New York listeners: I’m scheduled to be a guest on Brian Lehrer’s popular WNYC radio show tomorrow (Monday) morning, probably 10:30 a.m. or so, debating famed Harvard Law professor Larry Lessig on the topic of a convention to propose amendments to the U.S. Constitution. (Lessig supports that idea, I’m skeptical). That’s a foretaste of the live Intelligence Squared debate that will follow on Wednesday, in which two other debaters will be joining us, Mark Meckler, president of Citizens for Self-Governance joining Lessig for the affirmative and Georgetown law professor David Super joining me for the negative.
Georgetown law professor Randy Barnett came to Cato April 21 for a book forum to discuss his new book Our Republican Constitution: Securing the Liberty and Sovereignty of We the People (reviews). Roger Pilon introduced and there were comments from University of Maryland law professor Robert Percival. Description in part:
The Constitution begins with the words “We the People.” But from our earliest days there have been two competing notions of “the People,” leading to two very different constitutional visions. Those who view “We the People” collectively think popular sovereignty resides in the people as a group, which leads them to favor a democratic constitution that allows the will of the people to be expressed by majority rule. In contrast, those who think popular sovereignty resides in the people as individuals contend that a republican constitution is needed to secure the preexisting inalienable rights of “We the People,” each and every one, against abuses by the majority. In his latest book, with a foreword by George Will, Randy Barnett explains why “We the People” would greatly benefit from the renewal of our republican Constitution, and how this can be accomplished in the courts and the political arena.
During the Q & A period, I ask a question about amending the U.S. constitution. More: Nick Gillespie interviews Barnett for Reason TV.
I’ll be in St. Louis tomorrow (Tuesday) evening, debating on the problems with Article V conventions to amend the Constitution. The event is sponsored by the Show-Me Institute and will take place at St. Louis University’s John Cook School of Business. See you there?
The National Archives mounts an exhibition of proposed constitutional amendments over the years. To understate matters, not all of them were great ideas [Michael Ruane, Washington Post]
On the idea of an Article V convention to propose constitutional amendments, of which I have been critical lately, you can watch a presentation I gave to the Common Cause national “Blueprint for a Great Democracy” conference held last week.
I’ll be speaking over the next two weeks in Philadelphia, St. Louis, D.C., and Maryland’s Eastern Shore:
Tues. March 8, Washington, D.C., Common Cause “Blueprint for a Great Democracy” conference, panel on Article V constitutional convention proposals.
Mon., March 14, Philadelphia, Temple Law School Federalist Society, on the life and work of Justice Scalia.
Tues., March 15, Centreville, Md., Queen Anne’s County Republican Club, on redistricting.
Tues., March 22, St. Louis, Mo., Intercollegiate Studies Institute debating Michael Farris on Article V constitutional convention proposals.
For details on any of these events, or to invite me to address your group, inquire at editor -at – overlawyered – dot – com.
- Justice Kagan: “The fact of the matter is, you wake up in 100 years and most people are not going to know most of our names…. [T]hat is really not the case with Justice Scalia.” [David Lat, New York Daily News]
- Nollan v. California Coastal Commission, his first landmark decision, was “turning point in the history of property rights” [Bill Fulton, Rice “Urban Edge]
- Revive doctrine of enumerated powers? “Oh, Roger, we lost that battle a long time ago.” But then came Lopez… [Cato podcast with Roger Pilon, 3:50+]
- Younger Scalia was quite positive about idea of an Article V constitutional convention, an idea he famously criticized later in life [Adam White, Weekly Standard; related here and here]
- Jacob Sullum on Scalia and the Second Amendment (and more) and on the Drug War. More: Daniel Schwartz on the imprint he left on employment law even aside from Wal-Mart v. Dukes;
- Blowup at Georgetown Law as profs Randy Barnett, Nicholas Quinn Rosenkranz flay colleague’s “startlingly callous and insulting” email to students on Justice’s death [Above the Law]
- How Scalia changed originalism [Michael Ramsey in Liberty and Law symposium] In George Eliot’s phrase, his work on that issue was incalculably diffusive [Lawrence Solum]
- More views on Article V convention to propose constitutional amendments [Glenn Reynolds/USA Today, Mark Pulliam/Liberty and Law, Ashley Balcerzak, Center for Public Integrity with emphasis on conservative-vs.-conservative battles; my take]. I may be debating the idea in St. Louis March 22, watch for more details;
- As part of wrongheaded efforts at tribalization of native Hawaiians, state of Hawaii keeps trying to hold racially discriminatory elections [Ilya Shapiro/Cato, earlier here, etc.]
