The Onion on an Open Constitution

Originalism Mainstream?

This article by Akhil Amar at Slate is a paean to Originalism, which, he is claiming, is not hostile to liberal views.

It is interesting to consider that, as Brennan feared in the Supreme Court's ruling on the extent of 7th amendment jury right, the Court could become a historical debate club.

Anyone who favors the restraint imposed by textualism must welcome this potential shift of the terrain of battle.

Roberts' "Detachment"

This morning on This Week, George Will pointed out some truly amazing excerpts from Dianne Feinstein’s press release explaining her opposition to Judge Roberts. Here is one such gem:

And I asked him about end of life decisions – clearly, decisions that are gut-wrenching, difficult, and extremely personal. Rather than talking to me as a son, a husband, a father – which I specifically requested that he do. He gave a very detached response.

To quote Will, What in the Name of James Madison does that have to do with judging? I guess Feinstein wanted Roberts to emote about “poor Joshua” in the tradition of Justice (I use this term loosely) Blackmun. The ideal of the judge as a detached decision maker- applying reason, history and text to particular facts to particular factual circumstances- was lost on the Senator.

Aristotle once explained that “The law is reason, free from passion.” What this quotation means is not that human beings should not be passionate about law, or that legal results cannot give us either joy or sadness. Rather that the law should be applied to each person in a fair, impartial and dispassionate way. This is the essence of the rule of laws, not men.

Sacrificial Lamb for O'Conner Seat?

Redstate is suggesting that Bush might put up a sacrificial lamb for O'Conner's seat.

Interestingly, I'm told the White House is more and more leaning toward a sacrifical lamb to call that bluff. They'll put up a good conservative, have the Dems vote against the nominee, and then put up someone else with similar views daring the Dems to block the second nominee too.

I just hope that if Bush is going to try this that he first puts up Brown. I would hope that she would get through, but if not, at least it would be interesting and help the second nominee get through.

Appointment of Justices

I would be interested to hear what others have to say regarding the proper (as opposed to constitutionally required) method for the appointment of justices to the Supreme Court.

Until the last few years, for instance, it was the tradition that senators would defer to the president on the basis of the jurisprudential philosophy of the nominee. Justices Ginsburg and Breyer got votes from most Republicans. Justice Thomas was approved by a Democrat-controlled Senate and such opposition as he got was largely premised on his fitness, though his views did receive considerable criticism. At the ACS debate a couple of weeks ago, both Professors Tushnet and Barnett agreed that the Republican votes in favor of Clinton's nominees was an error.

Some claim that this deference is constitutional in nature: the Congress is bound to allow the president to select amongst qualified candidates. To make this more clear, and in the context of the filibustering of judicial nominations, a Senate rule which required a president to first consult with senators before advice and consent would, according to this thinking, be unconstitutional. To convert senatorial votes on nominees into policy approval would subvert the president's constitutional powers.

Isn't this argument weaker in relation to judges than it is to subordinate executive officials, such as the Secretary of State? That is, if the Republican Senate had forced Clinton to accept a Secretary of State to its liking, that action would have been unconstitutional (Madeleine Albright was certainly not liked by Republicans). Given that the Supreme Court is the head of another coordinate power, shouldn't the presidential power be weaker and the duty of the Senate to confirm according to ITS best judgment stronger?

Or is the tradition correct and the more apparent check of Congress on the Judiciary, the Exceptions Clause, is the appropriate vehicle for legislative power?

If the Democrats do vote largely in favor of Roberts, I think they will strengthen the hand of the next Democratic president, a political consideration. That this consideration seems to be playing so little role in the matter may reflect their honest assessment of their own PRESIDENTIAL prospects...

More than food and clothes

An official in Baton Rogue asked for them. A publisher in Nashville sent them. Sounds commendable enough at a time when aid is pouring into the part of the country torn apart by Katrina. Seems even reasonable that such aid would consist of items local officials were asking for. What's the problem, you may well ask? The items themselves seem to be causing all the controversy. The donors sent the refugees Bibles.

