Cancelling Justice Jackson?

Will casebooks need to expurgate a passage from the famous Youngstown concurrence?

Apropos of Eugene's post, I have long wondered whether constitutional law casebook editors will need to expurgate a passage from Justice Jackson's famous Youngstown concurrence:

I did not suppose, and I am not persuaded, that history leaves it open to question, at least in the courts, that the executive branch, like the Federal Government as a whole, possesses only delegated powers. The purpose of the Constitution was not only to grant power, but to keep it from getting out of hand. However, because the President does not enjoy unmentioned powers does not mean that the mentioned ones should be narrowed by a niggardly construction. Some clauses could be made almost unworkable, as well as immutable, by refusal to indulge some latitude of interpretation for changing times. I have heretofore, and do now, give to the enumerated powers the scope and elasticity afforded by what seem to be reasonable, practical implications instead of the rigidity dictated by a doctrinaire textualism.

Comments

[James Zadok]

I think we've already been down this very road--quite a few times, actually.

https://en.wikipedia.org/wiki/Controversies_about_the_word_niggardly

[Nicholas]

You think you're so clever, but, yawn. Totally different etymology.

[ThanksForTheFish]

"Recently, a USC faculty member during class used a Chinese word that sounds similar to a racial slur in English. We acknowledge the historical, cultural and harmful impact of racist language," the statement read...(he) "agreed to take a short term pause while we are reviewing to better understand the situation and to take any appropriate next steps."

[Eugene Volokh]

Nicholas: I think Josh is well aware of the different etymology -- he is referring to the various incidents in which people complained about "niggardly" despite the etymology being completely different.

[Shadowy Agent]

plus he may still be salty because he got in hot water for writing a con law exam were he says that congress was impeaching lincoln for violating the constitution for freeing slaves.

[CJColucci]

Have you actually long wondered this, or are you just f*****g with people?

[Rev. Arthur L. Kirkland]

Which would be worse (or better) . . . that the falsehoods flow so easily, or that someone genuinely has fretted about this for years (or decades)?

[CJColucci]

I honestly don't know.

[Jonny Scrum-half]

Wow. This is the type of content produced by a respected law professor? After reading Instapundit I shouldn’t be surprised, but this is real 6th-grade level thinking here.

[Brian Kennedy]

What's the point of cluttering up comment sections with content-free insults? (Yours isn't the worst I've come across, you just happen to be that straw that broke my back on this.)

[Jonny Scrum-half]

Are you replying to me? If so, I don't think that my comment was "content-free" in any manner, although you sound like you don't like the content of what I wrote. I also don't see how I'm "cluttering up" the comment section.

[Brian Kennedy]

I was replying to you Jonny. So what was the content? Was it "The post is a ridiculous straw man attack on the supposed excesses of woke culture. Obviously, no one is going to cancel of niggardly."? Or was the content: "The post is a ridiculous straw man attack on the supposed excesses of woke culture. Even though someone using "niggardly" today is behaving badly, no one is going to cancel someone using it nearly a century ago."? Or was the content: "This passage isn't essential for pedagogical purposes and will cause harm or offense to some, and so professors and text-book writers shouldn't make the affirmative decision to quote this unnecessary passage."? Or is the content "This material is offensive and shouldn't be quoted."? I honestly don't know which, if any, of these different views or other views you meant to convey. So, if there was an intention to convey content, it failed. (I don't count "poster is a doo-doo head" to be content.)

[Jonny Scrum-half]

Okay, then, I'll give a shot at explaining myself. This post is an attempt to pretend that there's a real problem in America with people being "canceled" for silly things like using the perfectly legitimate word "niggardly." Have there been isolated instances of human beings making stupid judgments? Sure. But there's nothing that's worth getting upset about, especially if (like so many on the right) you don't get worked up about things like how Colin Kaepernick was treated for expressing his views, or how Col. Vindman has been treated for his testimony, or many other instances of "cancel" culture that isn't called that because it's just the way things work.

So, the short answer is that you were completely correct in the first sentence of your suggestions - the post is a ridiculous straw man attack on the supposed excesses of woke culture.

I don't happen to think that the use of "niggardly" is behaving badly, but I can't think of a situation in which I would feel compelled to use that word. Similarly, I can't think of a situation in which I would feel compelled to use the "actual" "n word" - although, again, I don't personally have any issues with people using that word (depending on context, of course).

Finally, my ultimate point is that people like Prof. Blackman and Prof. Volokh, while undeniably very intelligent, have opened my eyes to the fact that intelligence doesn't equate to good judgment or wisdom, and this post is a good example of how I came to that conclusion.

[Shadowy Agent]

let's not forget that after fox news reported confirmed the Trump/Military scandal he called for the reporter to be fired.