Among other things, Kennedy discusses the Nazi-era rule requiring that yellow stars be worn by Jews, which Kennedy says was so awful as to be inconsistent with the “Rule of Law” — meaning that Kennedy would have struck down this Nazi regulation as a violation of “due process of law”.  Being of Jewish ancestry,  I would have been required to wear such a star, and yet I find this statement by Kennedy deeply misguided, notwithstanding his good intentions.

Yes, a competent judge would strike such badges down, because they were not required by any legislature but rather by executive decree; on September 19, 1941, one of Hitler’s appointed henchmen, Reinhard Heydrich, did that deed, without any democratic lawmaking process whatsoever.  But that distinction between democratic and dictatorial lawmaking is lost upon Justice Kennedy, who continues to assert that there is no such thing as a very bad or very evil law that he would ever recognize; Kennedy  calls himself a “natural law theorist”, empowered to decide which rules are good enough to be “laws” and which rules are not good enough.  If Kennedy were correct, then legislatures and electorates would never have the final say about what is fundamentally right or wrong in our society.

Kennedy seems unaware of how similar his own attitude is to that of Heydrich.  Like Hitler, Heydrich relied upon purported natural law principles which he believed supported eugenics, because it was supposedly the natural destiny of human beings to improve the gene pool for the benefit of future generations.  And, Heydrich believed fervently that his natural law principles should be enforced by decree, regardless of democratic determinations about natural law.

It appears that we as a country have now reverted to rule by judges who are not satisfied with judicial review for compliance with the actual written Constitution, but who also demand compliance with their own beliefs about natural law.  Kennedy’s natural law theorizing may sometimes be right and sometimes wrong, and it is a perfectly valid subject for him to muse about privately or in public interviews, but his judicial opinions have now made us all helpless subjects of that theorizing and musing.

Kennedy says (as he has before) that the framers of our Constitution did not believe they had all the answers, which of course is true, but that fact does not imply judges are free to revise and extend the Constitution.  The framers compensated for their own acknowledged fallibility by writing Article V allowing amendments, and they also permitted legislators and electorates to change the law even before consensus develops for an Article V amendment.  Such niceties are our heritage, for which brave Americans have fought and died, but that heritage is itself dying.

Perhaps it would have been more convenient for Justice Kennedy if the Constitution had said: “No bad rule shall be a law”.   Such a clause would have increased his power immeasurably.  But no matter; he has informed us that that is exactly what the framers were trying to say, if only they had been literate enough to put the words on paper. Mind you, this is the logic of a man responsible for vastly more carnage than Hitler ever dreamed of.

One of the things that DOMA did was define what the word “marriage” means as that term is used in other federal statutes, and that definition is a union between a woman and man. On the other hand, DOMA allows states to define the word however they want in the statutes that their legislatures write.
The dispute seems to boil down to whether Congress has power to define the terms it uses. This is a very weird argument, in my view. One of its main proponents is Ernie Young, and he writes that Congress can’t do this because each state should decide what this word in federal statutes means. If a state passes a law that says single people who are next-door-neighbors shall be deemed married for purposes of federal law, then Congress is helpless to clarify what federal statutes mean by the word “marriage.”
Surely, we are now in the Twilight Zone. Young compares this situation to a hypothetical federal statute that deems two people married even though they’ve obtained a divorce under state law. But if there are nutjobs in Congress who would do such a thing, I say let ‘em do it, and let ‘em lose their seats in Congress.
Please note that I am only speaking here about the constitutionality of DOMA. I am not addressing whether it was a good statute in the first place, or whether Congress ought to repeal it. But I will note that there are an awful lot of speech police in this country who want to insist that everyone be forced to call a union between man and man (or woman and woman) a “marriage.” That seems wrong to me, and akin to forcing everyone to call a rose a tulip.

Judicial nomination filibusters are nightmares for the nominees, and many excellent lawyers will refuse to be nominated if it means risking an endless hazing by the Senate. The greatest danger is that this kind of nonsense will soon spread to Supreme Court nominations (the Fortas nomination in the 1960s was the closest thing yet to a SCOTUS nomination filibuster but in that case it wasn’t clear that Fortas would have won a simple majority vote).

Some people say, well, judges serve for life, so requiring a higher threshold for confirmation is wise. But that’s nonsense. As mentioned, good nominees are scared away, but that’s the least of the problem. If the threshold is raised above the simple majority that the founders expected, then the result will be a bunch of mushy, middle-of-the-road conformists on the Court. And what’s wrong with that? Everything. It means that there will be little variation from one presidency to the next, and therefore cases will become entrenched precedents without having to pass muster with a changing Court membership. Court decisions will be based less and less on the objective meaning of our written Constitution, because the judges who make those decisions will know that their successors will probably be mushy conformists like themselves.

It also gives the Senate itself too much power to make demands on the president. If the president and a Senate majority are of the same party, then a Senate minority should not have power to demand a different judicial philosophy. That’s called tyranny of the minority.

Anyway, I adamantly oppose the Halligan filibuster if it continues without an accompanying effort to get rid of judicial nomination filibusters.

UPDATE (March 8, 2013):  Another way to look at it is like this.  When legislation is filibustered, it’s a way to slow down change, to preserve the law as it is.  Not so with judicial nomination filibusters.  A minority of 41 Senators who want radical change can simply filibuster until a nominee is produced who meets their demands.  Again, this is tyranny of the minority.

What would be nice would be if China finally agrees to do something. Maybe the UN Security Council members need to agree among themselves to give North Korea a stark choice: give up the nukes or be forcibly conquered by the UN and split, one part for South Korea, and one part for China. China might actually do something if it had some territory to gain.

