Kavanaugh and 17th Amendment

I wonder  if a Senate selected by state legislators instead of by direct election would be as likely to politicize SCOTUS nominations? Playing to your political base in divisive times might lead to vicious battles over SCOTUS seats. Just a thought.

Berger vs. Duncan on Trump SCOTUS & Kennedy's Legacy

This Wednesday at Noon in the Auditorium Prof. Berger and I will discuss the Trump SCOTUS & Kennedy's Legacy.

This is optional, but I will count it toward a make-up if we need a make-up.

These little debates between Eric and me are always fun, both for us and for the students who attend. And we will be discussing lots of Con Law.

September 24 Class

                                       On the Road Again (Bob Seger or my secret identity)

For our first class back after my road trip, be sure to be ready to assemble in convention for the Constitutional Convention of 2018 (link). Remember to role play what would be acceptable to small, medium, and large population states with respect to selecting national office holders such as Congress, the President, and judges. 

After perhaps 30-40 minutes talking about what it would take to get all 50 states to ratify a new Constitution, we will move on to discuss Assignment 6.

My View of the Living Constitution

For me personally, the greatest defect of the Living Constitution (even a conservative living constitution striking down minimum wage laws, and other laws restricting freedom of contract and economic liberty) is this:

The Living Constitution is based upon the subjective moral and philosophical preferences of the nine unelected lawyers who serve on the Supreme Court from time to time. Thus, it is inconsistent with the Rule of Law, the very principle that legitimizes judicial review. As Judge Bork once said. "The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else." It is the Rule of Elite Men & Women, not the Rule of Law.

What is your strongest reason for supporting either Originalism or the common law Living Constitution?

Originalism vs. The Living Constitution: Questions for Discussion

When thinking about interpretation of a Written Constitution, if we are faithful to the rule of law we must engage in exegesis not eisegesis. Exegesis is the process of interpreting the text in a manner that seeks the meaning of what it actually says. Eisegesis is a process of reading into a written text what we would like it to say.

1. What is original meaning originalism? What is The Living Constitution?

2. Justice Scalia says that originalism is the lesser of two evils, the librarian who speaks too softly rather than the librarian who speaks too loudly. He argues that the greatest defect of the Living Constitution—its total reliance on the subjective moral and philosophical preferences of the nine unelected lawyers who serve on the Supreme Court from time to time—is its incompatibility with the Rule of Law, “the very principle that legitimizes judicial review of constitutionality.”

What do you think he means by this? What is the Rule of Law and how does it differ from the Rule of Man?

3. Defenders of the Living Constitution sometimes try to argue that the Living Constitution is consistent with the Rule of Law because it has developed as a kind of common law system under which the "content" of constitutional law "is determined by the evolutionary process that produced it."  It is evolution, not creation, and therefore the Supreme Court does not act as a Creator, or Ruler, but merely as a body of judges presiding over this "evolutionary process through the development of a body of precedents."

4. Proponents of the Living Constitution say that this approach is necessary because it is too difficult to amend the Constitution under Art. V, and thus common law evolution is necessary to provide the flexibility that is necessary in order for the law to keep up with the changing needs of contemporary society.

Which constitution is more flexible? The original Written Constitution? Or the living, evolving, common law constitution?

5. When the Court comes up with a novel new doctrine, ask yourself this question: Was there ever a time in American history when this new doctrine could possibly have been ratified by three-fourths of the states (38 states today)? In 1789? In 1868 when the 14^th Amendment was ratified? In 2018? Ever? If your answer to this question is "no"--a doctrine like this could never have been ratified by we the people in the states (whose act of ratification is what gives legitimacy to the Constitution)--what does this tell you about the legitimacy of the Court's new doctrine?

 

6. "In a world where individuals have very imperfect barometers of the good—both because of passions and limited perspective—it is better to rely on the meaning of a constitution created by consensus, at least until another consensus is forged to change it." --Prof. John McGinnis Do you agree or disagree? Why?

Con Law Make-up Session--Link to Recording

https://unl.box.com/s/1hzmamra8d0eetd1d215vl3sh0lz6m6r

Judge Kavanaugh Confirmation

Please watch at least 2 hours of Judge Kavanaugh's testimony at his confirmation hearings that begin Tuesday Sept, 4.

You should be able to find this streaming on the internet or on CSPAN.

Try this link

And here is a link to a primer on SCOTUS nominations/confirmations.

This will also count toward making up the class we will be canceling in November. This plus our Thursday session on the practice exam question should be more than adequate.

Raines v. Byrd

Art. I, sect. 7:

 All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.

Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.