I drafted this in December and just sent it off this weekend, forgetting to correct "last year".
It is interesting to see the originalist arguments that can be made for lots of topics; I agree that it's a lot of bother for something that probably won't be honestly read by the "originalist" justices, but it might persuade people in the middle. (Similarly, arming KBJ seems good, since she's forcefully presented "originalist" arguments about the 14th amendment already, and being able to cite the extensive delegation given to the early executive really does seem to wipe out the force of their argument.)
Why are law review articles so damn long? This one is 92 pages.
Because the people who edit law reviews have lower status than the people who write them. (Law school students vs. law school professors)
That... is actually a great explanation. Thanks!
I do know stuff. I just don't only answer when I know stuff.
The students are learning how to Ferberize articles.
There's an underlying assumption -- among both liberals and conservatives -- that the Founders were ignorant racist perverts, and that therefore, if you're a conservative, you want to appeal to the principles of the Founding.
This makes a lot of intuitive sense -- slaveholding, elitism, imperialism, gross sexism and genocide strongly influenced the Founding -- but in fact, it turns out that they weren't complete nitwits, and had some decent ideas about how to organize a government.
They were in the better position of not being beholden to themselves as demigods.
Founder fetishism always seems to avoid the bit where Jefferson took a razor and cut out all the supernatural parts of the Bible.
Or that all of them used to shit in a bowl they kept below their bed.
9: It is possible for an ignorant racist pervert to have a good idea every now and then. IRPs can even be right more often than a stopped clock if their ignorance is circumscribed enough.
But most good ideas are hit upon by many people at many different times. Why should we appeal to IRPs to justify good ideas when there are other sources? Conversely, why limit ourselves to just the good ideas that happened to be available to ignorant racist perverts?
We already had to read them in college.
13.2 The legal questions usually aren't whether X or Y or Z are good ideas. They are whether we have empowered our national legislature to adopt them and impose that adoption on people of various states. Have we empowered Congress to codify Roe? I think the answer is yes, but a whole lot of people, of whom possibly five have a particular job, think that the answer is no. Have we created a court system that will hear my complaint that DJT violated the emoluments clause? Apparently not. These might be really good ideas. Obviously, though if you're arguing about who's empowered to do what, you are by definition looking at the documents that allocate and define power. You're not looking at other sources.
all of them used to shit in a bowl they kept below their bed
You'll just have to hold it in till morning, Ben, James Madison has the bowl tonight.
it turns out that they weren't complete nitwits, and had some decent ideas about how to organize a government.
Debatable. The US Constitution is both good and original, but the parts that are good are mostly not original, and the parts that are original are mostly not good. The electoral college, the failure to anticipate and design for party politics, presidential government, a birthright qualification for election, lifetime tenure for judges, an unrepresentative but elected upper house, senate ratification of treaties, the original rule on electing the vice-president, a ban on standing armies, the lack of clarity over the right to secession... these are not decent ideas, and you can tell they aren't because either a) virtually no one else has adopted them, b) the people who have adopted them have grown to regret it, and/or c) the US itself has now either changed or ignored a lot of them.
You left out the worst bit -- the quasi-sovereign status of the states, which has all sorts of bad consequences even if you don't get into the possibility of secession. One of the great tragedies of Reconstruction is that that wasn't remedied somehow.
I mean, "not complete nitwits" is still right, and not as crazy as what modern originalists want to use them for is right. But the constitution is not a terrific constitution.
Agreed on not complete nitwits: "let's do these things, because other people do them and it seems to work" won't get you all the way to being intelligent, but it's a solid 75% of it.
birthright qualification for election
If you mean the one for the president, it's keeping us from President Musk and I won't hear a word against it.
I seem to recall being taught in high school that the constitution is deliberately vague because the founders assume George Washington would be the first president and they trusted him to fill in the details appropriately. How that relates to delegation, I leave to the lawyers.
Washington also invented being miserable in Pennsylvania over the winter.
That's like saying various people invented math. He may be known for exemplifying it but misery in PA winters is a universal phenomenon that exists independently of any particular instantiation.
He also popularized going to New Jersey and shooting people.
Though people really don't do it on Christmas anymore.
We could also have gotten President Schwarzenegger from 2016, which in retrospect, would have been a much milder backlash.