"[O]ne Italian music critic argued that even if Verdi had not written the high C, 'it was a gift that the people had given to Verdi'..."

"... an assertion that sounds remarkably like democratic constitutionalism."

Lawprof Jack Balkin has been chewing on this analogy for 20 years.

Do we really need to worry, as Jack Balkin does, that the states will bring too many lawsuits challenging federal tax laws?

Lawprof Jack Balkin doesn't like the way Judge Hudson dealt with the Anti-Injunction Act in the opinion that allowed Virginia to go forward in its attack on the Obamacare individual mandate:

In essence, Judge Hudson argues that by passing [the Virginia Health Care Freedom Act] that says that Virginia will interpose itself to protect its citizens from the individual mandate, Virginia has succeeded ... in getting around the federal tax-anti-injunction act. 

... The fact that Virginia can get around the tax anti-injunction act simply by passing a statute saying that it thinks the federal law is unconstitutional means that every state in the Union can do so as well. This undermines the purposes of the tax anti-injunction act, which was to keep tax protesters from littering the federal courts with protest litigation; the act requires that challenges to tax laws proceed in an orderly fashion through requesting refunds.

Tax protesters? You see the states, acting through their legislatures, as presenting the same problem of frivolous, wasteful litigation posed by private litigants?

There is a built-in check here that is not present for those private litigants, which is that elected representatives of the people of a state have gone through a deliberative process in making that statute, and, in addition, the state executive branch has made the decision to bring the lawsuit. These tiers of public accountability make a difference with respect to the necessity of the Anti-Injunction Act.

That act, as Judge Hudson noted, does not refer to a state as being barred from bringing suits for injunctions, only a "person." There's a question of interpretation about whether a state should be included in the word "person," and there's good reason to think it should  not. For one thing, the general rule of statutory interpretation is that "person" does not mean state. And, even more important, as I've just explained, structural checks mean that the state as a litigant doesn't present the same problems posed by an individual litigant.

Indeed, the logic of the opinion seems to suggest that if Virginia had objections to any other part of the federal tax laws, it could pass a Virgina Tax Freedom Act related to that provision, claiming that the tax provision was beyond the reserved powers of the states under the Tenth Amendment. 

How big of a threat is that? The federal tax power is extremely broad, so that virtually any lawsuit like this would be easily dismissed on the merits. You don't need a broad interpretation of the Anti-Injunction Act to solve this problem. Nearly all of the cases you ask us to fret about would either never be brought or be dismissed quickly for failure to state a claim. In the Virginia case, by contrast, the question on the merits is very difficult, and the judge held back from resolving it. How often could that happen? And when it does happen, should there be a way to challenge it in court?

(Also, Balkin can't mean the state would be "claiming that the tax provision was beyond the reserved powers of the states under the Tenth Amendment." He must have meant to write that the claim would be "the tax provision was beyond the enumerated powers of Congress and thus reserved to the states the states under the Tenth Amendment.")

Jack Balkin warns liberals not to cheer the new DOMA cases.

He supports same-sex marriage (and other liberal causes) but he's got a big problem with using the Tenth Amendment:

Judge Tauro ... wants to say that marriage is a distinctly state law function with which the federal government may not interfere. But the federal government has been involved in the regulation of family life and family formation since at least Reconstruction, and especially so since the New Deal. Much of the modern welfare state and tax code defines families, regulates family formation and gives incentives (some good and some bad) with respect to marriages and families....

In both opinions, Judge Tauro takes us through a list of federal programs for which same sex couples are denied benefits. But he does not see that even as he does so, he is also reciting the history of federal involvement in family formation and family structure. His Tenth Amendment argument therefore collapses of its own weight. If the federal government cannot interfere with state prerogatives in these areas, why was it able to pass all of these statutes, which clearly affect how state family law operates in practice and clearly give incentives that could further, undermine, or even in some cases preempt state policies?...

The modern state depends heavily on the federal government's taxing and spending powers for many of the benefits that citizens hold dear, including Medicare, Medicaid, Social Security, and the newly passed provisions of the Affordable Care Act. These programs have regulatory effects on state family policies just as much as DOMA does. If DOMA's direct interference with state prerogatives is beyond federal power, then perhaps any or all of these programs are vulnerable-- and unconstitutional-- to the extent they interfere with state policies regarding family formation as well. Put differently, Judge Tauro has offered a road map to attack a wide range of federal welfare programs, including health care reform. No matter how much they might like the result in this particular case, this is not a road that liberals want to travel.

