Subscribe via RSS Feed

Author Page for Scott Lemieux

rss feed

But Whether the Doctor Would Get the Death Penalty Would be Left to the States!

[ 76 ] January 29, 2016 |
Photo via Christian Post.

Photo via Christian Post.

Lemieux’s Law is that nobody in American politics actally cares about federalism. For a particularly good example, let us consider this from the Real Progressive Alternative in the race, Senator Rand Paul:

WALLACE: Just 30 seconds to answer my specific question. Do you favor the idea that abortion should be a states’ rights issue and if a liberal state wants to make it legal, that that’s their choice? Yes or no?

PAUL: Both. No, both the federal and a state approach. I have said that we could leave it to the states but I’ve also introduced a federal solution as well. So the federal solution would be the Life at Conception act which is an act that would federalize the issue.

But I’ve also said for the most part, these issues would be left back to the states. So there might be an occasion if we did overturn Roe v. Wade — Roe v. Wade nationalized the issue. If you had the court reverse Roe v. Wade, it would become a state issue once again.

So, to be clear, overruling Roe v. Wade would return the issue of abortion to the states. Except for the Life at Conception Act, which would seem to make abortion a homicide in all 50 states. To be Scrupulousy Fair, the bill (natch) says that “nothing in this Act shall be construed to authorize the prosecution of any woman for the death of her unborn child,” because opponents of legal abortion don’t believe their own bullshit, they don’t believe that women are rational moral agents, or some combination of the two. So, in fairness, Paul would leave the question of whether women should be prosecuted for what are allegedly contract killings to the states. Feel the equal sovereign dignitude!

While we’re here, there was also this:

And the thing is, she can’t be a champion of women’s rights at the same time she’s got [Bill Clinton’s consensual affair with Monica Lewinsky] that is always lurking out there, this type of behavior.

I must say that I find the argument that a woman can’t be a feminist if her husband does something wrong to be not terribly persuasive.


Important Insights You Learn At A Republican Debate

[ 116 ] January 28, 2016 |


The Latest Adventures Of Richard Dawkins, SUPERGENIUS

[ 115 ] January 28, 2016 |

Did he tweet out an atrocious anti-feminist video made by the guy who started the harassment campaign against Zoe Quinn? Was he a dick about it afterwards? I think you know the answers to both of these questions!

St. Ralph Speaks, AmericansUnifyToElectACentristBillionaire Edition

[ 147 ] January 28, 2016 |


Guess who’s excited about a Michael Bloomberg candidacy? Why, the Most Principled Man In America With the Possible Exception of Nino Scalia, Mr. Ralph Nader:

This is the third presidential cycle in which he has contemplated such a run. So bold, given the two-party tyranny that heavily controls the ballot choices of voters.

Will he be BOLD! enough to ensure that a billionaire representing what are generally already massively overrepresented constituencies increases the chances that Donald Trump or Ted Cruz becomes president in exchange for no benefits whatsoever? (To be Scruplously Fair, gun control is an underrepresnted view on Capitol Hill, which would be relevant if a Bloomberg candidacy or presidency would do anything material to advance the cause of gun control.)

Rather, the problem is a deeply researched hesitation. Bloomberg wants to run only if he thinks he can win. He is not interested in making collateral points or pursuing causes that are not directly on the path to electoral victory.

“To give him his due, he is not as obscenely self-centered as I am.”

He governed a fractious Democratic city in a hands-on, largely bipartisan manner—showcasing a New York value—that is sought by people tired of gridlock and rancor.

If we could just get rid of these “parties” and the “disagreements” and the “bicameralism” and “seperation of powers” in the so-called “United States Constitution” and just allow a benevolent billionaire to rule over us like a God everything would be just fine.

He can talk about the needs of the tens of millions of urban dwellers more graphically than any of the present candidates.

1)”Graphically?” 2)”Okay, let’s talk. We clearly need a fourth Duane Reade by Walgreen’s on this block so people using the dedicated servant’s entrance next to the $400,000 wine cellars have less distance to walk when running errands.”

