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34 posts from June 2017

06/26/2017

Calvin Terbeek on EPA Originalism
Michael Ramsey

Calvin TerBeek (guest blogging) at the Faculty Lounge: Transportable Originalism. From the introduction:

The Environmental Protection Agency has long been a bete noire of movement conservatives. The story of "The Other Rights Revolution," the title of Jefferson Decker's important new study of conservative public interest litigation groups' attack on the regulatory state, supplies the bulk of the story. But of course dislike of the EPA wasn't limited to conservative lawyers. Tom DeLay would often tell reporters that his time as a suburban Houston bug exterminator led him to view the agency as "the Gestapo," a characterization he held onto until his resignation from the House after being indicted. And the EPA was helpfully offered by Mitt Romney when Rick Perry ran into a mental roadblock at a 2012 Republican presidential debate.

It is not surprising, then, that Politico reports:

What Administrator Scott Pruitt calls his “Back to Basics” agenda would refocus the agency on narrow goals such as cleaning up toxic waste and providing safe drinking water — the kinds of issues that inspired the EPA’s creation in 1970 amid a public outcry about burning rivers and smog-filled skies. But it would abandon the Obama administration’s climate regulations, along with other efforts that Pruitt argues exceed the agency’s legal authority. 

What is interesting is how Pruitt is explaining the changes: "EPA originalism" that will lead to "a restoration of [the EPA's] priorities."

06/25/2017

Greg Weiner on the Role of the Court in the Travel Ban Cases
Michael Ramsey

Greg Weiner at Law and Liberty: Return to Marbury. From the introduction:

The travel ban case is headed to the Supreme Court by way of the once redoubtable Fourth and always activist Ninth Circuits, leaving revisionists to wonder how it might have unfolded had it made its way upward through Judge William H. Pryor’s Eleventh. Pryor’s view of the judicial role exhibits appropriate assertiveness within its sphere and a fitting humility beyond it.

Pryor’s perspective might consequently help advocates of judicial engagement and restraint move beyond one of the central difficulties in their disagreement, which is the tendency to veer into judicial supremacy in the former case and impotence in the latter. The travel ban illustrates one dimension of the problem, which is what happens when a court issues a ruling other branches believe impinges on their authority. Would the Trump Administration be immovably bound by it?

Recently in this space, I argued that constitutional meaning was liquidated by conversation between the branches rather than by the discrete and final view of the courts, with the judiciary considered as the last stop on a temporal line. I stand by that conclusion, but Pryor’s writings provide a subtler and richer account of the judicial role.

The account begins where I erred, which was in a truncated and flawed account of Marbury v. Madison. Using Marbury as an illustration of how presidents and courts once confronted each other more forthrightly, I repeated the strain of scholarship that holds that Chief Justice Marshall willfully misread Article III of the Constitution in order to avoid a confrontation with President Jefferson while manufacturing grounds for establishing the power of judicial review.

06/24/2017

Justice Thomas' Doubts on Qualified Immunity and Regulatory Takings
Michael Ramsey

Concurring in this week's qualified immunity case Ziglar v. Abbasi, Justice Thomas (citing Will Baude) raised a fundamental question about the originalist basis of the doctrine (some quotations and citation omitted):

I write separately …  to note my growing concern with our qualified immunity jurisprudence. The Civil Rights Act of 1871, of which §1985(3) and the more frequently litigated §1983 were originally a part, established causes of action for plaintiffs to seek money damages from Government officers who violated federal law.  Although the Act made no mention of defenses or immunities, “we have read it in harmony with general principles of tort immunities and defenses rather than in derogation of them.” Malley v. Briggs, 475 U. S. 335, 339 (1986) (internal quotation marks omitted). We have done so because “[c]ertain immunities were so well established in 1871 . . . that ‘we presume that Congress would have specifically so provided had it wished to abolish’ them.” Buckley v. Fitzsimmons, 509 U. S. 259, 268 (1993); accord, Briscoe v. LaHue, 460 U. S. 325, 330 (1983). Immunity is thus available under the statute if it was “historically accorded the relevant official” in an analogous situation “at common law,” Imbler v. Pachtman, 424 U. S. 409, 421 (1976), unless the statute provides some reason to think that Congress did not preserve the defense, see Tower v. Glover, 467 U. S. 914, 920 (1984). …

