Why Oh Why Oh Why Oh Why Must Berkeley Economists Try To Play Constitutional Scholars?
By Pejman Yousefzadeh Posted in The Courts — Comments (11) / Email this page » / Leave a comment »
This post is most amusing--especially given the effort by an economist to play constitutional scholar--and fail:
[Harriet Miers] will be, I think, likely to be vastly better as a judge than the alternative--which is some "originalist" who doesn't get that James Madison wrote:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
because he didn't want any judges, ever, anywhere in the United States to argue: "You don't have that right because you can't show it to me written down in the Constitution."
Of course, the most practical and tangible effect of this language is that state constitutions can offer citizens of those states greater rights than those that are afforded in the federal Constitution. That's a far cry from allowing for "penumbras formed by emanations" whenever the mood strikes a certain judge and compels him/her to do so.
Additionally, Chief Justice DeLong might want to consult the case law. Thanks to a "non-originalist" reading by Justice Harlan Fiske Stone, the Ninth Amendment has been rolled back through footnote four of United States v. Carolene Products. (On this issue, Chief Justice DeLong may wish to consult Randy Barnett's Restoring The Lost Constitution, which makes this exact point--among other points, of course.) Curiously, an originalist--you know, the kind of person Chief Justice DeLong decries--would likely not have signed on to the language in footnote four (unless we are talking about Robert Bork's famous "inkblot" argument regarding the Ninth Amendment--watch for DeLong and others to argue that Robert Bork is representative of the entire originalist movement; a silly argument but about the only way that the Chief Justice's position can be maintained). Then again, I guess Chief Justice DeLong is not very good at picking his judicial allies, is he?
Impeach Chief Justice DeLong. Do it now.
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Why Oh Why Oh Why Oh Why Must Berkeley Economists Try To Play Constitutional Scholars? 11 Comments (0 topical, 11 editorial, 0 hidden) Post a comment »
What about the right of the people to pass laws to govern thier own state? Such as anti-abortion laws. Doesn't the 10th amendment give the people of the states that right? Shouldn't an enumerated right at least override the imagined ones?
with my free donuts, after all donuts just aren't as good without coffee.
I guess I stopped reading DeLong just in time.
are you sure this guy isn't a barber or dog groomer? If anybody it was Madison who argued for adherence to enumerated powers,e.g. against the Bank of the U.S.,as one example. DeLong's existence provides an argument for Scholar Harriet Miers as Chief Justice,we'll just have to move Roberts aside. At least she ran the lottery commission. On the other hand perhaps DeLong can only count to 8 and doesn't know about the 9th and 10th amends, or the numerous citation of natural rights "to numerous to mention".
I want the right to buy an iced coffee that doesn't cost more than hot coffee. They usually cost 50 cents to a dollar more, even though you're getting less coffee.
Anyone can be a SCOTUS justice!
to charge more for iced coffee than hot coffee.
Maybe we should file a class action.
"State constitutions can offer citizens of those states greater rights than those that are afforded in the federal Constitution."
I'm totally confused, and not rhetorically or sarcastically so, as to whether this is the way we want things to work.
My belief has always been that the Constitution gives me no rights at all. I am given those by virtue of being a person. The Constitution was supposed to be a restriction on the powers of the federal government. In fact, wasn't there some dispute over the Bill of Rights being included at all because it implied that the rights of people flowed from the government and that people's right were somehow limited to that particular list?
The free donut thing is not just silly, it's irrelevant, as you have no right to take someone else's property or money or work for your own. It has nothing to do with the argument at all, and it has nothing to do with personal freedom or actual rights.
I guess what I'm trying to say is, if this is my party's general take on things, that we need to fight for the government to allow or disallow us personal freedoms as opposed ot fighting to limit what government can have any say in, then I need to find a waaay different party.
And if I'm reading it wrong, excuse me.
Hmmm.
So does that mean I have a Constitutional Right to Free Donuts?
So. Deliver them each morning to my house. I want them hot; if they're cold I'll just make you deliver a new batch. If you add in a medium coffee, with two sugars and some cream, I'll throw in a buck for tip.
And make it snappy!
Ok. So it's ridiculous. Where the heck are my donuts?