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The BMV must dieNo kidding. It's time to figure this bureau of motor vehicles thing out once-and-for-all. Shamefull writing by BalkinJack Balkin wrote an article on Slate today. Aghast at what I saw as "a duplicitous flight of fancy between absurdity and the furthest reaches of falsehood; a barely-coherent combination of half-truths, bifurcation and false conflation (wherever it best suits his agenda), led by a veritable platoon of straw men", I penned an incandescent dissent spread across Balkins's blog and Volokh. I also added comments at PrawfsBlawg. When I've calmed down somewhat, I might try to put these into a calmer response, but in the meantime, Tim at Postive Liberty has taken the time to pen a more temperate rebuttal. I commend Tim's rebuttal, and can only shake my head at the depths the living constitutionalist must plumb to propagandize. I suppose I should take heart; this is truly thin gruel, and if this is the best they've got, they've lost the argument. If Microsoft made ViLink. New paper on the 9th amendmentRandy Barnett has a paper out today, The Ninth Amendment: It Means What It Says. From the abstract: Although the Ninth Amendment appears on its face to protect unenumerated individual rights of the same sort as those that were enumerated in the Bill of Rights, courts and scholars have long deprived it of any relevance to constitutional adjudication. With the growing interest in originalist methods of interpretation since the 1980s, however, this situation has changed. In the past twenty years, five originalist models of the Ninth Amendment have been propounded by scholars: The state law rights model, the residual rights model, the individual natural rights model, the collective rights model, and the federalism model. This article examines twelve crucial pieces of historical evidence that either directly contradict the state law and residual rights models, undercut the collective rights model, or strong support the individual natural rights and federalism models. Evaluating the five models in light of this evidence establishes that the Ninth Amendment actually meant at the time of its enactment what it appears now to say.A discussion is underway at Volokh. Clayton Cramer is not convinced: The core difficulty with Barnett's paper is what is wrong with almost everything Barnett writes on this topic: he has an ahistorical understanding of the Framers. Contrary to Barnett's belief in a Presumption of Liberty, the guys who wrote our Constitution were not libertarians.I'm still reading Barnett's paper, and I'm interested to see whether it concurs with my view of constitutional rights and liberties, which I'm currently hammering into essay form (due late september). Kelo: the real-world consequences of bad decisionsI believe I have already made my profound contempt for the Supreme Court's wrong decision in Kelo v. New London - the ruling in which the court effectively deleted the public use clause from the fifth amendment - entirely clear. See, e.g., Kelo: May the Farce be With You, LJ, 6/28/05. [N]ow New London is claiming that the affected homeowners were living on city land for the duration of the lawsuit and owe back rent. It's a new definition of chutzpah: Confiscate land and charge back rent for the years the owners fought confiscation.Here's the absolute kicker: An NLDC estimate assessed Dery for $6,100 per month since the takeover, a debt of more than $300K. One of his neighbors, case namesake Susette Kelo, who owns a single-family house with her husband, learned she would owe in the ballpark of 57 grand. "I'd leave here broke," says Kelo. "I wouldn't have a home or any money to get one. I could probably get a large-size refrigerator box and live under the bridge."Remind me again how that "living constitution" can only ever grant us more, newer and shinier freedoms? The defenders of Kelo argue that all that ruling does is grant discretion to the state legislatures; it is precisely and for no other reason the purpose of placing a limitation in the constitution to preclude. It seems to me that the founders placed limitations on government because they didn't trust governments. They limited emminent domain with the public use clause; the Kelo court - Justices Stevens, Kennedy, Souter, Ginsburg and Breyer - eliminated that protection, and as the report quoted above showed, immediately having been loosed from that restraint, the New London government lived down in every way to the expectations of the framers. The recess appointment power: not so fastPresident Bush today sidesteps the Senate, appointing John Bolton as UN ambassador via his recess appointment power. As an originalist, something about this strikes me as slightly unsettling, but it's not the same thing that's probably troubling democrats. "The President shall have the power to fill up all Vacancies that may happenWhat's troubling me is that word "session". In current usage, of course, each Congress is comprised of two sessions - hence why the Senate's website divides votes for each Congress into first and second sessions. Thus a modern reading