Nullification by campaign statement

blindfolded-2025474_640President Trump’s revised travel ban is before the courts again.

Once more, the main argument against it seems to be that Trump showed an opposition to Muslim immigrants and visitors during the campaign.  Therefore, although president usually have authority in such matters, because of his campaign statements his executive order is invalid.

This makes no sense at all.  How can an action be illegal just because a candidate campaigned on it?   That would prevent politicians from fulfilling their campaign promises and would make representative democracy pretty much impossible.  The argument is that Trump’s campaign statements show that the order is biased against Muslims, but a law has to stand or fall on what it says in its own terms, not in the motivations of the person who proposed it.  My understanding is that this revised order specifically precludes discrimination against Muslims, as such.

Or have liberals been persuaded by conservative legal theorists and adopted an extreme version of “originalism,” whereby the lawmakers’ original intention determines the meaning of a law?  If so, we should expect liberals to stop invoking “the living constitution” and to start agreeing with conservatives on what the constitution means.

In the hearing before the Fourth Circuit Court of Appeals in Virginia, the judge pressed the ACLU attorney on his advocacy of nullification by campaign statement.  The attorney lurched towards an even more extreme version of relativism.  He said, in effect, that if Hillary Clinton had issued the travel restrictions, they could be constitutional.  But since Donald Trump ordered them, they are not constitutional. [Read more…]

Our superlegislature

Supreme_Court_of_the_United_StatesNeil Gorsuch was sworn in, informally, and has joined the Supreme Court.  A more ceremonial swearing in will take place later.  But he is already on the job, in time to hear some important cases.

In a column on the “nuclear option,” Charles Krauthammer observes that the Supreme Court has been turned into a “superlegislature.”  Liberals especially are looking to the court to achieve their political ends.

Liberal judicial theory says that the courts should honor “evolving social norms.”  But surely, Krauthammer says, elected representatives are in a better position to reflect evolving social norms.  Constitutionally, the judicial branch should instead be keeping all of these evolving social norms within the parameters of the Constitution. [Read more…]

Originalism and the rule of law

8459580668_6b116eeb71_zDuring his confirmation hearing for Supreme Court justice, liberal senators interrogated Neil Gorsuch about his judicial philosophy of “originalism.”

Because the founders used “he” to refer to the president, does this mean you don’t believe that a woman can serve in that office?

Because the authors of the 14th Amendment didn’t think about women or gays when they drew up the equal rights protection, does that mean you don’t think it applies to women or gays?

Judge Gorsuch replied that such questions show a misunderstanding of what “originalism” means.  That approach does not look for meaning in subjective interpretations of readers, whether of the time it was written or today.  Rather, it looks for meaning in what the law says.

To discern that, you have to research what the words meant to the lawmakers who passed the law; that is, their original intent.  But to interpret (or throw out) a law based on speculation about the personal beliefs of the authors–as opposed to what they said–is more like what liberal interpreters do when they interpret the laws according to their own personal beliefs.  Thus, “originalism” refers to the original language, not historical origins.

That is, originalists believe that the meaning of language and thus the law is objective, not subjective.  The 14th Amendment  guarantees the equal protection of the laws to all Americans, so that would include categories of Americans that the authors didn’t think of at the time.

The rule of law, notes an editorial on the subject (quoted and excerpted after the jump), depends on the law having an objective meaning.

This debate reminds me of different approaches to the Bible.  Do we interpret it according to what we want it to mean?  That’s basically the approach of liberal theology.  Or do we believe in what it says? [Read more…]

The checks & balances of Federalism

scale-307346_640Obama’s executive orders and side-stepping of Congress provoked opposition from the states, whose attorney generals filed lawsuits against his administration.  Now, under President Trump, states with Democratic attorney generals are doing the same thing.

Those attorney generals went to the courts to stop President Trump’s first executive order on immigration, and now a group of states is trying to do the same to his revised order.

That may be annoying to Republicans, who did the same against Obamas’ executive orders, but it is an example of federalism reasserting itself against the dictates of the central government.

Charles Krauthammer says that whatever you think of the outcomes, this is a remarkable “organic” development of our constitutional system.  When Congress is not fulfilling its role to check and balance the Executive branch, the states are moving into that role. [Read more…]

Getting rid of Trump via the 25th amendment

Constitution-Print-C10314518The latest fantasy on the left of how they can get rid of Donald Trump involves invoking the 25th amendment.

I’m glad for the new interest in the Constitution, but the procedure for dropping a president who is “unfit for office” would require the complicity of the Vice President, the Cabinet, and both houses of Congress.

That is, the 25th Amendment would need Republicans–yea, conservatives– to carry it out.  This would also be an argument for Trump to pack his cabinet with loyalists rather than mainstream Republicans. [Read more…]

Judge sees “absolutely no value” in studying the Constitution

Richard Posner is a judge for the U.S. Court of Appeals for the 7th Circuit and a professor at the University of Chicago Law School.  In an op-ed for Slate, he said that he sees “absolutely no value” in judges devoting even seconds to studying the Constitution.  Even the Bill of Rights does “not speak to us today.”

Here is a link to what he said.  Cal Thomas dissects it after the jump.  Then I jump in on the topic, how could the United States cease to exist? [Read more…]