This Wall Street Journal op-ed by Steven Calabresi and John McGinnis argues for John McCain on the grounds that he will appoint the judges who will "restor[e] constitutional government" and prevent Democrats from "threaten[ing] the jurisprudential gains of the past three decades, and provid[ing] new impetus to judicial activism of a kind not seen since the 1960s":
The expected value of any presidential candidate for the future of the American judiciary must be discounted by the probability that the candidate will not prevail in the election. For other kinds of issues, it may be argued that it is better to lose with the perfect candidate than to win with an imperfect one. The party lives to fight another day and can reverse the bad policies of an intervening presidency.

The judiciary is different. On Jan. 20, 2009, six of the nine Supreme Court justices will be over 70. Most of them could be replaced by the next president, particularly if he or she is re-elected. Given the prospect of accelerating gains in modern medical technology, some of the new justices may serve for half a century. Even if a more perfect candidate were somehow elected in 2012, he would not be able to undo the damage, especially to the Supreme Court.

A story in tomorrow's (Dec. 21) New York Times aptly entitled "Huckabee, Back in Iowa, Brings Christmas Message," includes the following:

[W]hile appealing openly to his core audience as someone who says he is driven “by convictions, not just positions,” Mr. Huckabee has been careful to delimit the role he sees for faith in public life. An elected official’s faith “is not something like a sweater that you put on and take off as a convenience,” he told the same audiences. “But should I be able to force it on somebody else? Of course not.”

I'm going to crosspost this at http://www.utexas.edu/law/faculty/slevinson/undemocratic/blog/, which is devoted entirely to discussion of the ideas in Our Undemocratic Constitution (and which, since the Moyers interview, is getting some participation). I invite anyone on this list to join the discussion there.

The heart of Mark's post is as follows:

Following the oral argument in Heller, people have been having a good old time making fun of the Justices and their pretty transparent political motivations. Dahlia Lithwick's amusing account of the oral argument is one of her best.

Although I enjoy making sport of the Justices as much as anyone, the question of whether the 2nd Amendment protects an individual right, including a right to self defense, is not that difficult, at least to me. The framers of the 14th amendment assumed that it was one of the privileges or immunities of citizens of the United States. And if a right is a privilege or immunity of citizens of the United States, it hard for me to conclude that it does not bind the United States as well as the individual states.

Now, as a unreconstructed liberal (I'll show you pictures of my bleeding heart), I don't particularly like this result. But it follows sufficiently strongly from other commitments I have about the Constitution that I must accept it.

That's how I come out on the case, but of course, none of the Justices is likely to reason the way I do. So what do I think of their approaches and rationalizations, which were vividly on display at yesterday morning's oral argument?

or I didn't make myself clear. I don't have any opinion whatsoever about the validity of Mormon vs., say, Southern Baptist Convention beliefs. My only point is this:

Mitt Romney has called on conservative Christians to join with Mitt and his fellow Mormons in ganging up on me, and excluding my beliefs from the public square, and excluding me and people who agree with me from political office. It's only natural, and perfectly within my rights in that situation, for me to ask people to consider whether Mitt's proposed alliance actually makes any sense, and if they think it does, to be clear about why.

If people want to use a comment thread here to argue about whether Mormons are actually Christians or how compatible or incompatible their doctrines are, go to it. I don't actually take any position on those questions, in fact I think they are nonsensical.

The audience for Mitt Romney's speech on faith in politics was Christian conservatives in the upcoming Republican primaries, and hardly anybody else. As if on cue, Hugh Hewitt immediately pronounced the speech as "simply magnificent, and anyone who denies it is not to be trusted as an analyst."

I agree wholeheartedly with Jack's analysis of the Romney speech. Indeed, if truth be known, I found myself in relatively rare agreement with David Brooks in his analysis in today's New York Times, which concluded that Romney "asked people to submerge their religious convictions for the sake of solidarity in a culture war without end." It was an insulting and dangerous speech, far more so than the culture-war rantings of Pat Buchanan some years ago, about which Molly Ivins said "they sounded better in the original German." Buchanan was never thought really "respectable" by mainstream Republicans or the press; nobody ever thought that he might actually become President. That's not the case with Romney.

I had the privilege of speaking in December to students at Medfield (Mass.) High School, who had been assigned my book as part of an extended unit on the Constitution. The unit culminated in a "constitutional convention" conducted by each of the three classes taught by Richard Desorgher, who had, I think tellingly, won an award for being Massachusetts' "teacher of the year" in the 1990s. I find the conclusions of the classes to be of great interest. I am enthusiastic about some of the conclusions, less so about others. But the point is that these students were able to ask first-rate questions about the operation of our constitutional system and to come to their own conclusions. They represent reasons to have hope about the future, especially if they can be encouraged to carry their "active citizenship" into the future rather than become turned off from politics.

As I noted in a previous post, I have been having an exchange with Professor Michael Klarman over at the American Constitutional Society. My last post seems particularly relevant to some concerns of Balkinization, so as either a public servive or, more likely, pathetic self-promotion, I've reproduced an edited version.

