Coming out of my cave into the daylight again after finishing my book ("Radicals in Their Own Time: Four Hundred Years of Struggle for Liberty and Equal Justice in America," Cambridge Univ. Press) and submitting it to the publisher week before last. Quite the relief.
I'm pleased with how it came out - should be out in bound book form in December or January.
Friday, May 21, 2010
Sunday, March 21, 2010
Framers Believed in Virtuous (ie, Humane) Government
The Tea Party movement is not completely cuckoo. In fact, its focus on the Constitution should be welcomed by all Americans.
When tea partiers inquire closely into the Constitution’s original intent, they will find what they expect to find: it was created, first, to protect individual liberty from overzealous government.
Yet they may be surprised when they learn that Franklin, Washington, Hamilton, Adams, Jefferson and Madison – as bitterly contentious in politics as present-day politicians (if not more so) – all agreed on the one bedrock principle upon which any good government depended: VIRTUE – or, literally, “Public Spirit.”
As Thomas Paine (Common Sense, The Rights of Man, etc.) insisted: “Public good is not a term opposed to the good of individuals. On the contrary, it is the good of every individual collected. It is the good of all, because it is the good of every one.” Hence Paine advocated progressive taxation, aid to the unemployed, and free public education.
Healthcare-for-all, anyone?
When tea partiers inquire closely into the Constitution’s original intent, they will find what they expect to find: it was created, first, to protect individual liberty from overzealous government.
Yet they may be surprised when they learn that Franklin, Washington, Hamilton, Adams, Jefferson and Madison – as bitterly contentious in politics as present-day politicians (if not more so) – all agreed on the one bedrock principle upon which any good government depended: VIRTUE – or, literally, “Public Spirit.”
As Thomas Paine (Common Sense, The Rights of Man, etc.) insisted: “Public good is not a term opposed to the good of individuals. On the contrary, it is the good of every individual collected. It is the good of all, because it is the good of every one.” Hence Paine advocated progressive taxation, aid to the unemployed, and free public education.
Healthcare-for-all, anyone?
Wednesday, March 3, 2010
McDonald v. Chicago - Yesterday's Oral Argument
Judging from yesterday's oral argument in McDonald v. Chicago (the case discussed here previously involving whether either the Fourteenth Amendment Privileges or Immunities Clause or Due Process Clause applies the Second Amendment to the States), it seems a majority of the U.S. Supreme Court will use the standard Due Process route to apply the right to bear arms to the States.
Justice Antonin Scalia - who claims to be beholden to the text and history of the Constitution - belittled the arguments claiming that the text and history of the Constitution require consideration of the Privileges or Immunities clause. When Alan Gura, the attorney arguing the case, began his discussion of Privileges or Immunities, Scalia pointedly asked him whether arguing Privileges or immunities was "easier" than the due process argument. "[I]f the answer is no," he continued, "why are you asking us to overrule 150, 140 years of prior law?" Scalia also said that "What you argue is the darling of the professoriate"; and speculated that Gura is "bucking for a place on some law school faculty."
Scalia brays loudly about the importance of original intent; yet when serious original intent arguments come before him that would be contrary to his narrow, cramped view of individual liberty, he is unwilling to listen. What a hypocrite.
Justice Antonin Scalia - who claims to be beholden to the text and history of the Constitution - belittled the arguments claiming that the text and history of the Constitution require consideration of the Privileges or Immunities clause. When Alan Gura, the attorney arguing the case, began his discussion of Privileges or Immunities, Scalia pointedly asked him whether arguing Privileges or immunities was "easier" than the due process argument. "[I]f the answer is no," he continued, "why are you asking us to overrule 150, 140 years of prior law?" Scalia also said that "What you argue is the darling of the professoriate"; and speculated that Gura is "bucking for a place on some law school faculty."
Scalia brays loudly about the importance of original intent; yet when serious original intent arguments come before him that would be contrary to his narrow, cramped view of individual liberty, he is unwilling to listen. What a hypocrite.
Sunday, February 28, 2010
Olympics Idealism
What a pleasure watching the Vancouver 2010 Winter Olympics over the last couple weeks. It's easy to be cynical these days about many things - even about the commercialism and politics surrounding the Olympics - but to see young men and women and spectators from all over the world coming together to participate in sport with such unadorned pleasure and fellowship.... well, it gives one hope for a better world.
