For the last several weeks, I have been following the news out of the UK about the Parliament’s vote on PM Theresa May’s foredoomed plan for Brexit, including one installment of “Prime Minister’s questions,” which, for obvious reasons, centered on the still-falling debris from the May government’s unprecedented 230-vote blow-up of Mrs. May's Brexit deal. It had all the tragic dignity of, say, Sophocles’ Oedipus trilogy: you know what is going to happen, but for that very reason, you simply cannot bring yourself to avert your gaze. I was all the more horrified because, knowing the Parliament vote was imminent and that it would be followed by the 29 March deadline imposed by Article 50 of the Lisbon Treaty, I had begun some weeks before to read about the European Union (EU), Brexit, and
I invite my fellow progressives / leftists to please feel free to vote me off the Island for saying the following, but ... in the interest of fairness, it should be said that acting AG Matthew Whitaker is right in a certain sense about Marbury v. Madison. To be sure, Matthew Whitaker is indeed a crackpot, and his own utterances, both written and spoken, amply justify that description. But let's be fair to broken clocks: even they are right twice a day. (The full text of Marbury can be found here; a very literate, enlightening, and even-handed summary, here.) The Constitution’s Article III is rather ambiguous, not about the scope of the Supreme Court’s original jurisdiction, but about how “hard-coded” that original jurisdiction is in the Constitution. There are two questions at issue.
The following is a true story. It is a story that has been haunting me for the past 20-plus years. The reason it has been haunting me is because I may have been inadvertantly complicit in convicting a man of a serious drug charge by denying him the benefit of the principle of the presumptive innocence of a defendant in a criminal trial. I make no judgment as to the man’s actual guilt. That will be as it may. The point, rather, is that, in retrospect, I believe that we, the jury in the trial, followed the letter of what seemed in retrospect to be a very bad law and -- pursuant to that law -- presumed the man to be guilty, and that this presumption seemed to be “hard coded” into the relevant drug-possession law.
At the time, we believed we acted in good faith, because we believed o