A rhetorical question
marty.lederman at comcast.net
Fri Aug 17 11:41:27 PDT 2007
OK, I retract the word "scream." My point was not that they have an obligation to write editorials saying that the Fed is unconstitutional -- to the contrary, my point was that it is very telling that in the situation where their theory is most seriously implicated, and where one would think that (in their view) the Constitution is most seriously violated, they are silent. I agree, Eugene: There's a very good reason for the silence. And therefore we should emphasize the logical implications of the theory, and the understandable silence of the unitary executive proponents in what should be "core" cases, whenever those implications would be salient (as they would be with this month's focus on the Fed).
----- Original Message -----
From: Volokh, Eugene
To: CONLAWPROF at lists.ucla.edu
Sent: Friday, August 17, 2007 1:27 PM
Subject: RE: A rhetorical question
There are two things going on here. First is a perfectly sensible argument that the unitary executive theory is misguided for various reasons, one of which is that it would render the Federal Reserve unconstitutional.
Second is an attack on "unitary executive types" who are surprisingly not "screaming" about this and therefore are "hid[ing] the ball" and "obscur[ing] the radical implications of one's arguments." If Marty wants to insist that scholars devote time to fighting battles that they plausibly see as losing battles (at least at this stage of the war), and wants to fault them for paying attention to those arguments that they think may actually have political traction today, that's fine. It just strikes me as a norm that's extremely hard to defend, and that's certain not to be adopted, even by the most serious, thoughtful, and fair-minded of scholars either on the Left or or on the Right.
Naturally no-one should lie about the consequences of his proposals; and a good scholar should anticipate counterarguments based on such consequences. But that hardly imposes an obligation for the "types" to "scream" about perceived constitutional violations that they expect will be extremely hard to dislodge, and will be impossible to dislodge as the first battle in the war.
From: Marty Lederman [mailto:marty.lederman at comcast.net]
Sent: Friday, August 17, 2007 10:46 AM
To: CONLAWPROF at lists.ucla.edu; Volokh, Eugene
Subject: Re: A rhetorical question
Yes, I agree that "hide the ball" and "obscure the radical implications of one's arguments" are perfectly normal and proper approaches. I've no doubt used them myself on occasion.
And it is likewise perfectly normal and proper for the rest of us to point out that if one were to take seriously the "unitary executive" theory championed by Steve Calabresi and Justices Scalia and Alito, the result would be not simply the end of independent prosecutors, but the unraveling of the New Deal and much of the modern administrative state, particularly when combined with the views of those who would advocate using "original expected application" w/r/t the Commerce Clause in Justice Thomas's manner.
That is to say, there may be nothing at all improper about adopting such fairly radical views (radical in the sense of calling into question much of the framework of 20th Century constitutional law) -- but don't we have an obligation to call them by their right names? And when we discuss, say, Justice Scalia's dissent in Morrison v. Olson, after we get done lauding him for predicting the Starr Report, shouldn't we also point out that his cure (a constitutional trump rather than the statutory repeal that actually occurred) would be worse than the disease, because it would call into question the independence of the Fed and much more of the 20th Century administrative state? For more on this theme in the context of challenging many proponents of "original meaning," see Jack Balkin's post today: http://balkin.blogspot.com/2007/08/ed-whelan-joins-in.html.
P.S. Yes, I am aware, of course, that not every variant of the unitary executive theory is a slope that slips so quickly to 1896 -- just as not every theory of "original meaning" means the overturning of Brown (see Mike McConnell), or even Roe (see Jack Balkin). But the burden on those who would so cavalierly advocate such theories is to explain why they would not have such unthinkable results (a burden that, as Eugene notes, some such as Akhil Amar and others do take seriously). (Unless, of course, you think the theory of the unitary executive or originalism should lead to such results; and, to their credit, folks such as Steve Calabresi and Justice Thomas are quite candid about their nostalgia for a return to the constitutional law of the late 19th Century.)
----- Original Message -----
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
To: <CONLAWPROF at lists.ucla.edu>
Sent: Friday, August 17, 2007 12:04 PM
Subject: RE: A rhetorical question
> Well, Steve Calabresi has spoken about this. Akhil Amar, who at
> least seems sympathetic to the unitary executive in many ways, has
> spoken about it, too (though in his characteristically more nuanced way,
> which might allow the Fed to be preserved for complex reasons).
