Showing posts from October, 2023

What Is -- and What Is Not -- Going Wrong at American Universities

One of the evergreen tendencies in US punditry over the last decade or so (with roots going back much further) is to decry some horrible thing or another that is supposedly happening on college and university campuses throughout the country.  In recent years, the favored incendiary term has been "cancel culture," with the idea being that beleaguered right-wing students and faculty dare not step out of line, lest they be socially judged and punished by their liberal oppressors. As I have made clear in many previous writings , that is nonsense of a particularly vacuous sort, little different from the long-stale "political correctness" panics and the more recent inanity surrounding "wokeness."  Based on my own observations and after talking with some of my students, this is all empty grievance-mongering, and too many people fail to notice that the ideological battles on campus are being stoked for clicks and outrage by conservative trolling operations cl

The SCOTUS Amicus Brief Mike Johnson Spearheaded in the 2020 Post-Election Litigation

I have mixed feelings about new House Speaker Mike Johnson. On the plus side, having a Speaker rather than an empty chair increases the likelihood that must-pass legislation--including funding the government--will actually pass. In addition, a Speaker named Mike is long overdue. True, Michael C. Kerr was Speaker for eight-and-a-half months during the 1870s, but he's hardly a hero to us progressive Michaels: an Indiana Democrat who died in office, Kerr opposed Reconstruction. And that's about it for the upside: Mike Johnson is probably better than nobody; and he shares my first name. Which brings me to the downsides of Speaker Johnson. To begin, Johnson's most fundamental commitments appear to be theocratic, including not only standard evangelical fare like opposing abortion and LGBTQA+ rights but actually suing the state of Kentucky for pulling tax incentives from a Noah's Ark theme park that was determined to hire only employees committed to "young Earth" cr

The End of the Originalism Debate Part II

A quarter-of-a-century ago, I wrote an article in Constitutional Commentary about a two-part 1900 law review article written by Arthur Machen which said just about everything that needs to be said about originalism. I concluded that we should stop arguing about the differences between originalism and living constitutionalism. I ended that article as follows:  Judges do not have to choose between a Living Constitution and the dead hand, but they must inevitably make difficult judgments about competing institutional roles and fundamental rights and liberties. Those are the truly hard questions of constitutional law, and it is time that we face them without the baggage of an old and unhelpful debate about the relationship between original meaning and constitutional interpretation.  A lot has happened between then and now and, obviously, given that I wrote a book about Originalism in 2018, there was a lot more to say about this controversial topic (in my defense most of my work has been i

Driverless Cars and Other Emotional Coping Diversions

Earlier this week, I wrote an unusually (for me) emotional column in which I described the toll that I have been feeling in the weeks since news broke of Hamas's October 7 terrorist attacks in Israel.  That essay followed two columns that I wrote last week in which I tried to maintain at least some level of optimism about what might yet happen, although every day now looks worse than the one before. In any case, I almost certainly will write more about that horrible situation in the near future, but for now, I have decided to engage in some emotional self-care by diverting my attention to something more uplifting.  And what could be more uplifting than describing a couple of instances in which I have been wrong? I am engaging in this exercise in part because I have had far too many occasions to issue I-told-you-so columns about the death of democracy -- columns that are the opposite of victory laps but are undeniably instances in which I remind readers that I was right.  Horrib

The Problem with Beating Trump at the Polls

[N.B.  I have a new Verdict column today discussing last week's SCOTUS order in Missouri v. United States . The order rejects Missouri's application for an emergency stay of a federal district court's injunction against its "Second Amendment Preservation Act" --a remarkable piece of legislation rejecting the supremacy of federal law that I compare in the column to the Southern Manifesto and other past efforts by states to read the United States as a kind of optional club for sovereign states. My column contains a rare bit of optimism. I note how the recorded votes in Missouri v. United States could signal a retreat from the Court's willingness--in  Whole Woman's Health v. Jackson , the notorious Texas SB8 case--to allow states to circumvent federal judicial review of unconstitutional laws if they write their laws cleverly enough. If you're confused by that admittedly densely packed summary, check out the column. Heck. Check out the column even if you&

Simplistic Warmongering and Simplistic Fearmongering About Debt: Compare and Contrast

The current crisis in Israel and Gaza began on October 7 with Hamas's unimaginably brutal mass killings and taking of hostages.  Somehow, the situation has gotten even worse by the day, and it is threatening to spread into other countries in the area as well, possibly even pulling outside powers directly into a regional war that could kill tens of thousands and turn hundreds of thousands or even millions of people into refugees -- with innocent people being in the vast majority of both the dead and the forcibly displaced. Given what has already happened, and contemplating the prospect of what further horrors we might witness in the very near future (to say nothing of the generations-long aftereffects of the bad decisions being made today), it is not surprising that so many people are feeling especially emotional right now.  For myself, I can say that although I am quite accurately described as a stereotypical WASP-y man, reserved and outwardly unemotional, I have been overwhelmed b

How the Powell and Chesebro Guilty Pleas Affect the: (1) Advice-of-Counsel Defense; and (2) Federal Case

Like many other Americans hoping for a way to save the country from the prospect of a second Trump presidency, I was heartened by last week's news that Sidney Powell and Kenneth Chesebro pleaded guilty to Georgia state charges for their efforts to undermine the 2020 Presidential election. But what about the fact that neither of them will do prison time? Powell pled guilty to six misdemeanor charges. Under her agreement, she will serve six years of probation and will be fined $6,000. Chesebro pled guilty to one felony count and will get five years probation, a $5,000 fine, 100 hours of community service, and will eventually have his conviction expunged, which will probably enable him to continue (or, after a pause, resume) his practice of law. Both Powell and Chesebro also must write apologies (Chesebro wrote his already) and, most importantly, must cooperate in the prosecution of their co-defendants, including, insofar as they have relevant documents and testimony to offer, Donald

What Biden Didn't Say

As I listened last night to President Biden's speech , I was grateful for his grasping the low-hanging fruit. He condemned antisemitism, Islamophobia, and hate more generally. He acknowledged that even as they fight enemies--i.e., Hamas and Russia--who deliberately target civilians, nations that aspire to democratic values--i.e., Israel and Ukraine--must abide by the laws of war. Those are important points, to be sure, and they should not go without saying. Even so, I was struck by what Biden did not say, either in his public address last night or, by all appearances, in his meetings with Prime Minister Netanyahu earlier in the week. I'll limit myself to three observations. (1) Biden's speech was apparently a prelude to asking Congress for $100 billion to aid Ukraine, Israel, and Taiwan, as well as for US border security. If we had a functioning Congress, we might discuss whether bundling these requests together makes any of them or the package as a whole more likely to s