American Rivers

Species List - Texas and New Mexico Vacation

Sun, 19 May 2013 19:01:00 -0400

Caprock Canyon (May 11, 2013)

Birds:

American Avocet
Golden-Fronted Woodpecker
Ash Throated Flycatcher
Wilson’s Pharlope
Lark Sparrow
Painted Bunting
American Kestrel
Red-Winged Blackbird
Mississippi Kite
Chipping Sparrow
House Wren
House Finch
Northern Cardinal
Turkey Vulture

Mammals:

Bison

Ransom Canyon, TX

Birds:

Spotted Sandpiper
Yellow-Headed Blackbird

Lubbock Lake Landmark

Birds:

Great Horned Owl
Western Kingbird
House Finch
Chipping Sparrow

Carlsbad Caverns National Park

Birds:

Cave Swallow
Turkey Vulture

Mammals:

Mexican Free-tailed Bat

Guadalupe Mountains National Park

Birds:

Canyon Towhee
Spotted Towhee
Yellow-Rumped Warbler
Solitary Vireo

2012 in Music

Tue, 08 Jan 2013 14:23:31 -0500

Top Albums (Artist, Album, Key Track)

Bob Dylan, Tempest (“Long and Wasted Years”)
Kendrick Lamar, Good Kid m.A.A.d City (“m.A.A.d. City”)
Leonard Cohen, Old Ideas (“Crazy to Love You”)
Frank Ocean, Channel Orange (“Super Rich Kids”)
Swans, The Seer (“Apostate”)
Spiritualized, Sweet Heart Sweet Light (“Hey Jane”)
Liars, WIXIX (“Who is the Hunter”)
JJ Doom, Keys to the Kuffs (“Retarded Fren”)
Jack White, Blunderbuss (“Love Interruption”)
Beach House, Bloom (“Other People”)
Nas, Life is Good (“Loco-Motive”)
Burial, Kindred (title track)
Grizzly Bear, Shields (“Sleeping Ute”)
Dirty Projectors, Swing Low Magellan (“Impregnable Question”)
The Tragically Hip, Now For Plan A (title track)

Honorable Mention: The Mountain Goats, Mount Eerie, Bruce Springsteen, Dr. John, Neil Young with Crazy Horse, Actress, Flying Lotus (and Captain Murphy), Sigur Ros, Clinic, Killer Mic, Roc Marciano…

Top Discoveries (Albums not released in 2012 that I first listened to this year).

• Paul Simon: Graceland (“Diamonds on the Soles of Her Shoes”)

• Bruce Springsteen: The Wild, The Innocent, & The E Street Shuffle (“New York City Serenade”)

• Prince: Dirty Mind (“When You Were Mine”)

• Lucinda Williams: Car Wheels On A Gravel Road (title track)

• Gravediggaz: Six Feet Deep (“1-800 Suicide”)

• Crosby, Stills, Nash, and Young: Déjà vu (“Our House”)

Red-Tailed Hawk at Mt. Auburn Cemetery in Cambridge, MA

Sun, 16 Dec 2012 07:46:34 -0500

Red-Tailed Hawk at Mt. Auburn Cemetery in Cambridge, MA

end of november playlist

Thu, 29 Nov 2012 01:33:00 -0500

Paul Simon, Diamonds on the Soles of Her Shoes
Kendrick Lamar, m.A.A.d City
Red Hot Chili Peppers, Scar Tissue
Prince, Purple Rain
Bob Marley, Easy Skanking
Bob Dylan, Baby Let Me Follow You Down (Live at Royal Albert Hall)
Prince, When You Were Mine
Lucinda Williams, Passionate Kisses
The Beatles, I’ll Get You
Philip Glass & Beck, NYC: 73-78
Prince, I Could Never Take the Place of Your Man
Paul Simon, Dazzling Blue

if there’s a theme here, I’m certainly not seeing it…

Federalism in the Air: Is the Clean Air Act’s “My Way or No Highway” Provision Constitutional After NFIB v. Sebelius?

Sun, 04 Nov 2012 20:24:19 -0500

Federalism in the Air: Is the Clean Air Act’s “My Way or No Highway” Provision Constitutional After NFIB v. Sebelius?

