NINOMANIA

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:: Saturday, December 28, 2002 ::

Re post immediately below:

Lest there be any misunderstanding -- I have absolutely nothing against turkey or goose!

A continuing Merry Christmastide and a Happy New Year. See you next semester.

:: David M. Wagner 7:20 PM [+] ::
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:: Tuesday, December 24, 2002 ::

Christmas greetings

Stuffing a turkey? Maybe a goose, if you're into hyper-Christmas? Here are few other things to stuff:

"Happy Holidays"
"Sparkle Season"
"Season's Greetings"
"Winter Holiday"
Frosty the Snowman
Rudolf the Red-Nosed Reindeer
Every Who down in Whoville
And, yes, even Santa Claus (for the reasons why, click here, here, here, and here)

Have a very, very merry CHRISTMAS!

:: David M. Wagner 5:59 PM [+] ::
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:: Friday, December 20, 2002 ::

Lott's out...

...of the Leader post, but not out of the Senate. Good job. It's an honorable decision, and he should be honored for it.

I don't think he's a "racist" if by that you mean someone who truly dislikes members of the disfavored race and programmatically tries to do them down. But I do think he's a son of a world in which counting by race was common. Notice how effortlessly (so far as appeared) he embraced affirmative action "across the board." Perhaps it's easier to reverse the direction in which you "count by race" than to stop counting by race, or to start doing so if you've been brought up not to.

What do I mean by that last line? Just this: I was brought up (in New York in the '60s) with a doctrine on race that I would describe as "liberal-integrationist." If you think that's not an adequate term, I'm open to others, but what I mean by it is the teaching that race "shouldn't matter," and that those who think it does are (at best) kind of mean, or (at worst) dangerously tribalist.

What I call "liberal-integrationism" is sometimes called "color-blindness," but I've always thought that's a silly name for it, since black and white are the only colors that color-blind people can see, aren't they?

Of course, back in 1960s New York, when we referred to "those who think race does matter," we had in mind primarily Bull Connor and George Wallace. But logically it applies to Jesse Jackson and Al Sharpton too. Too many people, then and now, focus on which race is getting favored by the law. Me, though I've changed my views in many other ways, I've kept my "liberal-integrationist" faith, which means I prefer to focus on whether any race is getting favored by the law, and if any is, I tend to suspect something unconstitutional is going on.

There are alternatives to color-blindness, on both left and right. Jesse Jackson would have us believe that the alternatives on the left are benign, and should be embraced in preference both to color-blindness and its alternatives on the right. So far, I'm not buying that. Tribalism comes all too naturally to fallen man, and most of its consequences are far from benign.

:: David M. Wagner 3:47 PM [+] ::
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:: Wednesday, December 18, 2002 ::

The Lott thing

Funny how Strom Thurmond, at age 100 and on the verge of retirement, can still roil national politics, albeit somewhat passively. (Insert your own off-color analogy to his various child-brides.)



Anyway, Lott should step down as leader, not solely because of the Strom remark, but because of that coming on top of his not being a very effective Senate leader.

His situation seems to be doing a classic Washington tailspin. See this Fox story, in which Bill Bennett, commenting on Lott's BET appearance, says: "Last night he was taking about being in support of every affirmative action program known to man. I mean next week he'll be in support of reparations and the candidacy of Al Sharpton."

As a further sign of his loyalty to his party, Lott is taking hostages: he is letting it be known that if ousted as leader, he will resign from the Senate, allowing Mississippi's Democratic governor to appoint a replacement. Then, the scenario goes, Chaffee will switch, and presto: a Deomocratic Senate again.

My question is, since he's already promised as part of his penance that if retained as Republican Leader he will lead as if he were a Democratic Leader, why shouldn't he threaten instead that if ousted as Leader, he will remain in the Senate but switch parties himself?

I speculate on this because I can't imagine someone like Lott relinquishing a Senate seat. OTOH, he may be thinking about how he could ka-ching on K Street, so maybe the resignation scenario isn't so far-fetched.

Anyway, in case he turns Dem, you read it here first.

:: David M. Wagner 1:47 PM [+] ::
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:: Monday, December 16, 2002 ::

For Tradition -- and defendants' rights!

Who says the Right is the side that advocates a return to drumhead trials in the criminal justice system? In Britain, Home Secretary David Blunkett is doing just that on behalf of Tony Blair's "Cool Britannia" Labor government.