Chris says that his law review articles have presented, at “stupefying length”, arguments against the Court’s statement in Yick Wo v. Hopkins (1886) that “the equal protection of the laws is a pledge of the protection of equal laws.”  Judges and scholars have long understood that this sentence in Yick Wo, “makes it abundantly clear that the quality of legislation as well as the quality of administration comes within the purview of the clause”  (as Joseph Tussman once put it).  And yet Chris has made it abundantly clear that he agrees there is an EP Clause requirement that legislation be up to snuff  (Chris says the EP Clause provides “both literal protection from violence and the enforcement of the laws”).  Therefore, it seems like Chris is in substantial agreement with the sentence in Yick Wo that he paradoxically denounces as “adjectival migration”, in that Chris agrees the EP Clause affects the quality of state legislation.  There isn’t anything in that quote from Yick Wo (putting aside the rest of that decision) that says “protection” includes protection of a right to benefits, or that “protection” involves more than remedial and law-enforcement functions, so I don’t see why Chris criticizes the quoted Yick Wo sentence on those grounds.  Anyway, I’d like to get back now to the constitutional text and pre-enactment history, leaving Yick Wo aside.

I agree with Chris that neither the word “equal” nor the word “protection” in the Equal Protection (EP) Clause is superfluous.  But I do disagree with him about the scope of protection.  He believes (1) that the scope of protection is not limited by the adjective “equal” whereas I do; and (2) that the scope of protection is limited to protection from violence and from non-enforcement of laws, whereas I don’t.  On point (1), Chris acknowledges some doubt, and I hope that perhaps I may have contributed to that doubt a little bit.  Anyway, given that doubt, I will focus now on point (2) only.

The meaning of the EP Clause would change dramatically if the word “protection” were removed. If the clause instead forbade denial of “the equality of the laws” then that would leave out equal enforcement.  If the clause forbade denial of “the equal enforcement of the laws” then that would leave out equality of the laws themselves.  So I regard the “protection” requirement as very important, as Chris does.

It may also be that the word “protection” was chosen partly to help distinguish voting rights from civil rights.  After all, voting rights of women and racial minorities are covered by later additions to the Constitution, whereas Section 2 of the Fourteenth Amendment specifically contemplates inequality of voting rights.  And I have already quoted Henry Raymond as making a distinction between civil rights (covered) versus political rights (not covered).

Chris’s position is that some equality in civil rights is not covered by the EP clause, such as the right to equal education, other equal benefits, and equal justice generally.  I continue to believe that relying upon other clauses to defend these things overstretches the other clauses and underestimates the EP Clause.

I have already acknowledged in my initial blog post responding to Chris that government has a duty to protect the governed.  In other words, the allegiance-for-protection tradition is a real duty.  I just don’t see it in the EP Clause.  If the words “within its jurisdiction” raise a red flag in this regard, then the red flag is very tiny.  Those three quoted words may very naturally have been employed to clarify that the EP Clause does not authorize a state to act outside its own borders to protect one of its own citizens (or anyone else), and/ or that people visiting or transiting within the state are fully and equally covered by the clause.  I don’t see this allegiance-for-protection tradition as helping to define “protection” in the Fourteenth Amendment.  And even if it does, I don’t see why that protection (owed by the state in return for allegiance) would not include protection of people’s equal rights generally.  The Constitution elsewhere speaks of “protecting” non-persons (e.g.  protecting states and protecting the Constitution itself), so there’s no reason to think the EP Clause refers to direct protection of persons rather than protection of their civil rights.  I view the latter as a “protection-based interpretation” even though Chris does not.

As an aside, I do not object to the general notion that we need to find some limiting principles to understand the EP Clause.  The clause cannot plausibly give judges free reign to decide, for example, that a shoplifter must be treated equally to an arsonist.  It’s just that I don’t think Chris has identified the correct limiting principles.  Given the prominent citation of the Declaration of Independence by Thaddeus Stevens and others, I suspect that the EP Clause probably targets only discrimination based on characteristics that are already determined when a person is born, or pretextual reference to such characteristics (e.g. “We’re not discriminating against him because he’s black, only because he’s a former slave!” or “We’re not discriminating against her because two of her grandparents were Jewish, but only because of the beliefs she has chosen for herself!”).

Chris’s leading example for the use of the phrase “protection of the law” is Blackstone:

For in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting those rights, when wrongfully withheld or invaded.  This is what we mean properly, when we speak of protection of the law.  When, for instance….[law] will make Gaius restore the possession [of land] to Titius, and also pay him damages for the invasion.”

Here Blackstone may be referring to “protection of law” as basically remedial, i.e. to enforcement of a legal right that exists separately from the remedy.  Or he may be referring to “protection of law” wholistically as the sum total of declaratory law plus remedial law.  For the sake of argument, assume the former.  Under that assumption, I don’t see how a bare constitutional requirement of “protection of the law” would require legislation to safeguard people from violence (as Chris says it must: “both literal protection from violence and the enforcement of the laws”).  For example, if state law explicitly says that green people are always free to beat up on purple people and explicitly says that purple people have no legal right to not be beaten up, then the state law has not thusly declared any right of purple people whatsoever, nor directed such right to be observed, and hence Blackstonian protection of the law requires no method of recovering or asserting any right of purple people.  How could “protection of the law” be of any help to purple people in this instance?  I don’t see that it would be helpful, according to Blackstone, but Chris inexplicably says that  it would be helpful (i.e. the clause provides “both literal protection from violence and the enforcement of the laws”).

The EP Clause makes little sense if a state can entirely deny protection to a particular race merely by amending its statutes to explicitly exclude that race.  In other words, the “equal” protection of the laws must protect legal equality, as Henry Raymond said.

UPDATE: Modified for clarity at 7:15 PM on February 7.  Will leave as-is now. Changed “Jules Coleman” to “Joseph Tussman” at 10:16 PM on February 7.