Photo

Sat, 15 Sep 2012 09:01:00 -0400

Bob Dylan's "Tempest" Is Another Instant Classic

Thu, 06 Sep 2012 06:28:00 -0400

This is a tremendously inspired release; easily as good as Love and Theft and perhaps even as good as Time Out Of Mind. The songs on Tempest are Dylan’s most diverse group in years: We’ve got plenty of ramblin’ blues tracks we’ve come to expect on a later-day Dylan release (Duquesne Whistle, Narrow Way, Early Roman Kings). We’ve got short-stories set to music (Tin Angel, Tempest). We’ve got two passive-agressive soul tracks (Soon After Midnight, Long and Wasted Years), the later of which is musically reminiscent of some of Dylan’s work on Infidels.

We’ve got a disarmingly earnest mythologizing of John Lennon (Roll on, John) that is easily Dylan’s best track of the decade, and much stronger than similar tributes from earlier in Dylan’s career (e.g., Joey, Lenny Bruce). And finally, we’ve got two sensational tracks—Pay in Blood--which is as same snide, violent, and bilious as anything Dylan’s done, and Scarlet Town, a sort of mini-Desolation Row.

Every song on here is excellent. The musical arrangements are superb. The lyrics are endlessly quotable and entertaining (e.g., ‘“I’m still hurting from an arrow that pierced my chest/I’m gonna have to take my head and bury it between your breasts;” or “Another politician/Pumpin’ out the piss/Another ragged beggar/Blowin’ you a kiss) and occasionally profound (Roll On, John). Dylan’s singing even sounds pretty good. The legend delivers again.

No Regrets

Sun, 26 Aug 2012 07:09:00 -0400

And the gods are on vacation

And the fire’s burning dimmer

And the voices on the radio

Whine and then they shimmer

And the guardians of Justice

Take up another trade

And the color in your dark eyes

Begins to fade, and fades

And you search for an accomplice

Or maybe just a lover

But you know you could never trust yourself

In the embrace of any other

And the fallen leaves beneath you

Rustle in the wind

And the time for action comes

And then it leaves again

And you never lifted a hand

And with all that is disappearing

And with all that is to come

I just can’t see any reason

To think twice about what I’ve done

I just can’t find solicitude

In the lives of our Great Men

When history will soon eat itself

And repeat itself again

Just Gonna Drink Whiskey - Americana/Alt-Country/Honky Tonk/Trad-Rock Playlist

Thu, 23 Aug 2012 04:38:03 -0400

I Saw the Light, Hank Williams
Veteran’s Day, Johnny Cash
Sweet Virginia, The Rolling Stones
Going Going Gone, Bob Dylan & The Band
Casino Queen, Wilco
Not Fade Away, Buddy Holly
The Night They Drove Old Dixie Down, The Band
Christchurch Woman, Justin Townes Earle
Pretty Good, John Prine
Lost Highway, Mekons
Gallo del Cielo, Tom Russell
Come Pick Me Up, Ryan Adams
Two Daughters and a Beautiful Wife, Drive-By Truckers

Top 25 Dylan Albums (Official Releases only)

Sat, 04 Aug 2012 20:21:03 -0400

Blood on the Tracks (1975)

Top Track: Tangled Up in Blue

Blonde on Blonde (1966)

Top Track: Visions of Johanna

Highway 61 Revisited (1965)

Top Track: Like a Rolling Stone

Bringing It All Back Home (1965)

Top Track: Love Minus Zero/No Limit

The Freewheelin’ Bob Dylan (1963)

Top Track: A Hard Rain’s A-Gonna Fall

Desire (1976)

Top Track: Isis

John Wesley Harding (1967)

Top Track: I Dreamed I Saw St. Augustine

The Basement Tapes (1975)

Top Track: This Wheel’s On Fire

Time Out of Mind (1997)

Top Track: Highlands

Oh Mercy (1989)

Top Track: Ring Them Bells

Planet Waves (1974)

Top Track: On a Night Like This

“Love and Theft” (2001)

Top Track: Mississippi

The Times They Are A-Changin’ (1964)

Top Track: The Times They Are A-Changin’

Infidels (1983)

Top Track: Jokerman

New Morning (1970)

Top Track: The Man in Me

Nashville Skyline (1969)

Top Track: Tonight I’ll Be Staying Here With You

Slow Train Coming (1979)

Top Track: Slow Train

Modern Times (2006)

Top Track: Spirit on the Water

Together Through Life (2009)

Top Track: I Feel A Change Comin’ On

Knocked Out Loaded (1986)

Top Track: Brownsville Girl

Street-Legal (1978)

Top Track: We Better Talk This Over

Pat Garrett & Billy the Kid (1973)