That's not my personal opinion: it's that of Matthias Kelly, QC, new head of Britain's Bar Council, in an interview published in the famously conservative Daily Telegraph.

Traditionalists and due-process advocates, unite: you're on the same side! (And while you're at it, go re-read -- oh, say -- Kyllo, and the Maryland v. Craig dissent.)

:: David M. Wagner 11:49 AM [+] ::
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:: Friday, December 13, 2002 ::

NOW v. Scheidler II

Back on Dec. 4, the Court heard arguments in the latest round of the 15-year-old NOW v. Scheidler litigation, an attempt to use the RICO statute against abortion clinic protestors. Not surprisingly, Joe Scheidler's side is supported by a number of amici who are not opposed to abortion but who do use street-theater and occasionally trespassing to get their political message across.

See Juila Duin's excellent coverage for The Washington Times here.

I'll leave the injunction issue to one side for now. The main issue is whether Scheidler violated the Hobbs Act, such acts being the predicate for the RICO suit. The Hobbs Act makes extortion a federal crime, and one of the elements of Hobbs-Act extortion is "the obtaining of property." (N.B. Trespassing is a crime, but it is not extortion.)

In oral argument, counsel for NOW had to fight against the fact the Scheidler didn't obtain, or seek to obtain, any property. There are two ways to do this: broaden the notion of "obtain," so that to put a clinic out of business without making any financial gain thereby is to "obtain" property.

The other is to broaden the concept of "property." This the Court has famously done, with decisions in the 1960s and 70s that held that government employment and government benefits were a form of "property," building on Charles Reich's influential Yale Law Journal article on "the new property."

But here, NOW has to take "property" further than Prof. Reich ever did or than the Court has ever done. Hence this exchange, involving both Justices Scalia and Breyer, taken from Ms. Duin's account:

"So, a woman's right to seek services is property?" Justice Stephen G. Breyer asked.
"She's not just going shopping," Miss Clayton said. "She has made an appointment. If I am going to have a biopsy, I have a property right to that."
"Then," said Justice Scalia, "everything becomes property. If I say to you, 'Don't use that pen or I will do something unlawful,' does that mean I've obtained your pen?"
Miss Clayton said his action would have to involve force or violence to constitute extortion.

The Bush administration, for reasons Mr. Ashcroft may or may not care to explain at some point, is siding with NOW on the issue of the interpretation of the Hobbs Act. SG Ted Olson argued that upholding NOW's view on this issue would not threaten formerly-lawful labor protests, but Justice Scalia didn't buy it:

U.S. Solicitor General Theodore Olson assured justices yesterday that labor picketing would not be construed as extortion, but Justice Antonin Scalia questioned that argument.
"Why would you separate collective-bargaining demands from other demands?" he asked. "You're getting this language out of nowhere."

Nonetheless, ScotusBlog predicts a NOW victory....

:: David M. Wagner 5:53 PM [+] ::
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More on the Con Law exam

A student writes in:

I have two questions.
1. Do we have to cite case names on our exam?
2. In Question #1, since the Court has agreed to hear the case, are we to assume that Lawrence and Wayne's case has standing and there are no independent and adequate state law grounds where the Court can review the case? (This one may be a little to substantive, but it never hurts to ask...right?)

1. No -- and I think, forgive me, but I think I said this to the class about 800 times. :) You never have to cite cases on this exam. If you find it helpful to do so as a shorthand, fine, but not on first reference: on first reference, spell out the rule. On second and later references, you may (if you want) use the name of the case to stand for the rule.

2. a. If you think there's an argument against standing on these facts, make it. If you think standing is a slam-dunk, it nonetheless never hurts to put in a sentence stating briefly why they have standing.
b. The doctrine of "independent and adequate state grounds" is not one that we covered; you'll cover it in Fed Courts.

:: David M. Wagner 5:25 PM [+] ::
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"Greedy Clerks Board"

I've added this site to my margin, under "Other Important Sites." The site's self-description: "Clerkships 101 -- getting them, keeping them, and cashing in on them." Students -- feel free to click!

:: David M. Wagner 5:12 PM [+] ::
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:: Wednesday, December 11, 2002 ::

The latest proposals for a European superstate are getting pretty radical. (Note this misuse -- at any rate from an American point of view -- of the term "federalist.")