In further elaborating the doctrine of qualified immunity for executive officials, however, we have diverged from the historical inquiry mandated by the statute.  In the decisions following Pierson, we have “completely reformulated qualified immunity along principles not at all embodied in the common law.” Anderson v. Creighton, 483 U. S. 635, 645 (1987) (discussing Harlow v. Fitzgerald, 457 U. S. 800 (1982)). Instead of asking whether the common law in 1871 would have accorded immunity to an officer for a tort analogous to the plaintiff’s claim under §1983, we instead grant immunity to any officer whose conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. … We have not attempted to locate that standard in the common law as it existed in 1871, however, and some evidence supports the conclusion that common-law immunity as it existed in 1871 looked quite different from our current doctrine. See generally Baude, Is Qualified Immunity Unlawful? 106 Cal. L. Rev. (forthcoming 2018) (manuscript, at 7–17), online at https://papers.ssrn.com/abstract=2896508 (as last visited June 15, 2017).

Because our analysis is no longer grounded in the common-law backdrop against which Congress enacted the 1871 Act, we are no longer engaged in “interpret[ing] the intent of Congress in enacting” the Act. Our qualified immunity precedents instead represent precisely the sort of “freewheeling policy choice[s]” that we have previously disclaimed the power to make. Rehberg v. Paulk, 566 U. S. 356, 363 (2012) (internal quotation marks omitted).  

… Until we shift the focus of our inquiry to whether immunity existed at common law, we will continue to substitute our own policy preferences for the mandates of Congress. In an appropriate case, we should reconsider our qualified immunity jurisprudence.

Will Baude has more at Volokh Conspiracy, commenting: 

Now, of course, Thomas is writing only for himself, but I am glad to see somebody on the court asking whether the doctrine of qualified immunity is legally justified in its current form. I have suggested that the answer is probably “no,” but even if the court disagrees and ultimately concludes that the answer is “yes,” I think it would be good for the justices to give some attention to the issue and explain why exactly they think it is justified. (As I discuss in the paper, different members of the court have at times subscribed to three different justifications, though I think each of them is somewhat wanting.)

RELATED:  Justice Thomas also expressed doubts about the originalist foundations of regulutory takings dcotrine (citing my colleague and co-blogger Mike Rappaport) in this week's decision in Murr v. Wisconsin.   From Jonathan Adler at Volokh Conspiracy: Should regulatory takings doctrine be reconsidered from the ground up?  From Justice Thomas' opinion: 

In my view, it would be desirable for us to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment. See generally Rappaport, Originalism and Regulatory Takings: Why the Fifth Amendment May Not Protect Against Regulatory Takings, but the Fourteenth Amendment May, 45 San Diego L. Rev. 729 (2008) (describing the debate among scholars over those questions). [ed.: article available here].

SOMEWHAT RELATED:  Also at Volokh Conspiracy from Jonathan Adler:  Justice Gorsuch’s first opinions reveal a confident textualist.  From the introduction:

Associate Justice Neil Gorsuch has now written three opinions — a majority, a partial concurrence and a dissent. All three show the Supreme Court’s newest justice to be a confident, committed textualist with a distinctive writing style — and a justice who is not afraid to challenge his new colleagues. [discussing two opinions from this week plus this earlier one].

It's early to be counting, but Justice Thomas joined all three of these opinions.

06/23/2017

More on the Emoluments Clause
Michael Ramsey

Brianne J. Gorod at Take Care Blog: Because President Trump Has Chosen Not To Go to Congress, Members of Congress Must Go to the Courts. From the introduction:

When the nation’s Founders came together to draft a new national charter, they were profoundly concerned about both corruption of federal officeholders and foreign influence over the nation.  They understood what a threat corruption posed, and they worried that foreign nations might attempt to meddle in America’s affairs, including by giving benefits to the nation’s chief executive to subvert his loyalties. 

In response to those concerns, the Founders included in the Constitution the Foreign Emoluments Clause, which prohibits any person “holding any Office of Profit or Trust under [the United States]” from “accept[ing] . . . any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State” without “the consent of the Congress.”  Although there’s been a great deal of talk about this Clause since Donald Trump’s election, there has been much less talk about five of its most important words: “the consent of the Congress.” 

