Author: Gerard Magliocca

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One Final Note

The Concurring Opinions website will now go dormant. The links for old posts will remain active. I’m not sure how long they will stay active, as winding up everything here will take time. There could also be some automatic posts here that we’ve not yet disabled, and I may cross-post here from time to time if I write something elsewhere.  Otherwise, farewell and Happy New Year.

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Sir Humphrey on the End of CoOp

I will probably retire this meme for future blogging, but I thought I’d close my CoOp posts with one last quote from Sir Humphrey Appleby:

“Minister, I have some very grave news.”

“Yes, Humphrey?”

“The relationship, which I might tentatively aver has been not without a degree of reciprocal utility and even occasional gratification, is approaching a point of irreversible bifurcation and, to be brief, is in the propinquity of its ultimate, regrettable, termination.”

“I see.”

“I’m on my way out.”

“What?”

“One has to accept what fate has in store, when one passes on.”

“Passes on?”

“To pastures new, perhaps greener.”

 

 

3

The Severability Mess

I’m not concerned about Judge O’Connor’s opinion invalidating the Affordable Care Act. Appellate courts exist to correct erroneous trial court rulings. I am concerned, though, about the state of severability doctrine. Do you remember the severability analysis in Marburg v. Madison? The part where Chief Justice Marshall examined whether the rest of the Judiciary Act of 1789 could stand given that the Court was invalidating one part of that Act. Of course you don’t. Because no such analysis was done.

I think that severability should be presumed unless Congress speaks to the contrary. Given that there are many precedents on the other side, though, Congress should legislate in a general way to create this presumption for all statutes going forward.

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Churchill on Democracy

One of Churchill’s most famous quotes is that democracy is the worst form of government except all others (though he said something different and was quoting someone else). In a delightful 1954 speech accepting an honorary degree awarded in New York, though, he gave a more cheerful defense worth keeping in mind at this time:

”In a society where there is democratic tolerance and freedom under the law, many kinds of evils will crop up, but give them a little time and they usually breed their own cure. I do not see any reason to doubt the truth of that.  There is no country in the world where the process of self-criticism and self-correction is more active than in the United States.”

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Churchill and the Declaration of Independence

At the end of her terrific book on the Declaration of Independence, Pauline Maier marveled that by 1943 Archibald MacLeish was calling that text “is a part of the British inheritance as it is of ours.” “Just imagine George III’s amazement,” she said, “at leaning that the Declaration of Independence would one day become a constructive part of the British Heritage.”

How did this happen? The alliance between Britain and the United States during the two world wars is part of the answer. But Churchill is also part of the answer  I believe that his repeated statement of this connection made the Declaration an Anglo-American text  On Independence Day in 1918, he gave a speech describing the Declaration as the “third title deed on which the liberties of the English-speaking people are founded.”  (After Magna Carta and the Bill of Rights of 1689). He made this comparison many times after this, especially in the “Iron Curtain” speech of 1946. More on this in another post

 

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The Joys of Writing

I came across this 1908 speech from Churchill that wonderfully expresses why I love what I do:

”The fortunate people in the world—the only really fortunate people in the world, in my mind—are those whose work is also their pleasure. The class is not a large one, not nearly so large as it is often represented to be; and authors are perhaps one of the most important elements in its composition. … Whether a man writes well or ill, has much to say or little, if he cares about writing at all, he will appreciate the pleasures of composition. To sit at one’s table on a sunny morning, with four clear hours of uninterruptible security, plenty of nice white paper, and a pen—that is true happiness. The complete absorption of the mind upon an agreeable occupation—what more is there than that to desire?”

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Winston Churchill and Federalist #10

One point of interest during my research on Winston Churchill is that he quoted Federalist #10 in his discussion of the Constitution in A History of the English Speaking Peoples. Moreover, he seems to have internalized some of the ideas from that essay. In a major speech attacking a proposal to reform the House of Lords in 1947, Churchill argued that government needed to be structured to prevent any single faction from gaining power. I am going through all eight volumes of Churchill’s speeches (a fascinating though lengthy journey) to see if I can find any further connections between his evolving thought and our Constitution. Quoting Churchill is as good a way as any to wrap up CoOp, though I do have a special final post in mind.

11

The End of CoOp

We have decided that Concurring Opinions will come to a close at the end of the month. There will be some final farewell posts, but starting on January 1 the site will be dormant while we figure out how best to save our old posts.

I want to thank my co-bloggers and our readers. I will still blog from time to time at Balkinization, and who knows what else the future may hold.

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Churchill on Prohibition

As I mentioned in a prior post, Winston Churchill made many interesting observations about our Constitution. One came in a 1929 op-ed (written for a British newspaper) in which he sharply criticized the Eighteenth Amendment and the “rat-trap rigidity of the American Constitution.” (Churchill was known to imbibe, so his opposition on the merits was not surprising).

“No folly,” Churchill wrote, “is more costly than the folly of intolerant idealism. . . . When standards of conduct or morals which are beyond the normal public sentiment of a great community are professed and enforced, the results are invariably evasion, subterfuge, and hypocrisy. In the end a lower standard is reached in practice than would have followed from a commonsense procedure.” Prohibition, in his view, “is the most amazing exhibition alike of the arrogance and of the impotence of a majority that the history of representative institutions can show.”

Churchill then compared Prohibition with the Fifteenth Amendment.  “The Southern negroes have the equal political rights it was the boast of the Constitution to accord them; but for two generations it has been well understood that they are not to use them in any State or District where they would make any difference. As with the Fifteenth, so will it be with the Eighteenth Amendment.” More controversial was Churchill’s assertion that the problem in both cases rested on the disproportionate burden than these rules imposed. With respect to the Fifteenth Amendment, “[t]he North were no more inconvenienced by the voting of a few handfuls of negroes scattered among their large population, and being outvoted on all occasions, than is a teetotaler by Prohibition.” “A law which does not carry with it the assent of public opinion or command the convictions of the leading elements in a community may endure, but cannot succeed; and under modern conditions in a democratic country it must, in the process of failure, breed many curious and dangerous evils. Whether or not you agree with Churchill’s analysis of the Fifteenth Amendment, there is an important insight here about the degree to which unequal burdens in fact pose a significant problem for democratic legitimacy.

Lastly, Churchill emphasized that Prohibition was partly a product of “hysteria in wartime on the home front,” by which he meant anti-German feeling.  (Canada also enacted Prohibition during World War I via legislation, but that was repealed afterwards after the “same unbalanced wartime emotion” passed.) I’ll revisit that point in a subsequent post.

 

10

Is a National Lottery Constitutional?

Here’s another interesting nugget from the old OLC memos. Can Congress create a national lottery?The OLC (in the 1980s) took the position that no enumerated power could sustain a lottery.

I’m not sure why a lottery is not a tax. Granted, it’s voluntary, but lotteries do raise plenty of revenue. You could also argue that a lottery facilities commerce (for all of the retailers who sell tickets). There is no prospect, though, for congressional legislation on this point.