:: David M. Wagner 4:27 PM [+] ::
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:: Tuesday, December 10, 2002 ::

To my Constitutional Law students

Two questions from students (and BTW, I've taken the liberty of correcting spelling errors):

1. I have a question that I hope you can answer. On Question Two, the call of the question is to "Discuss the City's claim [that the Act is unconstitutional]." Does this mean not to addess certain matters that may be important to the Church (e.g., whether the Church received the appropriate procedural due process before their permit application was denied)?

Maybe this is semantics, but the call of the question may limit the discussion. Was this your intent?

Yes it was. My usual call is "Discuss." If the call directs your attention to a certain range of issues or to one side of a problem, go there and not elsewhere.


2. In Question 4 the call of the question references "East Dakota's 24-hour waiting period" - Was this supposed to reference West Dakota's 24-hour waiting period?

Yes.

:: David M. Wagner 5:20 PM [+] ::
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:: Thursday, December 05, 2002 ::

To my Criminal Law students:

A student asks:
Do you want us to delve into all of the culpability doctrines and all that?

That's a little too substantive for me to answer now that the exam has been given out, but I'll say this:

1. Questions 1 to 3 are the places for issue-spotting; Question 4 is the place for jurisprudence.
2. When you have a space limit, you have to prioritize.

I hope that helps.

Also, please note that starting NOW, I will be unavailable until Tuesday Dec. 10. Yes, I know that's the day the exam is due. But by now you've had a day and a half to spot ambiguities and raise questions by e-mail. The above question is the only one that has come in, so I assume the exam is clear enough.

Be seein' ya!

:: David M. Wagner 10:47 AM [+] ::
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:: Tuesday, December 03, 2002 ::

On second thought, maybe it is implicit in the concept of ordered liberty....

The Court has granted cert in a challenge to Texas's sodomy statute, thereby putting Bowers v. Hardwick into question. Here's the ACLU's take.

:: David M. Wagner 5:07 PM [+] ::
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To my Criminal Law students: The "call" of Question Two is "discuss," exactly like Questions One and Three. Sorry for the omission.

:: David M. Wagner 11:34 AM [+] ::
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:: Monday, December 02, 2002 ::

Since I haven't yet installed visit-counting software on this blog, I have no idea how many people I'm reaching. But one reader I know I have is Mitchell Freedman, who, despite the sophistication of his protests to some of my posts, insists he is not a professor! Today, Mr. Freedman writes in:

You quote some fellow saying, "....In today's pluralistic political atmosphere, where groups must compete in a Hobbesian political marketplace for government provision of greater security against real or imagined threats, an absolute right to be let alone easily becomes an absolute right to organize and recruit for the purpose of marketing a given lifestyle as widely as possible. In a Hobbesian world, real security against a violent end is the absolute power to bring such an end first."

Ewww...if I can tell you my emotional reaction to this fella's rant. He really hates homos, doesn't he? Note those buzz phrases "organize and recruit" and "a given lifestyle." Heck, you'd think he was talking about the Mob when he spoke in the sentence about "real security against a violent end is the absolute power to bring such an end first." But no, he's talking homos. Homos with guns maybe? Homo mobsters?

The sad thing is that stripped of its homo bashing, the point is not indefensible. If a group of people in a society want rights secured for them by the government for whatever reason, those who feel most strongly about it tend to organize and persuade (recruit?) others to their cause. They don't necessarily want to you be like them exactly, just to be sympathetic to their need for protection. Could that be nefarious? Like so much in life, it depends.

Seeing how a person actually applies his or her philosophy, meaning with examples, often allows us to see such person's real values, at least in my life experience. We can certainly see where this fellow's values lie, can't we? He thinks homos are reaching for the gun with their clamoring for equal rights, and he sounds like he's ready to beat them to the punch.

Well, I did write "Romer" in the margin of my copy the first time I read that paragraph. I figured if I was right, and if I blogged the passage in question, someone would confirm or disprove my inference, and Mr. Freedman has certainly stepped up to the plate!

As for the larger value system of Prof. Robert Lowry Clinton, Associate Professor of Political Science at Southern Illinois University, I can say only this. His first book, Marbury v. Madison and Judicial Review, grabbed my attention because it is a full-bore attempt to overthrow the prevalent "political" interpretation of Marbury -- what a smart cookie that John Marshall was, claiming a broad power of judicial review yet doing it in such a way that President Jefferson couldn't do anything about it, etc., etc. -- and to show that Marbury, as written, is well grounded in a Blackstonian conception of the role of a judge.

