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An examination of the Framers’ arguments as to how the US Supreme Court would function: The Federalist Papers No’s. 78, 79, and 81

An examination of the Framers’ arguments as to how the US Supreme Court would function: The Federalist Papers No’s. 78, 79, and 81

This is a follow-up on yesterday’s post regarding the history of the Judiciary under republics. In that post I pointed out that the concept of an independent judiciary is a modern one that started in the era of Britain’s Glorious Revolution of 1688, and was radically expanded by the US Constitution.
How the framers envisioned the US Supreme Court fit into the scheme of three independent branches of government was set forth in The Federalist Papers numbers 78 through 83. Of those, 3 are not relevant to this discussion: Number 80, which deals with types of court jurisdiction, Number 82 on relations between the State vs. Federal judiciaries, and Number 83, explaining that the Constitution does not abolish trial by jury.
Below I quote extensively from Federalists numbers 78, 79, and 81, all written by Alexander Hamilton, grouping those quotes by subject matter, with cites at the end of each quote. I discuss the historical problems with Hamilton’s arguments thereafter.
Placing the Constitution’s plan in historical context:

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The 2020 Presidential and Senate nowcasts: in 2020 the “blue wall” looks very likely to hold, but expect surprises in the Senate

The 2020 Presidential and Senate nowcasts: in 2020 the “blue wall” looks very likely to hold, but expect surprises in the Senate

 

Here is my weekly update on the 2020 elections, based on State rather than national polling in the past 30 days, since that directly reflects what is likely to happen in the Electoral College.

At only 9 days from Election Day, the polls, while actually nowcasts rather than forecasts, are probably less than 1.75% off the final result. All of the fundamentals of the election are already “baked into the cake,” and it appears Trump’s attempt at an “October surprise” has fizzled. I’ve been suggesting for several months that some GOP voters would likely  “come home” in the closing days of the election, and that appears to be developing, with national polls generally tightening slightly.

Also, to reiterate what I wrote last week, unlike 2016, Biden’s lead been at very least steady for over 4 full months:

Not only that but as of yesterday almost 42% of the total number of ballots compared with 2016 have already been cast this year:

 

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A brief history of the Judiciary under Republics; the radical departure of the US Constitution, and how to reform it now

A brief history of the Judiciary under Republics; the radical departure of the US Constitution, and how to reform it now

I’ll have a note up, probably at Seeking Alpha tomorrow, on new home sales, which get reported later this morning.

In the meantime, especially with the likely confirmation of the 6th movement conservative Justice today, who will probably immediately start to rule on election issues, I want to flesh out in outline form my thoughts on the Supreme Court. I am going by memory in this note, so some of this info is not entirely correct and will need to be checked further.

1. Historically, the judiciary was not an independent branch of government. In monarchies, the sovereign typically could both appoint and remove judges at pleasure. In ancient and medieval republics, the Executive branch enforced the law. For example, in the Roman Republic, both consuls and praetors heard civil and criminal cases. In Venice, as memorably recounted in The Merchant of Venice, the final appeal was to the Doge. Sometimes the senior legislative body, like the Senate in Rome or the House of Lords in England, was the court of final appeal. In those republics, judges changed with each change of government.

2. The modern independent judiciary started with John Locke and the Glorious Revolution of 1688. After the revolution, the Act of Settlement provided that the sovereign appointed judges on the recommendation of Parliament. The judge served “on good behaviour,” (exactly as specified later in the US Constitution), but could be removed by the sovereign upon a petition agreed to by a majority of both Houses of Parliament.

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Coronavirus dashboard for October 20: some good news among the gloom

Coronavirus dashboard for October 20: some good news among the gloom

 

Total US confirmed infections: 8,273,296*

Average US infections last 7 days: 59,527 (vs. recent low of 34,354 on Sept 12)

Total US deaths: 221,052

Average US deaths last 7 days: 738 (vs. recent low of 689 4 days ago)

*I suspect the real number is 14-15,000,000, or over 4% of the total US population
Source: COVID Tracking Project

As we head into the cold weather, experts are warning that, as bad as the pandemic has been up until now, it is likely to be far worse over the next few months.

We’ll look at the bad news. But first, let’s look at some good news: 60,000,000 Americans live in two large States that have largely contained the pandemic – California and New York.