Although he has received criticism for his positions on civil liberties and poverty policies

His discussion of the needs of these citizens figures to be very graphic indeed!

he panders less than almost any national politician.

Well, that’s the most important thing. We certainly don’t want politicians “pandering” to, say, poor people or people who believe the Fourth Amendment remains in force.

With a large number of independent voters looking for winners, and party loyalties fraying on everything from privacy protections to criminal-justice -reform and health care

Party loyalties are, of course, pretty much less “frayed” than they’ve ever been. But I’m particularly amused by the idea that party loyalties are fraying over…health care. Yes, nothing says cross-cutting cleavages like an issue where partisan identity predicts Senate votes with 100% reliability.

The biggest variable Bloomberg faces is whether the two parties will nominate candidates he considers to be polarizing figures representing the extremes of each party: Donald Trump—or worse, Ted Cruz—and Senator Bernie Sanders

We’ll come back to the EXTREMIST Bernie Sanders in a second.

And viewing independent candidates as “spoilers” is to use a politically bigoted word, as if such challengers are second-class citizens. Everybody has a First Amendment right to run for office.

Ah, glad to see that Ralph hasn’t stopped humping his favorite non-sequitur. The zero people who have ever claimed that independent candidates do not have the right to run for office remain wrong, and you can’t preemptively prevent people from pointing out the foreseeable consequences of your actions.

Anyway, Nader’s Bloomberg-curiosity is no surprise. Of all the many terrible arguments advanced by Nader apologists, as I’ve said before surely the most pathetic is “See, there are LIBERALS and then there are LEFTISTS and Nader and his supporters are LEFTISTS who are just not part of the same political family as LIBERALS.” This unintended insult is actually unfair to most Nader supporters, who are left-liberals who voted for Kerry and Obama. But, to state the obvious, if you’re making distinctions between LIBERALS and LEFTISTS Nader is plainly the former, and nor is he a particularly left-wing liberal. The group of people who think that by voting for Nader they were sending a message for revolutionary change would make more attractive leads for marketers than Newsmax subscribers. Nader’s message was that Ralph Nader is awesome and American politics would be better if everyone would come together and agree that Ralph Nader is right about everything. It’s entirely appropriate that he finds the prospect of a Bloomberg campaign appealing.

And the comparison with Nader should remind one of the virtues of the EXTREMIST Bernie Sanders. Sanders is running within the Democratic Party; Ralph Nader is happy to do what he can to elect George W. Bush to feed his ego. When proposed legislation fails to meet his every expectation Nader wants it blown up; Sanders works to make it as good as he can and then votes for the compromise. Sanders, whatever the outcome of the primaries, is the real deal; late-period Nader is a complete fraud.

“You Know, I Really Enjoy H.A. Goodman and Walker Bragman, But Could you Dumb it Down a Few Shades and Make It Much More Pretentious?” “Done!”

[ 106 ] January 27, 2016 |


Salon dips back into its nostalgia file with horrifying results:

During her two presidential campaigns, Hillary Clinton has consistently drawn greater support from women than men. Is this gender lag due to retrograde misogyny, or does Hillary project an uneasiness or ambivalence about men that complicates her appeal to a broader electorate?

As a career woman, Hillary is rooted in second-wave feminism, which began with Betty Friedan’s co-founding of the National Organization for Women in 1967, while Hillary was in college. Friedan sought to draw men into the women’s movement and to ally with mainstream wives and mothers. But after a series of ideological struggles, she lost her leadership role and was eventually eclipsed in media attention by the more telegenic Gloria Steinem, who famously said, “A woman needs a man like a fish needs a bicycle.”

Hillary has unfortunately adopted the Steinem brand of blame-men-first feminism, which defines women as perpetual victims requiring government protections. Hillary’s sometimes impatient or patronizing tone about men, which can perhaps be traced to key aspects of her personal history, may prove costly to her current campaign.


A 1979 photo of Bill and Hillary Clinton arriving at the White House for a dinner honoring the nation’s governors shows her with big, owlish eyeglasses and a mass of nondescript dark hair. Her subsequent fashion and hair transformations, extending through both Clinton presidencies, were astonishing. It was as if Hillary oscillated between her core identity as a gender-neutral social-activist warrior and a florid female persona so foreign to her nature that it sometimes seemed like drag.