Top Track: Knockin’ On Heaven’s Door

Empire Burlesque (1985)

Top Track: Tight Connection to My Heart (Has Anybody Seen My Love)

Bob Dylan (1962)

Top Track: Baby Let Me Follow You Down

Shot of Love (1981)

Top Track: Every Grain of Sand

mid-summer playlist

Sat, 23 Jun 2012 15:16:00 -0400

Helpless, CSN&Y
Doo Doo Doo Doo Doo (Heartbreaker), the Rolling Stones
Run, Wu Tang/Beatles (Enter the Magical Mystery Chambers)
Nina Simone, Tom Russell
Just as You Are, Robert Wyatt
Brooklyn’s Finest, Jay-Z and Notorious B.I.G.
Mama Said Knock You Out, L.L. Cool J
Iron Galaxy, Cannibal Ox
Girls in their Summer Clothes, Bruce Springsteen
Tenth Avenue Freeze Out, Bruce Springsteen
Ten Crack Commandments, Notorious B.I.G.
Born to Run, Bruce Springsteen
Niggas Bleed, Notorious B.I.G.
Scream Phoenix, Cannibal Ox
Easy Money, Bruce Springsteen
And God Created Border Towns, Tom Russell
Pistolgrip Pump, Volume 10
Hits from the Bong, Cypress Hill
Our House, CSN&Y
Stealing Electricity, Tom Russell

Should necessity be a constitutional doctrine under our laws?

Thu, 10 May 2012 11:01:10 -0400

The doctrine of necessity is the view that, in President Lincoln’s words, “measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution through the preservation of the nation.” Letter to Albert Hodges. The doctrine has a long and rich history in our constitutional tradition. President Jefferson took the view that the literal text of the Constitution must be violated so that he might seize a “fugitive occurrence which so much advances the good of our country” by securing the purchase of Louisiana from France. See Downes v. Bidwell. Justice Holmes took the view that in matters of “the sharpest exigency … it is not lightly to be assumed that, in matters requiring national action, a power which must belong to and somewhere reside in every civilized government is not to be found” in the United States. Missouri v. Holland. And, of course, President Lincoln took the view that necessity justified issuing the Emancipation Proclamation and suspending habeas corpus without congressional authorization.

To be clear: the question is not whether the Executive should be able to take actions that violate the Constitution. No law or doctrine can hope to take from the sovereign the ultimate incident of sovereignty: the power to decide on the exception. Carl Schmitt, Political Theology. The Executive has violated the Constitution many times throughout our history and will do so again, and when it does, the judiciary may be powerless to stop it. See Ex Parte Merryman (Justice Taney, declaring President Lincoln’s unilateral suspension of habeas corpus to be unconstitutional but noting that this declaration “has been resisted by a force too strong for me to overcome”).

The question is whether the courts should condone this activity as constitutional upon the cessation of the emergency, or whether they should declare it repugnant to the rule of law.

I believe that the judiciary must categorically refuse to rationalize or validate executive usurpation. To the extent that the judiciary validates the seizure of extraordinary powers during a time of necessity, it risks creating a principle that will “lie[] about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of urgent need.” Korematsu (Jackson, dissenting).[1] Once this new emergency power is impressed with a stamp of institutional legitimacy, it will tend “to expand to the limits of its logic,” id. (citing Judge Cardozo), with potentially disastrous consequences. Notably, it was the explicit grant of emergency power in the Weimar Constitution which provided a pretext for the suspension of individual rights during the rise of the Third Reich. See Youngstown (Jackson, concurring).

Where the Court has validated an action taken by the Executive during a time of exigency – or perceived exigency – the results have been disastrous. In Korematsu, the Court’s attempt to rationalize actions taken by the military and the Executive against Japanese Americans threatened to result in a “legalization of racism” and the adoption of “one of the cruelest of the rationales used by” the Axis powers “to destroy the dignity of the individual and encourage and open the door to discriminatory actions against” minority groups. (Murphy, dissenting). By contrast, where the Court has stood up for the rule of law – e.g. Ex parte Milligan, Youngstown – it has both retained its moral legitimacy and created precedent which has helped “preserv[e] free government” by limiting the ability of the Executive to act outside the law. Youngstown (Jackson, concurring).