Does this mean conservatives should cheer?

Lawprof Jack Balkin says the individual mandate is constitutional because it's a tax.

Interesting argument:

The individual mandate, which amends the Internal Revenue Code, is not actually a mandate at all. It is a tax. It gives people a choice: they can buy health insurance or they can pay a tax roughly equal to the cost of health insurance, which is used to subsidize the government’s health care program and families who wish to purchase health insurance....

The Constitution gives Congress the power to tax and spend money for the general welfare. This tax promotes the general welfare because it makes health care more widely available and affordable. Under existing law, therefore, the tax is clearly constitutional.

The mandate is also not a “direct” tax which must be apportioned among the states by population. Direct taxes are taxes on land or “head” taxes on the general population. The individual mandate does not tax land. It is not assessed on the population generally but only on people who don’t buy insurance and aren’t otherwise exempt. It is a tax on behavior....

But will the Obama administration want to defend the mandate this way? Millions of Americans are getting a big new tax hit? It's not just a question of whether this argument will work in court. It's a question of whether Obama wants to shout out loud that the supposedly beneficent new law is a huge new tax on the very people he assured — over and over — that he would not raise taxes on.



"I can make a firm pledge under my plan, no family making less than $250,000 a year will see any form of tax increase. Not your income tax, not your payroll tax, not your capital gains taxes, not any of your taxes."

ANY FORM.

Michael McConnell states the constitutional problem with the "deem and pass" more clearly and concisely than anyone can explain what the "deem and pass" is.

Is that a clue that something really devious is going on?

Article I, Section 7 clearly states that bills cannot be presented to the president for signature unless they have been approved by both houses of Congress in the same form. If the House approves the Senate bill in the same legislation by which it approves changes to the Senate bill, it will fail that requirement.

The actual constitutional text is: "Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States."

No one doubts that the House can consolidate two bills in a single measure; the question is whether, having done so, it may then hive the resulting bill into two parts, treating one part as an enrolled bill ready for presidential signature and the other part as a House bill ready for senatorial consideration. That seems inconsistent with the principle that the president may sign only bills in the exact form that they have passed both houses. A combination of two bills is not in "the same form" as either bill separately.

McConnell is fending off the argument that the House, under Article I, §5 ("Each House may determine the Rules of its Proceedings"), has the authority to bundle 2 bills together and vote on them at the same time. He also must contend with the argument — which has some case law in support — that the House makes the final call on the meaning of the Constitution in this area.

Read lawprof Jack Balkin's response to McConnell:

As I understand the rule in question, it does not actually "consolidate two bills into a single measure." Rather, it says that once the House votes on the reconciliation measure, it also votes on the Senate Bill....

McConnell's objection is formalist: He concedes that the House could have separate votes on both bills, and send one to the President and the other to the Senate. His sole objection is that the House leadership has decided to vote on them together using a single procedural rule.

But if he wants to make that kind of formalist argument, the House has an equally formalist rejoinder: The use of this particular procedural rule does not consolidate the two measures into a single measure. It just consolidates a vote on the two measures. In fact, the language of the rule actually preserves their separate character; it refers to the language of the reconciliation measure and the Senate bill separately.

What the leaders of the House would say is that McConnell has made a basic mistake: He has confused a bill with an internal rule for voting on a bill....

... The Constitution leaves to Congress to decide how to authenticate bills, and the Court won't second-guess the evidence....

What I've observed is that the Supreme Court employs formalistic-sounding arguments as a convention of opinion-writing when it is confronting Congress over matters like this and finding something unconstitutional. But, I think, a judicial intuition that something is amiss precedes the opinion-writing, and that intuition has to do with much more than a parsing of the text. As Balkin shows, you can go either way with the text if you want. The deeper question is whether the procedure deprives us — the people — of a structural safeguard that would protect us from the abuse of power. Is this something that matters, something we should care about, something that operates to preserve the accountability of our representatives?  And the answer to that question must be disaggregated from the question whether we like the substance of the bill/bills. If you go with Balkin because you want the health care reform, or with McConnell because you don't, then you are not talking about the Constitution.

McConnell's main aim is to create doubt about the "deem and pass" and thereby affect the vote in the House. He ends his op-ed:

Will wavering House members want to use this procedure when there is a nontrivial probability that the courts will render their political sacrifice wasted effort? To hazard that risk, the House leadership must have a powerful motive to avoid a straightforward vote.

