The Subjects Of The Constitution

Randy Barnett points to a revolutionary groundbreaking article on constitutional review:

[T]he important point is that any legislative violation of the Constitution is complete at the moment of enactment, and any subsequent facts must be irrelevant to the merits; whereas an executive violation of the Constitution happens later, and the facts of execution may be essential to the inquiry. So if the who is Congress, then the challenge is more likely to be ripe earlier—indeed, most strikingly, it might be ripe immediately after enactment, and before any enforcement whatsoever.

I haven’t read the whole thing, so it may be covered, but from the excerpt, it seems to me that it isn’t just Congress that is the “who.” Once the president signs an unconstitutional law, he becomes a violator as well (as Bush knowingly, even admittedly did when he signed McCain-Feingold, willfully violating not only the Constitution, but his oath of office — if you wanted an impeachable offense, that one seemed prima facie to me).

An Interesting Team

Masten and XCOR have announced a strategic partnership:

Masten’s award winning automated vertical take off, vertical landing (VTVL) flight vehicles combined with XCOR’s strong experience in liquid oxygen (LOX) / methane powered propulsion systems and nonflammable cryogenically compatible composite tanks, brings to NASA a powerful and competitive combination of innovative talent with a proven record of producing exceptional results quickly and affordably.

So does this mean that Masten is going to focus on the vehicles, and let XCOR provide propulsion systems? And is this just for the NASA lunar lander work? Guess I’ll have to talk to Dave and Jeff to find out.

The True Scientists

win a debate at Oxford Union on climate change:

Lord Monckton, a former science advisor to Margaret Thatcher during her years as Prime Minister of the UK, concluded the case for the proposition. He drew immediate laughter and cheers when he described himself as “Christopher Walter, Third Viscount Monckton of Brenchley, scholar, philanthropist, wit, man about town, and former chairman of the Wines and Spirits Committee of this honourable Society”. At that point his cummerbund came undone. He held it up to the audience and said, “If I asked this House how long this cummerbund is, you might telephone around all the manufacturers and ask them how many cummerbunds they made, and how long each type of cummerbund was, and put the data into a computer model run by a zitty teenager eating too many doughnuts, and the computer would make an expensive guess. Or you could take a tape-measure and” – glaring at the opposition across the despatch-box – “measure it!” [cheers].

Lord Monckton said that real-world measurements, as opposed to models, showed that the warming effect of CO2 was a tiny fraction of the estimates peddled by the UN’s climate panel. He said that he would take his lead from Lord Lawson, however, in concentrating on the economics rather than the science. He glared at the opposition again and demanded whether, since they had declared themselves to be so worried about “global warming”, they would care to tell him – to two places of decimals and one standard deviation – the UN’s central estimate of the “global warming” that might result from a doubling of atmospheric CO2 concentration. The opposition were unable to reply. Lord Monckton told them the answer was 3.26 plus or minus 0.69 Kelvin or Celsius degrees. An Hon. Member interrupted: “And your reference is?” Lord Monckton replied: “IPCC, 2007, chapter 10, box 10.2.” [cheers]. He concluded that shutting down the entire global economy for a whole year, with all the death, destruction, disaster, disease and distress that that would cause, would forestall just 4.7 ln(390/388) = 0.024 Kelvin or Celsius degrees of “global warming”, so that total economic shutdown for 41 years would prevent just 1 K of warming. Adaptation as and if necessary would be orders of magnitude cheaper and more cost-effective.

Mr. Mike Mason, founder and managing director of “Climate Care”, concluded for the opposition. He said that the proposition were peculiar people, and that Lord Monckton was more peculiar than most, in that he was not a real Lord. Lord Monckton, on a point of order, told Mr. Mason that the proposition had avoided personalities and that if Mr. Mason were unable to argue other than ad hominem he should “get out”. [cheers] Mr. Mason then said that we had to prepare for climate risks [yes, in both directions, towards cooler as well as warmer]; and that there was a “scientific consensus” [but he offered no evidence for the existence of any such consensus, still less for the notion that science is done by consensus].

As usual, the opponents employed the logically flawed precautionary principle.

I think that the tide has really turned on this nonsense, at least over the Pond, if not quite hear yet. That may have to wait until November.