The principle argument in favor of judicial validation of actions taken by the Executive is from Justice Frankfurter, concurring in Korematsu. Frankfurter worried that Jackson’s approach would “suffuse a part of the Constitution [the war power] with an atmosphere of unconstitutionality,” creating the risk that the Executive and his military authorities would cease to see themselves as bound to obey the Constitution.

I do not believe that adopting Jackson’s approach would have this effect. Jackson merely recognizes what the Executive already knows – that it can do what it wants, regardless of what the Court says. See, e.g., Ex parte Merryman. It is difficult to see why a frank acknowledgment of this fact will make such lawless behavior more likely. When the Executive choses to seize “unlimited authority” by “suspending the entire existing order” such that “the state remains [while] law recedes” (Political Theology), it matters not whether the courts object to actions they are powerless to prevent (following Jackson) or following Frankfurter, attempt to rewrite the law to justify these actions.

But when the emergency recedes and the Executive once again seeks not only the naked power of sovereignty but the legitimacy of law, it will matter a great deal whether the laws have been rewritten or whether the courts have remained faithful to the rule of law. For, if the Court has given the Executive “a loaded gun,” it will be easier for the Executive to seize in the future. The emergencies will start to become more frequent and the necessity less pressing, such that the exception swallows the rule and free government becomes a memory.

[1] See also Ex Parte Milligan. (“The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.”)

"The law knows no finer hour than when it cuts through formal concepts and transitory emotions to..."

Fri, 30 Mar 2012 02:09:48 -0400

“The law knows no finer hour than when it cuts through formal concepts and transitory emotions to protect unpopular citizens against discrimination and persecution.”

- Justice Murphy

What is Severe Pain?

Tue, 20 Mar 2012 18:16:00 -0400

One of the difficult things about law school is trying to force yourself to argue with reprehensible people about significant moral issues while restricting yourself to technical legalistic arguments. The temptation to simply stare them straight in the face and ask them how they live with themselves is hard to overcome. Nonetheless, in some circumstances, technical legalistic arguments will get you a lot farther than the most eloquent moral plea. As Noah Feldman has noted, certain legal memos are nothing less than weapons of combat.

With this in mind, I’d like to share a technical, legalistic rebuttal to one of arguments made in Re: Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A, one of the Bush era torture memos written by Jay Bybee.

Torture is defined in §2340 as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.” In attempting to determine the meaning of “severe physical pain,” Bybee turns to another statute in the United States Code, noting that it is common practice to construe a statutory term “to contain that permissible meaning which fits most logically and comfortably into the body of both previously and subsequently enacted law.” West Va. Univ. Hosps. v. Casey. Bybee turns to a statute wherein the phrase “severe pain” appears as part of a definition of an emergency medical condition. He writes:

These statutes define an emergency condition as one “manifesting itself by acute symptoms of sufficient security (including severe pain) such that a prudent lay person, who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate medical attention to result in — placing the health of the individual … (i) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part.”

Although these statutes address a substantially different subject from Section 2340, they are nonetheless helpful for understanding what constitutes severe physical pain. They treat severe pain as an indicator of ailments that are likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent impairment of a significant body function.

These statutes suggest that “severe pain,” as used in Section 2340, must rise to a similarly high level — the level that would ordinarily be associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of body functions — in order to constitute torture.

This conclusion is erroneous. To “include” is to “comprise or contain as part of a whole.” The term can be used in a “nonrestrictive way, implying that there may be other things not explicitly mentioned that may be part of the same category.” Oxford American Dictionary. Thus, to say an emergency condition is one “manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent lay person… could reasonably expect the absence of immediate medical attention to result in” death, serious impairment of bodily function, or serious dysfunction of any bodily organ or part is not to say that pain is only severe when it is sufficient to lead a prudent lay person to this conclusion. To imagine that severe pain was intended to be understood as necessarily coextensive with “acute symptoms of sufficient severity” would be nonsense: such an interpretation would render the inclusion of both phrases superfluous and would preclude any other medical evidence (eg bleeding, lesion, coma) from establishing “acute symptoms of sufficient severity.” One might plausibly read the statute as implying that severe pain may in some instances be sufficient to establish “acute symptoms of sufficient severity,” but this reading in no way implies that pain must be sufficient to satisfy “acute symptoms of sufficient severity” in order to be considered severe. By far, the more natural interpretation is that “severe pain” in this context is that it is one element in a set of indeterminate size comprising the larger set “acute symptoms of sufficient severity.” Pain that would not on its own lead one to conclude that the sufferer was about to suffer severe bodily injury or death may nonetheless be severe, so long as it would lead to this conclusion when combined with an indeterminate number of other physical indicia.

