What the 12th Amendment Presumes

I want to amplify one point in George Thomas’ excellent essay about John Eastman’s attempt to subvert the constitutional will of the public in 2020. Eastman’s reading of the Twelfth Amendment as giving the Vice President wholesale authority over the counting of votes is constitutionally implausible. The only official duty of the Vice President is to open the ballots. The Twelfth Amendment says, in what one can only assume was a deliberately separate sentence, that the ballots “shall then be counted.” To believe the Vice President wields total authority over the counting, one must assume that the separate sentence is, … Continue reading What the 12th Amendment Presumes

Thoughts on Revisiting New York Times v. Sullivan

I appreciate George’s thoughtful post on Justice Gorsuch’s view that the framework of New York Times v. Sullivan may facilitate the spread of falsehood. I have a handful of questions but few solutions. First, it strikes me that the problem is less the Sullivan standard than the subsequent cases that expanded its coverage from public officials to increasingly hazy categories of public figures. For reasons I suggest below, I do not see libel law as a viable means of ensuring that actual public officials–or aspirants to office–are spoken about truthfully. I would like to hear more about how the “actual … Continue reading Thoughts on Revisiting New York Times v. Sullivan

Constitutionalism in Congress

I agree with George that constitutionalism has eroded in Congress in addition to the presidency. That seems most evident when Congress sues the executive branch, thereby asking the courts to confront the bully on the block as opposed to flexing its own institutional muscle. It is also evident in the House’s decision to attempt to extort Mike Pence into invoking the 25th Amendment before exercising the impeachment power. The threat there seems to be: Do your job or we’ll do ours. Setting aside whether the 25th Amendment is an appropriate solution for the current crisis, impeachment has the advantage of … Continue reading Constitutionalism in Congress