Legal Commentary

1) With regard to then-Harvard Law Professor's Breyer's letter to Sen. Byrd, I'm not sure what kind of "research" is necessary if one is really-and-truly a "textualist." Isn't the appeal of textualism, for better or worse, some version of a guy (or woman) at a bar saying, "Can't you read, stupid?" It is, of course, possible to say that a word that has a more-or-less clear meaning to us today (e.g. "nunnery," as in "get thee to a nunnery") was ambiguous at the time it was written (where "nunnery" was apparently English slang for whorehouse, given the official antipathy to Catholicism), but at that point one has moved from "textualism" to "originalism," with all of its problems in fixing meaning. The point of textualism, for those who take that approach seriously, is precisely that one doesn't have to do anything more than read the text. One certainly doesn't have to hire a lawyer to engage in time-consuming or expensive research. Compare, for example, Justice Black's "literalist" approach to the First Amendment, where I always imagined him taking out his copy of the Constitution, pointing to the Amendment, and asking "What part of 'no law' do you not understand?" Needless to say, one cannot possibly understand the "constitutional law" of the First Amendment by reference to such a "naively textual" approach, but that is another matter.

2) I personally think the truly winning argument is Prof. Tribe's posting is the last one, which focuses on the fact that Hillary Clinton has had nothing whatsoever to do with increasing her salary, since it's the result of a presidential decision generally implementing--i.e., not selecting out the secretary of state for a special pay raise to take account of all the hazardous travel she must do--a piece of legislation passed before she arrived in the Senate. Imagine that Congress passes a law in 2009 law saying that "if X doesn't occur by 2014," then the President in 2015 shall establish a new office that will devote itself to achieving X. The president in 2015 deterines that X has indeed not occurred and decides to appoint a senator elected in 2010. Would that senator be disqualified from accepting the appointment. I think not, because the determinative legislation was passed before (s)he arrived on the scene. I think the same is true with regard to Sen. Clinton. (Perhaps one wants to distinguish the hypothetical on the grounds that we're talking about a specific office rather than "general" implementation of the cost-of-living payraise, though I don't find the distinction important.) I also think, incidentally, that it is legitimate to ask if the increase is larger than the inflation rate and to say that it doesn't count as a "constitutional increase" if the answer is no.

But isn't it relevant that it would count as just another constitutional stupidity if the Constitution foreclosed her nomination, since no serious argument can be made that preventing her nomination would relate to the purposes (preventing self-dealing or corruption) of the initial clause? As for Dick Cheney, I participated in the lawsuit suggesting that a Texas elector couldn't vote for both Bush and Cheney, since both were "inhabitants" of Texas; the district court held, altogether unsurprisingly, that he had successfully moved to Wyoming. More to the point, however much fun it was to participate in the suit (Harriet Meirs was the lawyer on the other side, the only constitutional case she ever worked on, apparently!), no serious person (including myself) could argue that the constitutional bar on electors voting for both president and vice presidential candidates from their own state makes the slightest bit of sense today, even if one stipulates that it made sense in 1803, when it was retained in the 12th amendment. So it was perfectly acceptable--i.e., unlike the case with Bush v. Gore, I wasn't at all angry or even upset--for the district court to allow Cheney to "workaround" the no-longer-sensible provision by a simple self-serving renunciation of his Texas residence.

Full post as published by Balkinization on December 03, 2008 (boomark / email).