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.
Just so I understand, the ACS's name is a joke because you disagree with their 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.
Just so I understand, the ACS' interpretive approach lacks methodology because you disagree with their constitutional interpretation?
(with apologies to Orin).
Being result-oriented and unprincipled is not an approach, it is the most common one. ;-)
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.
Under? You need to study up on your gambling terminology.
Could the SEC even do this under their enabling statute? The paper claims:
I guess this would pass Chevron?
Yes.
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.
Yes, totally weird.
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.
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.
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?
"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.
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.
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.
"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."
Gotta love a false flag operation.
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.