When Prof. Clinton came out with a second book called God and Man in the Law: The Foundations of Anglo-American Constitutionalism, I jumped so fast, the Amazon truck was here before I had pressed the Enter key.

So far, his argument seems to be that neither clause-bound textualism nor free-wheeling moral philosophizing are legitimate as means of interpreting the Constitution. Rather, one must reconstruct, through patient historical work, the thought-world of the Framers (including, of course, the Framers of all the amendments). But this does not mean making the judiciary a vehicle of conservative activism. On the contrary, Prof. Clinton believes that modern "broad-gauge judicial review," meaning the combination of judicial finality and "judicial freedom" (i.e. freedom to choose among interpretive modes) is not only undemocratic (as many mainstream scholars have already recognized), and also anti-constitutional.

In a footnote about a third of the way through the book, Prof. Clinton writes:

Put bluntly, one of my main theses is that judges, when dealing with cases and controversies, have no authority to decide whether they are going to be "textualists," "extratextualists,"
"interpretivists," "noninterpretivists," "indeterminists," or any such thing. Rather, they are obligated to decide every case in accordance with the traditional legal practices and professional standards applicable in their respective jurisdictions, and they are absolutely unqualified and unauthorized to do anything else.

Though defining these traditional practices will require my efforts for the remainder of this book (and probably a great deal more), it is worth saying now that, in my view, their authority has nothing to do with the ruminations, recommendations, or categorizations set up by legal academicians. It is also worth noting that the field of constitutional theory, from which these ideas spring, came into being only when influential academicians and judges began to believe that constitutional law failed to operate as a constraint on constitutional decisionmaking (see [Leslie] Goldstein, In Defense of Text, pp. 161-162).....

In other words, the combination of judicial finality and judicial freedom -- a novelty in American history, as Prof. Clinton argued in his first book -- has bred a generation of courtier-academics anxious to sell their political agenda (I'd say "agendas," but "agenda" is already plural) to the courts in the guise of constitutional theory. As Mr. Freedman acknowledges, the resulting constitutionalization of open-ended rights-claims produces culture clashes, or greatly exacerbates existing ones.

Mr. Freedman continues:

On another subject: I liked your cite today of Reynolds v Sims that voting is "a fundamental right." Nino didn't seem to believe that during the Bush v Gore arguments, though, did he?

If you compare the Court's opinions in Reynolds and Harper with the various dissents in those cases by those raving rightists Justices Harlan II and Black, it will be clear where Justice Scalia would have stood. But those decisions, whether rightly decided or not, are precedent, are they not? And it is at least arguable that, unlike some precedents, they are not incapable of principled application in later cases. So what were Rehnquist et al. supposed to do -- ignore them? What -- and be "lawless"??

There is indeed a "role reversal" in Bush v. Gore, but it's not the one the Left tears its hair out about. It's that precedents set in place by a liberal Court and venerated by liberal academics led to the election of a Republican President, by requiring the termination of a standardless (and hence unequal) recount procedure. What -- conservative Justices aren't supposed to decide cases on the basis of liberal precedents? What's up with that?

(Personally I think the Article II argument in Bush v. Gore was stronger than the Equal Protection argument, but that's another post.)

:: David M. Wagner 5:51 PM [+] ::
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To my students:

Welcome to Ninomania, the happ'nin' place for my review sessions. Here's the schedule:

Criminal Law: Mon. Dec. 2, 3 to 6 p.m., Rm. 114, and Tues. Dec. 3, 9 - 12, same room
Constitutional Law: Wed. Dec. 4, 3 - 6 p.m., Rm. 107

A student writes in:
Does the strict scrutiny standard of review get applied to equal
protection cases involving issues of voting?

Yes. Voting is a "fundamental right." See Reynolds v. Sims, Harper v. Va.Bd.of Elections. As Nowak and Rotunda put it, "any classification defining the ability to exercise that right must meet, under a strict scrutiny review, the dicates of the equal protection guarantee before the Court can sustain the measure as constitutional." Their cite on that point is to Harper.

