Month: November 2019

Dershowitz: Weaponizing Impeachment Against Political Opponents

Dershowitz: Weaponizing Impeachment Against Political Opponents

Authored by Alan Dershowtiz via The Gatestone Institute,

The constitutional power to impeach a duly elected president was intended by the Framers of the Constitution as a neutral, non-partisan tool of last resort to be used against only criminal incumbents in extreme cases. It is now being deployed as a partisan weapon that can be used routinely against presidents of a different party from those who control the House of Representatives.

Under the views of some members of Congress, any time the House is controlled by one party, a simple majority can properly vote to impeach. As Congresswoman Maxine Waters put it:

“Impeachment is about whatever the Congress says it is. There is no law.”

She is wrong. The Constitution is the law and she is not above it.

The recent partisan misuse of this emergency power began with the impeachment of former President William Jefferson Clinton by the Republican-controlled House in 1998. Clinton did not commit an impeachable offense, even if he feloniously lied under oath about his sex life. Such perjury, if it occurred, would satisfy the definition of a “crime,” but not meet the required Constitutional criteria of a “high crime and misdemeanor.” If President Clinton committed a crime, it would be a low crime related to his sex life and comparable to the low felonies — adultery and paying off an extortionist — committed by Alexander Hamilton when he was Secretary of the Treasury. Had Hamilton payed the extortionist from Treasury funds, as he was falsely accused of doing, he would have been guilty of an impeachable high crime.

To be impeached, a president must commit a crime (misdemeanor is a species of crime) and the commission of that crime must also constitute an abuse of office. An abuse of office without an underlying crime is a political sin, but not an impeachable offense.

This very issue was debated at the Constitutional Convention, where one delegate proposed “maladministration” as the criteria for impeachment and removal of a president. James Madison, the Father of our Constitution, strongly objected on the ground that so vague and open-ended a criterion would have the president serve at the will of Congress and turn us from a Republic with a strong president into a parliamentary democracy in which the chief executive can be removed by a simple vote of no confidence. Instead, the Convention adopted strict prerequisites for impeachment: treason, bribery or other high crimes and misdemeanors. The House is no more empowered to substitute its own criteria for those enumerated in the Constitution than the Senate would be to change the 2/3 vote requirement for removal to a simple majority or a 3/5 super majority. Congress is not above the law. It is bound by what the Framers accepted and cannot now apply the criterion the framers explicitly rejected.

Those who characterize the impeachment and removal process as completely political are wrong as a matter of constitutional law, even if they are right in describing the reality of how it is being currently misused. Advocates of this view misquote Hamilton in Federalist #65.

Hamilton did characterize the criteria for impeachment as “political,” but only in the sense that they relate to “injuries done immediately to the society itself.” He then immediately rejected the view that the process should be partisan, based on “the comparative strength of parties,” rather than on “the real demonstrations of innocence or guilt.” He called that the “greatest danger” and demanded “neutrality toward those whose conduct may be the subject of scrutiny.” Those who misquote and misunderstand Hamilton wrongly conflate the words “political,” by which he meant governmental, and “partisan, ” by which he meant related to the comparative strength of parties and factions.

It is difficult to imagine a greater breach of Hamilton’s principles than the recent House vote along party lines (with two exceptions, both opposing impeachment) to open a formal impeachment investigation against President Trump. The vote was determined exclusively by the “comparative strength of parties,” as was the vote to impeach President Bill Clinton two decades ago.

A partisan House vote to impeach President Trump, followed by a partisan Senate vote to acquit him, would not only hurt the Democratic Party — as the votes in the Clinton case hurt the Republican Party — it would damage our constitution and further polarize our already divided nation.

Most important, misusing the impeachment power in a partisan manner would pose, in the words of Hamilton, “the greatest danger” to our Constitution.


Tyler Durden

Mon, 11/04/2019 – 13:19

Tags
Politics
Law Crime

via ZeroHedge News https://ift.tt/32bUIWd Tyler Durden

“It’s OK to Be White” Flyers Lead to Promise of “Severest Disciplinary Action” by Western Conn. State U.

Hartford Courant (Zach Murdock) reported on this Friday:

Police and federal agents are investigating “hate-filled flyers and inscriptions” left around Western Connecticut State University’s campus Thursday night in Danbury.

