Prof @FordhamLawNYC JD/PhD History. “The People's Courts”
Next: “The Prosecutor Politicians” "A Faithful President"
A Dad-Joke Dad of 3 teens. https://t.co/pNx2Rx4e3U
31 added to My Authors
May 6 • 7 tweets • 3 min read
Alito draft p. 13 is - unwittingly - the powerful originalist argument in favor of Roe:
Drafters often chose precise language to limit public meaning.
But when the Drafters chose “a capacious term” like liberty, it was an invitation to interpret/construct for new circumstances.
My concern #1: The term "substantive due process" is akin to an oxymoron. I know the solid historical research by @evanbernick & @RyanWilliams314 on the roots of substantive due process, but the nature of the word "process" is a texual limit on the capaciousness of "liberty"...
May 4 • 4 tweets • 2 min read
Can Congress protect reproductive rights by statute?
Step 1: Pass a statute protecting interstate delivery of abortion meds, commerce & travel.
Step 2: Pass this Art III S.2 "exception/reg" requiring a 2/3 SCOTUS majority to strike down a federal law: papers.ssrn.com/sol3/papers.cf…2/ Why interstate commerce and not a 14thA. Sec.5 statute to enforce equality or liberty?
The Rehnquist Court limited both, but esp. if Roe is overturned, there are clearer interstate commerce line precedents...
but the interstate hook needs to be clearer than Lopez/Morrison.
May 3 • 5 tweets • 3 min read
[Fixed thread on leak speculation]
I’ve been cautioning against Leak-distraction when the real news is the draft opinion… @akapczynski does a great job explaining why the substance points to a conservative leak strategy.
Here @akapczynski asks “If a liberal clerk, why not leak in Feb?”
Keep in mind: Breyer announced his retirement late Jan.
Until mid-April, liberals focused on confirming KBJ in a 50/50 Senate.
A leak would've jeopardized or slowed confirmation.
I’ve been cautioning against Leak-distraction when the real news is the sweeping reactionary/radical draft majority…
But @akapczynski does a great job explaining why the substance points to a conservative leak strategy.
1. Timing: @akapczynski asks “if a liberal clerk, why not leak in Feb/March?”
Keep in mind that Breyer announced his retirement late Jan.
Until mid-April, liberals were focused on confirming a liberal in a 50/50 Senate.
A leak would have jeopardized or slowed KBJ’s confirmation…
Alito’s draft: “The Constitution makes no mention of abortion.”
Other rights or powers that the Constitution doesn’t mention, but this Court still recognizes:
-Non-militia gun rights
-Money = speech
-Presidential removal power 1/ politico.com/f/?id=00000180…2/ -“Takings” = regulations
- “Separation of powers” is implied, but never mentioned explicitly
- Something Roberts totally invented to strike down key parts of the voting rights act called “Equal State Sovereignty”…
Apr 19 • 4 tweets • 2 min read
Let's call the "mask mandate" decision a "masque mandate."
...because it is a bizarro admin/textualism masquerade.
First, Judge Mizelle applied Chevron:
Step 1: "The statute is not ambiguous."
(How can the word "sanitation" in the statute not be ambiguous? Plainly ambiguous!)
Step 2: "Nor is the government's interpretation a reasonable one."
Even if the judge were right (which is bonkers, because I just googled "sanitary masks" and came up with 1.6M results), she is saying it is "unreasonable" (or impermissible) to think masks are sanitation.
Apr 18 • 4 tweets • 2 min read
“This op-ed summarizes a book with ‘Untold Story’ in its subtitle.
Right: Late correction/attribution to the historian who, um, actually told the story first.
I don’t know all the details, but there is a common assumption at play here:
If an historian like @TeraWHunter tells the story, it is marginal historical under-the-radar…
Until someone in my field [fill in the blank] tells it, it’s untold.
Apr 7 • 5 tweets • 3 min read
Extraordinary Law, Ordinary Meaning:
Ironically, ordinary meaning is relevant only for extraordinary law:
(Original public meaning of constitutions, super-statutes, major questions).
When a statute is "ordinary," technical/expert meaning is more relevant than ordinary meaning.
Now if I only had an extraordinary amount of time to write up this ordinary law review article.
Apr 4 • 7 tweets • 4 min read
When Judge Jackson wrote "Presidents are not kings" in her McGahn decision, she was not stretching with hyperbole, as @ChuckGrassley charged.
The basis for many doctrinal defenses of presidential power & immunities is drawn from specious royalist anti-republican assumptions... 1/
The Roberts Court makes a series of assumptions about "executive power" that reflect British royalism, not the American republican founding.
As I explain here, many unitary exec theorists explicitly rely on English royalism and errors about Blackstone: yalejreg.com/nc/a-reply-to-…
Mar 23 • 4 tweets • 4 min read
To GOP Senators who claim that judicial policy-making started with late 20th C. liberals:
Conservative judges adopted the tort fault rule with explicit arguments about maximizing economic growth in 1870-80s.
