governor of Alabama supplying a brief against marriage equality (found on the amicus page on the SCOTUS website), it might be helpful to again note that studying history does not just get you places where conservatives like to go:

http://sblog.s3.amazonaws.com/wp-content/uploads/2015/03/14-556-nyuell.pdf

History is informative but we the living choose how to make some more of it.
 

As a follow up to my Joel Alcea essay comment, check out John O. McGinness' short blog post "The Judiciary Should Interpret, Not Construe, the Constitution," to which a link is provided at the Originalism Blog. McGinniss directly attacks the New Originalism whereas Alcea critiques two of its adherents (who diverge in many ways). So it looks like originalism continues to evolve, and if this evolving continues beyond this current attack, it may segue into living constitutionalism. Both Alcea and McGinnis seem to believe that the dead hand should rule.
 

There is as Shag knows a discussion now going on at Dorf at Law over a book and review regarding a book on the "libertarian" Constitution.

To prevent over-comment there, I will provide this short article on the 9A by the professor who wrote the review discussed:

http://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=2751&context=cklawreview

I also think the overall logic of the 9A == at least I think this would be true == assumes not a "fixed" set of rights, since we are dealing with an open-ended provision setting forth a "rule" that in part rests on the development of human knowledge and experience.
 

Joe, thanks for the link. It is my next read, if not this morning then after the Thursday lunch with (mostly) liberals. I'm aware of the liberal/conservative divide over the 9th A and unenumerated rights. Overhanging this is the role of originalism in interpreting/construing the Constitution. The latest movement in originalism is an attack on the New - and New New Originalism's interpretation/construction construct noted in articles I have referenced. I await eagerly responses from Randy Barnett and Jack Balkin, as well as Larry Solum and Keith Whittington. Perhaps non-originalists are holding back, also awaiting such responses. Alcea and McGinniss are ratcheting back the evolution of originalism to keep the dead hand on the throttle. Perhaps the counter to Alcea and McGinniss is progressive originalism.
 

Over at the Originalism Blog Michael "I'm Not Rappaport" Ramsey has a post "Ted Cruz and Originalism as (Part of) Our Law" that closes with this:

***
Now this does not necessarily show that originalism is our law (as Will Baude has argued), but it does strongly suggest that originalism is at least a part of our law -- enough that leading members of the "legal policy elite" think it makes their case on this subject.

***

But Ramsey does not identify the version of originalism that makes the case on Cruz's status as natural born. Donald T-Rump apparently disagrees as he is considering jamming into the GOP Clown Car for 2016.
 

Prof. Sherry's article to which Joe provided a link was quite interesting. Its timeframe was 1988. Originalism, especially as espoused by Michael McConnell, was challenged. McConnell is an originalist. Back in 1988 originalism had been shifting from original intent to original public meaning/understanding. But originalism evolved particularly after the 21st century got underway with the "New Originalism" and the "New, New Originalism", bringing along the disparate Randy Barnett and Jack Balkin. As I have noted, these newer versions of originalism are under recent attack by Joel Alcea and John McGinnis. Presumably McConnell is in the camp of the latter. I have not as yet seen responses to Alcea's and McGinniss' salvos as they backtrack with the dead hand rule. So a lot has changed since Sherry's 1988 paper (as well as other papers offered in that issue of the Chicago-Kent Law Review). Perhaps I should get more into Sherry's more recent article referenced by Mike Dorf at his blog. In the meantime, I hope to hear from Randy, Jack and other New and New, New originalists in response to Alcea and McGinnis. Otherwise originalism will be stalled and perhaps revert to its original original intent mode.
 

This comment has been removed by the author.
 

The particular time period she was writing in is noted, but the article has certain themes that continue to be in her work.

The overall pragmatic approach is seen, e.g., in a 2002 book she co-wrote entitled "Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations" and and the authors later try to provide details in the 2008 "Judgment Calls." She has also wrote a lot on there being unenumerated rights, enforced by judicial review, and how this goes back to the Founding.

How this fits into the originalism wars & how the changes led to some sort of altering of her framing is unclear. As she noted in the book review Dorf references, she has been speaking out on these issues for decades. So, other articles Shag reads probably now and again cite her in some fashion.
 

Richard Epstein, author of "The Classical Liberal Constritution" critically reviewed by Prof. Sherry, has a critical response to the review. I planned to download and print it but was relucatnt as I am low on toner that I expect to be delivered Monday. I started to read the response on my desktop but it was too long for me to do so in comfort. I did read enough, however, to note a tad of anger in the response. (The review provides a link to the response.)

Via Google, I have located Kurt Lash's "The Lost Original Meaning of the Ninth Amendment" available at:

http://www.constitution.org/9ll/schol/kurt_lash_lost_9th.pdf

It is 90 pages long and was published in 2004. With the incoming toner I may print it out. Lash has even more on the interplay between the 9th and 10th As in recent years. Perhaps Sherry and/or Epstein cite Lash. There always seems to be newly discovered lost evidence.
 

