Constitutional Law
stcynic | April 29, 2005Jon Rowe has written a retraction of his charge that Herb Titus, former head of the Regent University law school, is a Christian reconstructionist. Titus took the time to write him directly and dispute that those are his views. The post caught my eye because I had conversations with Perry Willis, a frequent commenter here, and Jim Babka, the talk show host whose show I was on recently, about Titus. Both are friends with Titus, and his name came up in conversation with each of them, quite unconnected with each other and months apart. I told Perry months ago that I was under the same impression…
stcynic | April 26, 2005I can't be the only one who is sick and tired of hearing the right blather on about the "unprecedented" filibusters over a handful of Bush's judicial nominees. Bill Frist claims that the Democrats "radically broke with tradition and precedent and launched the first-ever filibuster of a judicial nominee who had majority support" in 2003. Not only is that a lie, Frist himself attempted a filibuster of a Clinton nominee for the 9th circuit, Richard Paez, in March of 2000. He was one of 14 Senators to vote for a filibuster of Paez. In fact, the Republicans attempted six filibusters of Clinton…
stcynic | April 26, 2005Timothy Sandefur has published a review of Randy Barnett's book Restoring the Lost Constitution: The Presumption of Liberty. The review is called The Normality of Freedom, and that is a good title. While he has some criticisms of what the book lacks, I think he captures the essence of the importance of Barnett's views here:
[T]he presumption of liberty, he writes, flows necessarily from the existence of inalienable rights. If rights preexist the state, then the government must always bear the burden of proving the necessity of its acts which limit or abridge those rights; if the government…
stcynic | April 20, 2005Orin Kerr has a pithy comment about Tom DeLay and his silly comments about how "outrageous" it is for Justice Kennedy to use the internet for research:
What's next? I fully expect DeLay to introduce H.R. 8615, The Stop Anthony Kennedy From Using the Internet Act of 2005. Stay tuned.
Professor Kerr, it should probably be noted, had the unusual experience (at least I think this is unusual) of leaving his position as a law professor to clerk for Justice Kennedy during the 2003 term, then returned to his teaching position.
stcynic | April 20, 2005Adam Cohen has an op-ed piece in the NY Times entitled Psst ... Justice Scalia ... You Know, You're an Activist Judge, Too. He writes:
The idea that liberal judges are advocates and partisans while judges like Justice Scalia are not is being touted everywhere these days, and it is pure myth. Justice Scalia has been more than willing to ignore the Constitution's plain language, and he has a knack for coming out on the conservative side in cases with an ideological bent. The conservative partisans leading the war on activist judges are just as inconsistent: they like judicial activism just…
stcynic | April 19, 2005Via Randy Barnett at VC, there is a new paper at SSRN from John Yoo and Sai Prakash, entitled The Origins of Judicial Review. This was the subject of much discussion recently in posts by me and by Josh Claybourn. It began with me criticizing Tom Delay for his absurd statement that, "The reason we had judicial review is because Congress didn't stop them," a statement which clearly indicates that Delay is opposed to judicial review itself, not merely to decisions he disagrees with. In doing so, he is offering up a blatantly anti-Constitutional argument. As I pointed out in response, he is flat…
stcynic | April 15, 2005One of the hottest selling books at the moment is Mark Levin's Men in Black: How the Supreme Court is Destroying America, currently at #8 on the New York Times bestseller list. I've not read this book, but I know the arguments in it. Anyone who has paid attention to conservative rhetoric at the talk radio level of discourse has heard all of the arguments before. Such books are aimed at what one might call the "pedestrian right", as opposed to the intellectual right. No serious conservative scholar would be anything but appalled by the low brow partisan boilerplate that is served up in the…
stcynic | April 14, 2005Wow, I somehow missed this story. Justice Scalia was visiting NYU recently to receive an honor from the law school and while he was there he met with law students and had a question and answer session, as he always does. The NYU newspaper tells what happened:
The Q-and-A opened with hostility as audience members expressed frustration with many of Scalia's opinions.In asking about Scalia's dissent in Lawrence v. Texas and his view that privacy is not constitutionally protected, Eric Berndt, a law student, shocked the crowd by asking, "Do you sodomize your wife?"
Scalia refused to answer the…
stcynic | April 13, 2005This began as a response to a comment by Eric Seymour in a post at In the Agora, but I'm moving it up here because the response became so long and delved into the details of constitutional interpretation so deeply that I thought it deserved to be its own post. It is addressed specifically to him, but I do not want anyone to think that I am picking on him specifically. Eric does a good job of presenting what is the most commonly heard conservative argument on "judicial activism" and the limitations on the government and the individual. You may also want to read the whole series of comments at…
stcynic | April 1, 2005A North Carolina woman has filed suit to overturn a state law against couples living together. Last year she was forced to quit her job as a dispatcher by the county sheriff when he found out that she was living with her boyfriend and was not married to him. And according to press reports, this isn't all that unusual:
In North Carolina, one of about half a dozen states with such a law, 33 people have been charged with the crime and 25 people have been convicted since 1997, according to the ACLU.