It was not clear whether a student or “outside agitators” were responsible, but university President John Clark strongly condemned the materials and vowed to enforce the “severest disciplinary actions” regardless of whether students or someone off-campus made the flyers….

University officials immediately reported the flyers to Danbury and state police and referred the messages to the FBI office in New Haven, all of whom were investigating who made the flyers on Friday, [a university spokesman] said.

“I want to state directly and without equivocation that if any member of our university community is found to be party to these revolting actions they will be subject to the severest disciplinary actions, including dismissal as well as possible civil and criminal actions,” Clark said.

But the flyers consisted solely of the messages “It’s OK to be white” and “Islam is right about women.” (I confirmed this with a spokesman for WCSU.) Such messages are of course fully protected by the First Amendment.

It’s not clear whether the “Islam is right about women” message is meant (or will likely be understood) literally, as support for certain kinds of discrimination against women; facetiously, as a dig against Islam; or as a means of pointing out a perceived inconsistency among some people who both condemn sexism and supposed “Islamophobia.” But any of those messages is constitutionally protected.

The university spokesman also mentioned to me that an “alt-right flag” (seemingly the so-called Kekistan flag) was “posted on a classroom building window along with some of the flyers.”

(This was not mentioned in the Hartford Courant story.) Offensive flags, of course, are constitutionally protected just as are offensive words. Indeed, the very first case in which the Supreme Court struck down government action on freedom of expression grounds, Stromberg v. California (1931), involved a flag (there, a Communist flag).

I should note that, if the school has content-neutral rules forbidding posting any material in classroom building windows, leaving flyers on university property, or posting them in places other than designated bulletin boards, those neutral rules could be enforced in this situation, if they are evenhandedly enforced against others who violate the rules, regardless of viewpoint.

But I very much doubt that violating any such rules normally leads to expulsion, criminal prosecution, or even police investigation. And it seems quite clear from the University’s statement that the objection isn’t to littering or posting that violates such rules, but precisely to the message that the material expresses.

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“I Care” – Emotional Billionaire Cooperman Breaks Out In Tears Over American Political Divide

“I Care” – Emotional Billionaire Cooperman Breaks Out In Tears Over American Political Divide

Just a few short days since Leon Cooperman took Democratic Presidential Candidate Elizabeth Warren to task over her policies that will destroy the American Dream:

“But this is the f—ing American dream she is s—-ing on.”

The hedge fund manager agreed to a lengthy interview with CNBC. It was wide-ranging and pushed the billionaire to tears.

“I don’t need Elizabeth Warren telling me I’m a dead beat…”

She is “screwing around with the wrong guy… I want to give it all away… but I want to control the decisions.”

On politicians:

“They are in the soundbite business… not real policy discussions”

Warren’s wealth tax plan is “morally wrong.”

“I don’t need Elizabeth Warren or the government giving away my money…”

On villifying the wealthy in general:

“…people don’t hate millionaires, they want to be one”

“This is idiocy, this is appealing to the lowest common denominator by promising everyone free stuff”

“Education is the solution…”

“…there’s no free lunch. You can take all the money away from all the rich people and it wouldn’t solve the problems”

“The world is upside down…”

On Trump:

“President Trump needs to change his dialogue and treatment of people, Leon Cooperman says about the possibility of a Trump re-election in 2020. “We need a unifier.”

On the media:

“I’m waiting for Walter Cronkite to come back from the grave so I can get my news objectively”

And then Cooperman got very emotional when discussing the future of America for his kids and grandkids.

As he concluded previously:

“Their stories, and many more like they are the very embodiment of the American Dream. For you to suggest that capitalism is a dirty word and that these people, as a group, are ingrates who didn’t earn their riches through strenuous effort and (in many cases) paradigm-shifting insights, and now don’t pull their weight societally indicates that you either are grossly uninformed or are knowingly warping the facts for narrow political gain.“


Tyler Durden

Mon, 11/04/2019 – 12:58

via ZeroHedge News https://ift.tt/2NDoazg Tyler Durden

Major Hedge Fund Capitulates On Tesla Short As David Einhorn Accuses Musk Of “Significant Fraud”

Major Hedge Fund Capitulates On Tesla Short As David Einhorn Accuses Musk Of “Significant Fraud”

After Tesla stock soared following its unexpectedly, inexplicably strong Q3 earnings, spiking as much as $80/share in late October amid a violent short squeeze which pared the company’s year-to-date slide, even some of the most hardened Tesla shorts have had no choice but to throw in the towel after the EV-maker’s third-quarter results allayed some investor concerns about the demand for its electric cars and the company’s ability to churn out vehicles while maintaining strong margins.