Hey, it wasn’t easy to be the worst regular columnist at a place where one of the columnists was David Horowitz, but she pulled it off. To be Scrupulously Fair, this time she did actually write this “prose” rather than doing her usual rambling interview that some intern has to transcribe in plain defiance of all international human rights norms.

The Executive Pay Cartel

[ 21 ] January 27, 2016 |


The company that took over Don Blankenship’s organized crime organization in West Virgnia ran it into bankruptcy in less than five years. For workers, this has not worked out well:

Since then, Alpha has laid off some 4,000 workers and filed for Chapter 11. Post-Massey, it operated well over 100 active mines; now it has closed all but 50.


Sure enough, Alpha is going after health and life insurance benefits it promised retired employees. Specifically, according to its court filing, it is trying to rescind “certain unvested, non-pension welfare benefits (e.g., hospital, medical, prescription, surgical and life insurance) currently offered to certain of [Alpha’s] non-union retirees.” Some 4,580 non-union miners and spouses would lose benefits under the filing.

Yanking health insurance from any retiree is bad enough, but these are people who spent their working lives in highly unsafe conditions; many now suffer from black lung and other coal-related ailments.

Hey, if people with black lung disease wanted medical care, they should have pulled themselves up by their bootstraps and become 25-year-old Stanford-educated software developers! Their corporate betters can demonstrate how American meritocracy works:

Their usual pay is okay, I guess. The Casper Star Tribune reports:

Alpha CEO Kevin Crutchfield received $7.8 million in total compensation in 2014, financial filings show. Former President Paul Vining took home $4.5 million, the chief financial officer made $1.9 million and Executive Vice President Brian Sullivan earned $1.6 million.

But when you’ve bankrupted your company and now you have to immiserate old and sick people, you need more of a picker-upper — a little something extra.

So Alpha proposed to pay these executives bonuses that could in some cases more than double their salaries. Depending on the cost cutting achieved, the bonuses could reach up to $11.9 million.

Alpha argued that the money was necessary to provide incentives for executives to help the company restructure out of bankruptcy, incentives presumably not provided by their salaries or legal obligations.

(Alpha also gave executives substantial performance bonuses last year, even as they were piloting the company into bankruptcy. Not clear what those incentives were for.)

This is an extreme case, but it pretty much defines how the wealthy define incentives differently for themselves and for ordinary workers. For the latter, a middle-class salary will make them lazy and in any case is an unnecessary expense. For those at the top, a multi-million dollar salary isn’t enough incentive to do your job. Note, too, how contradictory ideas about responsibility seamlessly replace each other depending on what’s necessary to justify the looting of the workers and shareholders. When the company goes into bankruptcy less than a five years after you take it over, doesn’t that suggest that you’re massively incompetent and don’t even justify a six-figure salary, let alone a seven-figure one supplemented by performance bonuses(!)? Why no, because the market for coal collapsed, so ¯\_(ツ)_/¯, not our fault. But when it comes time to get de facto retention bonuses, these same people become absolutely indispensable supermen with irreplaceable skills. Obviously, Alpha’s executives can’t simultaneously by caretakers who preside over a company whose profits are determined almost entirely by factors beyond their control and people with unique skills the company absolutely cannot afford to lose and must be retained at any price, but whatever it takes. (Taibbi was particularly good on this point in the context of the AIG financial whiner.)

This line of thinking is hardly absent from my line of work. I guarantee that the guy proposing that faculty spots go to the lowest bidder wouldn’t apply that logic to the Board of Trustees, presidents, or provosts. The defense of less extreme versions of this dichotomy would be that the top-level administrators are simply irreplaceable and there is fierce competition for their services, which rarely holds up. Consider the new president of the University of Iowa. Not only did he have no credentials as a higher ed administrator, even his credentials as a business administrator were underwhelming. And yet, he will get $790 grand a year in salary and pension compensation alone. The idea that there was some kind of bidding war for the guy or that he had unique skills that had to be obtained at any price is absurd. Obscenely high salaries aren’t used to acquire extraordinary talent; they’re used to justify the salaries of the people doing the picking and to convince themselves that whoever they hire is really good. Nice racket if you can get into it.