> You may well be right that this is partly because the Nation has
> come to accept the independent Fed, and advocates of the unitary
> executive don't see this as a particularly effective place to start the
> argument. But it's hardly that they aren't "acknowledg[ing]" this;
> they're choosing to focus on those things where they think they can win
> at the outset (while being quite candid, albeit with less emphasis,
> about the possible invalidity of the Fed). Seems like a perfectly
> normal, and proper, approach.
> Marty writes:
> Fair enough. But the question is why there isn't much more
> serious controversy in legal academic circles about the Fed than about
> the occasional (now defunct) independent prosecutor. After all, the
> power wielded by the former is much vaster, more pervasive, and more
> permanent -- and unlike the prosecution power, which was not the
> exclusive preserve of the Executive at the Founding, there is no
> "originalist" theory (I assume -- I haven't looked into it) for
> delegating the nation's monetary policies to independent,
> "unaccountable" officials. So why doesn't the unitary executive theory
> have much more traction in this context than in that of the independent
> The answer, I think, is that the Nation has fully come to terms
> with, and accepted the value of, an independent Fed; and therefore if
> the unitary-executive proponents were to acknowledge that their theory
> leads to the invalidation of the independent Fed (and many other
> agencies whose independence is now taken for granted), the "traction" of
> the theory as a whole would suffer (as, IMHO, it should).
> ----- Original Message -----
> From: "Volokh, Eugene" <VOLOKH at law.ucla.edu
> <mailto:VOLOKH at law.ucla.edu> >
> To: <CONLAWPROF at lists.ucla.edu
> <mailto:CONLAWPROF at lists.ucla.edu> >
> Sent: Friday, August 17, 2007 11:28 AM
> Subject: RE: A rhetorical question
> > Well, the unitary executive "types" I know are quiet
> people, not
> > generally given to screaming. But Steve Calabresi, one of the
> > supporters of the unitary executive, has expressly argued that
> > independent Fed is indeed unconstitutional (see, e.g., 48 Ark.
> L. Rev.
> > 23).
> > Indeed, Calabresi and others don't seem to be spending much
> of their
> > time criticizing the Fed rather than, say, independent
> counsels. But
> > this makes perfect sense: All of us rightly focus our
> arguments on
> > those examples that we think will most appeal to our listeners
> -- this
> > means we choose those examples as to which there is a serious
> > controversy (so that our arguments are likely to have
> traction) rather
> > than those as to which there isn't.
> > Eugene
> > ________________________________
> > From: conlawprof-bounces at lists.ucla.edu
> <mailto:conlawprof-bounces at lists.ucla.edu>
> > [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Marty
> > Sent: Friday, August 17, 2007 8:00 AM
> > To: Sanford Levinson; Earl Maltz; Jonathan H. Adler; James G.
> > CONLAWPROF at lists.ucla.edu <mailto:CONLAWPROF at lists.ucla.edu>
> > Subject: Re: A rhetorical question
> > I had the same reaction as Sandy. Where are the screams from
> > the unitary-executive types when the nation's entire monetary
> policy is
> > being determined by someone who is not subject to the
> President's (or
> > anyone else's) control?
> > I recall that, in my first-year ConLaw course, Charles Black
> > obviously not a skeptic of the New Deal -- recounted having
> > Arthur Burns in an airport one day in the early 1970's and
> thinking to
> > himself, "Now, where in the Constitution is it, exactly, that
> > this man, never elected to any public office, to unilaterally
> > the entire economy of the United States?"
> > ----- Original Message -----
> > From: Sanford Levinson <mailto:SLevinson at law.utexas.edu
> <mailto:SLevinson at law.utexas.edu> >
> > To: Earl Maltz <mailto:emaltz at camden.rutgers.edu
> <mailto:emaltz at camden.rutgers.edu> > ;
> > Jonathan H. Adler <mailto:jha5 at case.edu <mailto:jha5 at case.edu>
>> ; James G. Wilson
> > <mailto:james.wilson at law.csuohio.edu
> <mailto:james.wilson at law.csuohio.edu> > ; CONLAWPROF at lists.ucla.edu
> <mailto:CONLAWPROF at lists.ucla.edu>
> > Sent: Friday, August 17, 2007 9:45 AM
> > Subject: RE: A rhetorical question
> > Earl writes, "I know, this has nothing to do with
> > constitutional law, but its kind
> > of interesting anyway."
> > Isn't it bizarre to say that the central mechanisms of
> > economic control, including the strange status of the Fed in
> > ostensibly "three-branch" system, have "nothing to do with
> > constitutional law."
> > sandy
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