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I Wonder Why Solicitor General Verrilli...

didn't go with the statements (I won't call them arguments) of Andrew Cohen in this meltdown brought on by the Supreme Court's critical examination of the constitutionality of the federal health insurance purchase mandate.  It is a powerful example of the combination of self-righteousness, confusion, hysteria, and tyrannical spirit that made this week's oral arguments such an unpleasant experience for so many liberal elites.  Cohen has produced a target-rich post, but just a few examples:

1.  Cohen writes, "The Constitution is what the justices say it is, nothing more and nothing less. But this law is clearly within Congress' power"  Well, which is it?  If the Constitution is what the Supreme Court says is it, then, based on Cohen's own premise, it is unclear whether the federal health insurance purchase mandate is within Congress' power and if a majority of the Court votes to strike down the federal mandate, then it will "clearly" beyond the constitutional power of Congress.  But Cohen clearly suggests that the federal health insurance purchase mandate is within Congress' power regardless of what the Supreme Court decides.  We can see Cohen's constitutional nihilism struggling with his self-regard.  The Constitution is what the Supreme Court says it is when the Supreme Court agrees with Cohen.  The Constitution is "clearly" what Cohen says it is when the Supreme Court has the temerity to disagree.  Perhaps this argument is less than convincing to those who share neither Andrew Cohen's ideology nor Andrew Cohen's high opinion of Andrew Cohen.

2. Speaking of Andrew Cohen's high opinion of Andrew Cohen.  Cohen writes of Chief Justice John Roberts  "The chief justice has something to prove to progressives." He flatters himself.  I pretty sure that the proper response to a brush with the esteem of Andrew Cohen is apply bleach to the affected area.
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Discussions - 3 Comments

"The Constitution is what the justtices say it is, nothing more and nothing less. But this law is clearly within Congress' power."
That is a perfect distilation of logic I hear from Progressives all the time--usually because I call them on it. I have heard liberal lawyers say that the law is whatever judges say it is. Then I suggest that they could decide in a consevative manner and the result is silence.

People on the Left often say that right and wrong are social constructs. Once again, silence when one suggests that the natural law teaching on sex is therefore not wrong.

My fellow historians say we should not judge the past. Then they say our ancesters were wrong for doing or believing x, y, and z.

P.S. A "living constituton" is impossible in a land where there is no consensus about what's next.

"A "living constituton" is impossible in a land where there is no consensus about what's next."

-Disagree, strongly.

A "living constitution" is only possible in a land where there is no consensus about what is next.

That is the "living constitution" is the gap between our understanding of the law and how the justices will rule on the basis of precedent, and what actually happens to be the decision.

A "living constitution" is something of a cop-out, an excuse bad lawyers make to clients when they have not anticipated the legal outcome (the direction of history). Humph! That Judge he is just making things up, damn living constitutionalist! (let's appeal!)

Since there is always a winner and a looser (a prevailing party and a party who is prevailed upon, there is always some bitterness from loosers.)

I think one reason for the silence is that no one is really sure what you mean by the justices deciding in a conservative manner.

I am pretty sure that most lawyers believe that the supreme court is conservative, so the idea that the judges will decide in a conservative manner is not an outlandish proposition.

Scalia when he was a judge on the D.C. Circuit would say, this is what the supreme court says the law is, so this is what the law has to be, but in my opinion this is wrong for reason X, Y, Z.

The constitution is what the supreme court has said it is. Or rather it is what you think the supreme court has said it is. Both sides after all construct a case from binding law.

As an advocate you focus upon the ethical proposition, what the constitution, statute/legistlative intent in this case should say or be. This normative proposition is whatever advances the interests of your client.

In point of fact there is a known process for what comes next in almost every situation. In addition many areas of law are settled.

Not only is there more consensus about just about everything, it is actually a factually incorrect statement to suggest otherwise.

This overlapping consensus forms the basis for the great majority of cases which are not litigated but instead settled.

In my opinion you can divine what the supreme court justices, or more helpfully (always better to resolve at a lower level) what most judges will say the law is.

Obviously when you don't have consensus between the parties as to the facts or what the law is, you set up a situation where there is going to be one side complaining about a "living constitution".

Personally I don't see anything wrong or meltdowninsh about Cohen's post. All his points either are informative or else sort of just copyright (educator as entertainer).

What he is saying about Kennedy and Roberts is a sort of populist style argument for handicapping justices. More or less going off some sort of popular sense that Kennedy has already called a few balls strikes for progressivism, and feeding off of Robert's own analogy in confirmation hearings that he would be an umpire... Hey Ump, how about calling a strike for the away team, to make up for those series of strikes you called balls when the home team was up to bat? It is a bit turn your hat backwards and chew out the ump, but these sorts of theatrics aren't really meltdowns or unamerican...they happen all the time in all sorts of negotiations.

A good lawyer I think has an appreciation both for the Umpire and the General Manager. The law is what the Umpire says it is, but that doesn't mean the General Manager won't get kicked out of a few games every season. (Objection Relevance?)

Your honor I am explaining the living constitution in terms of the strike box in baseball. Cases that get called balls, and cases that get called strikes serve to more or less set the precedent or set the outlines for the strike box. A lawyer that looses a ball to a strike or vice versa accuses the ump, of partaking in a "living constitution", or expanding or contracting the strike zone.