The EP Clause is located in the first section of the Fourteenth Amendment, and it was adopted in the wake of the Civil War.  It says that no state shall, “deny to any person within its jurisdiction the equal protection of the laws.” Essentially, Professor Green’s theory is that the EP Clause forbids each state from denying to any person within its jurisdiction full legal protection against injury.

The change that Professor Green proposes is vast.  Congress and the Supreme Court would be able to strike down not only unequal state statutes that withhold protection from some types of people, but would also be able to strike down and even replace nondiscriminatory (i.e. equal) state statutes, if those equal state statutes do not — in the opinion of Congress or the Supreme Court — fully protect people from injury.  That includes injury inflicted by both private parties as well as injury by state criminal laws.

Professor Green would in one sense narrow federal power under this clause, even while immensely expanding it overall.  Federal power would be narrowed in the sense that the feds could no longer use the EP Clause to strike down unequal state laws that simply confer benefits (such as education), because Professor Green doesn’t think those statutes involve “protection.” Instead, in Green’s view, the EP Clause would only target state laws that fail to guard people from violent injury and the like.  To make up the difference, Professor Green would supercharge other parts of the Fourteenth Amendment, which raises a whole other set of issues that I won’t get into here.

There are two basic problems with Professor Green’s analysis of the constitutional text.  First, he underestimates the word “equal” in the EP Clause, as if it is merely one of many qualities that a state’s protective laws must satisfy in order to comply with this Clause.  Second, he adopts an unjustifiably narrow interpretation of the word “protection” so that it does not refer to general protection against injustice (e.g. racial discrimination), but instead only refers to protection against violent injury and the like.

Let’s dig a little deeper.  The constitutional text requires “equal protection”.  If protection is equal but otherwise inadequate, then other clauses of the Constitution may be relevant, but the EP Clause isn’t.  Had the framers wanted this EP Clause to require more than “equal” protection, they could have easily said so, and they obviously knew how.  For example, the Republican Platform of 1864 said: “the Government owes to all men employed in its armies, without regard to distinction of color, the full protection of the laws of war.” This required not just equal protection, but full protection.  And the 1864 platform was no fluke.  The Civil Rights Act of 1866 also required the “full and equal  benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens….”

Instead of the word “equal”, Professor Green essentially reads into the EP Clause the word “full,” which is certainly not synonymous, and was deliberately avoided by the framers.  To be sure, Professor Green does not explicitly say that he wants to replace “equal” with “full,” but that is how he reads the EP Clause; equal protection is not enough in his view, and the protection must also be adequate in all other respects.  He considers the word “equal” to be on par with a mere parenthetical, according to the title of his article, but of course this word is not parenthetical in the actual law adopted and preserved in the Constitution.  True, government has a duty to fully protect the governed, but not every principle of good government is located in the Fourteenth Amendment, for the very simple reason that the framers did not want Congress and the federal courts to take over all the important functions of state government.

Now consider the word “protection” in the EP Clause.  Professor Green says that it does not refer to benefits like education or other services offered by the public or private sectors.  Actually, though, it was not unusual in the nineteenth century to hear about protection of rights, as opposed to mere protection of persons and property.  For example, the founder and publisher of the New York Times, Henry Raymond, was a New York congressman from 1865 to 1867, and he explained as follows:

“I have no doubt at all that the will and purpose of this nation to-day is, and has been ever since the war closed, that there shall be in the Constitution some provision more effective than any yet existing for an equality of rights of all men in this country, and for their protection in the enjoyment of them; for an absolute and immediate equality of civil rights, and for an equality of political rights just as soon as the other and more pressing necessities of the nation will permit.”

This congressional speech by Raymond was covered in the newspaper he founded, and was typical during that era.  As in the speech by Raymond, the word “protection” often referred generally to protection of rights, and not merely to direct protection of persons and property.

The draft version of the EP Clause sought to secure “equal protection in the rights of life, liberty, and property.”  But in the final version, the qualifiers disappeared, and this became “equal protection of the laws.” Professor Green seeks to insert qualifiers that are even more limiting than the ones which were removed.

The Civil Rights Act of 1866 sought “protection” not merely of people’s safety and property, but rather “protection to all persons in their constitutional rights of equality before the law….”  This desired protection was obviously directed at protecting rights, and only protected persons and property indirectly by protecting those rights.  And there is no compelling reason to think that the Equal Protection Clause took a more limited approach to “protection” than the Civil Rights Act did.  I like Professor Green, but respectfully disagree with his analysis of the EP Clause.

UPDATE (February 3, 5 PM EDT): I made a few minor tweaks for clarity, and will now leave it as-is.

So now we know. The Constitution is organic. Here is how Dictionary.com defines the word:

1. noting or pertaining to a class of chemical compounds that formerly comprised only those existing in or derived from plants or animals, but that now includes all other compounds of carbon.
2. characteristic of, pertaining to, or derived from living organisms organic remains found in rocks.
3. of or pertaining to an organ or the organs of an animal, plant, or fungus.
4. of, pertaining to, or affecting living tissue: organic pathology.
5. caused by neurochemical, neuroendocrinologic, structural, or other physical impairment or change: organic disorder.
6. having an organization similar in its complexity to that of living things.
7. characterized by the systematic arrangement of parts; organized systematic: elements fitting together into a unified, organic whole.
8. of or pertaining to the basic constitution or structure of a thing; constitutional; structural: The flaws in your writing are too organic to be easily remedied.
9. developing in a manner analogous to the natural growth and evolution characteristic of living organisms arising as a natural outgrowth.
10. viewing or explaining something as having a growth and development analogous to that of living organisms an organic theory of history.
11. pertaining to, involving, or grown with fertilizers or pesticides of animal or vegetable origin, as distinguished from manufactured chemicals: organic farming; organic fruits.
12. of or pertaining to the constitutional or essential law or laws of organizing the government of a state.
13. noting or pertaining to any work of architecture regarded as analogous to plant or animal forms in having a structure and a plan that fulfill perfectly the functional requirements for the building and that form in themselves an intellectually lucid, integrated whole.
14. of or pertaining to the shapes or forms in a work of art that are of irregular contour and seem to resemble or suggest forms found in nature.

