Wednesday, April 4, 2012

I think the constitutional law scholar is aware that the real issues is constitutionality

Selective quotation is a funny thing. I hear a lot of people quoting Obama saying this "I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress," and then get their chuckles over the fact that Obama doesn't understand that democratic majorities have nothing to do with the court's decisions - that it's not unprecedented or extraordinary at all for the court to knock down majority decisions that violate the Constitution.

I see much fewer people quoting when he continues with this: "And I'd just remind conservative commentators that for years what we've heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I'm pretty confident that this court will recognize that and not take that step." The concern is not just the democratic majority - the whole concern is that the law is "duly constituted and passed"!!! The whole concern is that the Court would be striking down a constitutional law!!!

That isn't to say that Obama's statement was perfectly worded - after all, its NOT unprecedented for the court to invalidate a constitutional law either. But these "gotchas!" are getting really bad. Unfortunately, now that it looks like that national campaign has started I think we're only going to see more of this.

17 comments:

  1. Likewise it would be a form of judicial activism and a lack of restraint for the court to ignore an unconstitutional law.

    This is just another example of a sitting President trying to run against the Supreme Court during an election year. We've seen it before, we'll see it again. What is amusing is how most of the proponents of the ACA just assumed that they could pass this law and the courts would simply rubber-stamp it. They are essentially complaining about the results of their own ideological blindness. Honestly, what a group of toolbags.

    Of course there is a way that Obama can overcome the court if it strikes down this "law" - via a constitutional amendment. But that is a much more messy and much more democratic process than the horse trading that goes on within the halls of Congress. It certainly wouldn't allow for the sort of control over legislation that modern Presidents try to exercise when they put proposals before Congress.

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  2. Obama is a "constitutional law scholar?" From what I know of him Obama has a politician most of his adult life (just like that Ron Paul guy you keep on saying is just another D.C. politician - which he is).

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    1. I'm not prepared to dismiss his constitutional law credentials, but perhaps if you elaborate you could sway me.

      He's certainly a politician - hasn't been in the game as long as Ron Paul has, but he's still in it. Here's the thing - I've never hesitated to say that I'm OK with politicians. They have a purpose in this world. The funny thing is when they present themselves as being something other than a politician.

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  3. He's as much of a "constitutional law scholar" as any of the thousands of other people who have taught as adjuncts. Does he have anything like a long list of publications under his name that deal with the subject matter? From what I've read he published no legal scholarship during his entire life.

    Obama is always presenting himself as something other than a politician; that was the basis of his whole 2008 campaign - "HOPE!"

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    1. 1. An editor of the Harvard Law Review can't be referred to as a constitutional law scholar.
      2. Politicians apparently can't bill themselves as bringing hope or else they're trying to claim they're not politicians.

      I'm sorry to be so blunt, Milton, but I'm not sure the quality of your responses merit any more back-and-forth. I just don't know where to go with any of this. You seem to be arguing just for the sake of arguing, not because you have a high quality argument to put forward.

      If you have any thoughts on the ACA and the difference of opinion on that, feel free to share that - this conversation has run its course I think.

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    2. So, every editor of the Harvard Law Review is a "constitutional law scholar?" I'm just trying to feel out what this term means for you. For me Cass Sunstein is a constitutonal law scholar; he's written lots of articles, textbooks, etc. Obama isn't; he's got nothing like that sort of resume. You're not explaining why I'm wrong, you're just saying I'm wrong because I'm wrong.

      Isn't that exactly what politicians do though? Present themselves as "bringing hope" and using all that sort of language? I don't really see any difference between the rhetoric that Obama uses and any other politician is my point.

      I'm sorry to blunt Daniel, but what is your damage dude?

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    3. I do expect though that it is a pointless conversation; but not for the reasons that you state.

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    4. Milton,

      Don't worry about it; just par for the course on economics blogs.

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    5. Milton - you seem to be interpreting me as saying he's some kind of career legal scholar - obviously he's not. You're really making mountains out of molehills here.

      re: "Isn't that exactly what politicians do though? Present themselves as "bringing hope" and using all that sort of language? I don't really see any difference between the rhetoric that Obama uses and any other politician is my point."