Michael Klarman’s work on the constitutional history of race correctly notes that American racial politics have historically been subject to periods of polarization, and that this polarization has had surprising consequences. Every major burst of civil rights activism in the United States has been preceded by an intense period of polarization, marked by increased militant commitments to the racial status quo in the south. To an extent rarely commented on, the Constitution of the United States may be responsible this polarization and may also bias ordinary politics toward more conservative racial views.

I'm talking about Mike Huckabee, who just might be the Republican nominee for president -- and no, it is not farfetched at all. CNN and the New York Times can't be bothered to tell you who this guy really is, but Alex Koppelman and Vincent Rossmeier will. It's not a secret either. But the corporate media, the politicians, and religious leaders who are somewhere this side of sane are all afraid to say anything about it.

The candidate's religion is supposed to be off limits. We can't talk about Mormon doctrine and how that might influence a Romney presidency. In fact, it isn't polite even to inquire what it is. The same goes for Huckabee.

Following up on Mark Graber's most recent post on the Supreme Court, consider why we might expect that the Supreme Court will not in fact produce principled results significantly superior to those produced by the national political process. One reason, famously suggested by Yale political scientist Robert Dahl, is that the U.S. Supreme Court tends, over time, to cooperate with the views of the dominant national political coalition. It does this by ratifying and legitimating most of the results of the national political process, by policing state and local governments so that they stay roughly in line with the views of national political elites, and (as Mark himself has pointed out) by acting as a political backstop to resolve controversies that national politicians would rather not have to take responsibility for.

The Supreme Court does tend to slow down rapid change when there is a shift in political regimes (and accompanying constitutional values), but eventually it goes along because new Justices appointed by the dominant national coalition replace older ones.

University of Virginia political scientist Larry Sabato has just published an interesting new book, A More Perfect Constitution, calling for constitutional reform (including a new convention). Not surprisingly, I am a fan, even if I don't agree with him on all of his 23 specific proposals. I have a review in the Austin American-Statesman for those who are interested in finding out more about it. Phyllis Schafly has also reviewed it; perhaps not surprisingly, she's far less a fan.

Last July, I published a piece in the Boston Globe, entitled "No Vice," arguing that we would be better off either without a Vice President at all--we got along without one for 45 of our first 180 years)--or, perhaps more plausibly, waiting until after the election and having the winner, a la the 25th Amendment, nominate a vice president, subject to congressional confirmation. I would, incidentally, also allow the President or Congress to fire the Vice President, but that's another matter for another thread.

I can't help but wonder if John McCain might not find some real merit in the suggestion. Consider his dilemma. It is clear that Mike Huckabee isn't going to be the nominee for president, but his followers might (legitimately?) feel dissed if he isn't chosen for Veep. At best, they might stay home; at worst, they might vote for Obama and actually put some of the Red States in play, especially if Obama chooses, say, James Webb or Wesley Clark as his Veep. On the other hand,

A mantra of the Clintons' stump speeches is the desirability of "reforming our government." Thus she told the folks in Iowa on December 17 that "We need a new beginning when it comes to reforming our government." Bill returned to this last night in a Missouri speech trying to assuage Obama's rout of Hillary in South Carolina. And the Hllary web site includes a release on her endorsement last June by Illinois Rep. Jack Franks, who said, "When it comes to reforming our government to make it work for the people, Hillary Clinton is the best candidate to lead that change."

Professor David Adamany in an essay written many years ago maintained that one consequence of the FDR's Court-packing plan of 1937 was that Roosevelt lost vital political capital that could have been spent on other liberal reforms. Most scholars agree that after the failed Court-packing plan and the failed purge of southern conservatives in 1938, the momentum for the Second New Deal was largely over, not to be revived until the 1960s.

Tomorrow I'll be speaking at the American Enterprise Institute at a panel jointly sponsored by AEI and Brookings on Steve Teles's wonderful new book, The Rise of the Conservative Legal Movement: The Battle for Control of the Law. Also on the panel will be Michael Greve, an AEI scholar in residence who was the cofounder and executive director of the Center for Individual Rights, an important conservative public interest law firm. William Galston of Brookings will moderate.

Teles's book is important in many respects; indeed, it is likely to become the standard history of the rise of legal conservatism. For me what is interesting is the light it sheds on how living constitutionalism actually works, in this case, living constitutionalism from the right.

I don't want to distract our readers from the very important story about the Administration's stonewalling of the 9/11 Commission -- read about the New York Times's essential story and the Zelikow Report here -- but this is very much worth your attention, too:

Continuing his invaluable work, Charlie Savage of the Boston Globe today publishes responses of nine presidential candidates to a series of questions he posed about the topics that have dominated this blog since 2004. I'll add some highlights here shortly -- in the meantime, go read the responses.

