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Take a look at Richard Epstein’s Op-Ed in WSJ on why Obamacare is Unconstitutional. Any fans of Epstein should not be surprised his analysis revolves around – wait for it – the Takings Clause!

To control against the risk of confiscatory rates, the Supreme Court also required the state regulator to allow each firm to obtain a market rate of return on its invested capital, taking into account the inherent riskiness of the venture. The orthodox legal approach was summed up in Justice William Rehnquist’s unanimous 1989 decision in Duquesne Light v. Barasch. Duquesne Light allowed the state regulators a wide choice of methods so long as the “bottom line” secured the appropriate rate of return. There’s no need to discuss the fine points here, because not one syllable in the Reid bill is dedicated to securing that constitutionally guaranteed minimum rate of return.

Duquesne Light carries extra weight here because health-insurance industries are far from natural monopolies, so that regulating their rates calls for an extra dollop of judicial scrutiny. At this point, the Reid bill is on a collision course with the Constitution. I take it for granted that, constitutionally, the federal government could not just require all private health insurers to liquidate tomorrow, without compensation.

What’s done here is a close second. The inexorable squeeze between the constricted revenue sources allowable that insurers get under the Reid bill and the extensive and uncertain new legal obligations it imposes is likely to result in a massive cash-flow crunch that will drive the firms in the individual and small-group health insurance markets into speedy bankruptcy. The Supreme Court should apply the constitutional brakes to this foolhardy scheme if Congress doesn’t come to its senses first.

As much as I love Epstein’s argument, the Supreme Court will never stop this debacle. And it bothers me to no end that I have to hope 5 justices can save our liberty, when all our other branches have failed us. I said the same thing before Heller was decided. Our freedom should not depend on what side of the bed AMK woke up on.

I am not sure what obligation the Executive and Legislative branch have to assess the constitutionality of their actions, but today, both Republicans and Democrats, have entirely abdicated that responsibility. Epic Fail.

Take a look at this new article, titled A Mostly Purposivist Century: Constitutional Interpretive Theory in the 1800s (H/T Legal History Blog).

Resounding in the debate between textualists and purposivists, is a pervasive, if subtle, historical narrative that figures purposivism as a twentieth-century phenomenon and textualism as a new-and-improved version of the text-focused, plain-meaning interpretation that predominated in the nineteenth century.This account gives textualists the historical high ground – the safe, traditional, and conservative choice – and puts purposivists in the position of having to defend a relatively recent and comparatively radical position.

This accuracy of this account is belied, however, by nineteenth-century judges’ methods of constitutional interpretation, as expounded by treatise writers of the era. Their theories can be categorized in three groups, none of which is more than superficially textualist. First was an approach popularized by Joseph Story in mid-century that I call plain meaning purposivism. These thinkers embraced a strong plain meaning rule and a text-focused interpretive framework, but they founded their approach on a set of strongly intentionalist and purposivist notions of the overall meaning of the Constitution. This school was followed after the Civil War by a more direct form of purposivism that I refer to simply as conventional purposivism. These purposivists softened the plain-meaning purposivists’ meaning rule and counseled interpreters to more freely use extratextual indicia of constitutional and legislative intent. By the 1880s, a third and non-purposivist group had evolved: evolutionary constitutionalists. In their view, the Constitution should be interpreted not with regard to original intention but with a Burkean, Spencerian understanding of the nation’s evolving cultural, social, and economic character.

The nineteenth century, then, was a mostly purposivist age. It was an era in which purposivism, in contrast to evolutionary constitutionalism, was the textually conservative choice, and in which textualism, which is founded on the fundamental rejection of intentionalism, did not exist. An understanding of this history is particularly pertinent today, as our interpretive discourse stands poised to discard purposivism and enter an age of textualist consensus.

Reading many cases from the 19th Century led me to understand, at least informally, that Judges always looked to the intentions of the drafters of laws, and seldom employed what we would today consider textualism, or original public meaning originalism.

So if the generation closest to the time of the founding used a purposivist constitutional interpretation methodology, why shouldn’t we? Can Conservatives really hold the mantle of textualism as a return to an august and noble former of constitutional interpretation?