Whether you want to think about the Constitution or not, you may ask: If this reform really is desirable, why are they doing it in such a bizarre way? The constitutional questions add heft to that question. If McConnell's interpretation is good, the procedure is all the more bizarre, and the doubts that arise are aggravated. If Balkin's right, then everything's fine, calm down, let it go. They are talking about law, but they are talking to Congress, trying to affect the vote. Predictions about what courts will and will not do play into the present debate.

What seems most important to me, both politically and in answering the constitutional question (if it, ultimately, becomes necessary), is whether the members of the House of Representatives understand and make it absolutely transparent that what they are doing is voting on 2 bills and that the Senate bill, if approved, will go independently and directly to the President for signature, and that, upon the President's signature, that bill will become law on its own, without any regard to whether that other bill ever makes it through the Senate and into law later on.

If the members of the House of Representatives are going to deny that they voted for the Senate bill that became law (on its own) or if they will say that they were somehow caught unaware or betrayed by the Senate or tricked, then I think the rule is unconstitutional. But if they cannot use the rule that way — as political cover — why use it at all?

Glenn Greenwald flails absurdly in a lame effort to take down Justice Alito.

Really, it drives me crazy to try to plow through the unedited dreck that Greenwald writes, but I feel compelled to defend Justice Samuel Alito who, when affronted by President Obama's accusation that the Supreme Court violated judicial norms, simply shook his head and mouthed (apparently) "not true."

Greenwald accuses Alito of "a serious and substantive breach of protocol that reflects very poorly on Alito and only further undermines the credibility of the Court." Further! Presumably, you're already against the Supreme Court, and Greenwald isn't using this post to bring you up to speed.

It has nothing to do with etiquette and everything to do with the Court's ability to adhere to its intended function.

There's a reason that Supreme Court Justices -- along with the Joint Chiefs of Staff -- never applaud or otherwise express any reaction at a State of the Union address. It's vital -- both as a matter of perception and reality -- that those institutions remain apolitical, separate and detached from partisan wars. 

Uh, yeah, which is why Obama's words were such an affront. Obama called the Citizens United case a "wrong," that is, a legal outrage of some sort, but, obviously, Alito's position is that the Court decided the case according to the law, that it said what the First Amendment means, and that its legal expertise is entitled to respect.

Alito's response didn't signify political disagreement. It was simply self-defense — a defense of the Court. It meant: We decide cases according to the law. That is apolitical.

Justice Alito's flamboyantly insinuating himself into a pure political event, in a highly politicized manner, will only hasten [the Court's] decline.

Shaking one's head and mouthing 2 or 3 words is "flamboyant"? Alito was sitting in his seat and he evinced a subtle reaction to a severe political attack. That doesn't make what he did "highly politicized." If anyone was "highly politicized," it was Obama. Alito's response was more of a reflex, and it was, I would assume, grounded in a belief that the Court does what it is supposed to do — decide cases according to the law.

On a night when both tradition and the Court's role dictate that he sit silent and inexpressive, he instead turned himself into a partisan sideshow -- a conservative Republican judge departing from protocol to openly criticize a Democratic President...

Oh, bullshit. He's a sideshow because he flinches when hit? He's modestly human and not a mannequin. I remember when Obama expressed a desire for Supreme Court Justices with a more sensitive emotional response. Empathy.

Obama is an elected politician in a political branch and has every right to express his views on such a significant court ruling. While the factual claims Obama made about the ruling are subject to reasonable dispute, they're well within the realm of acceptable political rhetoric and are far from being "false"...

But shouldn't Obama have shown some respect for the members of the third branch of government who honored him with their presence? What is the "acceptable political rhetoric" when one person has the microphone for over an hour and everyone else is supposed to listen respectfully? Really, if it were known in advance that Obama wanted to use the occasion this way, the Supreme Court Justices should have stayed home. Or send over 1 or 2 that do opinions that the big man likes.

While Presidents do not commonly criticize the Court in the SOTU address, it is far from unprecedented either. 

The link goes to Tony Mauro at The Legal Times, who says that this kind of talk is "almost unprecedented." "Almost unprecedented" = "far from unprecedented"? Come on, Glenn. Your sleaziness is showing.

[Alito] unmasked himself as a politicized and intemperate Republican as well. 