Wednesday, February 10, 2010
Another Response to Citizens United: Remove Supreme Court Appellate Jurisdiction
Much has been written about the Supreme Court's Citizens United opinion overruling a century of precedents and statutes designed to curb corporate campaign spending. Many have offered suggestions on ways to counter the decision's effects; but another possibility - one of the oldest on the books - is also available: Congress could constitutionally remove campaign finance issues from the Supreme Court's appellate jurisdiction.
Every first-year constitutional law student learns that under the Constitution's Article III, section 2 "Exceptions Clause," Congress has complete authority to limit the sorts of cases the Court may hear on appeal: "[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
As the Court stated in Ex Parte McCardle in 1869: "We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words." Similarly, in 1882 it observed, "[A]ctual [appellate] jurisdiction is confined within such limits as Congress sees fit to describe."
Over one hundred bills have been introduced in Congress to limit the Supreme Court's appellate jurisdiction over various topics just since the 1940s. As recently as 2005, for example, the House passed bills precluding judicial review of the Defense of Marriage Act and of the constitutionality of the Pledge of Allegiance (neither bill passed in the Senate).
Some may object that Congress's use of the Exceptions Clause threatens judicial independence. This is a valid concern. But when the Supreme Court itself indiscriminately infringes on policy decisions appropriately left to the elected branches, Congress is justified in removing some of the Court's independence. That is the very purpose of the Exceptions Clause, after all - it was placed in the Constitution for a reason.
Some may say, moreover, that removing the Court's appellate jurisdiction in campaign finance cases is an instance of trying to close the door after the horse is already out of the barn. True enough - Citizens United is on the books. But removing the Court's appellate jurisdiction in future campaign finance cases will prevent the Court from interfering with Congress's future efforts to restore its century-long effort to curb the negative effects of massive infusions of corporate cash into political campaigns.
In short, Congress has the constitutional authority to limit the Supreme Court's appellate jurisdiction in campaign finance cases. While use of the Exceptions Clause should not be undertaken lightly - judicial review is vitally important for checking majority excesses - when the Supreme Court so egregiously oversteps its bounds as it did in Citizens United, Congress's exercise of its Exceptions clause power is entirely appropriate.
Every first-year constitutional law student learns that under the Constitution's Article III, section 2 "Exceptions Clause," Congress has complete authority to limit the sorts of cases the Court may hear on appeal: "[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
As the Court stated in Ex Parte McCardle in 1869: "We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words." Similarly, in 1882 it observed, "[A]ctual [appellate] jurisdiction is confined within such limits as Congress sees fit to describe."
Over one hundred bills have been introduced in Congress to limit the Supreme Court's appellate jurisdiction over various topics just since the 1940s. As recently as 2005, for example, the House passed bills precluding judicial review of the Defense of Marriage Act and of the constitutionality of the Pledge of Allegiance (neither bill passed in the Senate).
Some may object that Congress's use of the Exceptions Clause threatens judicial independence. This is a valid concern. But when the Supreme Court itself indiscriminately infringes on policy decisions appropriately left to the elected branches, Congress is justified in removing some of the Court's independence. That is the very purpose of the Exceptions Clause, after all - it was placed in the Constitution for a reason.
Some may say, moreover, that removing the Court's appellate jurisdiction in campaign finance cases is an instance of trying to close the door after the horse is already out of the barn. True enough - Citizens United is on the books. But removing the Court's appellate jurisdiction in future campaign finance cases will prevent the Court from interfering with Congress's future efforts to restore its century-long effort to curb the negative effects of massive infusions of corporate cash into political campaigns.
In short, Congress has the constitutional authority to limit the Supreme Court's appellate jurisdiction in campaign finance cases. While use of the Exceptions Clause should not be undertaken lightly - judicial review is vitally important for checking majority excesses - when the Supreme Court so egregiously oversteps its bounds as it did in Citizens United, Congress's exercise of its Exceptions clause power is entirely appropriate.
Friday, January 29, 2010
McDonald v. Chicago - Essay in Cardozo Law Review de novo Online Journal
The Cardozo Law Review de novo online journal just published my essay entitled "The Potentially Expansive Reach of McDonald v. Chicago: Enabling the Privileges or Immunities Clause," in a feature it entitles "Firearms, Inc." The essay may be seen here.
The essay briefly reviews the sad history of how the Supreme Court buried the Privileges or Immunities clause in 1873, just five years after its birth; then offers a possible doctrinal approach were the Court to move forward in finally giving proper effect to the Privileges or Immunities clause.
