If a “constitutional scholar” like Ed Whelan thinks the law is unconstitutional, there is probably a strong argument that it is not [unconstitutional].
Whoa, Whoa, Whoa, Whoa. Is this offered as a cheap shot against Big Ed or is the author serious?
Hard to tell.
There are some obvious difficulties here. Say that Ed posits that something really obvious is unconstitutional like Torture? I’d agree with him in this instance. As written I’d have to say that someone was having fun at the expense of Ed.
BUT, that being said there still may be something here yet. I’m inclined to revise the quote somewhat and narrow it in application where it can be of great use in the blogosphere. And in doing so, I offer the following Doctrine of Constitutional interpretation, The Whelan Constitutionality Principle:
Where an area of Constitutional Law is unsettled or subject to serious disagreement, and Ed Whelan posits that a law violates the constitution, there is a higher probability than not, that the Law is Constitutional.
I am going send this New Rule off to Judge Scalia who tends to be prone to bouts of historicism. If anyone could use a little help in the area of constitutional interpretation, it is him.
It would work like this for the Judge:
Step 1: Is the application of a particular Law before the court unsettled? If yes proceed to Step 2. If no, strictly apply the law and proceed to Step 5.
Step 2: If application of the law is unsettled and law cannot be easily “Strictly Construed,” find out Ed Whelan’s position on issue.
Step 3: After obtaining Whelan’s position, strongly consider alternatives to Whelan’s position, one of these alternative approaches is far more likely to be correct.
Step 4: Flip Coin and pick alternative position.
Step 5: Issue Ruling. You are done.
I think this approach could be helpful.