August 20, 2004
Crescat gets results!
Yesterday, I pointed out silliness of Mark Bechtel's blog-complaint about fencing, where he wrote:
Speaking of aesthetically unpleasing sport, is there a worse event to watch on TV than fencing? The combatants dress up in shiny silver suits that light up when they're struck, making the fencers look like Eugene Levy during the Nothing Ever Happens on Mars number in Waiting For Guffman. Now, you'd think if they can make a suit illuminate, they could rig it so only the first one hit lights up. But no. So what you have is about a second and a half of action, during which both fencers smack each other (think Jim Carrey and Jeff Daniels in Dumb and Dumber) and both suits light up. Then each fencer pumps a fist as if to say, "I got him!" while looking at the judge, who then apparently decides the winner of the point by flipping a coin, because it seemed like half the calls in the sabre finals match I watched were wrong. What's the point of having the suit light up if it doesn't tell you who hit who first? And fellas, swashbuckle a little, will ya?
Well, now, the paragraph has been reduced to:
Speaking of aesthetically unpleasing sport, is there a worse event to watch on TV than fencing? The combatants dress up in shiny silver suits that light up when they're struck, making the fencers look like Eugene Levy during the Nothing Ever Happens on Mars number in Waiting For Guffman. ... And fellas, swashbuckle a little, will ya?
As to the ugliness of fencing gear, I will concede that when decked out in jacket and lame, I look something like an over-sized astronaut.
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Hope?
Tender-footed co-bloggers may be interested to read about the plight of designing comfortable high heels. (Via Virginia Postrel).
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Whither the principled right?
Writes Steve Dillard at Southern Appeal:
I agree that congressmen "have an obligation to assess the constitutionality of federal acts." I am not so sure, however, that this duty requires a congressman "to vote against such legislation, even if he believes the law would withstand a challenge in court." Indeed, it seems to me that Members of Congress should take into consideration any restrictions or expansions placed on their Article I powers by the Supremes when voting for or against a particular piece of legislation.
Look, no one appreciates an originalist interpretation of the Constitution more than I do; but you and I both know that only a handful of Republican congressmen (and perhaps one oddball dem) will abide by the rule of honor you propose. Thus, as much as I would love to see congressmen take on a Clarence Thomas mentality with respect to each and every piece of legislation they consider, I simply cannot support a practice that will amount to unilateral disarmament on the part of conservatives.
Senators swear "true faith and allegiance" to the Constitution of the United States, so they shouldn't pass laws that they think violate that Constitution. As an originalist matter (Steve?) this is pretty clear-- the consensus view of the earlier founders was that, at the very least, Congress was obligated not to take unconstitutional action. (Some folks thought their power extended even farther, perhaps to overruling the Supreme Court on issues of constitutionality, but so far as I can tell nobody thought that Congress has the power to do unconstitutional things so long as they didn't get caught.)
Indeed, one of the things I hold most strongly against President Bush is his decision to sign BCRA into law despite his grave constitutional "reservations" about it. The move was a political gamble-- he hoped that the Supreme Court would strike down parts of the law and take the heat, so that he wouldn't have to. The Court upheld basically the entire act, and in the end it was the First Amendment that paid the price for the president's political gamble.
Of course, Steve's argument about "disarmament" could apply with equal force to conservative judges and justices. So long as liberals are interpreting the Constitution in accordance with their own policy preferences (an assumption whose veracity we will leave for another day), Steve could argue, conservatives can and should too, otherwise the balance of power shifts unfairly.
But for all of the reasons that judicial conservatives rightly say, "no, we must follow the rules, even when they hurt us," they should similarly demand that their legislators and executive avoid intentionally acting in ways that they deem unconstitutional. The rule of law is not to be discarded when inconvenient. If this means-- as Steve suggests it does-- holding himself and his legislators to a higher standard than others do, so be it.
UPDATE: Steve responds with some questions, to which I offer answers.
Moreover, "inferior" federal court judges also swear "true faith and allegiance" to the Constitution of the United States, Will. Should they ignore Supreme Court precedent as well? That, of course, is hardly a pefect analogy, but if one if going to rest his argument on an oath then how far does that logic extend?
Nope. As I've written before, while each branch has an obligation to uphold the Constitution by its own lights, vertical stare decisis should still apply within each branch. Thus, the Solicitor General should take some marching orders from the president, and lower-court judges should obey the Supremes. The logic for this distinction comes from early history, where as I understand it, each branch rightly perceived a duty to (at least) avoid taking action it thought unconstitutional. The modern notion that Congress may pass laws it thinks unconstitutional so long as the Court passes on them is just that-- modern. The notion that lower courts are bound by the Supremes is not. To an originalist, that ought to make the difference.
In sum, I don't think Will's comparison of legislators to judges works. Is he really suggesting that a congressman should not take into account long established Supreme Court rulings when deciding whether proposed legislation is constitutional?
To the degree that legislators are inexpert in matters of constitutional interpretation, they are certainly welcome, indeed, encouraged, to consider Supreme Court rulings (and dissents) as persuasive authority. But if a legislator has the considered view that a law is unconstitutional, the buck ought to stop there.
To those who take the view that changing times should give us a changing Constitution, I can understand the view that the Constitutional oaths of old have no relevance today. (I strongly disagree with that view, but it does have an internal consistency.) However, those who believe that original understandings and practices are not outmoded fads should stick to the old ways here as well.
What I am suggesting is not a dramatic revolution in congressional activity; most congressmen and presidents probably believe most laws they pass are constitutional most of the time. But it is, I think, an important point (and also one that would make coherent the doctrine of non-justiciability-- a side benefit).
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People People
This may be somewhat tardy, but my ability to read blogs is severely hampered by a lack of constant high speed internet access, so I only read Jeremy's posts on law firm/summer associate life yesterday. The one that leapt out at me, though, was the email exchange that partially explained the appeal of Biglaw by separating people into those who value people and those who value things. My traveling experiences make it very clear that I'm a "thing person." I typically travel alone, as I am now. This is because I value what I am doing a great deal - I would rather have the perfect solo experience than an imperfect one with someone else, especially if it's something I am unlikely to get a chance to repeat. I am not interested in making new friends when I travel, although I am friendly when approached (to a point - a woman traveling alone can only be so receptive).
When traveling, and, to a lesser extent, when having experiences at home, I seek to maximize my enjoyment. Sometimes that requires the presence of friends or the people I love, but if I am trying to derive utility from some other means (either because human companionship is not available, as it is with some hard working lawyers, or because the experience itself is an important and unique source of knowledge or enjoyment), people don't matter as much.
Maybe this makes me a deficient human being, and perhaps it explains some of the appeal of law firms to people like me (I have an offer also, and it's appealing in many ways, although it might not be so to everyone).
I meant this to be some defense of "thing people," but I've probably frightened away all the fence sitters wih my cold inclusion of human companionship into some sort of utility calculus. Suffice to say no one is a thing person through and through - I think that anyone would pick the utility maximizing thing/experience coupled with utility maximizing companionship. There's no value to be found in purity of experiencing things over people, at the extremes. But some experiences are valuable, and to the extent that their value is not dependent (and even might be diluted or undermined) by the presence of other people, revelling in things is defensible.
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