Legal Links

Recently my unsupervised, unaudited, self-paced, multi-semester independent-study course has taken a turn (back) towards constitutional law.

Originalism & Precedent:  Why respect for precedents – even those of the non-originalist variety – isn’t necessarily incompatible with the Constitution’s original meaning.

Originalism & Declaring WarPrakash argues, on originalist grounds, that any military action beyond limited self-defense requires a Congressional declaration of war.  Yoo & Delahunty disagree, as does Ramsey.   Prakash responds.  In general, methinks Prakash has the better of the argument; however, his response seemed to gloss over the strongest point (IMHO) made by the critiques – i.e., that Washington arguably waged war against the Indians of the Ohio River Valley without an explicit Congressional declaration.

Origins of Judicial Review:  Yoo & Prakash thoroughly demolish the notion that judicial review is incompatible with the original meaning of the Constitution.  Those inclined to complain that judicial review lacks explicit authorization anywhere in the Constitution may wish to take note.

Executive Duty to Disregard:  Why the Constitution requires that Presidents refuse to enforce unconstitutional laws.  His account of such a refusal by Jefferson WRT the Sedition Act was particularly interesting.

Symbolic Speech & the First Amendment:  why the original meaning of the latter encompassed the former.  Interesting; however, IMHO the key issue isn’t whether (say) flag-burning could be termed “speech”, but rather whether laws banning flag-burning were an impermissible “abridgment” of “the freedom of speech, or of the press”.  As Footnote 132 of Volokh’s article notes, on this key question, “The scope of the liberty of speech and press in the Framing era was notoriously disputed.”  It’s worth noting that “seditious libel” – though condemned (along with the Sedition Act) by history – had, in the Founding era, a respectable intellectual pedigree.

Early History of American Conscription:  This article (perhaps inadvertently) suggests the compatibility of federal conscription with the Constitutional original meaning, given the early Congress’s passage of the Calling Forth Act – a law explicitly authorizing criminal penalties for militiamen who disobeyed a Presidential order calling them to federal service.  As for those (e.g., here & here) inclined to deem conscription “involuntary servitude” prohibited under Thirteenth Amendment, note that 1) this phrase was basically lifted from the Northwest Ordinance; and 2) both road service laws and a militia act (*) were passed by the government established by the Ordinance.

Federal Judges, Good Behavior, & Impeachment:  Apparently the latter two phrases aren’t synonymous; i.e., removal of a federal judge via methods (e.g., statutes authorizing removal in the event of criminal convictions) besides impeachment may be constitutionally permissible.

The Thirteenth Amendment’s Exception:  I wasn’t terribly impressed with his “original public meaning” analysis, which featured some quotes from the Thirteenth’s Congressional drafting history, but little other contemporaneous evidence (e.g., ratification conventions, campaign documents, newspaper articles).  And, color me cold-hearted, but I’m also unimpressed with his implication that, if the Thirteenth’s original public meaning necessarily permits enslavement of convicts, then originalism is DOA.

The Constitutionality of Paper Money:  Trashes the notion – much-beloved by goldbugs & hard-money folks – that fiat money is unconstitutional.  Frankly I was surprised by the conclusion.

(*) See chapter I, Laws passed from the Commencement of the Government to the 31st of December, 1791, Laws of the Territory Northwest of the Ohio, 1788-1800.

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One Response to “Legal Links”

  1. An “unsupervised, unaudited, self-paced, multi-semester independent-study course”?!? Why couldn’t my college classes be like that?!? Shucks and other comments…

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