      Right. I'm pretty sure nobody here ever claimed that Obama is not a politician. In fact I said pretty clearly that he IS a politician. You were the one drawing connections between "something other than a politician" and campaigning on hope and change. Not me. You. I have always maintained that Obama is a politician and that politicians say those sorts of things to get votes. I've never pretended Obama is anything other than a vote-seeking, power-seeking politician. Some Paul supporters are less willing to accept this about the politician they choose to support.

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    6. re: "Isn't that exactly what politicians do though? Present themselves as "bringing hope" and using all that sort of language? I don't really see any difference between the rhetoric that Obama uses and any other politician is my point."

      Let me ask you this - if you understand and agree with me that this is the sort of thing politicians do, then why above did you point to this as an example of Obama trying to present himself as not being a politician? You see the contradiction there, don't you?

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    7. "Milton - you seem to be interpreting me as saying he's some kind of career legal scholar - obviously he's not."

      Ok, I was just asking you to explain what you meant. Then you got all rude. He's neither a career legal scholar nor a constitutional law scholar in my way of seeing things. You haven't really explained why I'm wrong to come to this conclusion.

      He presents himself as not being a politician in the same way that Ron Paul does, like all politicians. There isn't any contradiction there; it is exactly what I've seen you argue in fact.

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  4. Yeah, here you go, one article can be attributed to him:

    http://www.politico.com/news/stories/0808/12705.html

    To me a constitutional law scholar is a lot more than that. Obama is a guy who went to law school and was on the law review and was a adjunct, like a heck of a lot of politicians.

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  5. There is a fallacious slippage from "majority of Congress" to "democratic majority". The first is an Is statement, the second is an Ought statement. "Democratic" is a normatively-loaded concept. The fact that a majority in Congress voted for a law does not mean there is Democratic-majority suppor for a law. This is why I keep bugging you about providing your theory of a morally-meaningful theory of democracy, and this requires a moral idea of political equality and morally legitimate political "representation" (representative-as-trustee? representative-as-delegate? proportional representation?).

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    1. I think if you allow for playing a little fast and loose with republicanism and democracy, this is fine. Modern Americans mean republicanism when they talk about democracy, and I'm no exception. Democracy involves a set of values and loci of power that are very reasonably implemented in a republican polity.

      The reason why we act republican is because that seems to us to be the most feasible way of putting democracy into action. Exploring that more is something a political philosopher can do, but that's ultimately what we're dealing with and I don't think there's any incoherence involved in talking about "democracy" to describe what's going on. We know how the term is being used, do we not?

      I think there are a lot of good normative reasons to like democracy, but I'm not sure that it's a normative concept.

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    2. I'd say modern Americans are very inconsistent in what they mean by the term democracy. They mean different things based on different subjects. Given just how unpopular the mandate was prior to the ACA being passed and thus it is hard to imagine thinking of it as a "democratic" measure - except in some very narrow sense of the term. Clearly those who passed were concerned less about whether a majority were for it and more concerned with trying to enact some abstract ideological agenda (in one form or another) they've had on their plate for years. They just assumed that in a few years the controversy would die down; a grave miscalculation on their part. Americans want health care choice (not that this excludes government), not top-down management by the federal government.

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    3. Daniel, I will reply later tonight with why I think you are importantly wrong about the concept of democracy and why it is extremely important, especially for many of the claims you make regarding appropriate governmental action, legitimacy, and so, to recognize that you make certain implicit moral assumptions about what is required to describe certain institutional systems as "democratic" and what is required to call certain specific decisions "democratic decisions."

      To foreshadow a bit, take a look at what you say: "The reason why we act republican is because that seems to us to be the most feasible way of putting democracy into action." You make use of the idea that "we act" in a certain way and that something "seems to us" to be so and so. You are assuming that the way "we" can "act" can be appropriately described by reference to certain institutional mechanisms and structures, and that we can recognize that things "seem to us" to be so-and-so by reference to certain decisions emanating from certain institutional procedures. These are very important assumptions to make.

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  6. The sort of thing I was looking for earlier: http://volokh.com/2012/04/05/president-obamas-legal-sophistication-in-the-classroom/

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