- Taking drug preemption case would enable Court to clarify application of Wyeth v. Levine [WLF]
- “The Rise of Judicial Review for Economic Liberty” [John McGinnis]
- “Supreme Court To Rule on ‘Implied Certification’ False Claims Act Theory” [Beck quoting James Martin, Colin Wrabley, M. Patrick Yingling of Reed Smith on Universal Health Services, Inc. v. United States ex rel. Escobar]
- Court should review Oklahoma license plate case in which Tenth Circuit applied less protective “symbolic speech” standard [Ilya Shapiro and Jayme Weber, Cato]
- “The Tetzlaff Aftermath: Discharging Student Loans In Bankruptcy Might Be Easier Than We Thought” [Shannon Achimalbe, Above the Law]
Some serious constitutional conservatives, such as Texas Gov. Greg Abbott and Rob Natelson for the American Legislative Exchange Council, have been promoting the idea of getting two-thirds of the states to call for an Article V convention to propose amendments to the U.S. Constitution. Florida senator and presidential candidate Marco Rubio recently made headlines by endorsing the notion. But I don’t think it’s a good one, as I argue in this new piece for the Daily Beast (the clickbait headline is theirs, not mine). It begins:
In his quest to catch the Road Runner, the Coyote in the old Warner Brothers cartoons would always order supplies from the ACME Corporation, but they never performed as advertised. Either they didn’t work at all, or they blew up in his face.
Which brings us to the idea of a so-called Article V convention assembled for the purpose of proposing amendments to the U.S. Constitution, an idea currently enjoying some vogue at both ends of the political spectrum.
Jacob Sullum at Reason offers a quick tour of some of the better and worse planks in Abbott’s “Texas Plan” (as distinct from the question of whether a convention is the best way of pursuing them). Much more: Thomas Neale, Congressional Research Service report, 2014. (cross-posted, with some additions, at Cato at Liberty).
- David Bernstein’s Rehabilitating Lochner, recently praised by George Will, is part of Cato series challenging constitutional law myths [Roger Pilon, earlier; Bernstein’s recommended-books list]
- Constitutional conservatism: the forgotten history [Johnathan O’Neill, Heritage] “Progressive originalism” a development to be welcomed, but faces uphill slog [Damon Root, Reason] Tim Lynch: constitution is too hard to amend [“Amending Article V”, Tennessee Law Review] Toobin’s “startling reappraisal” of Clarence Thomas in The New Yorker [Walter Russell Mead]
- When it comes to abortion clinics, left and right swap usual positions on regulatory burdens [A. Barton Hinkle, Richmond Times-Dispatch] I’m quoted on courtroom battles over state anti-abortion enactments [Steve Weatherbe, National Catholic Register]
- Exhaustion of remedies: “Property Rights Are Not Second-Class Rights” [Ilya Shapiro, Cato at Liberty]
- Property ordinance in San Juan Capistrano bars Bible study groups and even regular bridge foursomes. Bill of Rights violation? [CBS-LA]
- For those in the D.C. area, a George Mason U. event Monday at 5: Roger Pilon (Cato) vs. Ed Whelan (Ethics and Public Policy Center) on judicial activism [Fed Soc]
Justinian Lane, unable to refute on the merits the idea that it might be worth experimenting with health courts to see if they improve medical care and medical justice, resorts to ad hominem:
I believe our founding fathers were some of the greatest men who ever lived. Through sweat and sacrifice, they founded the greatest country in the world. And they believed that the right for a plaintiff to seek a jury trial was so important as to be enshrined in the Bill of Rights.
I have nothing but respect and admiration for the noble men and women who have died and are dying to protect our Bill of Rights and our Constitution. I have nothing but derision for the ignominious men and women who are dying to butcher those documents for corporate gain.
Very stirring, if completely meaningless. I not only believe, but know for a fact, that our founding fathers created Article V of the Constitution, which permits amendments to correct problems created by the Constitution itself—such as, say, its abhorrent endorsement of involuntary servitude, or the poorly-thought-out presidential election process that resulted in the 1800 election snafu and the Twelfth Amendment.
But one need not go even this far. The real flaw of Lane’s thoughtless argument is that in 1791, the common-law right to a jury trial contemplated the idea of special juries. Special juries were used for complex commercial cases, for example; juries of women were used to determine the truth of claims of pregnancy. No constitutional amendment is needed for medical courts; they are well within the Seventh Amendment definition and the Founders’ conception of trial by jury. See generally Professor James Oldham’s book, Trial by Jury: The Seventh Amendment and Anglo-American Special Juries.