Huh? Alito flinched at a surprising jab. The President told the Justices to their face that they were, essentially, power abusers. It's not "Republican" to believe that your work is dutiful and honest. (Is it?) Alito's gestures meant nothing more than that.

Yale Law Professor Jack Balkin documents that roughly 25% of Franklin Roosevelt's 1937 State of the Union address was devoted to criticizing the Supreme Court and various rulings which struck down his domestic legislation. 

Roosevelt's attack on the Court — quoted by Balkin — was, at the most severe point: "We do not ask the Courts to call non-existent powers into being, but we have a right to expect that conceded powers or those legitimately implied shall be made effective instruments for the common good." Think about how much more respectful that was toward the Court than the blow that made Samuel Alito flinch last night.

Greenwald concludes:

Whatever one thinks of the one paragraph of Obama's address devoted to the Citizens United ruling, it was not "unprecedented."

Who is he quoting there? Balkin doesn't say "unprecedented." Is it Mauro's "almost unprecedented"? For all his annoying verbiage, Greenwald can't get anywhere in this effort to show that Obama was just fine and Alito did something outrageous. Pathetic!

The phony quotes keep coming — and they go viral before even very quick corrections.

Yesterday, Yale lawprof Jack Balkin had to backtrack:

As I suspected, Justice Scalia did not say he would have dissented in Brown v. Board of Education in 1954. The newspaper account is incorrect and took his remarks out of context.

Although Professor Balkin picked up the story and wrote about it, to his credit, from the start, he hedged with phrases like "[i]f the current report is accurate."

The misrepresentation of Scalia's remarks went viral almost instantly, which is the way things go these days. Damage is done, even when the corrections are instantaneous.

This reminds me of those recent fake Rush Limbaugh quotes and the subsequent screw-up by Rush himself propagating some phony Barack Obama quotes. Rush was much better and quicker than his attackers about making a correction, but there's still some controversy about the way he corrected himself:

... I was libeled and slandered by countless members of the media, fabricated quotes, made-up quotes I never stated, never uttered, never wrote, nothing, were repeated all over this country by sportswriters, television cable hosts and so forth.  After we proved to them that I didn't do it they retracted it a week later, after the damage, and many of them said, "It still doesn't matter, we know Limbaugh thinks it anyway." 

So last Friday, I get a note from a friend who says, "You ought to see what's on this blog."  I looked at it, and it was Obama, his thesis from Columbia, "so-called Founders," didn't like what they did with the Constitution, there wasn't enough talk about distribution of wealth and so forth. I said, "Well, this has a ring of truth to it," because we've got Obama on radio from Chicago 2001 complaining about the Supreme Court not doing enough about redistribution.  So we ran with it, made a big deal out of it in the first hour.  In the second hour, I got a note saying, "Hey, Rush, we looked at this, we can't back this up, we can't find any actual sourcing for this."  So at that point I warned the audience that it may not be true, that we are still checking it. 

Shortly thereafter I learned that the whole thing was made up, it was a satire piece on an obscure website.  Then I said, "Okay, folks, I have to tell you, it's satire, there's no evidence that Obama ever wrote this, but, Media Tweak of the Day, I don't care, I know he thinks it anyway because I've got audio of Obama saying it, talking about the Supreme Court."  And we all got a great laugh about it because I corrected it immediately, I explained that it was a hoax, or was satire and then to tweak the media I said, "But I don't care, I'm sticking with it because I know he thinks it anyway."  So I dished out to Obama what the whole media did to me and I dished it back at the media as well....

Everyone jumped all over that, of course, because he didn't say he was sorry before he did what would be an otherwise justified punch-back at the media for the way they savaged him with fake quotes and withheld even corrections, not to mention apologies. Now, he must know that he screwed up what would have been excellent media criticism by not properly abasing himself first. You can see that he was milking the no sense of humor theme, but these talking heads who hate him are never going to find his sense of humor delightful, and he made it completely easy to portray him as a fool because he didn't first get in a clean apology ritual.

"Many blogs have developed successful communities of commenters, with many very interesting and substantive contributions and discussions."

"Unfortunately, this has not happened here."

Lawprof Jack Balkin nixes comments. Though his co-bloggers can still turn comments on for their individual posts, he's had it with trolls and name-calling:

There is very rarely any serious analysis; mostly there is point scoring and vitriol. Many regular readers have written to say that they find the comments section a distraction and think the blog would be far better without it.