:: David M. Wagner 11:35 AM [+] ::
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:: Sunday, December 01, 2002 ::

....In today's pluralistic political atmosphere, where groups must compete in a Hobbesian political marketplace for government provision of greater security against real or imagined threats, an absolute right to be let alone easily becomes an absolute right to organize and recruit for the purpose of marketing a given lifestyle as widely as possible. In a Hobbesian world, real security against a violent end is the absolute power to bring such an end first.

When the call for absolute individual freedom to choose one's own plan of life -- essentially, a right of privacy -- is conceived as a moral obligation by all others to refrain from interfering with the absolute right to propogate a given lifestyle as a viable alternative social state in Arrow's sense [cf. Kenneth J. Arrow, Social Choice and Individual Values, Yale U. Press, 1951], then the natural boundary that distinguishes private right from public power is eroded, for the range of allowable social orderings is preeminently public business.

-- Robert Lowry Clinton, God and Man in the Law: The Foundations of Anglo-American Constitutionalism, Univ. of Kansas Press, 1997, pp. 75-76

:: David M. Wagner 8:26 PM [+] ::
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:: Friday, November 29, 2002 ::

Speech in Florida

Click here for an account of a recent speech by Justice Scalia down in (hmmmm...) Tallahassee.

From the report:

"Every day in every way we get better and better," Scalia said, mocking that belief. "Society only matures; it never rots."

But he said that's a naively optimistic belief the Founding Fathers would not have agreed with.

Scalia said people who believe the Constitution is a living document argue such a theory of interpretation increases its flexibility. But, he said, it actually makes the document more rigid and removes issues like the right to abortion off the democratic stage.

Two observations:

1. The Justice's scorn for the notion that change is always "progress" and never "rot" is, arguably, a substantively conservative position, rather than a legal judgment of no particular political coloration. On the other hand: (a) he's right! and (b) his judicial application of this view is politically neutral: it lets the electorate, rather than the Court, determine what "change" requires, within the fairly expansive limits that the Constitution lays down as the electorate's meta-will.

2. How does judicial "flexibility" make the Constitution more "rigid"? Many may scratch their heads at this, but I think his meaning is this: the more "flexibly" the Court construes the Constitution, the more areas of life turn out to by micro-managed by constitutional law, and hence, by the unelected and life-tenured judiciary.

Furthermore, every such decision has the effect of inscribing the views of the legal elites at one particular historical point into constitutional law, where they are harder to dislodge than is ordinary legislation.

In short, this is the point he made in his dissent in the VMI case:

The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution.

:: David M. Wagner 3:53 PM [+] ::
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:: Tuesday, November 26, 2002 ::

Ashcroft and Eastland on the Patriot Act

I'm not entirely decided about the USA Patriot Act (I know, I know, how long can it take?). But since I implicitly dissed it on this blog a few days ago, I thought I'd mention that Mr. Ashcroft gave a strong defense of it in a speech to the American Swiss Foundation last Wednesday in New York. As an ASF Young Leader, class of 1997, I was there, and as a former DOJ speechwriter, I listened attentively.

The AG's main point was that the purpose of the Act, as recognized and applied by the FISA review court, was to break down the culture of non-cooperation that descended on the intelligence and law-enforcement communities in the late '70s, as part of the cultural afflatus of Watergate.

This culture prevented the intelligence community from communicating with the law-enforcement community, with negative consequences from the point of view of security --

Wait a minute, I hate all this polysyllabilism. What I mean is: all these dumb rules prevented the spies from talking to the cops, and that meant that far too many people got blown up. If 9/11 was "blowback" from anything, it was "blowback" from the Church Committee, the Levi Guidelines, and all that stuff that '70s nostalgists will remember but that had unaccountably remained in place.

That's not what the AG actually said, but I think it was his point. For a defense of that viewpoint by my former boss and fellow former DOJ speechwriter Terry Eastland, go here .

:: David M. Wagner 2:12 PM [+] ::
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:: Tuesday, November 19, 2002 ::

Asbestos plaintiff firm gets burned for forum-shopping.

:: David M. Wagner 12:00 PM [+] ::
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Today the federal judiciary teaches us that under the First Amendment we may be subjected to extensive new wiretaps, but at least we'll have the solace of knowing that when we walk into a government building, we will not be assaulted by the sight of the Ten Commandments.

