The Purpose of the Second Amendment Failed Long Since

The American colonies and the new United States were deeply distrustful of a standing army, a distrust inherited from their English Whig forebears. That is why the army and the navy were treated so differently in the Constitution.

Nothing is Certain – Cromwell's Rule

I here defend the proposition that absolutely nothing is absolutely certain, where certainty is understood as a flat 0 or 1 as a Bayes prior.

Pope Francis, Thomas Bayes, and the Existence of God

Should liberal atheists find their Bayesian level of rational credence in the existence of God to go up because of the election of the pope?  Should conservative theists find it to go down?

Plea Bargaining in Federal Court Is Unonstitutional

If you are with me that the best reading of Article III, § 2, clause 3 of the US Constitution denies to the federal courts the power to conduct a non-jury criminal trial (post of 1/11/15), then the question for both of us is whether that provision also makes federal plea bargains unconstitutional.  At this time this is only a theoretical question, as the Supreme Court has resolutely resisted reading the Article III provision in its natural way. Were the Court, however, suddenly to see the light, perhaps by declaring federal bench trials to be unconstitutional, then the issue of plea bargaining would be brought front and center, and plea bargaining is a matter of immense practical importance. Guilty pleas now account for 97% of federal cases.

More on the Waiver of Article III Requirements: Wellness International Network v. Sharif

My post of  1/11/15. “Are Federal Bench Trials in Criminal Cases Constitutional?”, argued  that the Article III jury trial requirement in criminal cases is a matter of the power of the federal courts and cannot be waived by the defendant.  A similar issue of Article III requirements, this time in a bankruptcy context, was  just decided in favor of waiver by the Court. Again practical considerations of court administration trumped the structural provisions of Article III, if not in quite as clear and dramatic a way as in the doctrine that the jury requirement is merely a waivable right.

Can we hope that God exists? If so, should we?

I do not believe that God exists, but I hope that I am wrong.  In fact, everyone should hope that God exists: believers (perhaps with nagging doubts), agnostics, atheists, and those who haven’t given the God question much thought. The evangelists of cross and crescent and their antagonists, especially those atheists still called “new,” have had a well-publicized, widely published, and mostly tiresome debate whether belief in God is reasonable. Completely ignored is a question on which even the most dogmatic theist and virulent atheist might possibly agree: is it reasonable to hope that a powerful intelligence lovingly created us and everything else? See my Hope to God
https://scribl.com/books/E9HZ8/hope-to-god

The Law Professors' Brief in King v. Burwell

In the challenge to the Affordable Care Act now under consideration by the Supreme Court, an  amicus curiae brief was filed by law professors William Eskridge, John Ferejohn, Charles Fried, Lisa Marshall Manheim and David Strauss. The brief sets out an account of textualism in statutory construction, contrasting it with “purposivism” – which takes the intentions of legislators to be the touchstone of interpretation. The brief then applies textualist methods in arguing that the government's (the IRS's) interpretation of the disputed language in the ACA should be upheld.

I think that the brief is largely correct about the political theory underlying textualism, the interpretive tenets of textualism, and the application of those tenets to the ACA. I want to examine a few objections from the side of theory.

Normative Words in the Constitution: Capital Punishment and Due Process

Some constitutional interpreters, including some who regularly put on robes, argue that capital punishment must be constitutional under the Eighth Amendment  because nearly all the drafters, and the great majority of the ratifiers, would not have thought it "cruel and unusual." This reasoning is exactly as sound as that producing the conclusion that there would be no Fifth Amendment  "due process of law" objection to restricting the jury to white males in trying a criminal action against a female African American.

Are Federal Bench Trials in Criminal Cases Constitutional?

Bench trials (trial to a judge with no jury) constitute about half of all criminal trials in the federal courts and in the neighborhood of 15% of the felony trials. Yet they are in flat contradiction to the express language of the Constitution.