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Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.

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2009

Reposting Randy. Professor Barnett does not allow comments on Volokh, so comment here!

November 9th, 2009

As loyal followers of the Volokh Conspiracy know, Professor Barnett does not enable comments, as he explained in this post. While disabling comments eliminates the supply, it surely does not eliminate the demand. The market always finds a way to equilibrium.

Thus, whenever Professor Barnett adds a post to Volokh, I will repost it here, and enable comments. I shall call it, “Reposting Randy.”

The first installment of  “Reposting Randy” is Professor Barnett’s post  Limits on the Necessary & Proper Clause?

On January 12th, the Supreme Court will hear argument on a case that promises to find a limit to the power of Congress “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” In this blog post, Cato’s Ilya Shapiro explains:

In 2006, Congress passed the Adam Walsh Child Protection and Safety Act. One provision of the law authorizes the federal government to civilly commit anyone in the custody of the Bureau of Prisons whom the attorney general certifies to be “sexually dangerous.” The effect of such an action is to continue the certified person’s confinement after the expiration of his prison term, without proof of a new criminal violation.Six days before the scheduled release of Graydon Comstock — who had been sentenced to 37 months in jail for receiving child pornography — the attorney general certified Comstock as sexually dangerous. Three years later, Comstock thus remains confined in a medium security prison, as do more than 60 other similarly situated men in the Eastern District of North Carolina alone.

Comstock and several others challenged their confinements as going beyond Congress’s constitutional authority and won in both the district and appellate courts. The United States successfully petitioned the Supreme Court to review the case.

Cato and I have filed this amicus brief explaining that the the power to make laws that “shall be necessary and proper” must be linked to an emumerated power, which this law is not. As Ilya puts it:

While the government justifies its actions by invoking its implied power “to establish a federal penal system” — itself a necessary and proper auxiliary to certain enumerated powers — civil commitment is unrelated to creating or maintaining a penal system (let alone any enumerated power). Nor can the law at issue fall under the Commerce Clause, because civil commitment involves non-economic intrastate activity.This seems elementary given the text (see above), but it would be a small step towards Restoring the Lost Constitution (now just $13.93!) for the Supreme Court to so rule. The case also provides an opportunity for the Court to inch away from its decision in Raich.

Opine away!

Detroit Shrugging. A City Reborn From the Ashes of Statism?

November 9th, 2009

Detroit is in a sorry state. From Fridays WSJ:

Detroit has been in trouble for decades. It has the highest taxes in Michigan, the highest murder rate in the country, and a dreadful public school system. Only 25% of high school students graduate each year. Its tens of thousands of abandoned homes offer safe haven to drug dealers and criminals. All of this has produced an exodus of businesses—there is no longer a single major department store in the city—and residents. Detroit’s population is less than half of its peak of two million in the 1960s.

With the collapse of the auto industry over the past year and a half, things have gotten a lot worse. Unemployment is now touching Depression levels of around 30%—three times the national rate. Businesses that depend on the auto industry are shutting down and more residents are hitting the exits. This is accelerating the erosion of the city’s tax base, producing a fiscal crisis that seems impossible to escape. The city’s accumulated deficit is currently somewhere between $300 million and $400 million. No one knows for sure because the city has yet to submit its 2008 audit; its annual budget is about $3 billion.

Detroit now more closely resembles a frontier town that needs not flashy stadiums and art institutes but basic services: police, firemen and good schools. Mr. Bing needs to confront the hard reality that the city needs to pare back its liabilities, identify infrastructure it can no longer afford to maintain, and (though this is anathema to Detroit’s political class) perhaps auction off portions of its 140 square miles to neighboring counties, shrinking to a size that its diminished population base can support.

However, check out this absolutely fascinating article about the disintegration, and possible rebirth of Detroit. DETROIT: URBAN LABORATORY AND THE NEW AMERICAN FRONTIER (H/T Adam D. on FB)

I often joke that Detroit is slowly reverting back to the State of Nature. This article confirms my theory, but provides an interesting glimpse on how capitalism and a sense of individualism is spring forth from the ashes of this once statist culture. Because the government has fallen apart, and is no longer able to provide services, people are relying on themselves.