Among them is one of Brazil’s largest hedge-fund managers.

According to Bloomberg, Brazil’s Adam Capital scrapped its short position in Tesla’s shares, saying in its latest letter to clients that Tesla’s improving operating efficiency has hurt its investment thesis.

Adam Capital, which manages about $5.9 billion, was founded in 2016 by Marcio Appel and Andre Salgado, who according to Bloomberg were hedge fund veterans from Banco Safra SA and Banco Santander’s Brazilian unit.

The firm quickly became one of the nation’s biggest independent hedge-fund managers, with its flagship fund crossing 10 billion reais under management in less than year after its launch.

To be sure, the Brazilian hedge fund manager may not be alone, with various smaller portfolio managers taken a break on their bearish position.

One stubborn bear who refuses to capitulate, however, is Elon Musk’s old nemesis, David Einhorn, who a year ago received a shipment of short shorts from the California billionaire…

… and who in his latest letter wrote that his Tesla short was a “material loser”, and proceeded to accuse Elon Musk of orchestrating “significant fraud,” as the following excerpt from Greenlight’s latest investor letter reveals:

TSLA appears to continue to spin positive PR ahead of the safety and fair treatment of its customers. For example, in August Walmart sued TSLA because its solar panels were catching on fire. Rather than warn its solar customers when TSLA became aware of the fire risk, TSLA allegedly created Project Titan – a covert program to replace the defective components while staying out of the news. Similarly, in response to a series of car battery fires, instead of recalling the batteries, TSLA appears to have quietly issued a “software update” to the battery management system that has a side effect of reducing battery range. TSLA has chosen not to warn or compensate its customers for the decreased performance.

Finally, to the surprise of nobody, documents in TSLA’s SolarCity litigation unsealed in September showed that Elon Musk knowingly orchestrated a significant fraud by arranging the $2.6 billion acquisition at a time when SolarCity was insolvent. Musk and his family had a huge conflict of interest, but rather than properly recusing himself, Musk initiated the transaction and drove the process. SolarCity was so cash-strapped, it was trying to delay payments to vendors after parts were delivered and the vendors had recognized the revenue; SolarCity could not raise any funds at reasonable rates from third parties; and Musk engineered the unveiling of the Solar Roof tile to convince TSLA’s shareholders to approve the deal, even though the product did not exist at the time.

As was the case with Musk’s extraordinary “funding secured” tweet last year, we believe this level of trampling of standard processes of corporate governance, ignoring methods to deal with related party transactions and self-dealing should lead to substantial consequences. For now, the accepted reality appears to be that Elon Musk is above the law.

Full letter below:


Tyler Durden

Mon, 11/04/2019 – 12:41

Tags
Business Finance

via ZeroHedge News https://ift.tt/2JNW57f Tyler Durden

Will the Democrats’ Go-for-Woke Strategy Cost Them the 2020 Election?

One lesson of 2016’s presidential election was that Democrats needed to do a better job courting socially moderate working-class voters who disdain woke progressivism—the kinds of voters who hate political correctness and are distrustful of the social elites who enforce it. This demographic flocked to Donald Trump, handing him narrow victories in the key swing states that decided the election.

This is a phenomenon that could very well repeat itself in 2020, if a recent New York Times poll is any evidence. The survey shows Trump losing to Joe Biden, the comparatively moderate former vice president, but besting both Sens. Elizabeth Warren (D–Mass.) and Bernie Sanders (I.–Vt.).

The poll honed in on six states that will likely decide the election: Michigan, Pennsylvania, Wisconsin, North Carolina, Arizona, and Florida. Here’s what they found:

“The Times/Siena results and other data suggest that the president’s advantage in the Electoral College relative to the nation as a whole remains intact or has even grown since 2016, raising the possibility that the Republicans could—for the third time in the past six elections—win the presidency while losing the popular vote,” writes The New York Times‘ Nate Cohn.