Isn't con law great, folks?

:: David M. Wagner 10:33 AM [+] ::
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:: Monday, November 18, 2002 ::

The New York Sun reports on elite law-firm recuiting. (The Sun is New York's new conservative M-F daily newspaper.)

:: David M. Wagner 12:56 PM [+] ::
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:: Friday, November 15, 2002 ::

Substantive Due Process,
Procedural Due Substance,
Somebody Due Something!


A student writes in:

Professor Wagner,

Hello. Hope all is going well today. I have a quick question regarding
substantive due process (if there could be such a question).

You've got a question about substantive due process...! :)


In my study
group yesterday, we were discussing the proper steps in analyzing what to do
when we are faced with a DP problem. We were relying on certain steps that
you outlined for us in class, and it went something like this:

Substantive Due Process Requirements: (Is this a right where a SDP analysis
is appropriate, basically, what does a SDP question look like?)
1. The right we are defending is said to be set in the 14th (or 5th for
federal action)
a.Procedural: Assertion that the government cannot do a certain action
without giving me certain procedural protections
b.Substantive: Assertion that the government cannot do a certain action
REGARDLESS of any procedural protections, i.e., the government is forbidden from regulating this type of action
2.Right must be non-textual, i.e., it must be a fundamental right

I know what you mean, but still the phrase "the right must be non-textual" bothers me. What you mean, of course, is that s.d.p. doesn't even kick in if the right in question is textual.


Once we know we are dealing with a SDP issue, how do you resolve it?
1.Does precedent solve this problem for us? Has this issue already been
decided?

Right, and if it has, apply the legal analysis from the applicable decision. And feel free to criticize it.

a. Even though you may be bound in principle, you may be able to
differentiate your case from these cases
2. What if this issue has not been specifically addressed (novel issue)?
Precedent will give guidance, but not determinative.
a.Look at the text of the Constitution – read the manual – Scalia
approach


Well, yes, but as you've already noted, if we're in the s.d.p. arena at all, we must already have left the text behind. I stressed the "RTFM" principle because I don't want us ever to lose touch with the fact that this body of law is supposedly about a legal text. I.e., we must remember that it is -- ahem! -- "a constitution that we are expounding," not a college bull session about what rights people ought to have.


b.Look to the history and tradition to see if governments have been able
to regulate the area in question

Right. This is the Michael H. principle, the mechanics of which are further elaborated in Michael H. footnote 6. That footnote has only two Justices' signatures on it, but its basic approach has been adopted in more recent s.d.p. decisions such as Washington v. Glucksberg (physician-assisted suicide).

c. After that, look at any other language in previous cases that would
seem to either bolster or diminish the merits of your case
i.Analogies in relevant cases
ii.Dicta in other cases

My question is in regard to the second set of questions, i.e., what do we do
when we know we have a DP question. Do we first look to the Constitution
for guidance, or, alternatively, do we look to precedent as set by the
Supreme Court in regard to these areas. It would make some sense to look to
the Constitution, first, but, when we are dealing with DP, we are
necessarily asserting a right that is non-textual.

Bingo. Gold star.

As a result it seems
more pragmatic to see if the Court has already ruled on this issue - or on a
similar issue.

Correct. The analysis might begin: "As there is no textual right to [insert here the verb that you believe is implicit in the concept of ordered liberty], we turn instead to precedent, then to history and tradition...." As for h&t, don't worry, you will not be responsible on the exam for a specialist's knowledge of American history. We must not forget that it is a con law exam we are expounding!

Thanks for your guidance in this area. Additionally, I want to commend you
on keeping our class on Thursday (when we discussed sexual and racial
discrimination cases) from deteriorating into a Jerry Springer show. At
least no one started throwing chairs! It was an interesting class,
nonetheless.

Permit me to return the compliment! You all discussed those things in a very productive way.

:: David M. Wagner 2:26 PM [+] ::
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:: Thursday, November 14, 2002 ::

A poetry break...

Courtesy of Eugene Volokh, who appends the following as an introduction to NEA v. Finley, 524 U.S. 569 (1998), in his First Amendment casebook:


In the Neolithic Age savage warfare did I wage
For food and fame and woolly horses' pelt.
I was singer to my clan in that dim, red Dawn of Man,
And I sang of all we fought and feared and felt....