This piece also highlights the absolutely crucial advantage of Detroit. It’s possible to do things there. In Detroit, the incapacity of the government is actually an advantage in many cases. There’s not much chance a strong city government could really turn the place around, but it could stop the grass roots revival in its tracks.

In most cities, municipal government can’t stop drug dealing and violence, but it can keep people with creative ideas out. Not in Detroit. In Detroit, if you want to do something, you just go do it. Maybe someone will eventually get around to shutting you down, or maybe not. It’s a sort of anarchy in a good way as well as a bad one. Perhaps that overstates the case. You can’t do anything, but it is certainly easier to make things happen there than in most places because the hand of government weighs less heavily.

What’s more, the fact that government is so weak has provoked some amazing reactions from the people who live there. In Chicago, every day there is some protest at City Hall by a group from some area of the city demanding something. Not in Detroit. The people in Detroit know that they are on their own, and if they want something done they have to do it themselves. Nobody from the city is coming to help them. And they’ve found some very creative ways to deal with the challenges that result. Consider this from the Dowie piece:

About 80 percent of the residents of Detroit buy their food at the one thousand convenience stores, party stores, liquor stores, and gas stations in the city. There is such a dire shortage of protein in the city that Glemie Dean Beasley, a seventy-year-old retired truck driver, is able to augment his Social Security by selling raccoon carcasses (twelve dollars a piece, serves a family of four) from animals he has treed and shot at undisclosed hunting grounds around the city. Pelts are ten dollars each. Pheasants are also abundant in the city and are occasionally harvested for dinner.

This might sound awful, and indeed it is. But it is also an inspiration and a testament to the human spirit and defiant self-reliance of the American people. I grew up in a poor rural area where, while hunting is primarily recreational, there are still many people supplementing their family diet with wild game. Many a freezer is full of deer meat, for example. And of course, rural residents have long gardened, freezing and canning the results to help get them through the winter. So this doesn’t sound quite so strange to me as it might to you. The fate of the urban poor and the rural poor are more similar than is often credited. And contrary to stereotypes the urban poor often display amazing grit and ingenuity, and perform amazing feats to sustain themselves, their families and communities.

As the focus on agriculture and even hunting show, in Detroit people are almost literally hearkening back to the formative days of the Midwest frontier, when pioneer settlers faced horrible conditions, tough odds, and often severe deprivation, but nevertheless built the foundation of the Midwest we know, and the culture that powered the industrial age. No doubt in the 19th century many of those sitting secure in their eastern citadels thought these homesteaders, hustlers, and fortune seekers crazy for leaving the comforts of civilization to head to places like Iowa and Chicago. But some saw the possibilities of what could be and heeded the call to “Go West, young man.” We’ve come full circle.

Indeed, Detroit seems to be reverting back to the State of Nature, but in a good way. Without the crippling yoke of government, people are starting to reacquaint themselves with the lost concept of liberty and freedom, and self-sustainability.

Perhaps this near-dystopian society poses a glimmer of hope for the future. If our march down the statist’s road to serfdom is completed, government will ultimately cease to exist as we know it. But from the ashes, the fortitude, resiliency, and determination of the human spirit will triumph.

God speed Detroit. Who is John Galt? (waiting for the commenters to rip me for invoking God and John Galt in consecutive sentences)

Pictures of the shrinking Detroit, after the jump.

(more…)

JoshBlogs will be the Official LiveBlogger for the 2009 Federalist Society National Lawyers Convention

November 9th, 2009

I am pleased to announce that JoshBlogs will be the Official LiveBlogger for the 2009 Federalist Society National Lawyers Convention!

For anyone who cannot attend, I will be providing extensive coverage throughout the conference. You can look forward to:

Check out my previous coverage of the Constitution in 2020 Conference for a glimpse of what to expect.

Please be sure to follow me on Twitter or subscribe to my RSS Feed RSS Feed to receive instant updates during the conference.

Also be sure to check out FantasySCOTUS.net. The Premier Supreme Court Fantasy League. Play like the 10th Justice.

