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Saturday, August 29, 2015


The musical play Hamilton is a smash on Broadway.  Many people -- including your truly -- consider it the greatest musical that they have ever seen.

Stanford law professor Michael McConnell discusses the Hamilton story:

Borrowing from Amicus Briefs: Controversial Coverage

The New York Times has an article claiming that Justice Clarence Thomas uses language from amicus briefs more often than his colleagues.  At The Volokh Conspiracy, Orin Kerr knocks it down:
If you look at the data, though, they don’t support the conclusion that Justice Thomas is an outlier. Let’s look at the studies Liptak relies on in his article.

First up is the Feldman study, which gets the most attention in Liptak’s paper. Feldman compared how much of majority opinions by different Justices contained language from the merits briefs. Feldman did not include the Justice-by-Justice numbers in his paper, but he calculated them for Liptak and he kindly shared the results with me by e-mail. Here are the percentages in descending order:

Thomas: 11.29%
Sotomayor: 11.04%
Ginsburg: 10.55%
Alito: 9.48%
Roberts: 9.20%
Scalia: 8.74%
Kennedy: 8.36%
Breyer: 7.56%
Kagan: 7.13%

The numbers seem at odds with Liptak’s claim. Yes, Thomas has the highest shared language percentage. But it’s bizarre to say that his numbers are “unusually high,” that Thomas “relies heavily” on outside language or that “many” of his words are “not his own.” All of the Justices share language from the briefs at roughly similar rates: about 7 to 11 words out of 100. And the difference between Thomas and Sotomayor is a rounding error. It’s only 2.5 words out of 1,000. In a typical majority opinion, that’s probably the difference between including a short parenthetical quote from a precedent and leaving it out.
At Mediatie, Alex Griswold is even blunter:
But only a few paragraphs later, Liptak gives a perfectly mundane reason why Thomas uses so much borrowed language: “…he is particularly apt to be assigned the inconsequential and technical majority opinions that the justices call dogs. They often involve routine cases involving taxes, bankruptcy, pensions and patents, in which shared wording, including quotations from statutes and earlier decisions, is particularly common.
 So in other words, Thomas uses language from submitted briefs barely more often than his liberal peers, borrowing language from submitted briefs is extremely common, and Thomas has a perfectly reasonable explanation for why he uses borrowed language slightly more often. But instead of a generic take on how often the Supreme Court as an institution relies on briefs, the Times singled out Thomas and falsely said in its lede that he used borrowed language at “unusually high rates.
 I won’t dance around the issue; this was a partisan attack, plain and simple. There was no journalistic reason to single out Thomas, but plenty of ideological reasons to do so. So rather than write a wonky piece with a dispassionate headline, the Times and Liptak went for partisan clickbait, facts be damned

Friday, August 28, 2015

Birthright Citizenship

The Citizenship Clause of the Fourteenth Amendment says: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

Trump and his supporters (including some writers for National Review) may draw support from the phrase “and subject to the jurisdiction thereof.” Some have argued that this language must exclude the children of aliens from citizenship, because aliens owe allegiance to another nation and hence are not under “the jurisdiction” of the United States. But the constitutional text requires only that the children born in the United States fall subject to American jurisdiction, which means that they are governed by American law. Almost all aliens in the United States, even citizens of other nations, still fall within our jurisdiction while they are in our territory: Otherwise they could commit crimes of all sorts without fear of punishment. Other uses of “jurisdiction” in the Constitution, such as in the 13th and 14th Amendments, also refer to the power to govern by law, not national allegiance.
Instead, “subject to the jurisdiction thereof” refers to certain discrete categories of people excluded from citizenship, even though they might be born on U.S. territory. These include the children of diplomats and enemy soldiers at war who are occupying territory. These individuals could be on U.S. territory, but are not subject to U.S. law. A third and obvious category was American Indians. At the time of the 14th Amendment, American Indians were still considered semi-sovereigns who governed themselves with their own laws and made treaties with the United States. But “subject to the jurisdiction thereof” did not grant Congress the power to pick and choose among different ethnic and national groups for citizenship. Instead, the phrase recognized a few narrow exceptions to the general principle of birthright citizenship that has prevailed throughout American history.
At AEI, Madeline Zavodny writes:
The main cost of birthright citizenship is the potential fiscal burden posed by the U.S.-born children of unauthorized immigrants. Unauthorized immigrants are ineligible for virtually all means-tested transfer programs, with the notable exception of the federal child tax credit if they file taxes. But their U.S.-born children are eligible for welfare benefits if their family meets the criteria. However, such children are believed to be less likely than other children to apply for benefits because their families fear that interacting with the government will lead to the parents’ deportation. Eliminating birthright citizenship for unauthorized immigrants’ children therefore may not save as much money as proponents might believe.
Eliminating birthright citizenship is also unlikely to have a large impact on the number of children born here to people who are not legally present in the U.S. The number of “birth tourists” – people who come to the U.S. for the main purpose of giving birth here – is believed to be only about 8,000 a year. The number of children born each year to unauthorized immigrants who live here is much larger, about 300,000 per year, but the evidence from Germany suggests that unauthorized immigrants might actually have more children here if birthright citizenship were eliminated.
Unauthorized immigrants don’t have children here because those children can receive welfare benefits or because they can sponsor their parents for a green card. (The latter can’t even happen until the child is 21 years old, so that would be some impressive patience.) They have children here because they want them to be Americans. The U.S.-born children of unauthorized immigrants symbolize their parents’ American dreams. They came for the opportunity to work hard and in return have a better life, for themselves and especially for their children.