I don’t suppose that Lincoln could have been using definition #12. Nah. That’s impossible. Lincoln didn’t have Dictionary.com back then!

UPDATE (February 1): As discussed above, Ramsey warped Lincoln’s words. Turns out he warped Scalia’s words too. Ed Whelan quotes Scalia as follows:

I used to say that the Constitution is not a living document. It’s dead, dead, dead. But I’ve gotten better. I no longer say that. The truth is that the Constitution is not one that morphs. It’s an enduring Constitution, not a changing Constitution. That is what I’ve meant when I’ve said that the Constitution is dead.

I like the way Scalia’s phrasing has morphed here.

So let’s start with the Equal Protection Clause.  According to Balkin’s (flawed) argument, decisions like Roe v. Wade can be justified based on women’s equality. Actually,  Roe v. Wade disenfranchised women, forbidding them from affecting a policy that deeply impacts women and their values in the most fundamental ways.  Generally speaking, women are more pro-life than men, including the seven old men who voted for Roe v. Wade.   Many women see abortion as equally useful to men, because men can have more sex without worrying about ever having to pay for years of child support in the event of an unintended pregnancy.  Balkin claims that Roe v. Wade forbade “state-enforced compulsory motherhood,” but that characterization is a gross exaggeration.   It is true that many states in 1973 did not recognize “rape” as a crime that a husband could commit against a wife, but times have thankfully changed, and divorce is easier too.  Nowadays, women in the United States are in no way required to have sex, and no woman is required to become pregnant or to risk pregnancy; therefore,  forbidding a woman to discontinue a pregnancy does not in any way compel motherhood.  The vast majority of abortions are the result of women freely choosing to take a risk, and many states also now have laws allowing women to abandon unwanted newborns at a hospital with no questions asked.  I personally would prefer laws that do not forbid abortion during the first seven weeks after conception, because I do not think that an embryo is sufficiently human to warrant protection by the state.  But I am equally sure that anti-abortion laws do not necessarily implicate equal protection.

The reason why men should not be barred from getting abortions is not because men are superior to women, or because men deserve more rights than woman, but rather because men cannot and do not become pregnant.  For the same reason, few women are in jail for forcibly inseminating or raping men, while lots of men are in jail for doing that to women; it’s not because women are superior to men and deserve more rights, but rather because women cannot and do not inseminate men.  Biology dictates that men and women are not always similarly situated; sometimes this works against men, and sometimes against women.  Balkin’s argument thus falls flat, and without it his Privileges or Immunities Clause argument falls apart….

Let’s turn now to the Privileges or Immunities Clause: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States….”   Notice that this Clause only restricts the states, and does not restrict the federal government.  And, obviously, something cannot be a privilege or immunity of citizens of the United States if, for example, Congress is constitutionally free to deprive people of that right (e.g. by banning abortion in the District of Columbia).  Yet the federal government is free to do exactly that, unless (1) anti-abortion laws violate equal protection principles, and (2) those principles are applicable against the federal government.  I have already shown that (1) is false, so there is no need to address whether (2) is false too (although I will note that many scholars have correctly argued that Bolling v. Sharpe could have and should have been decided on other grounds).

Professor Balkin’s Privileges or Immunities Clause argument is independently bogus for other reasons too.  He fails to recognize that the Supreme Court case that was overturned by the Fourteenth Amendment (i.e. Dred Scott) revealed not only bitter divisions on the Court, but also revealed consensus among the judges about the meaning of the terms that Congress would subsequently employ in the Privileges or Immunities Clause.  Although Dred Scott was decided in 1857, it was still very fresh on everyone’s minds when the Fourteenth Amendment was written and ratified in the latter part of the following decade.  Both the main opinion and the lead dissent in Dred Scott agreed on some points that were completely undisputed.  The main opinion in Dred Scott stated: “The powers of the [federal] Government and the rights and privileges of the citizen are regulated and plainly defined by the Constitution itself.”  And the lead dissent in Dred Scott, written by Justice Curtis, likewise stated: “[T]he privileges and immunities of general citizenship, derived from and guarantied by the Constitution, are to be enjoyed by….citizens of the United States.”  No one on the Court disputed this notion that the privileges of a U.S. citizen are spelled out or derived from the Constitution itself, rather than comprising an amorphous body of statutory or law-professor-created rights like a right to abortion.  And as explained above, there is no right , enforceable nationwide against Congress, to obtain an abortion, due to equal protection principles or any other principles.

Professor Balkin relies very heavily upon a congressional speech by Senator Jacob Howard of Michigan, who introduced the Fourteenth Amendment in the Senate (the lead Senate sponsor, Senator Fessenden of Maine, had taken ill).  It is true that Howard’s speech was printed in several newspapers, but that speech obviously pales into insignificance compared to the extremely wide circulation and fame of the Dred Scott opinions.  Moreover, Republicans like Howard relied upon a reading of article IV, section 2 of the Constitution that was “unorthodox” (as Professor Michael Kent Curtis has put it).  Senator Howard believed that Article IV, Section 2 protected a body of national rights applicable against the federal government (“solely as a citizen of the United States and as a party in their courts”), and Professor Balkin correctly quotes Howard as saying that those rights “are not and cannot be fully defined in their entire extent and precise nature.”  But Balkin neglects to mention that Howard admitted he had only “some intimation of what probably will be the opinion of the judiciary” regarding Article IV, Section 2. In fact, Howard disregarded pertinent judicial precedent, such as an 1833 circuit court decision by U.S. Supreme Court Justice Henry Baldwin, who described Article IV, Section 2 as merely, “a grant by the people of the state in convention, to the citizens of all the other states of the Union, of the privileges and immunities of the citizens of this state.”  Justice Baldwin’s opinion in 1833 was correct, and the U.S. Supreme Court has taken basically the same stance for the past 140 years.  Senator Howard very clearly spoke of the need to enforce only pre-existing constitutional rights against the states, and he simply mischaracterized what those rights were.  Even Howard’s guess about the meaning of Article IV, Section 2 did not remotely allude to any abortion right enforceable against the federal government or against pro-life states.