FantasySCOTUS.net. The Premier Supreme Court Fantasy League. Play Like the 10th Justice.

November 9th, 2009

JoshBlogs is proud to present FantasySCOTUS.net, the Premier Supreme Court Fantasy League.

FantasySCOTUS.net

The Rules are simple. For each case the Supreme Court grants cert, predict:

  • The Outcome of the Case (Affirm or Reverse the lower Court)
  • The Split (9-0, 8-1, 7-2, 6-3, 5-4, 4-1-4, or fragmented)
  • The Justices in the Majority, and the Justices in the Dissent
Play like the 10th Justice!

Now you can play like the Tenth Justice at FantasySCOTUS.net.

Who is John Galt?

November 8th, 2009

Just shrug. 220 times.

—- AYES    220 —

Abercrombie
Ackerman
Andrews
Arcuri
Baca
Baldwin
Bean
Becerra
Berkley
Berman
Berry
Bishop (GA)
Bishop (NY)
Blumenauer
Boswell
Brady (PA)
Braley (IA)
Brown, Corrine
Butterfield
Cao
Capps
Capuano
Cardoza
Carnahan
Carney
Carson (IN)
Castor (FL)
Chu
Clarke
Clay
Cleaver
Clyburn
Cohen
Connolly (VA)
Conyers
Cooper
Costa
Costello
Courtney
Crowley
Cuellar
Cummings
Dahlkemper
Davis (CA)
Davis (IL)
DeFazio
DeGette
Delahunt
DeLauro
Dicks
Dingell
Doggett
Donnelly (IN)
Doyle
Driehaus
Edwards (MD)
Ellison
Ellsworth
Engel
Eshoo
Etheridge
Farr
Fattah
Filner
Foster
Frank (MA)
Fudge
Garamendi
Giffords
Gonzalez
Grayson
Green, Al
Green, Gene
Grijalva
Gutierrez
Hall (NY)
Halvorson
Hare
Harman
Hastings (FL)
Heinrich
Higgins
Hill
Himes
Hinchey
Hinojosa
Hirono
Hodes
Holt
Honda
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Johnson (GA)
Johnson, E. B.
Kagen
Kanjorski
Kaptur
Kennedy
Kildee
Kilpatrick (MI)
Kilroy
Kind
Kirkpatrick (AZ)
Klein (FL)
Langevin
Larsen (WA)
Larson (CT)
Lee (CA)
Levin
Lewis (GA)
Lipinski
Loebsack
Lofgren, Zoe
Lowey
Luján
Lynch
Maffei
Maloney
Markey (MA)
Matsui
McCarthy (NY)
McCollum
McDermott
McGovern
McNerney
Meek (FL)
Meeks (NY)
Michaud
Miller (NC)
Miller, George
Mitchell
Mollohan
Moore (KS)
Moore (WI)
Moran (VA)
Murphy (CT)
Murphy, Patrick
Murtha
Nadler (NY)
Napolitano
Neal (MA)
Oberstar
Obey
Olver
Ortiz
Owens
Pallone
Pascrell
Pastor (AZ)
Payne
Pelosi
Perlmutter
Perriello
Peters
Pingree (ME)
Polis (CO)
Pomeroy
Price (NC)
Quigley
Rahall
Rangel
Reyes
Richardson
Rodriguez
Rothman (NJ)
Roybal-Allard
Ruppersberger
Rush
Ryan (OH)
Salazar
Sánchez, Linda T.
Sanchez, Loretta
Sarbanes
Schakowsky
Schauer
Schiff
Schrader
Schwartz
Scott (GA)
Scott (VA)
Serrano
Sestak
Shea-Porter
Sherman
Sires
Slaughter
Smith (WA)
Snyder
Space
Speier
Spratt
Stark
Stupak
Sutton
Thompson (CA)
Thompson (MS)
Tierney
Titus
Tonko
Towns
Tsongas
Van Hollen
Velázquez
Visclosky
Walz
Wasserman Schultz
Waters
Watson
Watt
Waxman
Weiner
Welch
Wexler
Wilson (OH)
Woolsey
Wu
Yarmuth
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