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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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“I really do believe that Staten Island is the forgotten borough.”

November 3rd, 2012

A very touching piece about the state of my hometown, Staten Island, following Superstorm Sandy. I haven’t blogged much about it because it is still very fresh and raw in my mind. I’ve been talking to my parents every day. Thankfully, my mom was spared any damage, but others closer to the water did not fare as well. My aunt who has lived in the same house in Seagate for most of her life has serious flood damage. There was over 5 feet of water in her basement. Houses one block away, closer to the water, were swept into the ocean. My parents took pictures of the devastation a few minutes from my house. My mom can only describe it as a “war zone.”

I will write more about this in time, but for now, I will try to remain optimistic, and hope that the most basic services–electricity, water, gasoline–are restored, so people can assume some sense of normalcy in their lives.

6 Airports in 36 Hours

November 2nd, 2012

Thursday morning I had a 9 a.m. flight from IAH (Houston) to DTW (Detroit), changing time zones. I then had a 2:00 connecting flight from DTW to LAN (Lansing). About an hour after I landed I gave a talk at Michigan State about Assisted Decision Making.

Friday morning I had a 7 a.m. flight from LAN to ORD (Chicago O’Hare). About two hours after I landed (with a change in time zone, gaining an hour), I presented a paper at Loyola Chicago on the Health Care case.

Three hours after that, I left the Loyola conference during lunch to taxi to MDW (Chicago Midway) to catch a 2:30 p.m. flight to IAD (Washington Dulles). I arrived at the IHS Conference at GMU Fairfax around 5:45 p.m (again a change in time zone, losing an hour).

By my count that is 6 airports in 36 hours.

I’ll be flying back to IAH from DCA (Washington Reagan National) on Sunday, so I guess that’ll be 7.

When booking this journey I almost inadvertently booked my return trip to HOU (Houston Hobby), but thankfully I realized my car wouldn’t be there. So that would’ve been a painful 8th airport.

Update: I corrected some incorrect airport codes.

Constitutionalist v. Non-Constitutionalist Arguments in The Health Care Cases

November 1st, 2012

A common criticism of the Tea Party is that their view of constitutional originalist history is skewed in favor of achieving desired ends in the courts, such as striking down the Affordable Care Act. I won’t comment on that critique directly, though I think a broader point is salient.

Even assuming you disagree with the Tea Party’s view of history (see Garett Epps’s new book Wrong and Dangerous), their argument is a constitutionalist one, grounded in some vision of the history. The opponents of the Tea Party, that supported the constitutionality of the ACA, had a much tougher job grounding their view in some vision of the constitution. Jack Balkin and others tried, but you did not see protestors in favor of the ACA holding up signs saying defend the Constitution. Their signs focused, rightly, on the costs of healthcare and problems of accessing it. Nancy Pelosi and other progressive politicos openly scoffed at the notion that the Constitution is even relevant.

The importance of grounding an argument in the Constitution–even if the argument is flawed–has been an important aspect of our constitutional history.

Think of Lysander Spooner. Spooner observed that the word slavery was nowhere to be found in the Constitution. Therefore slavery was unconstitutional (I am oversimplifying grossly). But, of course, the Constitution did have a 3/5 clause and a slave migration clause. Spooner’s argument was certainly grounded in the Constitution, but not unassailable.

Think of Susan B. Anthony. Anthony attempted to vote based on the 14th Amendment, which guaranteed equal protection to all persons, not all men. This is a valid textual argument. Though, it is largely undercut by the fact that Section 2 of the 14th Amendment speaks to male suffrage, and the 15th Amendment was ratified to give men of all races the right to vote. (See my article commenting on the implications of this history for understanding the 19th Amendment).

Likewise, let’s think of the Tea Party. They acknowledge (as they must) that the Constitution gives Congress the power to regulate interstate commerce. The Supreme Court has defined commerce in terms of activity. So inactivity is not commerce. You may agree or disagree with this conclusion, but it is in the same realm of possibility as other, earlier, more popular constitutionalist arguments (in my mind it is much more persuasive that Spooner or Anthony’s arguments). But it is in fact a constitutional argument. And when the argument is framed in terms of the Constitution, it gains a much more power and force.

The opponents of the challenge were not so successful in making constitutionalist arguments.

This may, or may not have had something to do with the success of the challengers, though it should be studied for future constitutional challenges.

“There must be progress, and if in its march private interests are in the way they must yield to the good of the community.”

November 1st, 2012

Who said this?

Justice McKenna in Hadacheck v. Sebastian (1915). BTW, Justice McKenna joined the majority opinion in Lochner. Go figure.