As Cohn notes, we are still a year away from the election and a lot could change. But historically, these kinds of head-to-head polls have been very accurate, even when taken a year in advance. “On average over the last three cycles, head-to-head polls a year ahead of the election have been as close to the final result as those taken the day before,” writes Cohn. And Trump’s base of support has proven remarkably stable over the course of his presidency, suggesting that new developments over the next year might not effect his standings.

What these numbers really show, though, is that the strategy adopted by most of the major Democratic candidates—running to the left on virtually every issue—is dangerous. The most notable exception, Biden, is the best bet to beat Trump. Warren, who more closely embodies the left on both economic and cultural issues, could very well lose the election because she’s just too woke for a small number of key swing voters in Michigan and Pennsylvania. There aren’t a lot of people who would vote for Biden over Trump but not Warren over Trump, but there may just be enough of them to make this president a two-termer if she gets the nomination.

“Of voters who support Mr. Biden but not Ms. Warren, 52 percent agree with the statement that Ms. Warren is too far to the left for them to feel comfortable supporting her for president, while 26 percent disagree,” the poll found.

The Democrats really need to treat this like a wake up call. So far, most of the candidates have behaved as if the key to ultimate victory is mobilizing Oberlin College students. While some candidates have expressed skepticism about Medicare for All, on a host of other progressive policy issues—the Green New Deal, gun confiscation, whether transgender child activists should pick the next secretary of education—the debates have seemed like a competition to be the most woke. Beto O’Rourke, who recently dropped out of the race, went as far as to say that churches should lose tax-exempt status for opposing gay marriage. His pivot, from a moderate Democrat who performed well against Ted Cruz in the 2018 Texas Senate race to an out-of-touch progressive scold, predictably doomed him.

An extremely progressive Democrat could very well wipe the floor with Trump in the national popular vote. After all, most anti-Trump people are going to vote for the Democratic candidate regardless. But the national popular vote did not make Hillary Clinton president, and it is just as irrelevant to this election. The Democrats need to pay attention to the swing states, where there is indeed a cost to running so far to the left.

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Supreme Court as Superweapon

The Yale Law Journal Forum, YLJ’s online companion, has published a new essay of mine: “Supreme Court as Superweapon.” It responds to a recent Court-reform proposal by Dan Epps and Ganesh Sitaraman, “How to Save the Supreme Court.” Here’s the abstract:

Is the Supreme Court’s legitimacy in crisis? Daniel Epps and Ganesh Sitaraman argue that it is. In their Feature, How to Save the Supreme Court, they suggest legally radical reforms to restore a politically moderate Court. Unfortunately, their proposals might destroy the Court’s legitimacy in order to save it. And their case that there is any crisis may fail to persuade a reader with different legal or political priors. If the Supreme Court needs saving, it will be saving from itself, and from too broad a conception of its own legal omnipotence. A Court that seems unbound by legal principle is too powerful a weapon to leave lying around in a democracy; we should start thinking about disarmament.

That’s the formal law-review version. Here’s the quick-and-dirty summary:

Epps and Sitaraman see a Court in crisis. After two brutal confirmations, the Court is split 5-4 on party lines, and calls for court-packing are in the air. So the authors propose two fixes, to keep the Court out of politics and politics out of the Court.

First, they say, we could have a “Supreme Court Lottery,” staffing the Court with a rotating cast of appellate judges, randomly redrawn every two weeks. That might bring wild swings of doctrine, so they add two more patches: a limit of 5 same-party appointees, and a 6-3 supermajority for overturning federal laws. The patches are tails that wag the dog: probably unconstitutional and certainly destabilizing. They make the system break down at the first approach of a third party, and they vastly empower Congress over the executive, the states, and individual rights.

Second, they say, we could have a “Balanced Bench,” reserving five Court seats for Democrats, five for Republicans, and five more for moderates on whom the other ten can agree. Barring independents or third parties from 10 of the 15 seats doesn’t really get politics out of the Court, and we’d still have to worry about a GOP-reserved seat coming open in a Democratic administration (or vice versa). Letting bipartisan commissions or Senate leaders pick the nominees—another suggested patch—would be at war with the Appointments Clause, too.