One would think from the recent excitement over the possibility of a bipartisan political movement that Hillary Clinton was running on a platform calling for confiscation of corporate property, reestablishment of the moderately progressive tax structure of the 1970s, the return of all American troops from abroad, the abolition of capital punishment, and (heaven forbid), gay marriage. With the exception of a stray remark by John Edwards, Democrats polling more than 10% continue to run to the right of Richard Nixon. Indeed, judging by their legislative activity this year, the Democrats as a whole have almost no ambition to push any program that is substantially to the left of center. The real issue ought to be why some journalists are so excited about the possibility of a third party that might take a middle position between the party clearly to right of the electorate and the party that on its best day sometimes lurches very slightly to the left.

This article by Charlie Savage of the Boston Globe, which Marty discussed last week, describes the positions of many of the major presidential candidates.

Needless to say, many pundits are now commenting on the rules of the Democratic Party re the selection of its presidential candidate. See, e.g., E.J. Dionne's column in today's Washington Post, where he writes that "Democrats have contrived a nominating contest that even Rube Goldberg would have considered too convoluted, too dysfunctional and too improbable to name as his own." Save for the certainly peculiar way by which Texas names its delegates--I had the pleasure of voting twice for Barack Obama, once in early voting (in a secret ballot) and then several days later at my local caucus (which is definitely not secret)--I don't share the hostility to a preference-sensitive proportional representation system that does not negate the votes of everyone who doesn't vote for "the winner" (who may, as with McCain in a number of states, get distinctly less than a majority of the vote). But I've already made such arguments, and I won't rehearse them again. My current grumpiness is about something else, though regular readings of Balkinization shouldn't be surprised by what I'm about to write.

In response to my post on the purposes behind the Fourteenth Amendment and the light they shed on the right to keep and bear arms, Deborah Pearlstein says she "need[s] some help understanding the evidentiary weight I should accord Senator Howard's remarks about the Fourteenth Amendment to our understanding of the meaning of Second." I'm happy to comply. Although what I have to say is formally in response to Deborah's questions, in fact Deborah is really giving me an excuse to say a little bit about the constitutional history of Reconstruction, America's second founding. I offer these remarks to all of my fellow progressive constitutional scholars.

The New York Times reports that "28 retired generals and admirals plan to release a letter on Friday urging Congress to repeal" the law requring the military's don't ask don't tell policy. This is an unjust policy that is on its way to repeal. The only question is when.

Presidential candidate Mike Huckabee, who has actively sought union support during his campaign, crossed WGA picket lines outside NBC studios in Burbank Wednesday in order to appear on the Tonight Show, all while offering several (often lame) excuses for his actions.

Before heading to LA for his appearance yesterday, according to the AP, Huckabee told reporters traveling with him that he

Thanks to Jack for responding so quickly to my post. I’ll try to keep these further thoughts on a relatively general level, because I don’t mean to respond point by point. Jack makes clear that principles do not have to have a historical pedigree as long as the original semantic meaning of the text is preserved. This clarification makes me think of something that bothered me as I read the Constitutional Commentary symposium. In the world of text and principle, what is the role of amendments and how do you tell when you need one? You might say to alter the semantic meaning of a piece of text (or a Court opinion) we don’t like anymore, but actually there are few amendments that do that. Another possibility is that we add amendments when we need new principles, but that is perhaps made unnecessary by the capaciousness of constitutional principles, a quality that Jack notices. Here we encounter some arguments well known in constitutional history such as: we don’t need the bill of rights because such guarantees were structurally built into the 1787 Constitution, we don’t need the thirteenth amendment because Congress already has the power, we don’t need additional rights guarantees as long as the Constitution is informed by the principles of the Declaration of Independence, and so on.

Many supporters of Second Amendment rights are, pardon the pun, up in arms over the Bush Administration Justice Department's amicus brief in Heller, the Second Amendment case now before the Supreme Court. The government's brief recognizes an individual right to bear arms but argues that historically the right excluded felons (even though they are presumably part of "the People"). Moreover, it argues that the Second Amendment may permit a wide range of reasonable regulations of firearms.

David Strauss

Jack Balkin’s insightful and fair-minded response raises several interesting issues.

1. First, the "levels of generality" problem. The "original expected applications" originalists have a solution to this problem, in theory. They would say that a provision should be construed at the level of generality that was originally understood (or that the Framers intended, or whatever). So: can the Cruel and Unusual Punishment Clause be interpreted to forbid capital punishment? That would depend on whether the original understanding was that the Clause was to be interpreted dynamically; and if so, how dynamically. Specifically, was the original understanding that the Clause should be interpreted dynamically enough to permit "cruel and unusual" to be extended to cover capital punishment at some point in the future? (And I guess the further question, for this kind of originalist, would be whether we are now at that point.)

I don't like Mike Huckabee. I think he's a total doofus, and it's a sad comment on the state of American politics that he rose as prominently and easily as he did. That said, you can't let a tagline as devastating as this one go by without comment.

On his recent Michigan ads, he closes saying: "I approved this message because I believe most Americans want the next president to remind them of the guy they work with, not the guy who laid them off." Oh, snap! Mitt Romney, you just got PWNED.

Elephant Stone - The Stone Roses