The Crimes Of the Anti-Planned Parenthood Mob

[ 27 ] January 27, 2016 |

Lithwick with more on the various legal problems of the Planned Parenthood troofers.

The Donald And Des Moines

[ 55 ] January 26, 2016 |


Trump would appear to be betting that Fox News needs him more than he needs then:

Republican presidential front-runner Donald Trump abruptly announced here Tuesday that he would not participate in Thursday’s scheduled debate, escalating his off-and-on feud with the Fox News Channel and throwing the GOP campaign into turmoil.

Trump’s assertion, which his campaign manager insisted was irreversible, came less than one week before the kick-off Iowa caucuses, once again defying the conventional rules of politics and using his power and prominence to shape the campaign agenda and conversation.

Given that a primary objective of the first Fox News Debates seemed to be to undermine Trump on the one hand and to promote Rubio and Fiorina on the other, it’s hard to argue with him.

Meanwhile, Trump has racked up another overdetermined “celebrity” endorsement. The Veep search is over!

America’s Last Principled Judge Speaks

[ 38 ] January 26, 2016 |

Yesterday, the Supreme Court decided a complicated case about whether the Supreme Court’s 2012 holding that mandatory life without parole applied retroactively to people making federal habeas corpus appeals. The Supreme Court’s retroactive application cases are legally complicated, in part because they’ve always been pragmatic. In Stovall v. Denno, Brennan created a three-point test to determine whether newly established constitutional rules that included “the effect on the administration of justice of a retroactive application of the new standards.”  And this was really the show — if applying a rule retroactively would (as with Miranda) result in large numbers of people being released from prison the rule won’t be applied retroactively; if the effects would be more modest, there’s a chance it would. Questions of whether a change in the law is a “substantive” change that can be applied retroactively are likely to be similarly affected by pragmatic considerations. Given this background, it’s not surprising that the state lost in Montgomery v. Louisiana. Applying the rule retroactively applies to a relatively small number of prisoners, and doesn’t necessarily require the state to release them.

One can reasonably disagree with Kennedy’s opinion. Scalia decided to take the occasion to write one of his trademark BLISTERING DISSENTS. First, on jurisdiction:

But a majority of this Court, eager to reach the merits of this case, resolves the question of our jurisdiction by deciding that the Constitution requires state postconviction courts to adopt Teague’s exception for so-called “substantive” new rules and to provide state-law remedies for the violations of those rules to prisoners whose sentences long ago became final. This conscription into federal service of state postconviction courts is nothing short of astonishing.

Here’s some relevant background information: Louisiana conceded that the Supreme Court had jurisdiction. The Court actually had to appoint an amicus to have the jurisdiction question argued. The Court is free to find a lack of jurisdiction, but for the Court to agree with a position taken by both parties to the case is very, very short of being astonishing. I also appreciate the “conscription” language, which 1)makes the astonishing implication that there’s something unusual or undesirable about state courts having to enforce federal constitutional rules and 2)reminds us of Scalia’s eminently hacktacular non-commandeering jurisprudence.

On the merits:

How wonderful. Federal and (like it or not) state judges are henceforth to resolve the knotty “legal” question: whether a 17-year-old who murdered an innocent sheriff’s deputy half a century ago was at the time of his trial “incorrigible.” Under Miller, bear in mind, the inquiry is whether the inmate was seen to be incorrigible when he was sentenced—not whether he has proven corrigible and so can safely be paroled today. What silliness.