To the Founders, “the consent of the Congress” language was critical.  By requiring federal officeholders to first go to Congress and identify the specific benefits they wished to accept from foreign states, the Founders ensured that an officeholder would not be the sole judge of his own integrity. 

Moreover, and just as important, they also ensured that a federal officeholder’s acceptance of any foreign “Emolument[s]” would be transparent and subject to public examination, thus minimizing the dangers of corruption and influence that the Foreign Emoluments Clause was adopted to prevent.  When Congress was first called upon to exercise this responsibility in 1798, one lawmaker explained its value in this fashion: “[i]f presents were allowed to be received without number, and privately, they might produce an improper effect, by seducing men from an honest attachment for their country, in favor of that which was loading them with favors.”

Also Simon Stern guest blogging at Balkinization: Presents, Emoluments, and Corruption. From the conclusion: 

Although the refrain “we love our customers” has become a banal sentiment that reeks of insincerity, it captures a psychological truth that goes without saying (that’s why its constant repetition makes it sound so insincere). According to Trump’s lawyers, the prohibition on emoluments cannot extend to the sale of goods for “fair market value.” But transactions of that kind, no less than gifts and titles of honor, tend to elicit a sense of gratitude—in fact, such commercial transactions are likelier to have that effect than the patronage of someone who pays you a toll or other fee for performing your official duty. When people get paid for duties performed in office, they tend to regard the money as merely their due, which anyone else would just as readily have paid. But profits from commercial transactions, particularly luxury goods (even if at “fair market value”) do elicit a sense of gratitude, for the obvious reason that the customer might have gone somewhere else. This is especially true when the customer makes a point of patronizing the owner’s hotel “so I can tell the new president, ‘I love your new hotel!’”

That is precisely the state of affairs that the framers sought to prevent, by opting for a term that applies not merely to a small subset of the transactions that might elicit the recipient’s gratitude, but rather to the whole array. Contrary to the DOJ’s contention, “the term ‘Emolument,’ when read harmoniously with the rest of the Clause,” does not have “the natural meaning of the narrower definition of profit arising from an office or employ.” Read alongside the ban on “present[s],” the natural meaning entails a prohibition on the various transactions that induce the recipient to respond with gratitude.

And, from a while back (apologies for missing it earlier), John Mikhail at Balkinzation: "Emolument" in Blackstone's Commentaries.  The central point:

In their white paper on conflicts of interest, Donald Trump’s lawyers claimed that the original public meaning of “emolument” was “payment or other benefit received as a consequence of discharging the duties of an office.”  Since then, other commentators have also defended an “office-related” definition of the term (see, e.g., here, here, and here).

Blackstone does not support such a narrow reading.  Occasionally, he refers to the emoluments of government officials, such as postmasters, civil magistrates, and naval seamen.  But the significance of these public employment contexts must be interpreted cautiously, and on the whole they appear to be exceptional. The majority of Blackstone's usages of "emolument" involve benefits other than government salaries or perquisites.  They also reflect the broader meaning of the term—“profit, “gain,” “benefit,” or “advantage”—one finds in the principal eighteenth-century English dictionaries.

So (a) lots of originalism in the emoluments clause debate; but (b) I have not heard any really good response to Seth Barrett Tillman's point that in the immediate post-ratification period key framers appeared to think the clause did not apply to the President.

Also, I think there needs to be a more direct explanation, fro the President's challengers, of why Congress cannot consent by acquiescence, as the Supreme Court held in a different context, in Dames & Moore v. Regan.  Congress knows about the emoluments issue and has not raised any objection -- why is this not enough to show that it is not troubled by the President's action?  (I think the answer is that Congress must act formally and that Dames & Moore was wrongly decided on this ground, but are non-formalists wiling to say that?).

 

06/22/2017

Stephen Sachs: Originalism Without Text
Michael Ramsey

Stephen E. Sachs (Duke University School of Law) has posted Originalism Without Text (Yale Law Journal, forthcoming) on SSRN. Here is the abstract:

Originalism is not about the text. Though the theory is often treated as a way to read the Constitution's words, that conventional view is misleading. A society can be recognizably originalist without any words to interpret: without a written constitution, written statutes, or any writing at all. If texts aren't fundamental to originalism, then originalism isn't fundamentally about texts. Avoiding that error helps us see what originalism generally is about: namely, our present constitutional law, and its dependence on a crucial moment in the past.