Why risk all this, just because Justices Gorsuch and Kavanaugh were confirmed? The legitimacy crisis can be found everywhere but in the poll data: the Court has more public support than it did ten years ago. The perception of a 5-4 split isn’t new; hardly anyone knew or cared that Justices Stevens and Souter were GOP appointees. And why wasn’t the partisan split such a devastating worry when Judge Merrick Garland was nominated—who would also have produced a 5-4 Court, “the most liberal Supreme Court in 50 years“? Criticize the Senate or the electoral college if you want to; but if nominations should follow the popular vote, then you should also blame Justice Souter, whose departures from the GOP platform made him a countermajority of one.

The authors repeatedly praise Justice Kennedy as an unpredictable, middle-of-the-road vote, the very opposite of a partisan ideologue. But the legitimacy you get from moderate judging can trade off with the Court’s “internal” legitimacy, the respect for the Justices as experts in legal craft. If you’re resting crucial doctrines on “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” why should anyone trust the Justices to enforce decisions made elsewhere? Why not treat them as “politicians in robes”?

From the end of the paper:

In that effort to restore legitimacy, legal conservatives might have a few ideas to offer. Given the depth of our country’s polarization, maybe we should require less by way of social agreement, relying somewhat more on private ordering and reducing the number of questions that the political process needs to answer. Maybe we should reduce the scope of that process, encouraging working agreements by different parts of the country when consensus is lacking in the whole. And maybe, to reduce the threat of the Supreme-Court-as-superweapon—capable of vaporizing any target that shows up in the Justices’ gunsights—we should precommit to limiting the Court’s freedom of action, binding it to some discrete set of preexisting rules until there is a very broad consensus for changing them. (We could even write those rules down on a piece of paper, to be kept in the National Archives—and change them only by agreement of, say, two-thirds of each House of Congress, and some three-fourths or so of the states.)

Limited government, federalism, originalism, and so on may seem like naïve—and convenient—solutions to a bipartisan legitimacy crisis. And perhaps they are. But the Constitution was not designed for a nation of high-school civics teachers, full of corny enthusiasm for powdered wigs and tricorn hats. It was adopted for, and repeatedly amended by, those who had lived through civil war, economic crisis, and profound moral disagreement (over human slavery, among other topics). If, today, in circumstances of relative peace and plenty, our disagreements seem too great for us to bear, perhaps we should think more about the devices they used to make bad compromises when the alternatives seemed even worse.

As they say, read the whole thing!

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Free Speech at College, Episode of My “Free Speech Rules” YouTube Video Series

Thanks to a generous grant from the Stanton Foundation, and to the video production work of Meredith Bragg and Austin Bragg at Reason.tv, I’m putting together a series of 10 short, graphical YouTube videos explaining free speech law. Our first five videos were

  1. “7 Things You Should Know About Free Speech in Schools,”
  2. “The Three Rules of Hate Speech and the First Amendment,”
  3. “Fake News and the First Amendment,”
  4. “Who Owns Your Life Story?,”
  5. “Is Money Speech?,” and
  6. “Corporations and the First Amendment.”

Our seventh, which we just released, is “The Ten Rules of Free Speech and College Students”:

As usual for our episodes, the full script is also posted right below the video on YouTube.

We’d love it if you

  1. Watched this.
  2. Shared this widely.
  3. Suggested people or organizations whom we might be willing to help spread it far and wide (obviously, the more detail on the potential contacts, the better).
  4. Gave us feedback on the style of the presentation, since we’re always willing to change the style as we learn more.

Please post your suggestions in the comments, or e-mail me at volokh at law.ucla.edu.

Future videos in the series will likely include most of the following, plus maybe some others:

  • Speech and privacy.
  • Speech on or with government property.
  • Alexander Hamilton: free press pioneer.

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via IFTTT

Will the Democrats’ Go-for-Woke Strategy Cost Them the 2020 Election?

One lesson of 2016’s presidential election was that Democrats needed to do a better job courting socially moderate working-class voters who disdain woke progressivism—the kinds of voters who hate political correctness and are distrustful of the social elites who enforce it. This demographic flocked to Donald Trump, handing him narrow victories in the key swing states that decided the election.

This is a phenomenon that could very well repeat itself in 2020, if a recent New York Times poll is any evidence. The survey shows Trump losing to Joe Biden, the comparatively moderate former vice president, but besting both Sens. Elizabeth Warren (D–Mass.) and Bernie Sanders (I.–Vt.).