of the clause effectively means that a recess appointment can span an entire Congress - two years! I can't support this feeling without doing a little more research, but this seems contrary to the intent of the Framers, insofar as it dramatically increases the power of the Executive. A modern reading of the clause effectively says that a President may ignore the second Senate of his Presidency. I say "a modern reading", of course, but I am an originalist; I do not accept that the Constitution's meaning necessarily evolves with our language. It means today what it meant when it was adopted. That constitutional knife is double-sided - and damned sharp! We need an essay on the original understanding of the recess clause; I will not try to write it here, but I will offer an outline of what it might contain. (EDIT: such an essay apparently already exists! The Right Coast's Mike Rappaport, of the University of San Diego School of Law, wrote such an article last year, The Original Meaning of the Recess Appointments Clause. Hat tip to Jeremy at ChargingRINO). In earlier times, state legislatures and the Continental Congress were not in session throughout the year, due to (I suspect) a combination of a paucity of business and (particularly in the case of the Continental Congress, the sheer physical demands of assembling the body in one place for any period of time. IIRC, during (and for a long time after) the revolutionary war, the Continental Congress was homeless and nomadic, further hampering the business of assembling it and transacting business. The Framers must have been aware of these concerns, and the chaos they brought to any attempt at national government. They included in the Constitution the explicit instruction that there would be a single, official seat of government, possibly to remedy the second point I raised above. But they also included a clause that said that when Congress was not readily available to debate and confirm (or deny) executive appointments, the President should have the authority to fill those vacancies in the interim. It stands to reason that there was a strong presumption that an office which is necessary is an office which should be filled. The mechanism, it seems to me, was foreseen to operate thusly: if the Congress wasn't in session, the President makes a recess appointment. Once Congress returns, it either votes to sustain that appointment, thus making it official - or it does not, the President therefore nominates someone else, and the process repeats until Senate confirmation. At midnight on the day following the end of the session of Congress, the person in the office filled by recess appointment will be a person who has been confirmed by Congress. So that's a very, very ad hoc description of how I think the clause might have originated, and how that system would therefore have been understood to operate. I would want to do a lot more reasearch before saying any of this definitively, specifically, into actual pre-1787 American legislative practise, with a particular focus on the Continental Congress and post-1776 state constitutional practise, and also look at the first hundred years of the recess appointment's use, just to start with. However, with those qualifications in mind, it seems to me that we need to discard our current understanding of "sessions" of Congress. It seems to me that the President can ONLY use the recess power when the Congress is not in session; therefore, in any situation where the President has the power to fill a vacancy via recess power, the Congress' SESSION has ended. In other words, the meaning of "session" in the legislative calendar should not necessarily be seen as the same thing as a §2 Cl.3 session. Put more bluntly: if the President has the power to make a recess appointment during a weekend, the appointment expires at 11:59:59 the following Friday. "He who lives by the ipse dixit dies by the ipse dixit", as Scalia once wrote (487 U.S. at 726); and I am chained by my interpretative philosophy. Although originalism is too often castigated as an excuse for conservatism, in my view - admittedly, not an unbiased one - it is no such thing. The fact that an originalist reading of the constitution, in my view, militated against the nuclear option, and seems to militate against the ongoing abuse of the recess appointment power (I say ongoing, because President Clinton used it 140 times; see Henry B. Hogue, CRS Report for Congress: Recess Appointments: Frequently Asked Questions), should perhaps indicate - for better or worse - how false this conflation is. This view, of course, will do nothing to improve my standing in GOP circles, but my loyalty is to the Constitution first, and the party second. This decision by the President is not entirely unexpected (Democrats are already setting the stage for the same "document demand filibuster" against John Roberts as was used to torpedo Bolton; it thus stands to reason that the President should wish to send a "not so fast, speedy" signal to Sen. Reid), but I must again respectfully dissent from the party line. |
    
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