Originalist Smackdown: Healthcare Mandate Edition

In The New Republic, Harvard Law Professor Einer Elhauge delivers an awe-inspiring smackdown of the "originalist" case against the healthcare mandate:

But there’s a major problem with this line of argument: It just isn’t true. The founding fathers, it turns out, passed several mandates of their own. In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington. That’s right, the father of our country had no difficulty imposing a health insurance mandate.

I have my own problems with Constitutional Originalism and its flawed theory of history, but this is just straight up pwning. Elhauge goes on to detail several instances in which actual Congresses made up of actual Founding Fathers passed mandates, including an individual mandate that required sailors to purchase medical insurance.

If such a ruling would not hurt so many millions of vulnerable Americans, I could almost wish that the Supreme Court would strike down the mandate just so that we could have this awesome example of "actual" Founding Fathers vs. "original" Founding Fathers. I may get that wish fulfilled anyway, much to my sorrow.

More coverage from Slate here.

Does the Historian's Hat Fit the Associate Justice's Head?

Like many Americans, I find the news that the Taliban has executed a seven-year-old boy to be deeply sickening. Reaction from world leaders has been fairly predictable — those who have commented on the case use it as an example of the unfathomable cruelty and depravity of the Taliban:

Afghan president Hamid Karzai:

"hanging or shooting to kill a 7-year-old boy . . . is a crime against humanity"

British Prime Minister David Cameron:

"If this is true, it is an absolutely horrific crime . . . If true, I think it says more about the Taliban than any book, than any article, than any speech could ever say."

When I read this story, I immediately thought back to Justice Thomas' recent dissent in Graham v. Florida, in which he argued that the Eighth Amendment should be understood to prohibit "methods [of punishment] akin to those that had been considered cruel and unusual at the time the Bill of Rights was adopted." In a footnote to that dissent, Justice Thomas argued that the Founding Fathers would not have considered sentencing a juvenile offender to life in prison without parole "cruel and unusual" because the common law "theoretically permitted [even] capital punishment to be imposed on a person as young as age 7,” reasoning that "It thus seems exceedingly unlikely that the imposition of a life-without-parole sentence on a person of Graham’s age would run afoul of those standards."

Did you notice the sleight of hand?

Execution of Children and Adolescents in Early America

I am glad to see that J.L. Bell has taken up an exploration of the history of capital punishment for juveniles in the wake of the Supreme Court's recent decision in Graham v. Florida.

I have commented on this issue in my guest post over on Executed Today regarding the execution of Hannah Ocuish in 1786. I agree with Bell that this story cannot be told without acknowledging that all of the youngest children put to death in the United States have been children of color.

More discussion on the Early American Crime blog.

Scalia on Grave Markers

It's not every day that a Supreme Court Justice comments on grave markers. Today, Justice Scalia held forth on the subject and, once again, demonstrated the The History of the United States According to Antonin Scalia is made-up bullshit.

In the course of arguing that a giant cross erected in the Mojave Desert in 1934 cannot be regarded as a specifically Christian symbol, Scalia told the court that, "The cross is the most common symbol of the resting place of the dead."

Actually, that's not all he said:

JUSTICE SCALIA: It's erected as a war memorial. I assume it is erected in honor of all of the war dead. It's the -- the cross is the -- is the most common symbol of -- of -- of the resting place of the dead, and it doesn't seem to me -- what would you have them erect? A cross -- some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?

I'm no legal scholar, but I know a thing or two about gravestones. And Scalia is talking out of his ass on this one.

Speaking of Civil War Names . . .

. . . is Senator Jefferson Beauregard Sessions III (R-AL) named for Jefferson Davis and P.G.T. Beauregard?*

I ponder this question as I watch the man confess a shocking ignorance of the history of American law while on national television.

In case you haven't been watching Judge Sotomayor's confirmation hearings, I will summarize Senator Sessions' remarks:

White men are neutral. Everyone else is prejudiced. The application of American law was TOTALLY NEUTRAL AND OBJECTIVE before women, people of color, queers, and their allies started messing everything up.

I watch CNN at the gym, but I had to turn it off this morning. I really could not stand to hear Senators Sessions and Grassley accuse Judge Sotomayor of "activism" in the Ricci case when her ruling was based on precedent and law while Justices Scalia and Alito created a new standard in order to satisfy their political imperatives and bent over backwards to ally themselves with a lawsuit-happy fellow Italian-American. I'm certainly no constitutional originalist (no is, no one can be, no one should be). I just could not stand to see those smug idiots display their prejudices so baldly while simultaneously claiming to be "objective."

They live in a fantasy world, where our national aspirations have already been wholly fufilled. Sometimes I wonder why I bother to study American history, but now I know — so I can laugh in the face of anyone who says that the history of American law is a history of objective decisions rendered by impartial marble men.

Senators Sessions and Grassley (and others, I'm sure — I just didn't watch that that far) have criticized Judge Sotomayor for saying that her experiences and her individual perspective will undoubtedly color her rulings. Of course they will. Just as Justice Scalia's color his. Just as Senator Sessions' color his questions. Are they against introspection? Reflection? Acknowledgment of the inescapability of bias?

What a disgusting display of willful, partisan, racist, historically-illiterate ignorance.

*To be clear, he'd be an asshat whatever his parents named him — I just have Confederate names on the brain.

Supreme Names

With all the ridiculous flap over the pronunciation of Sonia Sotomayor's name, I thought it might be interesting to look back over the great names of Supreme Court Justices past. If I were appointing a bench based solely on names, rather than politics, it would include these nine:

9. Horace Harmon Lurton
Some names flow lyrically off the tongue. Others lurch from consonant to consonant. The finest belong to the latter category and include sounds that remind you of words like halt and lurch.

8. Roger Brooke Taney
All together now: TAW-nee

7. David Davis
I heart alliteration.

6. Morrison Remick Waite
No particular reason here — I just liked this name. It sounds like a type of gun, yet is still pompous enough to suit a Gilded Age judge.

5. Thurgood Marshall
I'm actually slightly surprised that Thurgood did not break the top 1,000 boys' names in the late 1960s. According to the SSA, these names beat out Thurgood among American boys born in 1969: Elizabeth (#974), Antonia (#971), Bertram (#967), Thor (#956), Patricia (#953), Amy (#932), Maria (#929), Melissa (#918), Merlin (#896), Karen (#891), and Thurman (#709). When a masculine name is less popular than Elizabeth, it's pretty rare.

4. Bushrod Washington
Bushrod and Thurgood would make good twin names. My younger brother, Wheeler, often threatens to name all his future children after Norse gods, but I think he might be willing to consider this pair of strong, Germanic names.

3. Felix Frankfurter
Alliteration strikes again.

2. Salmon P. Chase
Salmon is a legit Bible name, I admit. This makes the list because I first learned about Salmon P. Chase from Ken Burns' The Civil War when I was in elementary school. The first time I heard his name, I formed a mental image of sprightly fish enjoying a game of tag. I have never been able to overcome the association.

Chief Justice: Lucius Quintus Cincinnatus Lamar
No contest.

For what it's worth, I like Sotomayor's name (not that anyone should care a fig for my approval or disapproval). It's alliterative and, despite what certain jackasses have said in the media, I find that it flows easily and lyrically. "Sonia" is a great name — familiar, but not too common. With the current trend of Sophie/Sophia/Sofia showing no signs of abating, I would be unsurprised to see an uptick in the popularity of "Sonia" over the next few years. Sonia Sotomayor. It's a strong, distinctive, iconic name.