Spring Break Mix

Thu, 15 Mar 2012 22:23:00 -0400

Lola by The Kinks
Via Chicago by Wilco
Workinonit by J Dilla
Smoke (ft. Blu) by J Dilla
Best of Times (ft. Phonte) by Strong Arm Steady (pd. by Madlib)
Separator by Radiohead
Armagideon Time (Live) by The Clash
She’s a Jar by Wilco
I Should Have Known Better by The Beatles
Different Finger by Elvis Costello
Tumblin’ Dice by The Rolling Stones
Hey Jude (Love Remix) by The Beatles

Property and Regulation

Fri, 02 Mar 2012 01:16:00 -0500

In his treatise on property, Harvard Law School professor Joseph William Singer notes that “[o]ne way to look at property rights is to start with the concept of ownership and then ask when and whether an owner’s right to control her property should be limited by government regulation either to protect similar rights of others or to prevent harm to the community.” Singer notes that this way of posing the question suggests that property and regulation are opposites.

Singer suggests that this view, while probably the dominant view of property in the United States, is mistaken. Property is not a preexisting phenomenon that is threatened by regulation; property is the product of regulation. It should go without saying that without government intervention, there is no property (that is, no legally protected interest in a valuable resource). Moreover, nearly every time the state acts to protect the property right of one person, it necessarily acts to restrict the rights of other individuals. For example, if we determine that one has a right to listen to loud music in the middle of the night, this involves a denial of a reciprocal property right: the right of another’s right to quietly enjoy their property. If we determine that one has a right to pollute the air, we necessarily deny the reciprocal right: the right to enjoy one’s property free from pollution.

Regulation does not infringe on property rights, it merely redistributes them. This process of regulatory redistribution is inherent to the property system. In the state of nature, all useful resources would belong to them most powerful, violent, and deceitful. When the state establishes property rights, it establishes regulations (including legal remedies for theft, trespass, etc.), and this regulation has the effect of redistributing property from those who are able to obtain or protect it in invalid ways to those who obtain or protect it in valid ways.

All of this is not to say that one must support redistribution or regulation in every case. All that it means is that the argument cannot be one about the merits of regulation or redistribution: society has already made the choice to regulate and redistribute property, and we all ostensibly agree that this is a good thing. The argument must be addressed to the specific question of regulation, that is, the specific balancing of competing property interests that is occurring. If you oppose regulating noise pollution, you need to make an argument for why the right to generate noise pollution in a particular context is more important than the reciprocal right to quietly enjoy property; you can’t try to frame the question of whether to regulate or not, because that question is not up for debate.

Pax Americana: Santorum or Khamenei - Who said it?

Thu, 01 Mar 2012 03:13:00 -0500

Pax Americana: Santorum or Khamenei - Who said it? :

paxamericana:

1. “We were put on this Earth as creatures of God to have dominion over the Earth.”

2. “We believe in democracy and we also believe in freedom, but we do not believe in liberaldemocracy.”

3. “Although the literal meaning of socialism is equitable distribution of wealth, it is associated with other concepts which we hate. Over time, socialism has come to be associated with certain things in society that are unacceptable to us.”

4. “The radical feminists succeeded in undermining the traditional family and convincing women that professional accomplishments are the key to happiness.”

5. “This is not a political war at all. This is not a cultural war. This is a spiritual war.”

6. “This is a war between two willpowers: the willpower of the people and the willpower of their enemies.”

7. “Go back and read what the sirens did once you arrived on that island.… They devour you. They destroy you. They consume you.”

Form and Substance

Sun, 26 Feb 2012 02:19:00 -0500

I would recommend the following passage from Duncan Kennedy’s seminal article Form and Substance in Private Law Adjudication to anyone who wants to understand legal culture. I actually the ideas expressed here—that there is a fundamental dichotomy between those who prefer strict rules and those who prefer flexible standards, and that those who prefer rules tend to prefer individualist outcomes while those who prefer standards tend to prefer altruist outcomes—applies not only to law, but to many areas of human interaction (e.g., parenting, political preference, religious preference), and that a preference for rules or standards throughout one’s life is a fundamental aspect of personality. Anyway, read the following, and if you’re interest is piqued, read the whole article.