This whole exercise, this whole distortion of Miller, is just a devious way of eliminating life without parole for juvenile offenders. The Court might have done that expressly (as we know, the Court can decree anything), but that would have been something of an embarrassment. After all, one of the justifications the Court gave for decreeing an end to the death penalty for murders (no matter how many) committed by a juvenile was that life without parole was a severe enough punishment. How could the majority—in an opinion written by the very author of Roper—now say that punishment is also unconstitutional? The Court expressly refused to say so in Miller. So the Court refuses again today, but merely makes imposition of that severe sanction a practical impossibility. And then, in Godfather fashion, the majority makes state legislatures an offer they can’t refuse: Avoid all the utterly impossible nonsense we have prescribed by simply “permitting juvenile homicide offenders to be considered for parole.”

Isn’t that particular Godfather reference a little tired? Couldn’t he at least have gone with “my offer to 16-year-olds sentenced to life without parole is this: nothing” or “This whole opinion is an abortion! Something that’s unholy and evil!” As for the outcome the middlebrow dudgeon is being directed against — if the “worst-case” scenario is people sentenced to life sentences as teenagers getting parole hearings, I find this about as scary as his thunderous warnings about how the state may not be able to enforce laws against masturbation in the wake of Lawrence.

Every Battle Is Won or Lost Before It’s Ever Fought

[ 89 ] January 25, 2016 |


On the narrow question of his decision to go for it 4th and 1 with 6:03 left, I am here to defend Bill Belichick. This is not to say that Paul is wrong, either; if it were my decision to make I probably would have gone against type and kicked the field goal. But I think this is one of those tactical decisions where the optimal decision is unknowable and either decision is reasonable. The general numbers clearly favor Belichick, which puts the burden of proof on the critics.  There’s a solid argument that, given how dominant Denver’s defense was and how feeble the Bronco offense looked, this is a case where the specific circumstances dictate going against the book. Given how things played out, this certainly looks like the right approach. But you have to be careful: you can’t assume everything plays out the same way. It’s true the Broncos were pretty much drawing dead using the [run into the line-run into the line–Manning heaves a duck close enough to a receiver not to be called for intentional grounding and keels over in agony] playcalling sequence Kubiak was going to keep using as long as he was up 8.  But — as I’m sure Belichick was aware of — Kubiak would probably have become less conservative had New England reduced their deficit to 5, and Manning is more likely to spot an open receiver he can get the ball to throwing on 1st or 2nd down. If you favor kicking the field goal, you can respond that Manning is also more likely to turn the ball over if Denver actually tried to advance the ball, which is also true (one reason — SPOILER ALERT! — that I would loooooove Carolina -4 is that I have a really hard time seeing Manning getting through another game without a pick, and I think there’s a nontrivial chance he goes the full Carson.) And…well, the thing is there’s no way of weighing these probabilities. There was no ex ante “right decision” here. Belichick’s decision was reasonable; kicking the field goal would have been reasonable.

You could also criticize Belichick and McDaniels for failing to adequately adjust to the Denver defense, but I think this is more a question of Denver’s gameplan and personnel being really good. Wade Phillips came up with a brilliant game plan reminiscent of, er, Bill Belichick: forget What You Would Like to Do and Your System and focus on the personnel matchups of a given game. He thought he could generate a pass rush with 3 or 4, was right, and left Brady having to make split-second decisions to throw to either his well-covered good-to-great players or replacement-level players in single coverage. The beauty of Belichick’s approach is that if it works it’s just not easy to respond to schematically. Unless some magic formula for turning James White and Brandon LaFell and Marcus Cannon into good players was available, I’m not really sure what Belichick and McDaniels could have done. And this should remind us that the Sun Tzu dictum/cliche in the title isn’t actually true. Phillips looks like a genius because Ware played like a Hall of Famer, Miller played like someone for whom “Hall of Famer” seems insultingly inadequate, Harris had a spectacular game playing with one arm, etc. And Brady and Gronkowski are good enough that they damn near beat an exceptional defense executing a perfect game plan at the highest level anyway. Still, it’s hard for a coordinator to adapt their style so radically — cf. the works of Rex Ryan passim — and give Phillips his due credit.