Balkin also writes:

Because of two early decisions, the Slaughterhouse Cases and United States v. Cruikshank, the Supreme Court effectively wrote the privileges or immunities clause out of existence. In doing this, it nullified a central element of the new fourteenth amendment.

I agree that the reasoning in Slaughterhouse was atrocious, and that that case eviscerated the Privileges or Immunities Clause.  But the actual decision in Slaughterhouse was 100% correct.  The right at issue in that case was the supposed right to engage in a trade or profession.  That right was not to be found anywhere else in the Constitution, it was not applicable nationwide against the federal government, and so the Court correctly declined to enforce it against the states.  It was the rationale rather than the result that was crappy, and that ought be corrected.

Anyway, I’ve laid out why I think Professor Balkin’s argument is teraparsecs less than plausible.  Perhaps he will agree.  Here’s hoping.

The Secretary may mint and issue platinum bullion coins and proof platinum coins in accordance with such specifications, designs, varieties, quantities, denominations, and inscriptions as the Secretary, in the Secretary’s discretion, may prescribe from time to time.

Once the coin is minted, another statute comes into play, 31 USC 5136, which among other things says this about the Mint’s deposit fund:

[T]he Fund may retain receipts from the Federal Reserve System from the sale of circulating coins at face value for deposit into the Fund….

Now, I’m no expert on monetary policy and government finance, but when I read this last statute, it clearly refers to “circulating coins” rather than other kinds of coins like “numismatic coins” and “bullion coins.” These last two terms are also used in the statutes in contradistinction to “circulating coins” which are “available for ordinary commerce in packaging of sizes and types appropriate for and useful to ordinary commerce, including rolled coins.”

So it seems like the plain language of the statutes argues against this trillion dollar coin scheme. The Federal Reserve banks have no need for such a thing. But even if I’ve somehow misread the statutes, clearly Congress never intended such a bizarre thing as a trillion dollar platinum coin, which is far outside the realm of any reasonable discretion. If we use our imaginations, and suppose that Congress really did intend to delegate that much discretion, then surely it would amount to an unconstitutional delegation of legislative power.

I used to collect coins when I was a kid, and it would have been nice to have one of these in my collection, but that’s just a silly fantasy, like the entire scheme.

UPDATE (Jan. 12, 2013): Looks like the stupid idea is now officially dead.

James Vincent Forrestal was born on 15 February 1892, in Matteawan (now Beacon), New York….World War I interrupted his career in finance, however, and he enlisted in the U.S. Navy as a seaman second class on 2 June 1917….President Harry S Truman selected Forrestal as the first secretary of defense.

So, Forrestal ran the Pentagon as the first Secretary of Defense (the Pentagon had been built during the Roosevelt administration).   Forrestal’s rank of “seaman” was one of the lowest enlisted ranks in the U.S. Navy.  My Dad was one.   (No jokes, please, about “Seaman Hyman” or about my own rank in the Army, which was “Private Hyman”!)

I don’t have any position about the Hagel nomination, pro or con, though I share many of the concerns reported in the media.  It’s not encouraging that his former enlisted status is being puffed up in a historically false way.  This is not to diminish Hagel’s heroic military service one bit, or to suggest that he’s the one who decided to sweep Forrestal under the rug.

Of course, the deep researchers and independent thinkers in the mainstream media have been exposing the truth to their usual degree:

Linda Feldmann, CS Monitor: Hagel “would be the first enlisted man, and the first Vietnam veteran, to head the Pentagon.”

Mark Memmott, NPR: Hagel “would be the first former enlisted man to lead the Pentagon….”

Teresa Welsh, US News & World Report: “he would be the first enlisted man to serve as secretary of defense.”

Blah, blah, blah.

According to an article yesterday in the Washington Post:

But former House Speaker Newt Gingrich is calling for a totally new approach:

Former House Speaker Newt Gingrich said Friday that the upcoming showdown over the debt ceiling isn’t a political winner for House Republicans, but dubbed it a “dead loser.” 

“They’ve got to find, in the House, a totally new strategy,” Gingrich said on MSNBC’s “Morning Joe.” “Everybody’s now talking about, ‘Oh, here comes the debt ceiling.’ I think that’s, frankly, a dead loser. Because in the end, you know, it’s gonna happen. The whole national financial system is going to come in to Washington and on television and say: ‘Oh my God, this will be a gigantic heart attack, the entire economy of the world will collapse. You guys will be held responsible.’ And they’ll cave.”

What Congress could do is this.  Authorize a debt ceiling increase of one trillion dollars over two years.  Of course, if that’s all Congress does, then the country would probably burn through the money long before the two years are up, and we’d be back to square one.  That’s why Congress should require that the ceiling rise GRADUALLY over the next two years.  Let the ceiling rise $47 billion per month in the first year, and $37 billion per month in the second year, but no more.  That adds up to about one trillion.

So, during 2013, the debt ceiling would rise gradually by $47 billion per month.  Does that mean we would default on any loans?  Of course not.  Spending would have to be cut, but that doesn’t mean that any interest payments on the national debt would be cut.  After paying interest on the national debt, plenty of money would be left over to help fund the government.  

You may recall that Mitt Romney proposed a ceiling on deductions and exemptions for wealthy people.  A gradual increase in the national debt would work in a similar way.  No spending authorized by Congress would be cancelled, but the president would have to choose which spending to do.