06/21/2017

Living Constitutionalism on the Supreme Court’s Website
Mike Rappaport

Six years ago, I wrote a post about how the Supreme Court’s website adopted the language of the Living Constitution approach.  (I had been expanding on a post by Eugene Volokh.)  It was curious that Justices Scalia and Thomas, as well as other fellow travellers of originalism, including the Chief Justice, would allow this language to continue.   At the end of the post, I wrote that “it will be interesting to see whether this is changed and if so, how long it will take.”  I just checked back to see whether there had been a change, but none has occurred.  That’s disappointing.   

The website adopts many claims that are problematic from an originalist perspective.  Some of these are problematic for their substance.  Others are problematic because their connotations suggest living constitutionalism, even though they might technically be interpreted as accurate.  In both cases, a Supreme Court that was trying to be even handed between originalism and nonoriginalism would have written these claims differently.   

1. First, the website writes:

This power of “judicial review” has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a “living Constitution” whose broad provisions are continually applied to complicated new situations. 

This claim appears to explicitly endorse a “living Constitution.”  To be sure, the technical claim could be interpreted in a way that an originalist would endorse.  Applying a broad provision such as the Commerce Clause to transactions made over the internet would involve a new situation.  But originalists would typically not describe those as involving a living Constitution.  That term suggests creativity on the part of the justices.

2. Second, the website states that “While the function of judicial review is not explicitly provided in the Constitution, it had been anticipated before the adoption of that document.”

It is not entirely clear how to interpret this claim, but the language before and after this quote seems to suggest that the Constitution does not explicitly acknowledge judicial review.  This is very misleading.  It is true that the Constitution is not explicit about all forms of judicial review, but it does clearly indicate that there will be judicial review of state laws.  The Supremacy Clause provides:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The italicized language makes clear that judges are supposed to be enforcing the Constitution against laws enacted by legislatures.  Thus, the principal argument against judicial review – that the power to determine whether a law violated the Constitution in a particular case was not judicial power – is foreclosed by the text of the Constitution.  It is true that the existence of judicial review of a congressional enacted law is not unambiguously addressed by the constitutional text, but once judicial review is allowed at the state level, there is a strong argument that the judicial power includes it at the federal level as well. 

3. A third problem with the website is its claim that

Chief Justice Marshall expressed the challenge which the Supreme Court faces in maintaining free government by noting: "We must never forget that it is a constitution we are expounding . . . intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs."

This is once again a New Deal Living Constitutionalist vision of both what the Court is supposed to be doing and what Marshall was saying.  Both are in my view mistaken.  The New Deal viewed this quote as endorsing the idea that judges adapt constitutional meaning to changing circumstances and values.  But that was not Marshall’s point.  He was merely saying that the Constitution was a short document that did not have the detail of a code. 

Perhaps I will check back in 6 more years to see whether the Supreme Court has changed the website.  But with a new originalist Justice, isn’t it time to adopt a more neutral description of the Court’s function?

Senator Mike Lee on the ‘Hamilton Effect’
Michael Ramsey

Senator Mike Lee (R-Ut) writing at Politico Magazine: How the ‘Hamilton Effect Distorts the Founders. From the introduction:

Even in an age of declining civic education, a basic understanding of the founding generation thankfully remains part of America’s secular catechism. Over the past decade, the Founding Fathers have even enjoyed a renaissance. Creative storytellers like David McCullough and Lin-Manuel Miranda breathed life into stories we thought we knew. The Obama years birthed a tea party movement that had at its center a restoration of constitutional principles. And now, in the age of Trump, progressives have discovered a strange new respect for the importance of the Constitution’s checks and balances and restraints against majoritarian impulses.

But even with their newfound fashionability, the founders remain widely misunderstood. Names like Washington, Adams, Jefferson, Madison, Franklin, and Hamilton still carry weight, but the ideas they espoused get discarded. Other key figures—individuals whose words and ideas contributed much to the founding—are either relegated to the footnotes or missing altogether from our nation’s popular history.