There is a strong analogy between the arguments that lawyers make when they are defending a “strict” interpretation of a rule and those they put forward when they are asking a judge to make a rule that is substantively individualist. Likewise, there is a rhetorical analogy between the arguments lawyers make for “relaxing the rigor” of a regime of rules and those they offer in support of substantively altruist lawmaking.

The simplest of these analogies is at the level of moral argument. Individualist rhetoric in general emphasizes self-reliance as a cardinal virtue. In the substantive debate with altruism, this means claiming that people ought to be willing to accept the consequences of their own actions. They ought not to rely on their fellows or on government when things turn out badly for them. They should recognize that they must look to their own efforts to attain their objectives. It is implicit in this idea that they are entitled to put others at arms length — to refuse to participate in their losses or make sacrifices for them.

In the formal dispute about rules and standards, this argument has a prominent role in assessing the seriousness of the over-and underinclusiveness of rules. Everyone agrees that this imprecision is a liability, but the proponent of rules is likely to argue that we should not feel too badly about it, because those who suffer have no one to blame but themselves. Formally realizable general rules are, by definition, knowable in advance. A person who finds that he is included in liability to a sanction that was designed for someone else has little basis for complaint. Conversely, a person who gains by the victim’s miscalculation is under no obligation to forego those gains.

The argument of the advocate of “relaxation,” of converting the rigid rule into a standard, will include an enumeration of all the particular factors in the situation that mitigate the failure to avoid over- or underinclusion. There will be reference to the substantive purpose of the rule in order to show the arbitrariness of the result. But the ultimate point will be that there is a moral duty on the part of the private beneficiary of the over- or underinclusion to forego an advantage that is a result of the others harmless folly. Those who take an inheritance by course of law because the testator failed to sign his will should hand the property over to those the testator wanted to receive it. A contracting party ought not to employ the statute of frauds to void a contract honestly made but become onerous because of a price break.

This argument smacks as unmistakably of altruism as the argument for rules smacks of individualism. The essential idea is that of mercy, here concretized as sharing or sacrifice. The ethic of self-reliance is rejected in both its branches: the altruist will neither punish the incompetent nor respect the “right” of the other party to cleave to her own interests…

Is Dred Scott Really the Worst Opinion of All Time?

Wed, 15 Feb 2012 21:06:10 -0500

Sanford Levinson, author of the wonderful Our Undemocratic Consitution, has some interesting thoughts on the Dred Scott decision:

Dred Scott has become synonymous among the general public with what… I have labeled “judges on a rampage.” But what if conventional wisdom is wrong? … There is a small, but increasing, number of scholars who suggest that Dred Scott is far from exemplifying “judges on a rampage” and is, at the very least, a plausible rendering of our foundational document. It helps, of course, if one accepts a basically Garrisonian reading of the Constitution as a “covenant with Death and an agreement with Hell” instead of glossing over the extent to which the 1787 Constitution includes a number of “rotten compromises” entrenching chattel slavery… Taney’s opinion can be rendered plausible, even if not necessarily compelling, under all of the “modalities” of constitutional interpretation — text, history, structure, precedent, “ethos” of the American social order, and prudence… The naive confidence that Dred Scott is self-evidently “wrong” may thus be most useful as an example of our desire to construct a “constitutional faith” that the Constitution, even if not “perfect,” is not synonymous on occasion with radical evil. Though I can easily understand the impulse, I doubt whether one can successfully demonstrate that “constitutional fidelity” will protect us from collaborating with evil…

Chief Justice Marshall on The Interstate Commerce Clause

Tue, 07 Feb 2012 18:07:00 -0500

Chief Justice Marshall, the author of Marbury v. Madison and one of the most celebrated and well-respected jurists in American history, would almost certainly have upheld the Affordable Care Act’s individual mandate. Marshall favored a very expansive interpretation of interstate commerce clause, the clause that provides the the constitutional authorization for the individual mandate of the Affordable Care Act and almost everything else the federal government does. In Gibbons v. Ogden, Marshall wrote that the power of Congress to regulate interstate commerce

like all others prescribed in the Constitution, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution…The wisdom and discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are in this, as in many other instances…the sole restraints on which [the people] have relied to secure them from its abuse. They are the restraints on which the people must often rely on in all representative governments.

In other words, the Court should uphold any law passed by Congress that has relevance to interstate commerce, so long as it does not violate some other provision of the Constitution. On Marshall’s interpretation of the interstate commerce clause, the Affordable Care Act is completely constitutional. Let’s hope Justice Kennedy shares Marshall’s view on this matter.