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President-Elect Obama Taps into the ACS:
It looks like the Obama Administration may end up hiring a number of employees and directors of the American Constitution Society. Not only are several of its advisors and directors likely heading to the new administration, but today the ACS announced that Lisa Brown, Executive Director of the ACS, will be the new White House Staff Secretary. Congratulations to Lisa for landing such an important position.
Wahoowa:
What's the over/under that the ACS will get the "evil, America-ruining secret cabal of lawyers who are planning our destruction" treatment that FedSoc got over the past eight years?
11.19.2008 7:16pm
therut (mail):
Duh!!! The name of their group is a joke.
11.19.2008 7:19pm
Eli Rabett (www):
American Chemical Society??
11.19.2008 7:20pm
therut (mail):
What an interesting opening web page. D.C. vs Heller is a SIN to them. Like I said their name is a joke.
11.19.2008 7:21pm
OrinKerr:
therut,

Just so I understand, the ACS's name is a joke because you disagree with their approach to constitutional interpretation?
11.19.2008 7:27pm
Brett:
They have an approach to constitutional interpretation?

I'm not sure unprincipled, results-oriented, "living constitutionalist" intellectual mush actually qualifies as an "approach". The word sort of implies the existence of an articulable methodology.
11.19.2008 8:01pm
Bama 1L:
I still can't get my head completely around the fact that the Federalist Society's positions are basically those held by the Anti-Federalist faction. I don't know what brand of originalism that is.
11.19.2008 8:48pm
Oren:
Brett,

Just so I understand, the ACS' interpretive approach lacks methodology because you disagree with their constitutional interpretation?

(with apologies to Orin).
11.19.2008 9:05pm
Oren:
Bama, the mainstream view has shifting a ways since then. Nobody (least of which modern Republicans or Democrats) would endorse anything close to the views of the Republican-Democrats of Jefferson's time. The closest thing we have today is Ron Paul, at least in terms of distrust for banks and finance and commitment to State sovereignty.
11.19.2008 9:10pm
OrinKerr:
Brett,

Being result-oriented and unprincipled is not an approach, it is the most common one. ;-)
11.19.2008 9:21pm
Bama 1L:
I'm mostly joking, and I agree that things have changed and no one would seriously propose Jefferson-Madison Anti-Federalism today. (Although the VC comment threads will probably prove me wrong.)

Still, for the historically minded, it's weird to see Madison's silhouette associated with the word "federalist." That word, like liberalism, has certainly moved far from its Original Public Meaning (TM).

And in answer to Brett, I understand ACS is excited about original-intent originalism today, particularly with regard to the 14th Amendment. What that means I am not qualified to say.
11.19.2008 9:24pm
hawkins:

What's the over/under that the ACS will get the "evil, America-ruining secret cabal of lawyers who are planning our destruction" treatment that FedSoc got over the past eight years?


Under? You need to study up on your gambling terminology.
11.19.2008 9:24pm
NYU Law Libertarian (www):
For some reason I opened a ACS policy pdf outlining suggestions on workplace equal opportunity (masochistic tendencies I suppose). ACS would like the next president to make the SEC create a mandatory diversity report card requirement for all publicly traded companies which would detail "key glass ceiling indicators" (percentage of minorities in top 200 positions), "pay equity data" "special compensation distribution data" "applicants and new hire data" etc.

Could the SEC even do this under their enabling statute? The paper claims:


"If diversity and EEO information is made public, employees, consumers and other stakeholders can make educated decisions about places they want to work, products they want to buy, and companies in which they want to invest."


I guess this would pass Chevron?
11.19.2008 9:29pm
Ben S. (mail):

Just so I understand, the ACS's name is a joke because you disagree with their approach to constitutional interpretation?


Yes.
11.19.2008 9:29pm
NYU Law Libertarian (www):
11.19.2008 9:31pm
therut (mail):
Sometimes things are just wrong. They are wrong on Heller. The left is wrong on Heller. 4 liberal USSC justices were wrong on Heller. The ACLU is wrong on Heller. And yes it is funny the a lefty group of lawyers call a Constitutional right a SIN. Only is it a SIN in their world and religon. It just strikes me as illuminating of their thinking. It is also funny they even use the word SIN. They would not know what a SIN is if God told them!!!!!
11.19.2008 9:33pm
richard cabeza:
approach to constitutional interpretation


I just want to note that disagreeing with an approach to interpretation, which could include choosing not to interpret and choosing to interpret the opposite of what is written, is different from disagreeing with the interpretation itself.
11.19.2008 9:34pm
Bob from Ohio (mail):

it's weird to see Madison's silhouette associated with the word "federalist."