The poll honed in on six states that will likely decide the election: Michigan, Pennsylvania, Wisconsin, North Carolina, Arizona, and Florida. Here’s what they found:

“The Times/Siena results and other data suggest that the president’s advantage in the Electoral College relative to the nation as a whole remains intact or has even grown since 2016, raising the possibility that the Republicans could—for the third time in the past six elections—win the presidency while losing the popular vote,” writes The New York Times‘ Nate Cohn.

As Cohn notes, we are still a year away from the election and a lot could change. But historically, these kinds of head-to-head polls have been very accurate, even when taken a year in advance. “On average over the last three cycles, head-to-head polls a year ahead of the election have been as close to the final result as those taken the day before,” writes Cohn. And Trump’s base of support has proven remarkably stable over the course of his presidency, suggesting that new developments over the next year might not effect his standings.

What these numbers really show, though, is that the strategy adopted by most of the major Democratic candidates—running to the left on virtually every issue—is dangerous. The most notable exception, Biden, is the best bet to beat Trump. Warren, who more closely embodies the left on both economic and cultural issues, could very well lose the election because she’s just too woke for a small number of key swing voters in Michigan and Pennsylvania. There aren’t a lot of people who would vote for Biden over Trump but not Warren over Trump, but there may just be enough of them to make this president a two-termer if she gets the nomination.

“Of voters who support Mr. Biden but not Ms. Warren, 52 percent agree with the statement that Ms. Warren is too far to the left for them to feel comfortable supporting her for president, while 26 percent disagree,” the poll found.

The Democrats really need to treat this like a wake up call. So far, most of the candidates have behaved as if the key to ultimate victory is mobilizing Oberlin College students. While some candidates have expressed skepticism about Medicare for All, on a host of other progressive policy issues—the Green New Deal, gun confiscation, whether transgender child activists should pick the next secretary of education—the debates have seemed like a competition to be the most woke. Beto O’Rourke, who recently dropped out of the race, went as far as to say that churches should lose tax-exempt status for opposing gay marriage. His pivot, from a moderate Democrat who performed well against Ted Cruz in the 2018 Texas Senate race to an out-of-touch progressive scold, predictably doomed him.

An extremely progressive Democrat could very well wipe the floor with Trump in the national popular vote. After all, most anti-Trump people are going to vote for the Democratic candidate regardless. But the national popular vote did not make Hillary Clinton president, and it is just as irrelevant to this election. The Democrats need to pay attention to the swing states, where there is indeed a cost to running so far to the left.

from Latest – Reason.com https://ift.tt/2oQsmDu
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Supreme Court as Superweapon

The Yale Law Journal Forum, YLJ’s online companion, has published a new essay of mine: “Supreme Court as Superweapon.” It responds to a recent Court-reform proposal by Dan Epps and Ganesh Sitaraman, “How to Save the Supreme Court.” Here’s the abstract:

Is the Supreme Court’s legitimacy in crisis? Daniel Epps and Ganesh Sitaraman argue that it is. In their Feature, How to Save the Supreme Court, they suggest legally radical reforms to restore a politically moderate Court. Unfortunately, their proposals might destroy the Court’s legitimacy in order to save it. And their case that there is any crisis may fail to persuade a reader with different legal or political priors. If the Supreme Court needs saving, it will be saving from itself, and from too broad a conception of its own legal omnipotence. A Court that seems unbound by legal principle is too powerful a weapon to leave lying around in a democracy; we should start thinking about disarmament.

That’s the formal law-review version. Here’s the quick-and-dirty summary:

Epps and Sitaraman see a Court in crisis. After two brutal confirmations, the Court is split 5-4 on party lines, and calls for court-packing are in the air. So the authors propose two fixes, to keep the Court out of politics and politics out of the Court.

First, they say, we could have a “Supreme Court Lottery,” staffing the Court with a rotating cast of appellate judges, randomly redrawn every two weeks. That might bring wild swings of doctrine, so they add two more patches: a limit of 5 same-party appointees, and a 6-3 supermajority for overturning federal laws. The patches are tails that wag the dog: probably unconstitutional and certainly destabilizing. They make the system break down at the first approach of a third party, and they vastly empower Congress over the executive, the states, and individual rights.