The essay briefly reviews the sad history of how the Supreme Court buried the Privileges or Immunities clause in 1873, just five years after its birth; then offers a possible doctrinal approach were the Court to move forward in finally giving proper effect to the Privileges or Immunities clause.
Saturday, January 23, 2010
Health Care; Corporate Speech Case
I'm on deadline trying to finish a book, but just a few thoughts about the Massachusetts election and the Supreme Court corporate speech case:
-The Congressional Democrats' incompetence. After last year's election the Democrats controlled both houses of Congress, WITH a filibuster-proof 60% majority in the Senate; and yet, they were unable to get their s**t together enough to pass a healthcare bill. And now that they've lost their 60%, they're folding up like a cheap tent - failing to recognize they were elected to make meaningful change. In the face of the criticism from obstructionist Republicans, they cave. If Democrats couldn't get it done under these conditions, they'll never get it done - and they'll deserve to be swept out of office in the next elections.
On this topic see also Paul Krugman in the Times in "Do the Right Thing":
"A message to House Democrats: This is your moment of truth. You can do the right thing and pass the Senate health care bill. Or you can look for an easy way out, make excuses and fail the test of history.... Ladies and gentlemen, the nation is waiting. Stop whining, and do what needs to be done."
-Corporate Speech Case: Thursday's Citizens United opinion by the Supreme Court entirely distorts the First Amendment by extending broad free speech principles to corporations. NOTHING in the Constitution extends constitutional rights to corporations. Over 100 years ago the Court (erroneously) extended the definition of the word "person" in the 5th and 14th amendment Due Process clauses to apply to corporations; and, ever since, we've had many anomalous court decisions as a result. The Citizens United case is the logical endpoint of that doctrine - and now corporations, with their disproportionate money-making capabilities, will be able to spend without limit in political campaigns.
Think about it - we all know how powerful any message sent through the broadcast media can be. Ordinary individuals simply do not have the resources to compete in this forum, so the result of corporations (which naturally favor - surprise! - conservative Republican viewpoints) having no limits on campaign spending will be to create an unlevel, skewed playing field.
It's disingenuous for the Court to say that meaningful limits on speech violate the First Amendment. Even assuming the ludicrous that a corporation is a “person” in the fullest constitutional sense, all of any person’s constitutional rights are subject to reasonable limits so long as the limits are narrowly tailored and serve a compelling governmental purpose – a cardinal principle the Court chooses to ignore in Citizens United.
-The Congressional Democrats' incompetence. After last year's election the Democrats controlled both houses of Congress, WITH a filibuster-proof 60% majority in the Senate; and yet, they were unable to get their s**t together enough to pass a healthcare bill. And now that they've lost their 60%, they're folding up like a cheap tent - failing to recognize they were elected to make meaningful change. In the face of the criticism from obstructionist Republicans, they cave. If Democrats couldn't get it done under these conditions, they'll never get it done - and they'll deserve to be swept out of office in the next elections.
On this topic see also Paul Krugman in the Times in "Do the Right Thing":
"A message to House Democrats: This is your moment of truth. You can do the right thing and pass the Senate health care bill. Or you can look for an easy way out, make excuses and fail the test of history.... Ladies and gentlemen, the nation is waiting. Stop whining, and do what needs to be done."
-Corporate Speech Case: Thursday's Citizens United opinion by the Supreme Court entirely distorts the First Amendment by extending broad free speech principles to corporations. NOTHING in the Constitution extends constitutional rights to corporations. Over 100 years ago the Court (erroneously) extended the definition of the word "person" in the 5th and 14th amendment Due Process clauses to apply to corporations; and, ever since, we've had many anomalous court decisions as a result. The Citizens United case is the logical endpoint of that doctrine - and now corporations, with their disproportionate money-making capabilities, will be able to spend without limit in political campaigns.
Think about it - we all know how powerful any message sent through the broadcast media can be. Ordinary individuals simply do not have the resources to compete in this forum, so the result of corporations (which naturally favor - surprise! - conservative Republican viewpoints) having no limits on campaign spending will be to create an unlevel, skewed playing field.
It's disingenuous for the Court to say that meaningful limits on speech violate the First Amendment. Even assuming the ludicrous that a corporation is a “person” in the fullest constitutional sense, all of any person’s constitutional rights are subject to reasonable limits so long as the limits are narrowly tailored and serve a compelling governmental purpose – a cardinal principle the Court chooses to ignore in Citizens United.
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