The CockleBur Blog

Keeping The House In Constitutional Order?

At the initiative of House Republicans, the House recently changed its rules to allow the reading of the whole Constitution on the floor on the House’s opening day and to require each bill introduced in the House to be accompanied by a statement in the Congressional Record “citing as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution.”  Some are hailing both moves as a major change which will help keep Congress within the bounds the Framers originally intended.  Others see it as cheap public relations, a sop to tea-partiers that will give the new Republican majority the cover to get back to congressional business as usual.

I wonder if both sides might be wrong.  Might the focus on constitutional authority, particularly the second measure, work to popularize constitutionalism in the way some, like Larry Kramer of Stanford, have argued it was always meant to be.  If so, one might wonder whether the Republicans should be careful what they wish for.

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Snow Law

The recent blizzard in the Northeast and a funny article in the New York Times reminded me of a practice I had long forgotten.  When I lived in Boston many years ago, I always found snowfalls amazing.  The snow itself was wonderful, at least at first, but what really amused me was seeing people claiming parking spots they had shoveled out—no matter how light the snow—with lounge chairs, traffic cones, Elvis busts, and sofas so ratty you’d think only an exhausted and demented college freshman could sleep on them.  These items marked what the shovelers considered their “property.”

More amazing still, other people, including the government itself, appeared to recognize these shoveled-out spots of public asphalt as no longer public.  Somehow the snow and the effort of removing it had converted the parking commons to private property.

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Divorce Italian Style

Courts often don’t get sex.  We know that.  But I had thought that this was a peculiarly American matter.  Not so, apparently.  British newspapers are reporting that Italy’s Supreme Court of Cassation, its highest court for nonconstitutional issues, has civilly blessed an ecclesiastical court’s annulment of a marriage.  That, by itself, will strike an American as odd.  But there’s no reason why the contours of other countries’ disestablishmentarian principles, if any, should match ours, even when we’re talking Europe.

What’s really interesting is the reason the civil court affirmed the annulment.  Before getting married the wife discussed with her future husband the idea of open marriage.  As The Guardian reports, “the woman had ‘theorized’ that marriage did not have to be based on sexual fidelity, but had never put the idea into practice.”  Read More »

Administrative Law’s Empire I

Many have weighed in on Justice Breyer’s recent book, Making Our Democracy Work: A Judge’s View.  They understandably focus on the sexy topics—constitutional interpretation, Brown v. Board of Education, and judicial review generally; the topics most relevant to today’s political battles—statutory interpretation and the culture wars; and Breyer’s own big, nagging question—why does the public respect the Court’s judgments.  I understand all that, find their reactions interesting, and think that they further the conversation Breyer himself wants to promote.  By that last standard, the book has proven at least a near-term success.

No one seems to read the book, however, as autobiography.  Perhaps this is equally understandable.  Although Breyer has an active public presence, he’s no fire-breather.  Unlike one of his colleagues, he defends his positions while throwing as little red meat to his opponents as possible.  If his writing is a little less entertaining or engaging for that, I imagine he’s content.

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