And Holmes retorted w/ progressive law & econ policy in The Common Law:
With apologies for self-citation, my article "A Watershed Moment: Reverals of Tort Theory in 19th C.," J. Tort Law (2008).
Many assume that conservative judges hid their capitalist common law agenda, but I found they were openly touting their capitalist policy preferences.
Jan 28 • 5 tweets • 3 min read
Remarkably, @baseballcrank's defense of Ilya Shapiro's anti-identitarian tweets...
plays the identity card.
Ilya's anti-affirmative action stems from his family's experience of anti-Semitism.
So race & ethnic lived experience are relevant to judgment, eh? nationalreview.com/corner/the-dis…2) I'm not sure what @baseballcrank is trying to say with this word salad.
I think it's a non-sequitur play of the Russian Jew identity card.
Is some logical connection between the different parts of the sentence? I wouldn't want to assume so, b/c that could be stereotyping.
Jan 25 • 6 tweets • 3 min read
Yesterday I got cursed & ratio'ed for this tweet. Now Day 2 starts with a new round of blue-check-marks making the same point that vaccination is not like abortion.
Here are two thoughts: 1) Yes, I know.
Legal arguments can turn on finding common principles in dissimilar cases;
2) My goal was to build a legal argument building on one 6-3 SCOTUS decision on vaccine mandates into a case to save Roe.
I acknowledge I am being naive about the conservative Justices. But I was naive to suggest consensus or common ground or moderation or nuance on Twitter.
Jan 5 • 6 tweets • 2 min read
What could Garland do to investigate Trump for January 6th?
IMHO, the only step for Garland is to appoint a special counsel (a Mueller-type).
And I think that's the only way Garland would go, termperamentally.
It says a lot that he hasn't/won't. 1/ law.cornell.edu/cfr/text/28/60…2/ An investigation into Trump, Biden's once and future political opponent, checks both reg boxes:
a) "conflict of interest...or other extraordinary circumstances; and
(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel"
Dec 24, 2021 • 4 tweets • 1 min read
A very merry Christmas to all who celebrate!
(It’s a not-well-kept secret that many traditional-ish Jews not only wrote some of the best Christmas songs, but also love Christmas songs).
It reminds me of a BC time years ago, when a group was trying to set a Guinness record…
1/2/ (BC = Before Covid)
…for the largest carrolling group ever assembled. I was so excited to participate. I didn’t know the songs very well, and I probably have the worst singing voice of anyone who ever enjoyed singing. Like American-Idol outtakes bad.…
Dec 22, 2021 • 4 tweets • 4 min read
The Royal Prerogative, according to Blackstone, included which of the following:
A prerogative to...
(H/t @ShaniaTwain, @KingBobbyBrown, @jdmortenson)
Hint: The unitary exec theorists misquoted Blackstone to claim one of these.
Somehow, I keep finding evidence to the contrary.
Please tell Roberts, Kavanaugh, and Thomas that originalists are just making stuff up, so maybe they should be less sanctimonious against Roe & privacy.
Dec 13, 2021 • 4 tweets • 1 min read
If Trump wins a second term, I hope people understand how Cy Vance, Eric Schneiderman, Tish James and the corrupt Cuomo NY Democratic Machine enabled him all along the way.
1. Cy Vance: newyorker.com/news/news-desk…
Dec 8, 2021 • 8 tweets • 4 min read
A new thread on originalism myths:
“The Indecisions of 1789: An Originalism Cautionary Tale” documents another series of misuses of sources by originalist unitary executive theorists.
The Roberts Court relied on this myth to expand presidential power: shugerblogcom.wordpress.com/2021/12/08/the…2/ The mythic "Decisions of 1789" is that a House majority endorsed the unitary theory of implied presidential powers.
But only 16 of 53 (30%) fit that bill.
Trying to find more votes, Prakash miscategorized many members or sources.
My paper here: papers.ssrn.com/sol3/papers.cf…
Dec 3, 2021 • 5 tweets • 2 min read
If your first two shots were Moderna, your booster shot is post-Moderna.
If your first shot was Johnson & Johnson, your booster shot is Grant & Nixon…
Dec 1, 2021 • 8 tweets • 3 min read
Likely the most significant oral argument in years (Dobbs) is happening right now, and Mississippi's lawyer is already making patently ridiculous arguments:
Abortion rights are the only rights implicating life and death?? Hello death penalty? supremecourt.gov/oral_arguments…
Right now in Dobbs at 11:22:
You can't read too much in these tea leaves... but it sure sounds like Justice Kavanaugh is practicing, reciting many examples of overturning precedents, and sounding out an opinion (and a 5th vote) to overturn Roe and Casey.
Nov 30, 2021 • 29 tweets • 11 min read
A new paper: “Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism,” Yale J. Law & Humanities, 2022.
I found many errors in unitary executive amicus & scholarship on Blackstone & other historical sources. Thread: papers.ssrn.com/sol3/papers.cf…2/ I think these errors are in good-faith. This material is complicated, the 18th c. terms are obscure.
But that's the point:
Originalists claim supremacy as the most reliable & objective method, on the eve of overturning Roe/Casey. These errors should give us all pause...