But there’s a truth the title cliche too, which bring us to where Belichick really screwed up the game. Starting with Week 12, Belichick coached as if he didn’t really give a damn about the #1 seed, and it burned him badly. The generic home field advantage is a three point swing, and I suspect that in this particular matchup the swing would be bigger than usual. Denver’s pass rush was going to be formidable under any circumstances, but I don’t think Brady gets knocked down 20 times if the game is at Foxboro and he’s not frequently forced to use a silent count.  Even if it’s just three — that’s not an advantage you throw away lightly. And he pretty much did.

In my game preview, I mentioned what turned out to be a season-changing blunder: Belichick sending an undrafted rookie playing in his 3rd NFL game out to return a 4th-quarter punt in terrible weather conditions, which ended up handing Denver 20 points of win probability in exchange for very little potential benefit. I don’t think Belichick’s error was failing to understand that the downside/upside ratio of this choice is roughly “Ralph Nader 2000.” I am certain that he understands this — indeed, on the next Denver punt with the score closer he rushed 11. I think his error was in not caring about a horrible percentage play because he was already focused on the long game. “We probably have this game in the bag, we probably don’t need it to get the #1 seed anyway, and my special teams coach likes Harper so what the hell let’s see if we have something here.” Belichick’s ability to think both tactically and strategically is one reason he’s great, but he was miscalculating there.  Getting the #1 seed isn’t trivial, and it was too early for New England to assume anything.

And then, even worse, was the unfathomable game plan Belichick and McDaniels came up with for Week 17. I understand that the desirability of getting the #1 seed had to be balanced by minimizing injury. But this game plan seemed calculated to do as little of both as possible. If the idea was to keep Brady’s out of harm’s way above all else, then just starting Garoppolo and having him run the team’s real offense was a better option. If not that, then have Brady come out throwing and try to get a big enough lead that you can yank him and go to a conservative running attack. But leaving Brady out there as a target for Ndamukong Suh and then have him do almost nothing for the first half but hand off to bad running backs? Can someone explain the logic here? (I think I’m beginning to understand why the #1 prospect for every NFL coaching vacancy somehow never even gets a phone call, although Belichick has to take the most responsibility here.) This was just half-assed, too-clever-by-three-quarters nonsense, and it probably cost them a Super Bowl appearance. Belichick is obviously one of the best coaches in the history of North American professional sports, but this wasn’t his best couple of months.

Yesterday, as he usually is, Belichick was fine on the sidelines, although you can quibble with some choices. The clear blunders he made to screw up the game happened before kickoff.


Can We Tell Who Will Be Good At Presidenting Ex Ante?

[ 279 ] January 25, 2016 |


David Roberts has a good point about the one of the two most important question of the Democratic primary race:

Which brings us back to Clinton and Sanders. If they are both serious candidates for president, then they should be treated like job candidates, evaluated on the qualities that are likely to affect their performance.

How liberal they are willing to talk during a primary is not one of those qualities. Their opinions on single-payer health care are not hugely relevant, nor are their stances on breaking up big banks, carbon taxes, serious gun control, or reparations for slavery.

How they talk about these aspirational issues can tell us something about their priorities, of course. But in practice, they are going to be hemmed in to the point that circumstances, more than priorities, will dictate opportunities.

Success, then, will come from seizing those opportunities when they arise, and making the most of them. It will come from understanding and manipulating the levers of the bureaucracy, from being ruthless about taking incremental wins wherever they can be found, from taking the long view and not overreacting to the hysterical, endless fluctuations in elite DC opinion.

These are dark arts. It’s difficult to predict who might master them.

Clinton seems more likely to forfeit opportunities through an overabundance of caution. Sanders seems more likely to forfeit them through cluelessness about how to run a giant administrative bureaucracy.

Clinton seems more likely to appoint establishment-friendly figures to run her government and cautious centrists to the bench. Sanders seems more likely to get mired in endless, energy-sapping confirmation battles.

Clinton seems more likely to surround herself with a bubble of insiders. Sanders seems more likely to rely on a “political revolution” that is unlikely to endure once he takes office.

And to make matters more obscure for voters, neither is willing to talk about these things directly. Admitting that your presidency will mostly be a rearguard battle, a unilateral executive grind, is not attractive politics. It doesn’t make for fun campaign rallies.