The author argues in the conclusion:

The most striking observation to be drawn from this history is that today’s purposivism, far from being a twentieth-century oddity, fits within an intentionalist and purposivist tradition beginning with Blackstone (if not before) and continuing through the nineteenth century. The deeply rooted intentionalism of the era prohibits any deep similarity with textualism; which resembles plain meaning purposivism only in its careful, rule-based textual analysis.

Of course, the historical predominance and relative conservatism of purposivism in the nineteenth century cannot determine our choices today. But it provides a bit of valuable perspective and challenges us to examine our assumptions about the prehistory of the interpretive approaches today. At the very least, it should force textualists to acknowledge that their theoretical approach is not a conservative return to a wiser era that predated purposivism, but rather a bold departure from an established—if dynamic—purposivist tradition. Maintaining such a discussion would be particular valuable today, as our interpretive community faces the prospect of a new textualist consensus.

I’m not quite ready to concede this argument. Of the many reasons Judges champion textualism, the historical pedigree of this interpretive methodology is usually not one of the strongest points. Even if Judges in the 19th Century interpreted the Constitution a certain way, that method was not necessarily the best way. Stare Decisis need not apply to Constitutional interpretation in this sense.

But, an interesting article nonetheless. I am also reading Brian Tamanaha’s Beyond the Formalist-Realist Divide. These two pieces go well together in shedding new light on how Judges actually worked in the so called Gilded Age.

Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States was honored on the SSRN Top 10 List for Legal History.

I’m pretty honored to be on the same list as Professors Lund, Schauer, Mashaw, and others.

From the Mercury News, San Jose police test head-mounted cameras for officers

San Jose police, under fire for interactions with the public that have turned violent, on Friday launched a pilot project equipping officers with head-mounted cameras to record contacts with civilians.
Officers will activate the cameras, about the size of a Bluetooth device and attached by a headband above the ear, every time they respond or make contact with a person. At the end of the officer’s shift, the recording will be downloaded to a central server.

And I wonder what else the government will use the recording devices for.

Professor Volokh, links to Kacik v. Kacik (Cal. Ct. App. Nov. 19, 2009), following a long analysis of a statute:

II. Memo to the Legislature

Because of the unusual circumstance of construing a piece of legislation that has less than 18 months before it sunsets, we address the Legislature directly:

Section 4326 is scheduled to terminate on January 1, 2011. If you decide to renew it, please consider saying exactly what you mean by “is in effect.” One easy solution: Specify a time frame around the termination date of child support: say, plus or minus six months, when a spousal support modification request based on the termination of child support may be filed. (Cf. Code Civ. Proc., § 473.)

This reminds me of a passage from the classic THE CASE OF THE SPELUNCEAN EXPLORERS by LON L. FULLER, where Chief Justice Truepenny asks the Chief Executive to grant clemency to the cannibalistic cave climbers.

On the basis of this verdict, the trial judge ruled that the defendants were guilty of murdering Roger Whetmore. The judge then sentenced them to be hanged, the law of our Commonwealth permitting him no discretion with respect to the penalty to be imposed. After the release of the jury, its members joined in a communication to the Chief Executive asking that the sentence be commuted to an imprisonment of six months. The trial judge addressed a similar communication to the Chief Executive. As yet no action with respect to these pleas has been taken, as the Chief Executive is apparently awaiting our disposition of this petition of error.

In a case like this the principle of executive clemency seems admirably suited to mitigate the rigors of the law, and I propose to my colleagues that we follow the example of the jury and the trial judge by joining in the communications they have addressed to the Chief Executive. There is every reason to believe that these requests for clemency will be heeded, coming as they do from those who have studied the case and had an opportunity to become thoroughly acquainted with all its circumstances. It is highly improbable that the Chief Executive would deny these requests unless he were himself to hold hearings at least as extensive as those involved in the trial below, which lasted for three months. The holding of such hearings (which would virtually amount to a retrial of the case) would scarcely be compatible with the function of the Executive as it is usually conceived. I think we may therefore assume that some form of clemency will be extended to these defendants. If this is done, then justice will be accomplished without impairing either the letter or spirit of our statutes and without offering any encouragement for the disregard of law.

While it is kind of bizarre for a Judge to label a section “Memo to Legislature,” Courts send these kinds of signals all the time, just usually more implicitly. Perhaps the most recent illustration is Northwest Austin Municipal Util. Dist. No. One v. Holder The Supreme Court basically told Congress to fix the voting rights act. If they don’t the Court would strike it down the next time.