The familiar narrative many of us were taught as children about our founding—that great men came together to forge a Constitution that set America on its present course—isn’t exactly true. Much of it has been deliberately crafted as a means of justifying our modern political whims. History is, by its nature, about the battle of ideas. The problem comes when we look to history not to understand it or draw inspiration, but to seek out confirmation for our pre-existing beliefs.

Take Alexander Hamilton, a brilliant man who spoke up during the debates over the Constitution as one of the most fervent advocates of a robust national government. Today, he’s embraced by many advocates of Big Government as a kindred spirit—doubtless thanks in large part to Miranda’s smash hit Broadway show, “Hamilton,” which recontextualizes the founder as a hardscrabble immigrant who arrived in New York and, with cunning ambition, worked his way to the top of American society.

06/20/2017

Amicus Brief by Seth Barrett Tillman in the Emoluments Litigation
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law) has posted Motion and Brief for Scholar Seth Barrett Tillman as Amicus Curiae in Support of the Defendant, Citizens for Responsibility and Ethics in Washington v. Donald J. Trump (filed in the United States District Court for the Southern District of New York) on SSRN.  Here is the abstract: 

In the early days of our Republic, many constitutional questions divided Alexander Hamilton on one side from Thomas Jefferson and James Madison on the other. Could Congress charter a bank? Hamilton said yes, and Jefferson said no. Must the Senate consent to the removal of principal officers? Madison said no, and Hamilton (according to most accounts) said yes. Could the President declare neutrality unilaterally? In a series of pseudonymous essays, Hamilton said yes, while Madison said no. In each case, the ultimate decision was made by President George Washington. Through their public and private debates, these three Presidents and Hamilton, another prominent Founder, played central roles in the resolution of critical constitutional questions. For over two centuries, courts have turned to their considered judgment when resolving disputes about the Constitution—even where they disagreed amongst themselves.

These Founders, however, did not dispute the issue before this Court. Plaintiffs’ claim that the Presidential Emoluments Clause and Foreign Emoluments Clause prohibit the President from receiving “anything of value,” whether “monetary or nonmonetary,” from domestic or foreign governments. The words and deeds of Washington, Jefferson, Madison, and Hamilton teach a different lesson.

First, Plaintiffs’ understanding of the Presidential Emoluments Clause cannot be squared with the practices of George Washington, whose conduct helped to define the presidency. In 1793, our first President purchased several plots of government-owned land in the nation’s new capital at a public auction. The auction was managed by federal officers, widely publicized, and these valuable plots were acquired in broad daylight. If Plaintiffs are correct, then Washington openly committed impeachable offenses under the watchful eyes of prominent members of the Founding generation, political opponents, and commercial rivals. This Court should reject Plaintiffs’ novel construction, and instead adopt one consistent with this formative history: the prohibition on the President’s receipt of “emoluments” from domestic governments is limited to “compensation or pecuniary profit derived from a discharge of the duties of the office.” Financial gain arising from private business transactions are not emoluments.

Second, Plaintiffs’ reading of the Foreign Emoluments Clause cannot account for the fact that our Founding-era presidents openly received diplomatic gifts from foreign governments. President Washington received a portrait of King Louis XVI from the French Ambassador to the United States. President Jefferson received a bust of Czar Alexander I. President Madison received two pistols from a revolutionary South American government. Congress’s consent was not sought for any of these gifts. If Plaintiffs are correct, three Presidents central to the American Founding openly committed impeachable offenses, or worse, were ignorant of the Constitution they helped draft and define. This Court should reject Plaintiffs’ argument, and instead follow the example set by these Presidents, as well as that illustrated by Secretary of the Treasury Alexander Hamilton’s 1792 report to the Senate. His report lists all who hold office under the United States, but not the President, implying the latter is not subject to the Foreign Emoluments Clause.

Plaintiffs counter this body of evidence with statements from George Mason and Edmund Randolph, who argued during Virginia’s ratification convention that the Foreign Emoluments Clause applies to the President. This evidence is problematic, however, because under their view—that everyone in the federal government is an “officer”—members of Congress could be impeached. These idiosyncratic views were rejected by the Senate in 1799 following an impeachment trial, and that rejection was ratified by the Supreme Court a century later. Mason and Randolph’s office-related intentions ought not prevail over the understandings and public practices established by Washington, Jefferson, Madison, and Hamilton, particularly where, as here, the views of the former have been considered and actively rejected.

