FireHouse Casual

Federalism Against Freedom

I recently finished reading Peter Wilson’s The Thirty Years War, and I regret that I didn’t read it sooner. While the book has received no small amount of attention for its contributions to the history of warfare, or of Germany, or central Europe in general, it can also be read as an important contribution to constitutional theory. The study of the constitution of the Holy Roman Empire – here using the sense of the word “constitution” in its “older” sense, that is, as a package of values, norms, and institutions peculiar to a given political community – can, I argue, furnish insights that are valuable to the study of the constitutional order in the U.

SF, Incluing, and Infodumps

Every so often one comes across a corner of the Internet where someone has written, created or shared exactly the kind of thing you were hoping you’d some day come across. I had that experience recently with a blog post defending the use of the expository tactics of “infodumping” and “incluing” in science fiction: For me, one of the things that fundamentally makes sf, sf, is that it goes out of its way to require more exposition than other literary modes.

Judicial Review, Economic Inequality, and the Power of Money

Earlier today the Supreme Court refused, in a 5-4 party line vote, to reconsider Citizens United and struck down a century-old Montana law regulating corporate spending in state elections. You can read all about the gory details elsewhere (it’s worth noting that the ruling might not be that much of a setback to proponents of campaign finance reform); but here are my two cents: First, the Court simply assumed its own facts and basically ignored the Montana legislature’s findings of fact.

Popular Constitutionalism and Political Parties

Parties as Platforms for Popular Constitutionalism The major parties in the contemporary U.S. are ideologically polarized and, currently, come closer now than they often have in the past to acting with parliamentary levels of discipline. (Well, alright, maybe only the Republicans are currently capable of acting with a high level of intra-party discipline, to the detriment of Senate comity and federal budget policy.) We can complain about how (asymmetric) ideological polarization between the two parties is detrimental to democratic politics, to policy-making, to the state of political discourse, and so on.

Constitutional Dysfunction and Constitutional Criticism

Sanford Levinson has a post on the New York Times’s “Campaign Stops” blog, in which he presents a condensed version of the argument that he’s been making for the better part of a decade elsewhere: specifically, that the U.S. Constitution is profoundly undemocratic, undermines political equality, and is unnecessarily difficult to amend through electoral politics. It’s a brisk and – characteristically for Levinson – entertaining cri de cœur about the need for reviving the “democracy” part of “constitutional democracy.

Capital Punishment and Popular Constitutionalism

I recently led classroom discussions on the Supreme Court’s death penalty rulings in Furman and Gregg. Unsurprisingly, my students weren’t impressed with Furman‘s mélange of concurrences supporting (for different reasons) the per curiam holding that the capital sentencing in the case was cruel and unusual. In general, students are drawn to absolutes and decisiveness. They want exceptionless rules, unambiguous standards, and, all in all, an ordered universe of constitutional law. To their minds, Furman is a muddle, and Gregg‘s clarification of its reasoning is scant improvement.

Past and Future Popular Constitutionalism

I’ve recently started reading Stephen Engel’s American Politicians Confront the Court: Opposition Politics and Changing Responses to Judicial Power, an historical overview of the conflict between political actors and the Supreme Court over constitutional interpretation. As the title suggests, Engel is more concerned with political leaders acting from within and on behalf of political institutions, parties, and coalitions, and not so much with mass movements on behalf of constitutional change or maintenance (but more on that later).

The Ninth Amendment and Popular Constitutionalism

While leading a discussion section on Griswold yesterday, I had what has now become a familiar experience: students tend to prefer, by a large margin, Justice Goldberg’s Ninth Amendment-based reasoning to Justice Douglas’s liberty reasoning, insofar as they both identify a constitutional right to privacy. Many students tend to be chary of Douglas’s “penumbras” and “emanations,” which they see as Lochnerizing – substantive due process rearing its ugly head. They see Goldberg’s reasoning as the more restrained option, in fact: they think that because he hangs his hat on the Ninth Amendment, he has a firmer textual basis for his argument than Douglas, who relies on a structural reading of the relationships between, and implications of, different rights guarantees, precedents, and principles.

Another Lesson on the Difficulty of Reconciling Judicial Supremacy With Democracy

There’s a recent article by Slate’s Dahlia Lithwick about a ruling from the DC circuit, in which Judge Janice Rogers Brown writes a concurrence that dwells on an economic libertarian vision of economic liberty. This liberty, despite not being mentioned by name in the Constitution’s text (which conservatives usually think matters in determining whether or not something is a legitimate liberty interest), has allegedly been under constant assault by “a democratic process” that Brown considers beholden to unnamed “powerful groups.

5th Circuit Judge Thinks Criticizing Judicial Supremacy is Beyond the Pale

President Obama notedon Tuesday that, were the Court to take the “unprecedented” step of striking down the Affordable Care Act (ACA) as unconstitutional, it would be engaging in exactly the kind of “judicial activism” that conservatives have been decrying for the better part of half a century. This has prompted a flurry of pearl-clutching and overblown criticism, much of it disingenuous and strictly partisan – which is of course not news.