Daniel Solove, who likes his own commenters, says:

It seems to me that different blog commenting cultures arise on different blogs. I bet that the readership for Balkinization and Concurring Opinions overlaps quite a bit, yet I have noticed that the comments at Balkinization are much as Jack describes them. Why have commenting cultures developed so differently at different blogs? I don't really know the answer, and it would be interesting to figure out why commenting cultures develop in the ways that they do.

One question I'd ask is: Do you go into the comments yourself and talk with your readers or do you just look on and hope for the best and fret and contemplate total destruction when things go to hell?

Orin Kerr says:

I suspect the explanation rests largely on the different moderation practices at different blogs. If a blogger doesn't moderate comment threads at all on a widely read blog, people who want to be shocking, mean, or just irrelevant realize they can do their thing and reach a decent-sized audience....

Over time, comment moderation practices end up having a profound impact on who comments, and different approaches either attract thoughtful commenters or keep them away.

A little too much stress on commenters behaving themselves? I think I have a taste for more wildness than these other law professors. I want something exciting to happen in the comments. To me, a troll is someone who's boring, verbose, and repetitive. There's no end to how creative readers might be if you give them a place to write. You need to care about seeing that happen.

IN THE COMMENTS: Henry Buck says:

He's complaining about point-scoring and vitriol in the comments of a blog that takes its name from a play on a word for diviseness and nationalistic hatred?

Ha ha. Yeah, he's long had that slogan: "Balkinization: an unanticipated consequence of Jack M. Balkin." Which made it sound like we don't expect it and he loves it and is going to going to serve it up for our pleasure.

Christopher Hitchens has a few more problems with Rick Warren as the inauguration prayer-leader.

He asked:

Will Warren be invited to the solemn ceremony of inauguration without being asked to repudiate what he has directly said to deny salvation to Jews?

Will he be giving a national invocation without disowning what his mentor said about civil rights and what his leading supporter says about Mormons?

Will the American people be prayed into the next administration, which will be confronted by a possible nuclear Iran and an already nuclear Pakistan, by a half-educated pulpit-pounder raised in the belief that the Armageddon solution is one to be anticipated with positive glee?

As Barack Obama is gradually learning, his job is to be the president of all Americans at all times. If he likes, he can oppose the idea of marriage for Americans who are homosexual. That's a policy question on which people may and will disagree. However, the man he has chosen to deliver his inaugural invocation is a relentless clerical businessman who raises money on the proposition that certain Americans—non-Christians, the wrong kind of Christians, homosexuals, nonbelievers—are of less worth and littler virtue than his own lovely flock of redeemed and salvaged and paid-up donors.

So who should do the invocation -- assuming we must have an invocation? "[L]et it be some dignified old hypocrite with no factional allegiance."

What Hitchens would prefer, it seems, is what Justice William Brennan called "ceremonial deism":

[G]overnment cannot be completely prohibited from recognizing in its public actions the religious beliefs and practices of the American people as an aspect of our national history and culture. While I remain uncertain about these questions, I would suggest that such practices as the designation of "In God We Trust" as our national motto, or the references to God contained in the Pledge of Allegiance to the flag can best be understood, in Dean Rostow's apt phrase, as a form a "ceremonial deism," protected from Establishment Clause scrutiny chiefly because they have lost through rote repetition any significant religious content. Moreover, these references are uniquely suited to serve such wholly secular purposes as solemnizing public occasions, or inspiring commitment to meet some national challenge in a manner that simply could not be fully served in our culture if government were limited to purely nonreligious phrases. The practices by which the government has long acknowledged religion are therefore probably necessary to serve certain secular functions, and that necessity, coupled with their long history, gives those practices an essentially secular meaning.

More recently, Justice O'Connor wrote:

Given the values that the Establishment Clause was meant to serve, ... I believe that government can, in a discrete category of cases, acknowledge or refer to the divine without offending the Constitution. This category of “ceremonial deism” most clearly encompasses such things as the national motto (“In God We Trust”), religious references in traditional patriotic songs such as the Star-Spangled Banner, and the words with which the Marshal of this Court opens each of its sessions (“God save the United States and this honorable Court”). These references are not minor trespasses upon the Establishment Clause to which I turn a blind eye. Instead, their history, character, and context prevent them from being constitutional violations at all.