But these qualities matter far more, in concrete terms, than the boldness of the candidates’ plans or the inspirational quality of their rhetoric.

With Republican control of the House all but assured for the next six years, what matters most should a Democrat take the White House is who will be most effective at the things, like executive branch appointments and orders, that are largely within the president’s control. The problem for Democratic primary voters is that the boldfaced sentence is true and if anything understated.

During both presidential primaries, questions about “qualifications” tend to come up. This was, for example, the core of Clinton’s case against Obama in 2008: Clinton had more relevant experience and would therefore make a more effective president. I doubt that this is true, although it is of course unknowable (and won’t be answered if Clinton becomes president in 2016 because she’d be coming to office in much less favorable circumstances.)

Here’s the thing, though: is there any reason to think that cv comparisons really tell us anything about who will be an effective president? James Buchanan had among the most impressive ex ante resumes of American presidents, and Abraham Lincoln’s was among the thinnest. Jimmy Carter was not obviously less qualified than Barack Obama, and indeed I think traditional standards would favor a one-term governor over a one-term U.S. Senate backbencher. FDR had a little more relevant experience than Carter or Obama but if you were voting on resumes you’d definitely go with Hoover. Maybe you’d like more experience in executive or federal office all things being equal, but there are so many false negatives and false positives that I’m not sure such analysis really has much value.

Whether Clinton or Sanders would be a more effective leader of the executive branch is a very important question. The problem is that I don’t think it can be meaningfully answered.

The Republican Turn Against Reconstruction

[ 12 ] January 25, 2016 |


Excellent point about how contemporary Republican constitutionalism seems premised on the idea that the Civil War Amendments should be interpreted as if the Democratic Party won the 1864 elections with 2/3rds majorities in both Houses:

Roberts Court justices and their allies take the post-bellum Democratic position on American federalism. During the debates over the Second Freedmen’s Bureau Bill, Republicans insisted that Congress was free to distinguish between states that had a history of racial discrimination and those that did not. Democrats responded that permitting the Freedmen’s Bureau to exercise authority in some states rather than others violates a constitutional commitment to equal state sovereignty. Chief Justice John Roberts shares the structural views of those who opposed the post-Civil War Constitution. His opinion in Shelby County v. Holder describes the preclearance requirements of the Voting Rights Act as a “dramatic departure from the principle that all States enjoy equal sovereignty.”

Roberts Court justices and their allies take the post-bellum Democratic position on national power under the post-Civil War Amendments. During the debates over the Second Freedmen’s Bureau Bill, Republicans maintained that Congress was the institution responsible for determining what measures would best facilitate the transition from slavery to full citizens. Democrats responded that Congress under the Thirteenth Amendment could do no more than forbid slavery. Leading constitutional conservatives share the views on constitutional authority championed by those who thought Congress in 1865 powerless to strike at Black Codes. Justice Antonin Scalia’s dissent in Tennessee v. Lane asserts, “Nothing in § 5 allows Congress to go beyond the provisions of the Fourteenth Amendment to proscribe, prevent, or “remedy” conduct that does not itself violate any provision of the Fourteenth Amendment. So-called ‘prophylactic legislation” is reinforcement rather than enforcement.”

Roberts Court justices and their allies take the post-bellum Democratic position on constitutional equality. During the debates over the Second Freedmen’s Bureau Bill, Republicans insisted that Congress could take into consideration American racial history when passing legislation that provided specific benefits to destitute freedmen. Democrats insisted that any legislation that favored persons of color violated constitutional commitments to equality. Chief Justice Roberts agrees with those who hoped African-Americans would remain in a state as close to slavery as constitutionally possibly. His opinion in Parents Involved in Community Schools v. Seattle School Dist. No. 1 insisted, “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”

For years, originalists have told us that constitutional language must be interpreted consistently with how that language was understood when constitutional provisions were ratified. Apparently with respect to the Thirteenth Amendment, what they have meant is that constitutional language ought to be interpreted consistently with how persons who opposed constitutional provisions interpreted that language after ratification.

Page 4 of 820« First...23456...102030...Last »