Speaking of which, there was an awful story on ABC Sunday night, where the focus was on death threats to climate scientists. Note that they make no mention of the threats against climate skeptics in the emails. And they set up a straw man, when they say there’s a “conspiracy” to foist a “hoax” on the world on the part of the scientists. Yes, some people have made such allegations, but that’s not the point. I’m willing to believe that most climate scientists are sincere in their beliefs. The problem is that they drink too much of their own bathwater, and suffer too much from confirmation bias. Not to mention that it’s difficult to get funded if you don’t hew to the party line. But that kind of story wouldn’t accomplish ABC’s purpose — to present the noble scientists trying to save us from ourselves as victims of conspiracy mongers.


…and our national self abasement:

Arizonans, are you feeling less frustrated yet? At bottom, the dispute over the state’s law is a conflict of visions. The law’s supporters believe we should take the border seriously and assert the country’s sovereign right to control who comes here and who doesn’t; its detractors believe any serious effort to make good on that sovereign right is exclusionary and tinged with racism because it’s primarily directed at Latinos.

In this struggle, the latter camp sees Felipe Calderón as an ally and thrills to his disparagement of their countrymen.

It’s all part of the culture war. It’s not just between Rousseauians and Lockeans, but also between those who believe in American exceptionalism, and those who seek a transnational “progressive” “multicultural” future. And Arizonans, and others, can’t wait until November to start to take their country back from those who seem to despise it.

[Update a couple minutes later]

Lest there be a misunderstanding, that last sentence was just an expression of their eagerness to vote next fall, not a prediction or recommendation that they do anything else sooner. Other than continue to pass their own laws, of course, and defend their state(s) from a foreign invasion, as the federal government seems determined not to do.

[Update a few minutes later]

This is sort of related, but like Jonah, I can’t figure out what David Brooks’ point is. I also think that he mischaracterizes the divide. It’s not the French enlightenment versus the Scottish one. I think that any essay like this that ignores both Locke and Rousseau misses the mark. It’s about whether not not one accepts human nature as it is, or if one believes that we are blank slates, and worthy putty to build a new Soviet man.

[Update mid morning]

More thoughts on Arizona from Heather McDonald:

…let’s be honest: National origin is an inevitable part of immigration enforcement. Foreign alienage is a prerequisite to being an illegal alien; to say that national origin may not be a factor in assessing whether someone may be in the country illegally is to render immigration law nonsensical. If foreign alienage were not a valid consideration regarding border control, incoming passengers on international flights could not be separated into U.S. citizens and non-U.S. citizens for customs clearance. Yet the illegal-alien lobby, in its nuclear assault on the Arizona law, has managed to discredit notice of foreign birth as a factor in immigration enforcement and to fold foreign alienage into the utterly lethal category of “racial profiling.” The original version of SB 1070 said that a “law enforcement official#…#may not solely consider#…#national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona Constitution.” In the uproar that followed passage of the law, Arizona legislators took out “solely.” It is not clear how this change affects legislative intent or the impact of the law. The Supreme Court has allowed border-patrol agents to use apparent foreign birth as one factor in the initial decision to make a car stop near the border. Lower courts have applied that ruling in cases challenging car stops far from the border as well, allowing apparent foreign alienage to count as one part of reasonable suspicion in initiating a stop, so long as the stop was based on other specific, articulable facts as well. SB 1070 is narrower than those rulings, since it applies only to the development of reasonable suspicion after a stop has already been made. To argue, as the illegal-alien lobby is currently doing, that a local law-enforcement officer may not consider apparent foreign origin in deciding whether to ask someone about his immigration status is tantamount to shutting down immigration enforcement entirely.

Obviously, that’s the goal.

[Update a few minutes later]

Sometimes, though there’s poetic justice:

The lawmaker injured in the crash…is an open-borders advocate.

Well, OK, maybe not so poetic, but justice nonetheless.

Sixty-Three Percent

…now favor repealing the health-care debacle. Sounds like a good Republican campaign issue this fall.

The supporters of ObamaCare are not helped, of course, by stories like this:

Healthcare law tax credits encourage small businesses to stay small, not hire…

You don’t say.

The only question is whether this was an intended, or unintended consequence. It was perfectly predictable to anyone who understands human nature, incentives, and economics. Which excludes most Democrats.

Biting Commentary about Infinity…and Beyond!