She will undoubtedly win the suit, particularly in light of Lawrence and other decisions. And…
stcynic | March 31, 2005Glenn Reynolds, the infamous Instapundit, has a Salon piece taking the Republicans to task for their ill-fated and ill-advised intervention in the Schiavo case, just as Judge Birch and many other conservatives have. Reynolds tends to the libertarian side of conservatism, being pro-gay rights and generally opposed to morals legislation. Unlike Judge Birch, he is certainly not a social conservative. He wrote an excellent law review paper on Robert Bork's 9th amendment difficulties that I read long before I knew about him as a blogger or even about blogging. It's nice to see so many…
stcynic | March 31, 2005CBS legal analyst Andrew Cohen lauds the example of Judge Birch and his brave stand for consistency yesterday. The more I think about it, the more remarkable it is. Judge Birch was essentially ending any possibility of being nominated to the Supreme Court (you don't win nominations by accusing both the White House and the Congres of brazenly flouting the Constitution for political gain), and he had been mentioned by many as a potential nominee because of his solidly conservative views and reputation. Cohen gets it right, in my view:
In the end, in my opinion, the only true unvarnished hero…
stcynic | March 31, 2005Judge Birch's bold upbraiding of the President and the Congress over the unconstitutional "Terri's Law", which attempted to tell the courts what sort of decision rules they should apply in a case, has attracted some interesting responses. Stephen Henderson's article on the opinion in the Knight-Ridder newspapers includes some choice quotes. First, a law prof:
"This is a judge who, through a political or policy lens, falls pretty squarely in the Scalia/Thomas camp," said law professor and constitutional expert David Garrow, referring to the two most conservative Supreme Court justices. "I…
stcynic | March 26, 2005Bert Brandenburg of Justice at Stake has a guest column on the American Constitution Society blog about the Schiavo case and recent instances of court-stripping legislation. Over the last few years, there have been many efforts to strip courts of jurisdiction in areas where they have issued rulings that are unpopular, particularly rulings unpopular with social conservatives. This goes back at least to the 1989 ruling in Texas v. Johnson, which struck down laws against flag burning. 16 years later, conservatives in Congress are still demagoguing that ridiculous issue, and in 2004 a bill was…
stcynic | March 18, 2005Have you ever had an issue that you thought you understood perfectly well, only to find out that what you thought you knew about it was totally wrong? It happened to me today regarding a Supreme Court case called Lamb's Chapel v Center Moriches School District. For several years I've thought that this case involved the Equal Access Act, a federal law that requires schools to not discriminate in allowing student-run clubs and organizations to use school facilities. This act has been credited with protecting the rights of students to organize bible clubs and prayer groups, and use school…
stcynic | March 15, 2005I was flipping channels and came across Justice Scalia speaking on c-span, just catching the last few minutes. It was a pretty standard Scalia speech, arguing for that only a principled originalism preserves the constitution's ability to maintain a stable and free society, in contrast to the notion of a "living constitution." But then he made this statement that, given Scalia's almost constant rhetoric against courts overruling legislative majorities, can only be described as baffling:
"I think the very terminology suggests where we have arrived, at the point of selecting people to write a…
stcynic | March 14, 2005Jon Rowe has a post that links to a fascinating exchange between Harry Jaffa, arguing for natural rights theory as the prism through which one must view Constitutional originalism, and Robert Bork and Lino Graglia, arguing the opposite. There is a big split among conservative legal theorists that the general public, including most people who identify themselves as conservatives, is generally unaware of. It can be viewed in various ways, such as libertarian-minded conservatives vs authoritarian-minded conservatives, but the lynchpin of the argument is the question of the role of the…
stcynic | March 11, 2005As a follow up to yesterday's post on competing constitutional interpretations, take a look at Jon Rowe's post on originalism and textualism. He writes:
I consider myself to be both an originalist and a textualist. Yet, I also believe that because certain parts of our Constitution were deliberately written in broad generalities, our Founders purposefully built flexibility into the document and intended it to be interpreted through the lens of law and life as understood by the present generations facing the particular case in controversy in question. I know my position generally isn't…
stcynic | March 5, 2005Only dedicated court watchers like me will find this funny, but it's bloody hilarious. Jack Balkin's prediction of the outcome of the Ten Commandments cases:Justice O'Connor upholds five, strikes down five.
Brilliant!
stcynic | March 4, 2005An Oregon appeals court has ruled against a school district that allowed the Boy Scouts to recruit on school grounds during school hours because the Scouts discriminate on the basis of religion. The report noted:
The court said while all students have been required to listen to an introductory presentation, "only the students who meet a religious test may accept the invitation to join."
That amounts to substantial evidence, the court said, that the district "subjects persons to differentiated treatment in a school activity on the ground of religion."
Now I'm sure we'll hear lots of screaming…