In my Religion & the Constitution class, I like to say that no one believes in ceremonial deism. It's no one's religion, just a mode of using religion in the public setting. And yet, if anyone is a ceremonial deist, I'd say that person is Barack Obama. I air my suspicion -- and praise that religion of no religion -- here:

It's me and Jack Balkin on Bloggingheads!

Check it out. Balkin is the Yale lawprof who blogs at Balkinization.

They've titled this one "Qualifications and Disqualifications." We recorded this one on December 11th, so the first segment doesn't go as deeply as I'd like into the subject represented by my tag "Madigan vs. Blagojevich" (which you can click on below), but most of the stuff isn't so time-sensitive, and I'm sure, at the very least, you'll want to play the segment they've called "Ann says we need an atheist President who pretends to be devout."

ADDED: In this really short clip -- 22 seconds -- Balkin is asserting that Bill Clinton is deeply religious -- and a sinner -- and I unwittingly bite my lip Clintonesquely.

Lawprofs Jack Balkin and Eric Posner talk about what sorts of "policy views" Obama will try to "entrench" on the Supreme Court.

In this new Bloggingheads episode.

Obama might want ideological liberals -- right? -- but he doesn't really want judges who will rein in executive power, does he?



"Much of what the Obama administration will do in the area of executive power is just dial things back one notch."

Hmmm....



So, Obama will dial back to 10?

Is Jack Balkin more subversive than Eugene Volokh? Am I?

Yale lawprof Jack Balkin is in China, checking out which lawprof blogs are blocked:

I was able to reach Volokh Conspiracy, SCOTUSBlog, How Appealing, Election Law, Instapundit, Mirror of Justice, Concurring Opinions, Becker-Posner, PrawfsBlawg, Feminist Law Professors, Business Associations Blog, Lessig Blog, and Black Prof. I was not able to reach Balkinization, Althouse, U Chicago, Leiter Law School and The Conglomerate.

There is almost no reason to believe that, from the standpoint of the Chinese government, Balkinization is more subversive than Volokh Conspiracy or Becker Posner, or a number of other blogs on this list. It is likely that, as with most Internet filtering schemes, the results are some combination of overblocking technology, arbitrary decisionmaking, and simple luck of the draw.

I can think of plenty of reasons why the Althouse blog is more subversive!

What effect will the Supreme Court's gun case have on the '08 election?

Jack Balkin asks a great question. To answer his question, he predicts what the Court will say in its decision in District of Columbia v. Heller:

(1) that the 2nd amendment protects an individual right, (2) that this right applies against laws in federal territories like the District of Columbia, (3) that a relatively deferential standard of reasonableness applies, and (4) that, even under this relatively deferential statute at least one part of the D.C. gun control law is unconstitutional. That is to say, I predict a decision that tries to split the difference and is aimed roughly at the middle of public opinion, even if not the exact center.

That sounds right to me.

Will people get stirred up if the outcome is that hedged and bland? Balkin thinks the newspaper headlines will scare people — and they'll scare people into the embrace of the Democrats:

[I]f the Court strikes down any part of the D.C. handgun ban, the headlines in the newspapers will announce that the Court has protected gun owners rights and that gun control laws around the country are now constitutionally vulnerable....

So, just as a decision favoring abortion rights fires up pro-life politics, a decision recognizing gun rights will stir up the people who support gun control.

Obviously if I am wrong in my predictions, and the Court adopts the collective rights theory, conservatives will benefit. But I think there is very little chance that the Court would take this case if it a majority did not want to embrace the individual rights position. And even if members of a conservative majority understood that the appearance of a conservative result would help liberals and Democrats, I do not think it would change their decision in the case.

Is Balkin trying to mess with Justice Kennedy's head?

Anyway, Balkin's prediction is that the Court will slice it down the middle, but people, under the sway of inflammatory newspaper headlines, will misunderstand the case and vote for Hillary Clinton.

Very interesting. I think he's missing something, though.

The decision won't come for many months. (Oral argument should be in March.) During this time, it won't be a court opinion affecting voters minds, it will be a debate about gun rights and, more broadly, how to interpret the Constitution. Candidates will be asked all sorts of questions as this issue comes to the forefront.

The issue will get intertwined — I predict — with the abortion question. How should we interpret the text of the 2d Amendment, and how does that fit with the way you interpret the Constitution to protect the right of privacy? What kind of Justice will you put on the Supreme Court? If you support Roe v. Wade, you can't suddenly switch to strict constructionism to beat that pesky 2d Amendment into submission.