My benchmark, as usual is adjoining Canada, which most recently has averaged 6.34 infections per 100,000 people daily:

Canada’s most recent death rate has averaged 0.0534 per 100,000 over the past week (or roughly 1 death daily for every 2,000,000 people):

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Jobless claims: a very positive reversal

 

This week’s new jobless claims report not only reversed last week’s increase but declined below 800,000 for the first time on an *un*revised basis. I say that because revisions from two weeks ago now have that week as the lowest since the pandemic struck.  [NOTE: California has restarted reporting its claims, and has also reported for the past two weeks, and is the likely cause of the big revisions – generally downward, or positive.]

On a non-seasonally adjusted basis, new jobless claims declined by 73,125 to 756,617. This would be a new low, except two weeks ago was revised down to 731,249. After seasonal adjustment (which is far less important than usual at this time), claims declined by 55,000 to 787,000. This would be a new low as well, except two weeks ago was revised down to 767,000. The 4-week moving average also decreased by 21,500 to 811,250, a new pandemic low:

 

Here is a close-up of the last three months since the end of July highlighting the overall slow progress in initial claims since then:

 

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The 2020 election nowcast: Biden widens national lead; Senate races likely to follow Presidential result in each State

The 2020 election nowcast: Biden widens national lead; Senate races likely to follow Presidential result in each State

Here is my weekly update on the 2020 elections, based on State rather than national polling in the past 30 days, since that directly reflects what is likely to happen in the Electoral College.At only 16 days from Election Day, the polls, while actually nowcasts rather than forecasts, are probably less than 2% off the final result. With the exception of the last Presidential debate and any *significant* “October surprise,” all of the fundamentals of the election are already “baked into the cake.” Because some GOP voters will likely still “come home” in the next two weeks, I expect the race to tighten a little bit.

There are two big takeaways from the present situation:

1. In the Presidential election, Biden’s lead has not just been steady, but on a national level has been pulling decisively away from Trump, to the biggest lead of the entire year:

2. The Senate elections show very little variation from Presidential polling in the affected States. The only 4 States in which contrary results at the two levels look reasonably possible are Georgia, Iowa, North Carolina, and South Carolina.

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Two noteworthy tweets

Two noteworthy tweets

It’s a slow economic news week. Housing starts and permits are reported tomorrow, and jobless claims and existing home sales on Thursday. I’ll update the Coronavirus Dashboard Wednesday.  So for today, two nuggets.

1. Nate Silver discovers behavioral psychology:

This has been my paradigm for months. Panic breeds compliance with mask-wearing and social distancing. Complacency breeds risk-taking. Over time both trends wane, breeding the conditions necessary for the opposite outcome. Not only has this been true in almost all US States, but we have now seen the same dynamic play out in Europe.

Nice to see that Nate Silver is learning about learning.
2. What is the solution to the Supreme Court?

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Real retail sales continue (inexplicably) strong, still bode well for employment

Real retail sales continue (inexplicably) strong, still bode well for employment

 

This morning we got two important monthly September reports: industrial production and retail sales.

I have more to say about industrial production, and some general economic analysis about retail sales, which are pending at Seeking Alpha. I will post a link once that article goes up. UPDATE: Here’s the link: Link

For this blog, let’s focus on how real retail sales are likely to affect employment.

Just to start, here is are CPI adjusted retail sales. You can see that they have actually jumped once the Congressional stimulus kicked in, and have remained well ahead of pre-pandemic levels:

Figure 1

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Jobless claims: only one week’s data, but cause for significant concern

Jobless claims: only one week’s data, but cause for significant concern

 

Today marked the biggest increase in new jobless claims in two months, and one of the two biggest increases since May, while the slightly lagging continuing claims continued to decline.

On a non-seasonally adjusted basis, new jobless claims rose by 76,670 to 885,885. After seasonal adjustment (which is far less important than usual at this time), claims rose by 53,000 to 898,000. The 4-week moving average also increased by 8,000 to 866,250:

Here is a close-up of the last four months highlighting the overall glacial progress in initial claims since the beginning of August:

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Coronavirus dashboard for October 14: winter is coming

Coronavirus dashboard for October 14: winter is coming

Total US confirmed cases: 7,806,805*
Average cases last 7 days: 51,038
Total US deaths: 215,887

Average deaths last 7 days: 714*Actual cases probably more like 14 million, or over 4% of the US populationSource: COVID Tracking ProjectToday let’s take a look at the most recent upsurge in COVID not just in the US, but in the entire West.Here is the 7 day average of new cases per capita in the US, Canada, and the 5 most populous countries in Europe:

Every single country, even Germany, is experiencing an upsurge. France, Spain, and the UK are having an even worse outbreak than the US.

 

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