Second, they say, we could have a “Balanced Bench,” reserving five Court seats for Democrats, five for Republicans, and five more for moderates on whom the other ten can agree. Barring independents or third parties from 10 of the 15 seats doesn’t really get politics out of the Court, and we’d still have to worry about a GOP-reserved seat coming open in a Democratic administration (or vice versa). Letting bipartisan commissions or Senate leaders pick the nominees—another suggested patch—would be at war with the Appointments Clause, too.

Why risk all this, just because Justices Gorsuch and Kavanaugh were confirmed? The legitimacy crisis can be found everywhere but in the poll data: the Court has more public support than it did ten years ago. The perception of a 5-4 split isn’t new; hardly anyone knew or cared that Justices Stevens and Souter were GOP appointees. And why wasn’t the partisan split such a devastating worry when Judge Merrick Garland was nominated—who would also have produced a 5-4 Court, “the most liberal Supreme Court in 50 years“? Criticize the Senate or the electoral college if you want to; but if nominations should follow the popular vote, then you should also blame Justice Souter, whose departures from the GOP platform made him a countermajority of one.

The authors repeatedly praise Justice Kennedy as an unpredictable, middle-of-the-road vote, the very opposite of a partisan ideologue. But the legitimacy you get from moderate judging can trade off with the Court’s “internal” legitimacy, the respect for the Justices as experts in legal craft. If you’re resting crucial doctrines on “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” why should anyone trust the Justices to enforce decisions made elsewhere? Why not treat them as “politicians in robes”?

From the end of the paper:

In that effort to restore legitimacy, legal conservatives might have a few ideas to offer. Given the depth of our country’s polarization, maybe we should require less by way of social agreement, relying somewhat more on private ordering and reducing the number of questions that the political process needs to answer. Maybe we should reduce the scope of that process, encouraging working agreements by different parts of the country when consensus is lacking in the whole. And maybe, to reduce the threat of the Supreme-Court-as-superweapon—capable of vaporizing any target that shows up in the Justices’ gunsights—we should precommit to limiting the Court’s freedom of action, binding it to some discrete set of preexisting rules until there is a very broad consensus for changing them. (We could even write those rules down on a piece of paper, to be kept in the National Archives—and change them only by agreement of, say, two-thirds of each House of Congress, and some three-fourths or so of the states.)

Limited government, federalism, originalism, and so on may seem like naïve—and convenient—solutions to a bipartisan legitimacy crisis. And perhaps they are. But the Constitution was not designed for a nation of high-school civics teachers, full of corny enthusiasm for powdered wigs and tricorn hats. It was adopted for, and repeatedly amended by, those who had lived through civil war, economic crisis, and profound moral disagreement (over human slavery, among other topics). If, today, in circumstances of relative peace and plenty, our disagreements seem too great for us to bear, perhaps we should think more about the devices they used to make bad compromises when the alternatives seemed even worse.

As they say, read the whole thing!

from Latest – Reason.com https://ift.tt/36z64XG
via IFTTT

Free Speech at College, Episode of My “Free Speech Rules” YouTube Video Series

Thanks to a generous grant from the Stanton Foundation, and to the video production work of Meredith Bragg and Austin Bragg at Reason.tv, I’m putting together a series of 10 short, graphical YouTube videos explaining free speech law. Our first five videos were

  1. “7 Things You Should Know About Free Speech in Schools,”
  2. “The Three Rules of Hate Speech and the First Amendment,”
  3. “Fake News and the First Amendment,”
  4. “Who Owns Your Life Story?,”
  5. “Is Money Speech?,” and
  6. “Corporations and the First Amendment.”

Our seventh, which we just released, is “The Ten Rules of Free Speech and College Students”:

As usual for our episodes, the full script is also posted right below the video on YouTube.

We’d love it if you

  1. Watched this.
  2. Shared this widely.
  3. Suggested people or organizations whom we might be willing to help spread it far and wide (obviously, the more detail on the potential contacts, the better).
  4. Gave us feedback on the style of the presentation, since we’re always willing to change the style as we learn more.

Please post your suggestions in the comments, or e-mail me at volokh at law.ucla.edu.

Future videos in the series will likely include most of the following, plus maybe some others:

  • Speech and privacy.
  • Speech on or with government property.
  • Alexander Hamilton: free press pioneer.

from Latest – Reason.com https://ift.tt/32eUmy3
via IFTTT