But a rival of Solutré told the tribe my style was outré –
’Neath a tomahawk, of diorite, he fell.
And I left my views on Art, barbed and tanged, below the heart
Of a mammolithic etcher at Grenelle.

This I stripped them, scalp from skull, and my hunting-dogs fed full,
And their teeth I threaded neatly on a thong;
And I wiped my mouth and said, “It is well that they are dead,
For I know my work is right and theirs was wrong."

-- Rudyard Kipling, In the Neolithic Age (1895)

:: David M. Wagner 7:29 PM [+] ::
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The Court has granted cert in a challenge to the Children's Internet Protection Act, which restricts access to pornography via computers at public libraries, with the goal, pretty obviously, of protecting children from such materials (and, less obviously, of calling to mind the Kipling poem reproduced supra). See AP story here. I will check into the briefs (pardon the expression) and the e-buzz, and comment if possible.

:: David M. Wagner 5:41 PM [+] ::
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Reading the Supreme Court's orders list for last Tuesday here, one gets the impression the Justices now have a button on their keyboard that automatically inserts the words "The judgment is vacated and the case is remanded to the United States Court of Appeals for the Ninth Circuit...."

:: David M. Wagner 5:32 PM [+] ::
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First fruits of them that win elections

The Senate Judiciary committee today approved the judicial nominations of Dennis Shedd and Professor Michael McConnell by a voice vote.

:: David M. Wagner 5:21 PM [+] ::
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:: Tuesday, November 12, 2002 ::

:: David M. Wagner 3:08 PM [+] ::
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:: Thursday, November 07, 2002 ::

Gotta read Tushnet.

Eve, that is -- writing on judges and originalism here and here.

RTFM!

:: David M. Wagner 8:54 PM [+] ::
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Welcome back...

...Charles Pickering and Priscilla Owen!

:: David M. Wagner 8:49 PM [+] ::
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:: Wednesday, November 06, 2002 ::

51 Republican Senators at least, 52 if Thune hangs on, and 53 if every Louisianan who voted against Landrieu does so again in the run-off.

Right, then. On with the show.

Interesting detail from Fox:

The tight congressional race in Mississippi's 3rd District was called in favor of Republican Rep. Charles W. "Chip" Pickering Jr. over Democratic Rep. Ronnie Shows. Some analysts had suggested Pickering benefited from voters angered by Senate Democrats' refusal to confirm his father to the Fifth Circuit Court of Appeals.

By the way, in case the Chief was ever thinking of, you know, settling down on an Arizona ranch to write his memoirs and watch the sunsets, the coming spring might, just might, be an opportune moment to move in that direction.

:: David M. Wagner 11:55 AM [+] ::
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:: Thursday, October 31, 2002 ::

Prof. Mitchell Freedman, my "faithful heretical fellow lawyer and blog reader," writes in:

Two quick comments:

1. Originalist judges would reject the 11th Amendment jurisprudence a la
Rehnquist 5--I know, I know, you say you agree, but you do run a pro-Nino
site. And an originalist would support a plenary or
ahem...liberal...interpretation of the commerce clause (I say liberal in the
sense of broad, not the usual modern epithet) consistent with Justice John
Marshall. The clause would not be, as the Rehnquist 5 have it, defined or
limited as in the late 19th Century cases. Therefore, the type of judge who
would be an originalist would look like Souter, not Scalia. I mean, after
all, don't you have to deal with the originalist John Marshall who talked
about an adaptable constitution in McCulloch or one of those very early
cases? This is why I find the whole "originalist/relativist" argument so
shallow.

Bravo for citing that McCulloch dictum correctly -- as supporting broad powers for Congress -- rather than (as one often sees it cited) as supporting broad powers for the Court. But, how broad? Certainly, broad enough to allow Congress to charter a national bank. But are there no outer limits?

Souter's answer -- in effect: no, there are no outer limits -- is neither textualist nor originalist. It is not textualist, because it fails to account for the text's enumeration of powers. If power to regulate commerce between the states = power to do anything Congress wants, what's the purpose of (to take one example among many) a separate intellectual property clause? And it is not originalist, because there are reems of original-intent evidence to the effect that a major selling point of the Constitution was that it granted Congress only limited powers., e.g. Federalist 45 (powers of Congress are "few and defined").