"There always seems to be newly discovered lost evidence."

Telling point. Appeals to "history" and "tradition" provides a lot of material for various views.

I hope you get a discount on printing supplies. Too bad, ala "Better Call Saul," you cannot just type in a code and get it all free.


 

Speaking of "appeals to history," today's NYTimes provides a theatre review: "'Hamilton' Puts Politics Onstage and Politicians in Attendance," by Jennifer Schuesser. There is an interesting comparative of VP Cheney (who attended and whose wife said he enjoyed it) with VP Aaron Burr.

Also in today's NYTimes: "Review: 'The Originalist,' About Scalia, Opens in Washington" by Charles Isherwood, which perhaps may be somewhat founded in "law office" history, without the hip-hop. I find the use of the definite article in the title offensive and the late Robert Bork might agree while spinning in his grave. The title lacks the the flavor, nuance and context of "The Natural."

Perhaps if Mel Brooks reviewed both plays in the guise of a yiddish Ben Franklin, he might have come up with a connection of Scalia to Dick Cheney, in the manner of this post of mine at the now defunct de novo blog some years back (since reprised at this Blog on appropriate occasions):

"JE NE RECUSE!"

In that duck blind
Lady Justice unveils
Her traditional blindfold
For these bonding males:
Scalia and Cheney,
Shotguns at attack,
Taking aim at Justice,
"QUACK, QUACK, QUACK!"
Posted by: Shag from Brookline at March 23, 2004 07:28 AM

I'm humming Sam Cooke's "Don't Know Much About History ... " toe-tapping to what I imagine the "Hamilton" hip-hop rather than Scalia's La Scala arias. I imagine that the fictional Scalia in "The Originalist" will be portrayed by the real life Scalia in upcoming oral arguments. (Over the years, I have made the observation that real cops imitate fictional TV and movie cops much more than vice versa.)




 

Speaking more seriously of "appeals to history" and back on-topic on judicial review, I am in the process of reading Robert J. Steinfeld's "The Rejection of Horizontal Judicial Review During America's Colonial Period" from a special issue of CAL 2:1: New Historical Jurisprudence. A post on 3/26/15 at the Legal History Blog provides links to this article and others in that special issue. The article is 20 pages in length but is slow reading for me because of the font and lightness of the print. So far it provides a good background in the Colonies regarding the not specifically mentioned concept of judicial review in Article III or the rest of the Constitution. I may comment after completing my reading.
 

For another review of "The Originalist," check out:

http://www.slate.com/articles/news_and_politics/jurisprudence/2015/03/the_originalist_the_new_play_about_antonin_scalia_and_his_lesbian_law_clerk.html

at Slate by Mark Joseph Stern. (A link is available at the Originalism Blog.) Query: Does this play demonstrate that fact is stranger than fiction? Can we expect some "robing room" jibes from fellow/lady Justices (assuming no separate robing rooms), especially the more originalist doubting Thomas?
 

I finished reading Steinfeld's article, which was difficult due to eyesight issues. It provides quite a bit of history of Colonial days in America and the concept of judicial review. Bottom line seems to be that horizontal judicial review in the Colonies was a no-no for the most part. That's the foundation for judicial review AFTER independence in America in the late 18th century. Article III makes no specific reference to judicial review; nor does any other part of the Constitution. The Supremacy clause of the 1787 Constitution does not provide for judicial supremacy over the horizontal (federal) executive and legislative branches; nor does any other part of the Constitution. (The Supremacy clause also does not specify executive or legislative supremacy over the other horizontal (federal) branches.)

The issue of horizontal judicial review today is not fully resolved. Perhaps Jack Balkin, Brian Tamahaha and others will continue the discussion.
 

Today's NYTimes includes a review of a new TV series "Hot Bench," created by TV's Judge Judy (who, I understand, makes more money than all of the Justices combined). I haven't seen it as yet and don't plan to. But with the theatre's apparently successful "The Originalist," how about a "Justice Punch and Judge Judy" show aimed at the Sesame Street audience to show the kiddos how justice does - and does not - work.? Let's see, whom might we cast as Justice Punch?
 

This post and thread is close to be being archived. On the off-topic originalism in some of my comments, I now note that Randy Barnett has responded, finally, to Joel Alicea's critique of him. It's at VC: "Am I 'imperiling' originalism? A reply to Joel Alicea." I expect that Alicea will counter once he comes out of the woodshed Randy sent him to. But I note that in his response Randy did not openly discuss the new and new, new originalism interpretation/construction mode. Query: Is the dead hand rule of Alicea violated by the application of the "construction" mode?

Will Jack Balkin also respond to Alicea substantively (hopefully not robotically)?

Here's another off-topic: Orin B. Kerr's "The Influence of Immanuel Kant on Evidentiary Approaches in Eighteenth Century Bulgaria." This short (3 pages) paper demonstrates that someone at the VC has a sense of humor. Can we expect a counter from CJ Roberts?

Links to Randy and Orin's papers are available at the VC.
 

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