MORE ON NEVADA

The Remedy (Claremont's blog) responds to my criticism of Claremont's suit in the Nevada tax case here. As I note there in the comments, I think that they still miss the point: that if you don't dismiss the Nevada court's portrayal of the issue, what you've got in Nevada is a state constitution with competing constitutional provisions, and a choice simply needs to be made between them. As I read the opinion, the Nevada Supreme Court was trying the best it could to balance what it sees as two competing constitutional imperatives. Either way they're going to end up disregarding the law, or at least be vulnerable to the charge that they're doing so. You can deny that the conflict exists (as Volokh does), but then you're just saying that the court got it wrong on that point. There is at least an argument that they got it right. The WSJ article section that The Remedy quotes ignores the constitutional backing for education funding and just portrays it as another "special interest," but that's the wrong view, in my opinion.

Which leads to my broader point. Lincoln's constitutionalism, as far as I understand it, is focused at least in part on a kind of religious loyalty for the laws. You can read Belz and Neely on Lincoln's wartime constitutionalism for the complications -- constitutional principles over constitutional text, to simplify -- but the main point is that for Lincoln, in the Lyceum speech, what's necessary is citizen reverence for the laws. You would have to be living under a log to believe that the referendum process as practiced out west is designed to encourage reverence of the law. It's a bad process if you care about Lincoln's concerns. I'm not saying that there aren't competing arguments, but I am saying that this is a much tougher issue if you care about citizen reverence than the official Claremont position here lets on. The reason the Nevada Supreme Court believes it is in the position of having to chose between two different ways of "disregarding the law" is, if you take the most realistic view of the matter, that the referendum process creates bad outcomes, and they're outcomes that have historical precedent (as I note in the post below with a quote from John Adams).

Elsewhere, Jim at OTB agrees with my policy goals but not with the position I'm defending with respect to the Nevada Supreme Court's decision. I would ask him: given his position that constitutions are meaningless if not enforced, what about Nevada's constitutional requirements for education? Volokh's position is that the state legislature can just pick any old "doable" funding level and that would satisfy the constitutional requirements here, even if the resulting education is "lousy." I find that hard to square with the constitutional requirement, and the Nevada Supreme Court did, too. That's the whole drama in this case, it seems to me.

MORE: For more on the Nevada case, see this post at HobbsOnline (btw, I love the metaphor of "shredding the constitution"; strikes me that the pile of metaphorical shreds that would result are akin to the "pieces of the true cross" that are out there or the "authentic pieces of the Berlin wall": put them back together again and you've got more than you started with), Random Thoughts, dcthornton.blog (which employs the ever-popular "toilet paper" metaphor), and Hoystory (which is concerned about CA courts getting some ideas from their neighbors). Colin Stewart of the Family Research Council has a commentary on the "Tyranny of Judges," and the Las Vegas Review-Journal has an editorial warning Democrats not to "overreach." Bruce Bartlett has also got an opinion piece on Townhall.com that employs the defenestration metaphor (but with respect to the Supreme Court).