Things can get complicated, and it will be a difficult dance — more difficult for some that others. I'm not ready to assume Hillary Clinton will be the Democratic candidate.

Barack Obama ought to see an opportunity here. He was a constitutional law professor. He may have the skill to speak elegantly about constitutional rights when asked questions that leave Hillary Clinton spluttering for answers that don't sound hypocritical. John Edwards has legal skill too, and he may find a way to speak clearly and persuasively to people about constitutional law.

Meanwhile, the Republicans can make progress promoting a coherent approach to constitutional interpretation and sound judicial appointments, but they too are vulnerable to stumbing over the complexities. Who will do the worst? There are lots of contenders! But it's quite likely Giuliani will do the best, given his extremely strong legal background.

ADDED: Glenn Reynolds assesses the effect on the election. Unlike Balkin, he concentrates on the pre-decision debate about the issue:

[T]he court has ensured that the gun-rights issue will move to the forefront this election season, at both the presidential and congressional levels. This is probably bad for Democrats, given that most Americans believe they have some sort of right to arms under the Constitution.

It's also probably bad for Rudy Giuliani and Mitt Romney, who have generally been less supportive of gun rights than the other GOP contenders. But maybe Hillary Clinton will prove flexible: Bill Clinton said that the gun issue cost the Democrats control of Congress in 1994, and Hillary no doubt remembers that.

In the nowhere of the blogosphere....

... I'm trying to put on a necklace and to fend off a tsunami of possibly doughy Clinton sycophants.

ADDED: Not only did I typo "sycophants" as "syncophants," but the video is entirely out of sync! I'll see if I can fix it. Damn! [BUT: I think I know how.]... FIXED!

IN THE COMMENTS: I like what John Stodder says here. (And he may be interested to know what lawprof Jack Balkin said here, which I used to have up in the banner.)

What to ask Mukasey.

4 law professors say what questions they'd like the Senate Judiciary Committee to ask Michael Mukasey. (The Attorney General nominee testifies today.)

A sampling:

Jack Goldsmith: "In 2002 the Department of Justice opined, 'Any effort by Congress to regulate the interrogations of battlefield combatants would violate the Constitution’s sole vesting of the commander-in-chief authority in the president.' Do you agree with this statement? How do you define the scope of the president’s exclusive military powers?"

Charles Fried: "Priorities in law enforcement and particular conceptions of controversial legal issues — affirmative action, severity and leniency in criminal prosecution and sentencing, antitrust policies, civil rights enforcement — have always been part of a president’s project for the nation. And yet the public expects and the rule of law demands impartiality in law enforcement. So the attorney general cannot be independent of the president who appointed him, as are judges or the chairman of the Federal Reserve Board, but neither must he be a political operative pushing the president’s advantage at every turn. How would you balance these conflicting demands?"

Jack Balkin: "When, if ever, should the government prosecute journalists or other citizens for publishing classified information leaked to them about government activities of questionable legality?"

UPDATE: Mukasey on the "torture memo": "The Bybee memo, to paraphrase a French diplomat, was worse than a sin, it was a mistake. It was unnecessary."

The Erwin Chemerinsky mystery, part 2.

(Part 1 is here.)

Michael Drake speaks:

The decision was mine and mine alone. It was not based on pressure from donors, politicians or the University of California Board of Regents. It was a culmination of discussions -- with many people over a period of time -- that convinced me that Professor Chemerinsky and I would not be able to partner effectively to build a world-class law school at UC Irvine. That is my overarching priority.

My decision was absolutely not based on Professor Chemerinsky's place on the political spectrum, which is, in fact, quite similar to my own.

Nor was this a matter of academic freedom. UC Irvine -- and I personally -- staunchly support and defend freedom of speech and the expression of a wide range of viewpoints on our campus; nowhere is this more important than at a public university. There are individuals with political views far more liberal than Professor Chemerinsky's or mine who conduct research, teach and serve in senior administrative positions at UC Irvine....

I am confident that our search process will ultimately result in the appointment of a founding dean who will work with my colleagues and me to build the world-class law school that we envision for UC Irvine.

What bureaucratic drivel! Glad you're so convinced and confident about absolutely everything. We're not.

UPDATE: The L.A. Times reports on the furor at UCI:

The search for Chemerinsky took nine months before a formal agreement was reached, and search committee members said they would now probably start again from scratch...