We don't actually have a living constitution per se, we just have a conservative supreme court, or judges who on certain issues opperate from an increased or decreased strike zone.

"The Constitution is what the justices say it is, nothing more and nothing less. But this law is clearly within Congress' power."

The Strike zone is what the umpire says it is. But that ball was clearly a strike (advocate) But that ball was clearly a ball (advocate).

Mediator... video review may show that the ball was in the strike zone, in which case the Mets win game 7 of the world series by 1... or it may show that the ball was a ball, in which case the batter walks and bases are loaded and a hot bat is comming up to the plate.

One solution to litigation is to take the runners off second and third and basically advance the runner to first leaving the game open for the Yankees but lessening the dangers/risk/plays available to drive in the game winning run.

If both the Mets and the Yankess are equally convinced of righteousness(direction of history) and the facts then a decision will invariably be reached in court where one side by virtue of needing grounds for appeal will argue that the lower judge was engaged in judicial activism (living constitutionalism).

So your statement is somewhat right if by living constitutionalism you mean mediation, or ADR. If there is no "consensus" about risk, then it is hard to craft a new party focused legal outcome that essentially leaves both parties better off. So the living constitutionalism of ADR is curtailed. But at the same time this uncertainty is precisely what drives litigation, and litigation is what drives arguments that a judge was engaged in "living constitutionalism" (necessary to appeal) If the supreme court grants cert on an issue and declares that a certain ball in a certain location is a strike, or a ball, one side is likely to claim living constitutionalism.

This is because both sides were sure enough about being right, or the bennefits of prevailing that they discounted comming to a consensus.

So more or less a "living constitution" is only possible without consensus.

A different sort of client created "living constitutionalism" or what I call invisible federalism occurs from consensus about what is next.

But I don't think there is that much doubt about what is next.

A long time ago I told you that Mitt Romney would be the Republican nominee, this demonstates capacity to see what is next. But the capacity to project what is next, or to divine what Supreme Court justices or umpires are going to say is positively severable from thinking this is the correct call (except that it is much closer in baseball, so many times you know the Umpire is going to call it a strike because it is...)

This is all legalism, but it isn't necessarily progressivism, or at least I am not sure what is gainned in clarity from the label.

In any case the interesting question would be just how legalistic the right is in terms of embracing Mitt Romney as an aspect of conservatism simply by force of the consensus about what is next.

Conservatism is whatever Mitt Romney and the GOP says it is, nothing more nothing less.

But RomneyCare is bad! The GOP has violated conservative principles!

Catholicism is whatever the Pope says it is.

But some Popes were not principled christians!

The first statement is just a recognition of the final judge/arbitrator.

The second is a non-binding opinion based upon the extention of a legal or moral principle.

Once again a living constitution is only possible when there is no consensus about what happens next.

That is to say, sure you have these principles, but lawyers have clients. Some clients don't give a shit about philosophical principles (others care only about them, hard to generalize)...but a majority of clients are interested in outcome.

So if your principles do not accurately predict the resolution of a given case, then you must look for other factors or principles which opperate to give you more predictive power.

A sort of living constitutionalism thus arrises from the disjunctive purity of law school constitutionalism. The principles or factors that most accurately predict specific outcomes become the principles of a certain form of progressive.

In a world in which there was perfect information and broad consensus, there would not be a living constitution, because the opperative constitutional principles known by the parties would fully explain and foreordain the outcomes. There would also be almost no litigation. Almost everything close would be resolved by ADR, and everyone could craft resolutions which work for mutual advantage.

To put it in common man terms it would be like a baseball game shown on ESPN where all the strikes fit into the video evidence and UIS, everyone knows the physics, understands the umpire's perspective and sees that there is a clear basis for every call and for every pitch.

This is wishful thinking, but imagine that a judge was like an umpire. A living constitution would basically be an expansion or a contraction of a strike zone. Instead of drawing a box and saying, this is the strike zone. You simply crunched film on ball location with a red dot to indicate a strike and a blue dot to indicate a ball. Living constitutionalism looks at the scatter plot created by an individual judge in order to predict his strike zone, not your actual opinion of the box the strike zone should be in principle. It is basically about finding that the ball was closer to other balls called balls.

Hardly. By your logic, there is no such thing as an incorrect ruling by the Supreme Court, and there is no such thing as an incorrect ball or strike call. But even Umpires admit that they get it wrong sometimes. But the rules of the game allow there is no remedy in such cases.

If we have three coordinate and equal branches, then it is not true that the Court has final say in determining the meaning of the Constitution. If that were the case, Dred Scott would have legalized slavery throughout the Union, by making it illegal to take away the "property" of a slaveholder who moved north. Lincoln arued that Dred Scott was not free, since there was no appeal from the Supreme Court. But that did not mean that the Court's interpretation was the law of the land.

The baseball analogy is useful. Suppose an umpire, or a handful of them, turned to modern health studies and concluded that running into the catcher presents an undue danger to the catcher. Hence they decided
that they would call our any runner who ran into the catcher.

There would be no appeal from the ruiling on the field. But that does not mean that the rule would have changed. And, most umpires understanding that it is not their prerogative to change the rules, it would still be common practice to run into the catcher. Furthermore, my guess is that the umpires who did that would be fired.

But if there was a consensus that they were correct, then the rules of the game might "live," and the new interpretation would become common practice--even absent a change by the rules committee. But absent agreement that that was the necessary next step, it would not.

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