This new strategy would give considerable discretion to the executive branch regarding spending, but the President could not spend on anything that’s not been approved by Congress.  If the President abuses his discretion, then Congress could always pass a new law to remedy the situation. I don’t like giving discretion to the President, but discretion where to cut is much better than not cutting at all.

The first debt ceiling was introduced in 1917, during World War I.  Before then, Congress had to approve every new issuance of debt, and I’m not suggesting that Congress do so again.  The Budget Control Act of 2011 approved incremental increases of the debt limit, but not the kind of monthly gradual increases that I’m suggesting.

In addition to the debt ceiling increase that I have suggested here, Congress could negotiate a followup bill that raises the monthly debt ceiling increases even further, provided that authorized spending is cut by at least the amount of the total debt ceiling increase (including the one trillion of the first bill).  Given that the first bill would safeguard the full faith and credit of the United States, no one should be able to scare Congress into dropping Speaker Boehner’s demands regarding the followup bill.

Why anyone thinks this guy is qualified to be a constitutional law professor boggles my mind.  Maybe it’s time to give up on tenure, too.

While Akhil Amar of Yale Law School is arguing that we should all be bound and chained by both a written and an unwritten constitution, Louis Michael Seidman is arguing that we should just go with an unwritten one. Seidman gives a bunch of bogus reasons that are too numerous and misguided to fully address here.  But I will bravely try.  Let’s start with this specious specimen from Seidman:

Why should a lame-duck House, 27 members of which were defeated for re-election, have a stranglehold on our economy?

There are lots of valid arguments for and against lame duck sessions. But the main point is that the Constitution already leaves us 100% free to get rid of them if we want:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators.

Any time Congress wants, they can move election day from November to January, thus eliminating any possibility of lame duck sessions.  That Seidman would give lame duck sessions as a leading reason to abandon the Constitution (without even trying to amend it!) is utterly crazy.  Speaking of crazy, consider Seidman’s next complaint:

Why does a grotesquely malapportioned Senate get to decide the nation’s fate?

It’s true that the US Senate is grossly malapportioned, but this too could be substantially changed by mere legislation.  The four most populous states are California (38 million), Texas (29 million), New York (19 million), and Florida (19 million).   The next state has 12 million, and so on down to Wyoming with just over half a million.

The less a state’s population, the more power each citizen has to enjoy self-government, because that citizen’s vote makes more of a difference.  This principle of self-government, as well as better apportionment in the Senate, would be well-served if the top four states would be split up.  Split California into northern, central, and southern.  Split Texas into east and west.  Spin off upstate New York.  And split Florida into north and south.  Of course, there would still be malapportionment in the Senate, but it would be greatly reduced.  Nothing in the Constitution stands in the way, and Professor Seidman is misguided to suggest otherwise.  Even if something in the Constitution did stand in the way, what’s so onerous about the amendment process?  Seidman does not say.

Professor Seidman attempts to dress up lawbreaking and treason by claiming it’s all been done before:

Constitutional disobedience may seem radical, but it is as old as the Republic. In fact, the Constitution itself was born of constitutional disobedience.  When George Washington and the other framers went to Philadelphia in 1787, they were instructed to suggest amendments to the Articles of Confederation, which would have had to be ratified by the legislatures of all 13 states. Instead, in violation of their mandate, they abandoned the Articles, wrote a new Constitution and provided that it would take effect after ratification by only nine states, and by conventions in those states rather than the state legislatures.

Certainly the founders engaged in revolution, but it was against Britain.  Yes, one can argue that they also revolted against the Articles of Confederation, but there’s a better argument that they did not.  For example, Lincoln argued in his first inaugural address that secession was unacceptable because “the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778.”  The constitutional convention surely stretched its mandate, but the Continental Congress subsequently accepted the Constitution, thus removing any legitimate quibbles about the stretched mandate; on September 28, 1787, the Continental Congress said:

Resolved, unanimously, That the said report, with the resolutions and letter accompanying the same, be transmitted to the several legislatures, in order to be submitted to a Convention of delegates chosen in each state, by the people thereof, in conformity to the resolves of the Convention made and provided in that case.

But what about Professor Seidman’s complaint that amendments had to be ratified by all 13 states, rather than just the nine states contemplated by the Constitution?  It’s true that the Articles required any alteration to be “confirmed by the legislatures of every State.” This was so that no state would be bound without its consent.  But the US Constitution did not purport to bind any state without its consent: “The ratification of the conventions of nine states, shall be sufficient for the establishment of this Constitution between the states so ratifying the same.” Non-ratifying states would not be bound at all.  And the framers of the US Constitution did not pick the number “nine” out of thin air.  The Articles of Confederation explicitly allowed states to form confederacies among themselves with “the consent of the United States in Congress assembled” provided that “nine States assent to the same.” Professor Seidman is wrong that the framers of the Constitution favored secession from the Articles of Confederation.  It didn’t happen that way.  Maybe our right of revolution should be exercised someday, but the precedent for that occurred in 1776 and hasn’t been repeated since then.

Seidman goes on (and on):

No sooner was the Constitution in place than our leaders began ignoring it. John Adams supported the Alien and Sedition Acts, which violated the First Amendment’s guarantee of freedom of speech.

Regarding the Alien and Sedition Acts, it is downright weird for Seidman to invite a repeat of that sorry episode.  The main reason those lousy Acts were finally repealed was because opponents refused to give up on the Constitution.  For present purposes, the key point about those Acts is that President John Adams and his Federalist Party thought (mistakenly) that they were acting constitutionally rather than trying to evade the Constitution.  For example, see the defense of the Alien and Sedition Acts on behalf of a minority of the Virginia legislature (1799).  That influential report (probably written by John Marshall) was plausible in its time, arguing (at page 13) that liberty of the press “signifies a liberty to publish, free from previous restraint, any thing and every thing at the discretion of the printer only, but not the liberty of spreading with impunity false and scandalous slanders, which may destroy the peace, and mangle the reputation, of an individual or of a community.” Opponents of the Alien and Sedition Acts had the better constitutional argument, which ultimately prevailed, but obviously neither side argued for giving up on the First Amendment, as Professor Seidman wrongly suggests.