Although Drake has denied that he took action under pressure from conservatives, [psychology professor Elizabeth F. ] Loftus said Thursday that the chancellor told the [dean search] committee during an emergency meeting Wednesday night that he was forced to make the decision by outside forces whom he did not name. A second member of the committee confirmed Loftus' account to The Times but asked to remain anonymous.

"I asked whether it was one or two voices or an avalanche, and the answer is that it was an avalanche," Loftus said. "But we are not supposed to capitulate to that in the world of academic freedom."

And here's lawprof Jack Balkin:

This is a disgraceful way to treat Erwin Chemerinsky, a very fine legal scholar. It is bad enough that Drake fired him in what can only be described as an act of cowardice. Now he must go on an extended public relations campaign lying about why he did so and further impugning Chemerinsky in the process. One suspects that the next person whose job is on the line will be Drake himself.

Can anyone explain why Drake should not resign? After nine months of searching for a dean and recruiting a man who is highly respected throughout the law school community, he turned around and fired him in a way that has undercut the whole project of founding a law school at UCI.

Jack Balkin and Eugene Volokh on Bloggingheads!

The estimable lawprofs talk about the constitutional dimension of guns and religion.

Scalia mocks minimalism.

Linda Greenhouse shows where Justice Scalia has recently expressed his antagonism toward the more moderate style of the Chief Justice.

In the issue ads case (Wisconsin Right to Life): "This faux judicial restraint is judicial obfuscation."

In Freedom From Religion, the case that restricted standing to use the Establishment Clause to challenge Executive Branch decisions: "Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions."

But the liberal lawprofs consulted by Greenhouse don't seem too impressed by what she wants to portray as a rift among conservatives:

As Prof. Jack M. Balkin of Yale Law School wrote on his blog, Balkinization, “It is the difference between bomb throwing and dismantling.”

... Prof. Erwin Chemerinsky of Duke Law School observed that Chief Justice Roberts, who has taken the conservative position in every ideologically divided case this term, could hardly be described as less conservative than Justice Scalia.

Prof. Mark Tushnet of Harvard Law School, whose recent book, “A Court Divided,” explored the differences among Republican-appointed members of the Rehnquist court, said that “a consolidated conservative majority, not a divided conservative majority,” was now in charge.

I tend to agree with this. Roberts (with Alito) and Scalia (with Thomas) are not at cross purposes. How shocking it would have been if the Court in those two cases gone ahead with the overruling that Scalia recommended. What a gift it would have been to the Democratic presidential candidates, who would have impressive new substance for scaring people about what another Republican President would do to the Court.

Those prissy, puritanical lefty bloggers.

There's been a lot of talk about me lately in the left-o-sphere. And, sorry, but I'm not going to link to it. You know how to find things. Anyway, for the most part, I don't answer back. As my mother used to say: You'll only encourage them. But I just want to comment on a new meme that's emerged in the anti-Althousiana.

(Oh, I'll do one other thing -- with a link. Check out the way the sublimely wonky Harry Farrell and Dan Drezner devote the first 11 minutes of their new Bloggingheads episode to talking about me... and the furious comments section that spirals out of it that's nearly all about me and not all that global politics stuff about the EU and so forth that they go on to chew over for the next 50 minutes. When anti-Althousiana goes viral, even the wonkiest academics lose their immunity. My favorite detail: Both Drezner and Farrell go on record as not particularly liking my blog. For context: I was pretty mean to Drezner here. Drezner attributes to me the notion that I don't accept disagreement on my blog -- an idea he seems to read into something I do say, which is that some people get what I'm trying to do here and some don't. See the quote from Jack Balkin in the masthead, above.)

Anyway, back to my point: the new meme about me in the left-o-sphere. Based on my "American Idol" vlog, where I hold up a glass of wine -- look, it's Jordin Sparks, reflected right here! -- and eventually take two sips of it, they are all: Althouse is a drunk, Althouse's drunken videoblogging, etc. This is the way these people see having a glass of wine? How very prissy and puritanical!

Is Randy Barnett giving me the finger?

And, since I can't see it, why am I giving him the stinkeye?



The image survives -- courtesy of David Lat -- but the context is lost in the dustbin of history.

And what am I so tickled about here?



I'm pretty sure it was when Jack Balkin tossed me that quote for the banner. (See above: "legal scholarship as performance art," context here.)