The Corner

Loose Ends

1) Professor John J. Pitney sends along this note: “The Reagan Library has a draft of the 1981 Inaugural in Reagan’s own hand. It reads: ‘In this present crisis, govt. is not the solution it is the problem.’

“Reagan anticipated that some would take his remarks out of context. So a few moments later he said: ‘Now, so there will be no misunderstanding, it is not my intention to do away with government. It is, rather, to make it work — work with us, not over us; to stand by our side, not ride on our back. Government can and must provide opportunity, not smother it; foster productivity, not stifle it.’”

2) On spending, check out this defense of the federal record by longtime Senate budget aide William Hoagland–who now works for Bill Frist–followed by this demolition of it.

3) Peter asks whether there is something to the view that “serving as a justice on the Supreme Court of the United States really isn’t–or shouldn’t be–all that hard,” and whether the denial of that view treats the Court “as a high priestly sect.” It certainly does not treat them as a “high priestly sect” in the sense of considering them to have better answers than the rest of us about, say, whether the death penalty should be imposed. It doesn’t, I think, even treat them as necessarily having better answers than the rest of us about what the Constitution means.

One could simultaneously hold that deciding, as a judge, whether a particular state action had been pre-empted by federal action was a difficult legal question requiring some specialized training and that Congress has the right effectively to invalidate particular judicial interpretations of the Constitution. That mix of views would not be elitist in any way that should give conservatives pause.

Some important constitutional questions strike me as relatively easy. Abortion, at least considered as an original matter, if no precedents were on the books, is one of them. (Although even this issue involves some difficulties: Are the unborn “persons” deserving equal protection of the laws, and what would that mean?)

In other cases, both figuring out the original meaning of constitutional provisions and applying it are difficult, as Gerard Bradley notes. I think that Justice Thomas got it right in the U.S. Term Limits case and that Justice Scalia got it right in Employment Division v. Smith. But there were genuinely tricky issues that could keep (and have kept) equally committed originalists from agreeing with them. Sometimes originalism might rule out particular constitutional answers without fully deciding an issue; at other times it might yield a definitive answer, but not easily. (As Bradley notes, the fact that a mathematical problem might have one correct answer does not mean that reaching it is easy.)

Also, I think that navigating a way back to an original meaning that we have left far behind raises difficult intellectual problems.

4) No connection to Pavarotti here.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.


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