Seidman continues:

He [Jefferson] believed the most consequential act of his presidency — the purchase of the Louisiana Territory — exceeded his constitutional powers.

Jefferson believed that when the United States makes a treaty with another country, such as the treaty he made with France, then the content of the treaty is limited to the other enumerated powers (“If [the treaty power] has bounds, they can be no other than the [Constitution's] definitions of the powers which that instrument gives”).  Because Jefferson did not perceive anything in the Constitution authorizing incorporation of foreign lands, he drew up a draft amendment to the Constitution, in order to legitimize the treaty with France.  But members of his administration and of Congress argued that the Constitution did grant adequate power, for example under the power to spend for the general welfare (as Caesar Rodney argued).  So Jefferson then decided to take a middle course: he would acquire the land by treaty, without seeking to amend the Constitution, but leave Congress with the decision about whether Congress had power to make the land into part of the nation:

With the wisdom of Congress it will rest to take those ulterior measures which may be necessary for the immediate occupation and temporary government of the country; for its incorporation into the Union.

In other words, Jefferson declined to use the treaty power in order to occupy, govern, or incorporate foreign lands.  In this way, he held true to his constitutional convictions about the legitimacy of the treaty with France.  Jefferson’s view was vindicated long ago, and Congress has incessantly spent money to promote the general welfare, and to take necessary and proper steps to manage federal property.  In a nutshell, Jefferson initially thought the treaty with France exceeded his constitutional powers, he responded by seeking a constitutional amendment (ignored by Seidman), and ultimately changed his mind by construing the treaty narrowly (as a valid exercise of the spending power that did not occupy, govern, or incorporate any foreign lands).

Moving on, Professor Seidman writes:

[W]hen the law finally caught up with the facts on the ground through passage of the 13th Amendment, ratification was achieved in a manner at odds with constitutional requirements. (The Southern states were denied representation in Congress on the theory that they had left the Union, yet their reconstructed legislatures later provided the crucial votes to ratify the amendment.)

This complaint strikes me as frivolous.  What the heck is supposed to happen if Congress proposes a constitutional amendment, and new states are admitted prior to ratification?  Obviously, the new states must be counted to determine how many states are required for ratification. After all, Article V of the Constitution says:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution …which…shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States….

Is Seidman seriously suggesting that the rebel states should have been allowed full voting rights in Congress throughout the Civil War?  Or that they should have been forbidden from ratifying any amendment that Congress had proposed before their readmission?  Either notion seems absurd to me.  But even if one imagines that Seidman has the better constitutional argument, surely that does not imply that everyone on the other side of the argument was ignoring the Constitution.

More baloney from Seidman:

In his Constitution Day speech in 1937, Franklin D. Roosevelt professed devotion to the document, but as a statement of aspirations rather than obligations.

What Roosevelt actually said:

When the Framers were dealing with what they rightly considered eternal verities, unchangeable by time and circumstance, they used specific language. In no uncertain terms, for instance, they forbade titles of nobility, the suspension of habeas corpus and the withdrawal of money from the Treasury except after appropriation by law. With almost equal definiteness they detailed the Bill of Rights.

But when they considered the fundamental powers of the new national government they used generality, implication and statement of mere objectives, as intentional phrases which flexible statesmanship of the future, within the Constitution, could adapt to time and circumstance. For instance, the framers used broad and general language capable of meeting evolution and change when they referred to commerce between the States, the taxing power and the general welfare.

Roosevelt was 100% correct.  For Seidman to assert that Roosevelt did not feel obligated by the Constitution is absurd and insidious. I’ll leave it at that.

Happy New Year.

Instead, the GOP mantra seems to be: protect the rich. At least that’s the way it’s coming across via the mainstream media. I agree that the problem is essentially a spending problem, but there comes a time when you have to be concerned about messaging and take what you can get. At this point, a “deficit neutral” fight could be winnable. A “protect the millionaires” fight, not so much.

One thing I wanted to confirm is the clever note that Lincoln sent to Congress in order to grease the way for passage of the Thirteenth Amendment (which was as great a law as any ever enacted by the human race). Turns out that director Stephen Spielburg wasn’t telling a fish story. Here’s the actual correspondence:

INDORSEMENT ON A LETTER FROM J. M. ASHLEY.

HOUSE OF REPRESENTATIVES, January 31, 1865.

DEAR SIR:–The report is in circulation in the House that Peace Commissioners are on their way or in the city, and is being used against us. If it is true, I fear we shall lose the bill. Please authorize me to contradict it, if it is not true.

Respectfully, J. M. ASHLEY.

To the President.

(Indorsement.)

So far as I know there are no Peace Commissioners in the city or likely to be in it.

A. LINCOLN. January 31, 1865

Well done Abe! The peace commissioners were far outside the city, which is where Lincoln would later meet with them. In the note quoted above, Lincoln didn’t lie, didn’t exactly reply with the whole truth, and even suggested (in the first five words) that something else might be going on. Even the brevity of the letter suggested to Congress that something else might be going on. Very well done.

Historically, there are those who say slavery was effectively dead anyway, or that the incoming Republican Congress would have easily approved the amendment. But nothing was a sure thing. Lincoln may have reasoned that, once the war ended, he would be obliged to make sure that congresscritters from the south were immediately seated, thus jeopardizing the Amendment. And he might have also reasoned that, with the war over, the momentum would shift from abolition to reconciliation. Perhaps he sensed his own impending doom, and doubted Andrew Johnson’s leadership on the issue. Or he may have realized that the Amendment was immediately necessary in order to make the South understand that it had completely lost, instead of leaving the matter to fester any more. Anyway, that was one very clever letter.