Yes, totally weird.


The Federalist Papers were a series of eighty-five essays urging the citizens of New York to ratify the new United States Constitution. Written by Alexander Hamilton, James Madison, and John Jay.
11.19.2008 9:39pm
_ben (mail):
From their mission page:

In recent years, an activist conservative legal movement has gained influence -- eroding these enduring values and presenting the law as a series of sterile abstractions.


Here's the crux of it. They admit that the conservative legal movement correctly recognizes that the law *is* a set of abstractions.

They don't say what they think it does mean, but since there is only one right answer, they must be wrong.

ACS believes that law can and should be a force for improving the lives of all people.


If they'd read the Constitution, they'd realize that the legislature is the proper venue for this. But then they'd have to make their case to the people's representatives, and I'll bet they're also Democrats who are against democracy.
11.19.2008 9:47pm
Oren:

Sometimes things are just wrong. They are wrong on Heller. The left is wrong on Heller. 4 liberal USSC justices were wrong on Heller. The ACLU is wrong on Heller.

Agreed, those 4 justices, the ACLU and the ACS are incorrect in their interpretation of what the 2A means. Given that premise, can you now explain the next step in the logic?
11.19.2008 10:03pm
wm13:
Hey, maybe each blog should be required to post the race, sex, and sexual orientation of each blogger at the head of the page, so people can make informed decisions about which blogs they want to read!
11.19.2008 10:19pm
Bama 1L:
Sure, Madison wrote some Federalist papers--then he went on to become Hamilton and Jay's enemy, deny he ever wanted a strong central government, co-found the Democratic-Republican (Anti-Federalist) party, veto the Bank of the United States, etc. Federalism, federalism, or Anti-Federalism?
11.19.2008 10:44pm
David Warner:
_ben,

"ACS believes that law can and should be a force for improving the lives of all people.

If they'd read the Constitution, they'd realize that the legislature is the proper venue for this."

Really? I'd say the proper venue envisioned by the Constitution is the people themselves. The role of the government is all three branches was merely to protect the people from that which might unlawfully hinder that improvement.
11.20.2008 12:35am
xx:
"Under? You need to study up on your gambling terminology."

I guess you could use the truth value of the proposition to produce an over/under. But nobody would take the under at .999, and an over/under of 1 would always push.
11.20.2008 10:40am
MarkField (mail):

Sure, Madison wrote some Federalist papers--then he went on to become Hamilton and Jay's enemy, deny he ever wanted a strong central government, co-found the Democratic-Republican (Anti-Federalist) party, veto the Bank of the United States, etc. Federalism, federalism, or Anti-Federalism?


Madison did sign the bill creating the Second Bank. But it's certainly fair to say that Jefferson's party was where most of the anti-feds ended up and that the party substantially represented their interests.
11.20.2008 10:49am
D.A.:
_ben
"They admit that the conservative legal movement correctly recognizes that the law *is* a set of abstractions."

I think the correct understanding of the phrase you criticize is "the law does not arise in a vacuum." The law is a set of abstractions, of course, but laws arise because some person saw a need for a rule to bring about some result. The ACS would likely say in response to you that we should not lose sight of the desired result when we interpret the laws, because to lose sight of the desired result is to view the laws (erroneously) as a "sterile abstraction."
11.20.2008 11:34am
ravenshrike:
"The project brings together scholars and practitioners to formulate and advance a progressive vision of our Constitution"


Gotta love a false flag operation.
11.20.2008 12:14pm
Dilan Esper (mail) (www):
Being result-oriented and unprincipled is not an approach, it is the most common one. ;-)

I appreciate Professor Kerr's sarcasm, but the serious point here is that a lot of people (I think because of the way conservatives in the media have portrayed judicial appointments) think that there's one method of interpretation, originalism or textualism or judicial restraint (which are actually 3 different things, but are often used interchangeably by conservative politicians and media figures), and liberals reject it in favor of "do whatever the judge feels like".

In fact, interpretation and its role in jurisprudence is probably the subject of at least 100 books, 500 law review articles, elective classes at every major law school, as well as being a big-time topic of non-lawyer philosophers. And there are lots of different theories of interpretation that are justified based on different philosophical traditions as well as pragmatic factors.

The point is, when I see people repeat this typical line about how conservative judges interpret and liberal judges "make it up", it's really sad and distressing to me. And I think lots and lots of conservatives, to the extent they believe anything about issues of interpretation, believe that. Despite the fact that people like Stephen Breyer have written accessible books about non-originalist interpretation.
11.20.2008 5:01pm