Thursday, August 27, 2015

Civic Education and Civic Knowledge

At The American Interest, our colleague George Thomas writes:
In the same way that global concerns have been integrated into the curriculum, colleges and universities might re-integrate, so to speak, courses in American history, politics, literature, and culture that speak to American civic life. Many in higher education will think that civic education is the province of primary and secondary education, or that it smacks too much of sentimental patriotic attachment at odds with the rationality at which higher education aims. Yet civic education can be integrated into liberal education in ways that are good for both education and democracy. Courses on the features of American liberal democracy can be taught in what William Galston dubs an “investigative” rather than “inculcative” manner. Such a mode would “adopt the American regime as its point of departure while problematizing it as an object of inquiry.” Courses that focus on American history and civic institutions would introduce students to essential concepts—liberalism, democracy, rights, representation, equality, separation of powers, federalism, the rule of law, administration—and how they have played out over the course of American history. But they would also invite students to think critically about these different issues. Civic knowledge is essential to thoughtful civic participation—whether the matter at hand is the Voting Rights Act of 1965, immigration, the place of religion in public schools, same-sex marriage, or Congressional redistricting.

Knowing the history and principles of the American polity is a first step in thinking about and applying political principles to contemporary issues. Grasping the historical antecedents of many contemporary issues may well elevate contemporary democratic discourse. This also includes criticizing pieces (or the whole) of American democracy. Studying our country, we will find that its great champions have often been its most stringent critics, pointing out how it has failed to live up to its promise. Think of Abraham Lincoln, Fredrick Douglass or Susan B. Anthony. And even as “investigative” civic education seeks to instill civic commitments, it is a reasoned project that can be situated within a broad liberal education. Courses in the history of political philosophy and the history, culture, and languages of other countries would also be useful features of civic education. Indeed, a course in comparative constitutionalism may be the most illuminating way to study America insofar as it brings to light both what is unique and what is universal within American democracy. As Seymour Martin Lipset has argued, “it is impossible to understand a country without seeing how it varies from others. Those who know only one country know no country.” The study of America could complement and deepen liberal education, including the global perspective many colleges view as essential to education in the 21st century.

Wednesday, August 26, 2015

Debt and Deficit

The Congressional Budget Office reports:
According to the Congressional Budget Office’s estimates, this year’s deficit will be noticeably smaller than what the agency projected in March, and fiscal year 2015 will mark the sixth consecutive year in which the deficit has declined as a percentage of gross domestic product (GDP) since it peaked in 2009. Over the next 10 years, however, the budget outlook remains much the same as CBO described earlier this year: If current laws generally remain unchanged, within a few years the deficit will begin to rise again relative to GDP, and by 2025, debt held by the public will be higher relative to the size of the economy than it is now.

 Federal Debt Held by the Public

Tuesday, August 25, 2015

House Rules

At Roll Call, Don Wolfensberger writes:
Restrictive amendment rules, including closed and structured rules that only allow specified amendments, shot-up from around 30 percent of all rules in 1980 to 56 percent in the Democratic 103rd Congress (1993-94). The new Republican majority in the 104th Congress (1995-96) temporarily brought the percentage of restrictive rules down slightly to 42 percent.
Yet, the percentage of restrictive amendment rules edged-up again with each succeeding Congress, whether under Republican or Democratic control. In the Democratic 110th Congress (2007-08), it stood at 86 percent of all rules, and, by the Republican 113th Congress (2013-14), restrictive rules were 91 percent of the total.
Closed amendment rules alone accounted for 48 percent of the total in the last Congress — up from just 14 percent two decades ago, and 32 percent 10 years ago. Open amendment rules have almost gone the way of the dodo, with percentages hovering in the teens or lower.
One explanation for this ratcheting effect is offered by political scientists John E. Owens and J. Mark Wrighton in a 2008 study. They attribute it to increasing polarization in the House and an “emulation effect” (based on Daniel Patrick Moynihan’s “iron law of emulation”), positing that, “when one political party acquires a technique enhancing its power, the other party will likely adopt it as well in order to carry out election promises and to prevent potential dissidents from within its ranks from forming winning bipartisan coalitions with the minority.” This is especially evident when the two parties are in intense conflict and competition. House Republican leaders’ recent crackdown on GOP members who voted against the trade rule is one manifestation of this phenomenon.

Monday, August 24, 2015

Stocks and Politics

Stock markets are plunging.  Even in the very short run, people will notice, since a majority of Americans own stock.

A sustained drop will have consequences.

As I explained at The Christian Science Monitor last fall, a bear market is very bad news for California:
Even the good news about California is marbled with bad. Yes, we have managed to avoid budget crises in recent years. But one reason is a 2012 tax increase. Another is the state’s dependence on the rich. The top one percent of Californians – those with incomes over a half a million dollars – pay more than 50 percent of the state’s total personal income tax. These people – the kind that the president meets – derive much of their income from investments. If the stock market goes down – as it inevitably will – state revenues will plummet and the budget crises will come back.
If a bear market is the leading edge of an economic slowdown -- very uncertain at this point -- there will be an impact on the next presidential election.  A graph from John Sides and Lynn Vavreck: