Student Government Upstages Parody

When I first saw The Record story describing the Student Government equivalent of the Midnight Judges scandal (well, equivalent if President Adams had tried to appoint himself to Congress), I thought it had to be a mistake.  Surely no HLS student could possibly fail to discern the two obvious lessons of the recent presidential election: (1) the student body wants transparency and change in Student Government and (2) the student body is sick of members of Student Government acting immaturely, as when the presidential candidates were hurling inane insults at each other.

Contrary to all common sense, however, a note on the amendment apparently added by its drafter(s) reads, “expire Commencement 2012?,” suggesting that the amendment might only apply in this particular year for these particular people. This amendment would overrule an amendment dating back an entire month mandating that terms end on April 1.

Let’s dispense quickly of the idea that the move is a Chavezian power grab.  It’s far more puerile and obvious than that. At least Hugo Chavez had the decency to propose permanent changes to the Venezuelan constitution and manipulate an ostensibly democratic referendum to enact those changes. This modification of the Student Government constitution would be a one-off bit of chicanery, a bitter and blatant attempt to put one past the pococurante electorate.

The very idea reeks of entitlement and disrespect for the electoral will of the student body. Indeed, HLS Student Government has slipped the surly bonds of reason and reached the stratospheric incompetence of an even pettier version of Chavezian dictatorship. At this rate of descent into stupidity, we’re mere days away from the Student Government KGB airbrushing Daniel Vargas from Student Government photographs and 1L Section Representatives being called upon to inform on their comrades’ dalliances with Gelfandism.

I was very glad to hear that the amendments were voted down last night following the organization of a Facebook movement by the Gelfand campaign to bring attendees to the meeting to protest the measures. Then maybe we can put this absurd chapter of HLS history behind us and the next class can start rebuilding after the destructive electoral and constitutional shenanigans that constituted the true Parody of 2012.

John Thorlin is a 3L. His column runs Thursdays.

The views in opinion editorials, columns, and letters do not necessarily reflect the views of The Harvard Law Record. The comments posted on this Website are solely the opinions of the posters.

HLS Alum Fails Con Law Exam

At one of the January presidential debates, moderator George Stephanopoulos posed the single best legal hypo of the entire Republican primary campaign to Willard M. Romney, Harvard Law Class of ’75: “Do you believe that states have the right to ban contraception or is that trumped by a constitutional right to privacy?”

Before we see how the HLS alum did on this exam question, let’s establish a very basic idea that I think just about everyone agrees on: There are unconstitutional good ideas and constitutional bad ideas. To use non-partisan examples, the Smoot-Hawley tariff was a thoroughly constitutional bad idea. The line-item veto was a thoroughly unconstitutional good idea.

The Constitution says nothing about contraception, making its proscription a constitutional bad idea. However, if you are a proponent of magical substantive due process, all bad ideas suddenly become unconstitutional. Thus, the entire purpose of the contraception question is to establish whether Romney believes in substantive due process, something that any Republican who cares about getting good justices on the Supreme Court should be deeply interested in.

So, how did ol’ Willard do?  Did he stand up for originalism?  Did he say something logical like, “States can do that constitutionally, but it would be a terrible idea that I would never support”?

Not so much.  Romney played dumb, insisting that because no state was trying to ban contraception, he couldn’t possibly answer the hypothetical.  Flummoxed by Romney’s obtuse failure to comprehend the nature of a hypothetical question, Stephanopoulos noted dryly, “You went to Harvard Law School.”

The crowd, very Romney-friendly voters, booed the line of questioning, presumably because they didn’t want their preferred candidate to have to break tradition by saying something that is simultaneously (a) true and (b) unpopular.

This wasn’t the only time Romney flunked a Con Law exam.  Perhaps more egregious than the contraception example is his repeated claim that people should not criticize him for Romneycare because the Tenth Amendment allows states to do things that the federal government can’t.  No one has yet pressed home the objection that while his plan was undoubtedly constitutional, that does not make it a good idea.

It should be noted in Romney’s defense that politicians regularly betray total ignorance regarding the Constitution. No candidate is guiltier in this regard than Ron Paul.

At another presidential forum, Paul was asked which amendments he considered to be mistakes. The moderator, perhaps anticipating an attack on the income tax or direct election of senator amendments, suggested Paul should limit his response to only a few amendments.  He needn’t have bothered with the hortatory admonition.  The only amendment Paul could come up with was the prohibition amendment, which was already, er, repealed before Paul was born.

He’s not much better when talking about the original Constitution. He talks endlessly about Afghanistan and Iraq being unconstitutional wars, but Congress authorized both of those actions. He voted against NAFTA because of the supposedly unconstitutional creation of a regulatory body to oversee cross-border trade (which is the third enumerated power in Article I, Section 8).

Since Paul didn’t go to law school, I would normally go easy on him for not knowing all that much about the Constitution. However, since Paul declares himself a “constitutionalist” (whatever that means) and Romney explicitly deferred to him as part of his evasion of the contraception question, Paul also warrants a failing grade in Con Law.

The common theme in Paul and Romney’s Con Law failures is the refusal to acknowledge that there is such a thing as a constitutional bad idea. I understand the temptation to think that the Constitution solves all problems.  If that were the case, no Republican politician would ever have to make difficult policy arguments. However, if you’re running for president, you should at least be able to articulate the benefits of limited government without waving a spurious constitutional canard at the voters every fifteen seconds.

John Thorlin is a 3L. His column runs Thursdays.

The views in opinion editorials, columns, and letters do not necessarily reflect the views of The Harvard Law Record. The comments posted on this Website are solely the opinions of the posters.