As you may recall, the trial of KSM was initially going to occur in a civilian court in NYC. But last year, President Obama ordered the thing moved to a military tribunal at Guantanamo Bay, Cuba. A trial in NYC was going to be expensive, NYC would become gridlocked, civilian judges might be more lenient than military courts, and Obama was worried that Romney would beat him up over this issue. But Obama should have stuck up for the Constitution, which in my opinion sounds pretty clear:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law….

Absent some real military necessity, I don’t see any need to circumvent this provision. The idea that NYC would be gridlocked or bankrupted by the trial doesn’t wash. Here’s a quote from the website of the Southern District of New York:

Welcome to the United States District Court for the Southern District of New York. This Federal Court has jurisdiction over and summons jurors from the counties of New York, Bronx, Westchester, Rockland, Putnam, Orange, Dutchess, and Sullivan. The Court for the Southern District of New York hears cases in Manhattan, White Plains, and Middletown, New York.

In other words, the SDNY is huge, so it seems like the Constitution could arguably be satisfied by having the trial in lots of places besides NYC.

I’m as concerned as anybody about activist judges who could make up all kinds of trial requirements that are inconsistent with federal statutes and with the Constitution itself, but the solution to that problem is not to join in trashing the Constitution. Attorney General Holder has continued to say that he could get a conviction in New York before a civilian court, without jeopardizing any military operations or secrets. So, Holder shouldn’t have caved to the White House on the issue.

Keeping Guantanamo open is fine with me. But I don’t see the problem with flying KSM to the mainland for a couple days so he can get a speedy trial before a jury of bitter New Yorkers. I’d love to see SCOTUS try to let KSM off on some judge-made technicality, and see how the American people react to that.

The House of Representatives could show it’s serious about this in several ways. For example, they could adopt the Bowles-Simpson plan. They could raise eligibility ages for entitlements, adopt means testing for entitlements, close loopholes, put a ceiling on deductions for the wealthy, and adopt a comprehensive and affordable health plan to replace ObamaCare (e.g. by reforming Medicaid and Medicare). This is a great time for the House to show leadership, and to impress upon the president that the House does not have to authorize one cent of revenue if the president refuses to honestly address the country’s financial crisis.

As for taxing the rich, there are two general uses to which wealthy people put their income. First is savings, investment, business expenses, and the like. Second is spending to support and enhance their standard of living, e.g. for food, clothing, shelter, education, travel, luxuries, et cetera. I think it’s only the latter stuff that the president feels vengeful about, so why try to raise tax rates on the former? I’m not an economist, but this seems like common sense.

This suggestion is not new. Daniel Pipes of Stanford University’s Hoover Institution has argued for it. Former UN Ambassador John Bolton has argued for it too.

There would have to be some agreement that Egypt wouldn’t just spin off Gaza into an independent or autonomous country. Everyone would be better off if Gaza were no longer a free agent. And that includes the people of Gaza.

Crowley, as moderator of the second presidential debate, intervened on Obama’s side to say that Romney was wrong, i.e. Crowley asserted that Obama had previously described (during a Rose Garden speech) the Benghazi attack as an “act of terror”. Obama falsely made this claim during the second debate, and Crowley decided to back him up on it. In this way, Crowley violated the ground rules of the debate, stepped out of the traditional role of a neutral moderator, and falsely defended President Obama’s lie against Romney’s correct challenge.

At most, Obama had suggested in the Rose Garden that the Benghazi attack might be a terrorist attack. He did not say it was, and his underlings proceeded to say for weeks that it was not.

Following Crowley’s presentation of misinformation during the debate, CBS News then sat for weeks on video proving Crowley wrong and Romney right.  The video interview by Kroft of Obama occurred a few hours after the Rose Garden speech.  In that interview, Kroft confirmed that Obama had carefully avoided calling the Benghazi attack an act of terror, and Obama reiterated to Kroft that it was then too soon to tell whether it was an act of terror. That directly contradicted Obama’s later claim during the second debate.

Crowley has not acknowledged making any mistake, so it appears that what she did was deliberate.  Likewise, Kroft did not go public with the true story until two days before the election, by which time the third debate had come and gone, along with any opportunity to challenge Obama on the matter. The third debate was about foreign policy.

What Crowley and Kroft did was just as bad as stuffing ballot boxes with fraudulent votes. They deceived and misled the nation.

Here is Erik Wemple of the Washington Post, taking CBS to task.

Chrysler sold 33,463 jeeps in China this year, thru September.   Chrysler hasn’t built any jeeps in China since 2009.  And now Chrysler wants to start manufacturing in China.  That means lost American jobs, obviously.

Chrysler’s plans will help the company, will benefit shareholders, and will help consumers in China.  Which is all fine, and the way free markets work.  Except that the Obama administration has lost over a billion of U.S. taxpayers’ dollars to Chrysler that ain’t coming back, after a 12.5 billion dollar bailout.  In exchange for the bailout, Obama could have insisted that Chrysler not expand overseas manufacturing for some period of time.  Instead, Chrysler got our tax money, and U.S. workers who have been building jeeps for export to China will get the shaft.  Don’t imagine that the new plants in China won’t be exporting cheap jeeps throughout other countries in Asia, too.

Mitt Romney argued for a managed bankruptcy for Chrysler, accompanied by federal loan guarantees.  Obama finally realized that a managed bankruptcy was a good idea, but rejected the idea of loan guarantees, instead opting for direct taxpayer assistance to Chrysler.  Romney’s idea was better.  The loan guarantees would have had to be sufficient to reduce the risks involved in the loans, and then private banks would have loaned the money to Chrysler with sensible conditions.  The government would not have gotten into the car business, private market forces would have made Chrysler more productive than it is now with more American jobs, and taxpayers would not have lost over a billion dollars.