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Pejman Cheques DeLong:

In response to Brad DeLong's endorsement of Harriett Miers' confirmation, Pejman Yousefsadeh wonders "Why Oh Why Oh Why Oh Why Must Berkeley Economists Try To Play Constitutional Scholars?"

UPDATE: Brad DeLong engages another critic here.

Dustin R. Ridgeway (mail):
Is it okay if Ohio University or UCLA economists play constitutional scholars?
10.23.2005 1:06pm
David Sucher (mail) (www):
When the Constitution is left to a specialized cadre -- when even a University professor is supposed to remain still -- we have a problem.

Criticize DeLong's substance but it's inappropriate to make fun of his right to opine because he is a Professor.
10.23.2005 1:08pm
Byomtov (mail):
Interesting that Yousefsadeh talks about the "practical and tangible effect" of the Ninth Amendment, rather than what it says.
10.23.2005 1:40pm
Steven Vickers:
Actually, Btomtov, Yousefzadeh talks about the "most practical and tangible effect of this language." I would consider talking about the effect of language to be quite clearly addressing "what is says."
10.23.2005 1:59pm
bobbie:
If economists can't play con law scholars, does that mean law professors have to stop pretending they're economists? Or, better yet, does that mean law professors have to stop pretending they're legal philosophers?
10.23.2005 2:10pm
ANM (mail):
Why Oh Why Oh Why Oh Why can you not spell 'Berkeley'?
10.23.2005 2:17pm
Commenterlein (mail):
I am personally more interested in the opinion of an extremely well-read tenured Berkeley professor with an economics PhD from Harvard than in the opinion of a lawyer like Pejman who presumably fancies himself a constitutional scholar after taking one or two classes about the subject. And I say this as someone who quite strongly disagrees with DeLong's opinion in this case.
10.23.2005 2:22pm
Byomtov (mail):
My point is that the Amendment does not say, "states may grant their citizens other rights." It says instead that there exist fundamental rights retained by the people regardless of whether they are explicitly enumerated in the Constitution.

Yousefsadeh's criticism of DeLong ignores that, and thus does not address DeLong's point.
10.23.2005 2:23pm
Harpo:
So we should hold Barnett, and not Bork and Thomas, as representative of originalism ?

Please.
10.23.2005 2:34pm
Goober (mail):
Did it occur to anyone else that Pejman didn't really make any sense? As I take his argument, he seemed to think that DeLong shouldn't actually dislike originalists, because originalists would have disapproved of Footnote 4, and since Footnote 4 rolled back the 9th A's guarantee of unenumberated rights (in Pejman's formulation---some of us still think it might have had something to do with equal protection), DeLong is bound by Pejman's judgment that originalists are really much more soliticitous of individual rights than non-originalists? Color me unimpressed.
10.23.2005 3:04pm
Cornellian (mail):
So we should hold Barnett, and not Bork and Thomas, as representative of originalism ?

I'd say Barnett is definitely closer to original intent than Bork, though Thomas is a closer call.
10.23.2005 4:22pm
frankcross (mail):
This might as well be entitled why constitutional scholars shouldn't play constitutional scholars. DeLong's view is shared by plenty of originalist constitutional scholars. Pretty churlish to criticize him for embracing a view adopted by Bork.

Once again, this controversy demonstrates the considerable indeterminacy of originalism as an interpretive philosophy.
10.23.2005 4:28pm
Anderson (mail) (www):

the considerable indeterminacy of originalism as an interpretive philosophy

Which rather defeats the purpose, doesn't it?

I have never understood the notion that Madison, Hamilton et al. were dimwitted enough to believe that a statute or a constitution, once written down, somehow expresses itself without the interpretive mediation of judges and advocates.

There is something almost Freudian in the hankering after a pure, unspoiled Mother Constitution that has been defiled by the filthy hands of mere interpreters, who don't enjoy the unmediated Absolute Knowing that, say, Justice Scalia has attained.
10.23.2005 4:57pm
George of the Legal Jungle (mail):
Is it okay for a blogger to play a con law scholar?
10.23.2005 6:22pm
Kieran (mail) (www):
Pejman Cheques DeLong

The Brits certainly write and cash cheques, but when it comes to their facts, their ice hockey opposite numbers, or their intellectual opponents, they check them just like Americans do.
10.23.2005 7:15pm
Harpo:
The notion that you can reconcile to the same legal philosophy Thomas's dissent in Lawrence and Barnett's accolades for Kennedy- is somewhat absurd.
10.23.2005 7:40pm
Greedy Clerk (mail):
There is something almost Freudian in the hankering after a pure, unspoiled Mother Constitution that has been defiled by the filthy hands of mere interpreters, who don't enjoy the unmediated Absolute Knowing that, say, Justice Scalia has attained.

I wouldn't call it Freudian, it is "fundamentalist." It has the same current running through it as fundamentalist Muslims and to a lesser extent some fundamentalist Jewish sects (I don't know much about fundamentalist Christianity so I can't opine) -- i.e. that there is some "lost" pure time when the words of the text were followed and we must all return to that pure time. It really is amazing --- go read about Wahabism then go read about so-called "originalism", and they share much in common. I.e., some obsession over a return to an age that never really existed.

10.23.2005 8:25pm
Juan Non-Volokh (mail) (www):
Kieran -- I was making a play on "Chequerboard" in the title of Pejman's new blog.

-- JNoV
10.23.2005 8:34pm
CTW (mail):
"Did it occur to anyone else that Pejman didn't really make any sense?"

yes. for example ...

"Curiously, an originalist ... would likely not have signed on to the language in footnote four"

yet as I understand it, the two revered SC "originalists" have essentially the footnote four-consistent position prof deLong "quoted" (actually, perhaps in the case of AS, "footnote 4 plus" per prof barnett's terminology).
10.23.2005 8:40pm
Kieran (mail) (www):
Kieran -- I was making a play on "Chequerboard" in the title of Pejman's new blog.

Aha. Now I understand. Well, at least I wasn't snarky about it :-) I just remember "Pejmanesque."
10.23.2005 11:26pm
CharleyCarp (mail):
At least Holsclaw's interpretation of the Ninth Amendment is coherent. He says the people have unenumerated rights, but you have to look at contemporary (1789) attitudes/law to find them. Yousefzadeh says it means "state constitutions can offer citizens of those states greater rights than those that are afforded in the federal Constitution," referring explicitly to this phrase: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'

I tend towards what DeLong said about this: it's a longer and more elegant way of saying "including but not limited to."
10.24.2005 3:02am
Shelby (mail):
As I disagree so often and so thoroughly with Mr. DeLong, I feel compelled to acknowledge that to my view he is right and Pejman wrong (!) about the meaning of the Ninth Amendment. However, Brad's still full of it on the "Living Constitution"; an economist without formal legal training should count himself lucky he scored any points in this.
10.24.2005 3:36am
Anderson (mail) (www):
I continue to be struck by DeLong's example from Lord Mansfield.

Could the U.S. Supreme Court have struck down slavery, or granted the vote to women? Not "would it have been a good idea politically," but "did it have the legal power and authority to do so?"
10.24.2005 11:55am
guest from TX:
Only those who graduated top 10% from HYS (law, not Econ) should be allowed to opine on Constitutional law, or really anything. There has been a real run on ad hominem attacks dressed up in credentialism lately.
10.25.2005 12:22pm
Aaron:
TX, I would include Gtown, Columbia, NYU, UCLA, Boalt, and Penn as well.

Just not SMU.
10.25.2005 2:47pm