. For example, there are virtually no serious legal scholars who endorse claims that the income tax is unconstitutional, despite its popularity among some right-wing political activists and others (e.g. — Wesley Snipes)

And what does that prove? It proves that “serious legal scholars” are statist lackeys who know where the funding and means for their pseudo-profession comes from and are unwaveringly loyal to the leviathan that is their master.

David Nieporent: Anti-judicial activists think that policy choices should be up to the legislature rather than the courts, and that courts should not be in the business of creating new rights.

As for U.S. constitutional law, that’s a nearly empty position. The matter under dispute is what constitutes a “policy choice” and “creating new rights,” and what constitutes “correctly interpreting the Constitution.”

As for courts creating legal rights and making policy choices more generally, I suggest you move to a civil law country. The common law system is clearly not for you!

While science and law are certainly quite different in many ways, being in both fields I believe that “consensus” is of little value or meaning in either.

Scientific consensus can be wrong — it has throughout history and certainly will be again. This is why we need bold free thinkers to challenge assumptions and prevailing “dogmas.”

Science also works by consensus; that was Kuhn’s major point. What science also does, though, is recognize that there is no ultimate Truth. Whatever we today may accept as consensus is always metaphysically provisional. Someone can come along and change our understanding.

As I see it, the law works the same way. When people say that there’s a general understanding of what the Supreme Court is likely to do, that’s what they mean by consensus. Of course it’s possible that some new fact or theory will come along to change things, but it’s accepted subject to that provision.

Scientific consensus can be wrong – it has throughout history and certainly will be again. This is why we need bold free thinkers to challenge assumptions and prevailing “dogmas.”

Legal consensus can also be wrong – for anyone of a textualist persuasion, nobody “decides” what is constitutional because by definition that would be the rule of man and not the rule of law.

is-ought distinction:
lgm: On the other side, there are legal experts saying that modern undeclared wars are unconstitutional.
Name names please.
Quote

Not an expert, but I think so.

Not to worry. I often get white celebrities confused too. As I have explained before, I am rationally ignorant about most aspects of pop culture, except sports and science fiction.

Anti-judicial activists think that policy choices should be up to the legislature rather than the courts, and that courts should not be in the business of creating new rights. They don’t think that courts should not engage in judicial review.

This is just debater’s rhetoric. The right insists that its own preferred rights be recognized just as the left does. Both sides want the Court to intervene when “theirs” are infringed, and prefer that Congress decide when not. Kerr’s Law.

Allan: Here is the question: who decides whether something is constitutional?

I do. HTH.

The consensus of the anti-judicial activism crowd has consistently crowed that it is Congress.

That is not the view of anybody in the “anti-judicial activism crowd” that I know of. Maybe Lino Graglia. It’s certainly not widespread. Anti-judicial activists think that policy choices should be up to the legislature rather than the courts, and that courts should not be in the business of creating new rights. They don’t think that courts should not engage in judicial review.

My sense is that, even with a fairly conservative Supreme Court, the odds on this being declared constitutional are quite long. How is that so, if an overwhelming majority of conservative scholars believe it unconstitutional? Are you confident of getting votes from Roberts, Alito, Scalia, and Thomas? Or do they not qualify as conservative scholars?

lgm: On the other side, there are legal experts saying that modern undeclared wars are unconstitutional.

Name names please.

Why would “…real areas of consensus among constitutional law scholars…” be an issue of American law ?

Why would citizens or the formal judiciary need oracles in the form of “constitutional scholars” ?

If the fundamental law (Constitution) is not readily understandable — there is a critical failure in the entire foundation of American government

The consensus of the anti-judicial activism crowd has consistently crowed that it is Congress. For example, when the courts have overturned anti-abortion laws, there are screams of judicial activism and cries of “how dare the courts overrule legislatures”. But those same people scream “unconstitutional” when the legislatures pass laws limiting the right to carry firearms or allowing the state to use eminent domain. Now some are arguing that the commerce clause is not as broad a mandate as Congress thinks.

So be it. If the commerce clause does not give Congress such a broad mandate, a broad swath of laws will be unconstitutional. Heck, such an argument might take down a majority of our administrative regulatory agencies.

Neither side is particularly consistent in the position of who decides what is constitutional.

My prediction is that the courts will find that the health care law is constitutional and a proper exercise of power under the commerce clause. Thus, all three branches of government will concur. However, that will not stop people from claiming that the branches are wrong. And, because of that, I will remain confused, who am I to believe? The government I elected, or a group of unelected people in their ivory towers?

Where there’s a Will, there’s a [FAIL].

Who can blame you.

It’s not a big deal that legal experts agree that the income tax is constitutional — it’s in the freakin’ constitution (amendment 16)! I have heard legal scholars wonder whether the 1040 form is constitutional. After all, it asks people to incriminate themselves. It would be constitutional to base income tax on wages reported by employers or other third parties, but not to demand self reporting.

On the other side, there are legal experts saying that modern undeclared wars are unconstitutional. (Johnson called Vietnam a “police action”, for that reason.) They make that point particularly with respect to Iraq, given that Bush arrogated war powers onto himself (also unconstitutional, as you say).

Main Entry: con·sen·sus
Pronunciation: \kən-ˈsen(t)-səs\
Function: noun
Usage: often attributive
Etymology: Latin, from consentire
Date: 1843
1 a : general agreement : unanimity b : the judgment arrived at by most of those concerned
2 : group solidarity in sentiment and belief
usage The phrase consensus of opinion, which is not actually redundant (see sense 1a; the sense that takes the phrase is slightly older), has been so often claimed to be a redundancy that many writers avoid it. You are safe in using consensus alone when it is clear you mean consensus of opinion, and most writers in fact do so.

Q: Is there any consensus on how much consensus is required to reach consensus?

Could it be that law professors tend to track their legal arguments with the policy outcome in which they believe? I think it may just be that easy. Law is not science. Don’t make it so.

My experience with academics is the opposite. I have been grateful the several professors have given me their time to discuss issues relevant to my cases (including Professor Kerr). They help me to frame complex issues by pointing out approaches and arguments I had not thought of. But, from a lawyer’s point of view, academics are generally not results-oriented enough.

When I look at a case as a lawyer, I look for the plausible legal theory that best fits my client’s interests. By contrast, academics tend to be wedded to the theories they have spent so much time developing, and they resist pushing those theories to help a specific litigant. Of course, that’s exactly what an academic should do, but the qualities that make an academic worth consulting can also make an academic a poor advocate for a specific client.

The vast majority of those who dislike the income tax concede that it is constitutional – explicitly authorized in the 16th Amendment.

There are a fair number of far-right and libertarian types who want to repeal the 16th Amendment and thereby abolish the income tax, but only a handful of outright nutters claim that the income tax is unconstitutional.

I agree. But peoples’ perfectly sincere attempts to do (a) are often nonetheless influenced by their political views. Thus, when experts split primarily on ideological lines, I don’t think that you can conclude there is a true expert consensus on the issue even if a majority of the experts end up on one side because it fits their broader ideological commitments. That doesn’t mean that the experts are wrong, or that their analysis isn’t worthy of serious consideration. It just means that it doesn’t deserve the kind of deference we might give to a genuine cross-ideological expert consensus.

Perhaps. But there is a big difference between (a) experts trying to apply unbiased apolitical professional knowledge and not reaching consensus and (b) experts answering the question without attempting to apply unbiased apolitical professional knowledge.

Yes, I did. I will correct it.

For example, virtually no serious legal scholars who endorse claims that the income tax is unconstitutional, despite its popularity among some right-wing political activists and others (e.g. Will Smith).

I think you have confused Will Smith with Wesley Snipes.

I think it shows that there is no expert consensus on the issue based on unbiased, apolitical professional knowledge.

(I’m also not so sure the War on Terror example is the best one: For example, John McGinnis posted his article in late 2007, two years after the question of Article II power had been debated widely.)

I don’t think it matters much when John posted the article. The debate over the administration’s position was certainly still ongoing in 2007. The point is that he, like a number of other prominent conservative con law scholars, rejected the administration’s position. In any event, I know that he had said similar things earlier, including at professional conferences and elsewhere.

I don’t know how much we disagree, but I guess I’m not sure what it shows when there is a purely ideological divide. Is that supposed to show that there are serious arguments on both sides? Or is it supposed to show something else? Or does it depend on the underlying position?

(I’m also not so sure the War on Terror example is the best one: For example, John McGinnis posted his article in late 2007, two years after the question of Article II power had been debated widely.)

Of course that often happens. However, as I note in this post, there are important areas of consensus nonetheless.