Critics of the Christian publishing house that sent the Bibles (and matched their employees' monetary contributions up to $50,000) say that they would be offended if they received a Bible in such a time as this. (There was no comment on whether they would have been offended by the monetary contribution as well. I assume they would not.) These critics do not seem to realize that, in a crisis, many people draw more comfort from their faith than their full stomachs. If an individual does not want a Bible for whatever reason, no one is forcing him to take one. Why should such an individual compel the donor to stop giving to those that want to receive? Local officials specifically asked for this aid. It would be wrong to deny spiritual comfort by imposing a purely naturalistic world-view on those refugees who believe that life is more than food and the body more than clothes. And is this belief, which at least 83% of Americans hold, really so unbelievably controversial? Most of us have gotten over our insecure belief that we are no more than unfeeling brutes.

The incident brings me back to feelings I had in the wake of September 11. I was at music school, and felt that I was wasting my time there. I could have been studying something that would have been more useful to people in need. A dear friend - a non-musician - stopped me and told me a story of a NY violinist. This violinist had walked around all day and night and played his instrument for the people that were sitting in the streets, walking in the debris, and looking for their loved ones. He wept as he played. People later said that his music meant more to them than the food and water they received from the Red Cross, or the practical physical aid they received from doctors. And why? He was feeding their souls. He was reminding them what it meant to be human. He was reminding them that our bodies house something special and unique. Each man gives what he can: the violinist, the song; the Christian publisher, the Bibles. Why has it become trendy to let our souls starve?

How would I feel if the tables were turned? One might argue the reason the Bible donation sits so lightly on my mind is that I am a Christian. What would I do if a publisher of another faith handed me a Torah, or a Koran along with some money for food? Would I be offended that he was trying to comfort me with a belief I don't share? Not in the least. I would be thankful and grateful to any human being that tried to meet a hunger that, for most people, runs deeper than physical hunger. And I would understand that such a longing is part of our shared humanity.

Religion and music can sustain people in ways that food never can. And woe to the critics that have forgotten this truth. Maybe they should sit in a room filled with Bach sonatas and read a Psalm.

Misha says to start posting again.

so here is my first post of the new school year...

I would very much prefer it if all of the fed soc bloggers made comments about posts in separate posts rather than in the comments section of that post in order to keep the blog going.

I am very happy to be in Randy Barnett's class this semester: Recent Books about the Constitution. I was going to live blog it, but... well... not anymore.

I am also going to try to be less of... well... myself this year. I am off to a really bad start so far, but I will hopefully be a completely different (boring) person by the time I start my professional career.

More posts to come.

Rehnquist In Perspective

The Passing of Chief Justice Rehnquist makes this a sad day, but it also gives us an opportunity to appreciate how the Chief’s tenure has improved American jurisprudence. Coming from the complete liberal activism of the Warren Court and the somewhat bumbling “this far, but no further” Burger Court, Rehnquist’s elevation proved a subtle but important event in Supreme Court history.


There are numerous areas where the Rehnquist era has improved American jurisprudence, but the most important achievement of Rehnquist’s tenure is taking the first step to save the Constitution as a serious limit on the power of the Federal Government. Before the Rehnquist Court, it was orthodoxy that Congress could achieve any end it wanted under its Commerce Clause power. From stopping a single farmer from growing food for his own farm and his own family to enforcing esoteric endanger species protections, the Commerce Clause had become a panacea of unlimited federal power.

In 1995, the Rehnquist Court, for the first time in almost seventy years, struck down a law as exceeding the Federal Government’s power under the Commerce Clause. In U.S. v. Lopez, the Federal Government had the gall to argue that stopping people from bringing guns into school zones was part of the Government’s power over interstate commerce! The Court took a further step in this same direction in U.S. v. Morrison, when it rejected the Federal Government’s claim that its power over “interstate commerce” allowed it to criminalize domestic violence.

The work the Chief and his fellow conservatives on the Court started to save the Constitution is still in its infancy. Lopez and Morrison are still only blips, and as the Raich case illustrated this year, the Court’s left wing has no intention of abandoning the idea that Congress’ power under the Commerce Clause is virtually unlimited. The important work of future justice Roberts and whoever replaces the Chief will be to guide the Court into respecting the role of the national government as one of limited and enumerated powers. I will end with Rehnquist’s simple statement from U.S. v. Lopez:

We start with first principles. The Constitution creates a
Federal Government of enumerated powers.

The greatest honor the Supreme Court can do to Rehnquist’s work and to the Constitution our framers created is to start taking that truth seriously again.