Plaintiffs’ attorneys’ recent publications also cite examples of antebellum Presidents who asked Congress to dispose of diplomatic gifts. This evidence is not persuasive. First, unlike the Washington-era evidence, which was contemporaneous with the Constitution’s ratification, Plaintiffs’ evidence occurred many decades after the Framing. Second, there is no evidence Presidents Jackson, Van Buren, and Tyler were aware of the practices of Washington, Jefferson, and Madison. Third, voluntary surrender by Jackson of disputed presidential powers to Congress is far less probative than Washington’s public refusal to seek consent and Congress’s acquiescence. When considering competing streams of historical precedent in the separation of powers context, courts favor precedents established via open defiance over mere surrender, even if willful.

The most weighty historical evidence demonstrates that the Presidential Emoluments Clause only concerns compensation that is authorized by Congress or authorized by the states in regard to state positions, and that the Foreign Emoluments Clause is inapplicable to the President, because the President does not hold an office . . . under the United States. For these reasons, this Court should reject Plaintiffs’ attempt to redefine long-standing constitutional meaning to meet the purported demands of the moment.

Counsel on the Brief are Professor Josh Blackman (South Texas) & Robert W. Ray, Esq. (Thompson & Knight). 

06/19/2017

Call for Papers: Rehnquist Constitutional Law Center
Michael Ramsey

Via Andrew Coan at the University of Arizona, a call for papers:

National Conference of Constitutional Law Scholars

THE REHNQUIST CENTER is pleased to announce the inaugural National Conference of Constitutional Law Scholars. The conference will be held at the Westward Look Resort in Tucson, Arizona, on March 16–17, 2018. Its goal is to create a vibrant and useful forum for constitutional scholars to gather and exchange ideas each year.

Adrian Vermeule will deliver a keynote address. Distinguished commentators for 2018 include:

Jamal Greene; Aziz Huq; Pamela Karlan; Frank Michelman; Christina Rodriguez; Reva Siegel; and Robin West

All constitutional law scholars are invited to attend. Those wishing to present a paper for discussion should submit a 1- to 2-page abstract by September 15, 2017. All constitutional law topics are welcome, and both emerging and established scholars are strongly encouraged to Submit. Selected authors will be notified by October 15, 2017. Selected papers will be presented in small panel sessions, organized by subject, with commentary by a distinguished senior scholar.

Please send all submissions or related questions to Andrew Coan(acoan@email.arizona.edu).  For logistical questions please contact Bernadette Wilkinson (bwilkins@email.arizona.edu). The Rehnquist Center will provide meals for all registered conference participants. Participants must cover travel and lodging costs. Hotel information will be provided as the date approaches.

About the Rehnquist Center:

The William H. Rehnquist Center on the Constitutional Structures of Government was established in 2006 at the University of Arizona James E. Rogers College of Law. The non-partisan center honors the legacy of Chief Justice Rehnquist by encouraging public understanding of the structural constitutional themes that were integral to his jurisprudence: the separation of powers among the three branches of the federal government, the balance of powers between the federal and state governments, and among sovereigns more generally, and judicial independence.

Sam Bray on H.L. Mencken's Constitution
Michael Ramsey

At Volokh Conspiracy, Sam Bray (a new conspirator): H.L. Mencken writes a constitution.  From the introduction:

Tyler Cowen published an interview with Jill Lepore. Cowen is an economist at George Mason University and widely known for his blog Marginal Revolution (a feast for intellectual omnivores). Lepore is a historian at Harvard University and a writer for the New Yorker. It’s a great interview, and Lepore brought up H.L. Mencken’s constitution. What? H.L. Mencken wrote a constitution? As you would expect from Mencken, it’s wickedly funny and wickedly serious. And it has gone almost completely unmentioned in legal scholarship (it’s apparently mentioned in only one law review article).

I’ll give you a few quotes, and then a link so you can read it for yourself. ...

(Here is the link).