I agree that John Marshall was an originalist; see Christopher Wolfe, THE RISE OF MODERN JUDICIAL REVIEW. I also agree that he never saw a federal power he didn't like.

Yet he acknowledged in dicta in Gibbons v. Ogden that purely intra-state commerce is not regulable by Congress. He speaks there of transactions that "do not affect other states." Of course the New Deal Court built on that by giving us the Wickard doctrine of local commerce that "affects" interstate commerce. But were cumulative effects a discovery of the 1930s? Couldn't John Marshall, just as well as Robert Jackson, conceive of intra-state commerce as potentially "affecting" interstate commerce? Yet Marshall told us that intra-state commerce is beyond Congress's commerce power.

2. If private hospitals owned by religious organizations don't want to
perform abortions, there could be a problem in terms of forcing those
particular hospitals to perform abortions. On the other hand, "choice"
could also mean choice for the individual--with the business, i.e.
hospitals, being forced to allow abortions to be performed on their
premises. The analogy would be akin to civil rights laws which force
businesses not to discriminate on the basis of race or religion. I'm not
saying this is my final argument as I would like to think it out. You who
are opposed to abortion laws may have motivation to tell me how this analogy
is wrong.

Well, it sets up, as fungible claimants for moral respect, the person so opposed to racial integration or religious tolerance that he doesn't want his business to support these things, and the person who, being well schooled in the principles of moral complicity, does not want his business (and thus himself) to be party to (what he, though not the positive law, believes to be) homicide.

In other words, it's not about choice, it's about what's being chosen (or rejected). Which was my point.

Another way to look at it is to grant to each hypothetical claimant for moral respect -- the racist and the pro-lifer -- his premises, and then ask: What is it that the law is asking you to do, that you don't want to do? The racist: "Associate with inferior people." The pro-lifer: "Kill people."

Morally equivalent? Obviously not. We can grant each claimant his own worst-case scenario, and still see that the pro-lifer has a stronger claim.

The spreading tendency to coercion, flagged by Gallagher in her column, must be addressed by anyone who continues to insist that choice in general, rather than one particular choice, is what this is all about.

Certain rights-claims are marked by their inability to stay confined: they either grow or die. Some leaders of the ante-bellum South, despite their localist and agrarian-republican principles, aimed at a coast-to-coast slave-holding empire from the Potomac to the Equator, because the slavery "right" had to grow or die. Nor was the mere "choice" to own slaves enough: everyone, including abolitionists, had to come under a legal obligation (at least a conditional one) to aid that choice; hence the Fugitive Slave Act. The parallel -- the shrinking right to keep oneself from moral complicity in abortion -- is not reassuring.

:: David M. Wagner 3:59 PM [+] ::
...

:: Thursday, October 24, 2002 ::

Senate races: as New Hampshire goes...

National Review's John J. Miller surveys the latest polls. Bottom line: it appears the GOP's hopes of regaining the Senate boil down to New Hampshire.

Senator Bob Smith, ousted in a primary by former Rep. John Sununu, was one of the very few Republicans who recognized, as most Democrats do, that the era of consensus and comity in Supreme Court confirmations is over (assuming, without deciding, that it ever existed). When Justices Ginsburg and Breyer were confirmed by votes of Politburo-esque lopsidedness, Smith was always the one, or one of the two, risking political exile. Which he eventually got (though, to be sure, he helped himself to get there).

Though Sununu's primary insurgence has no doubt left Smith displeased with Sununu's general existence, he now has a golden opportunity to show how much he cares about getting qualified originalist/interpretivist judges through the Senate. If he would stop doing the Achilles thing and come out and campaign for Sununu, he would be doing much more for Republican judicial nominees than he did by casting quixotic votes against Clinton nominees.

:: David M. Wagner 3:41 PM [+] ::
...

:: Wednesday, October 23, 2002 ::

"Choice"

Columnist Maggie Gallagher reports here on efforts to address a perceived shortage of abortion clinics by forcing all hospitals to perform abortions.

Given this tactic, how much longer will NARAL et al. insist that their commitment is to "choice" as a neutral principle, transcending abortion itself?

:: David M. Wagner 11:14 AM [+] ::
...

:: Tuesday, October 22, 2002 ::

Pittsburgh and parents

Was in Pittsburgh this past weekend, to speak to the Pittsburgh Catholic Diocese's "Total Catholic Education Conference" about the constitutional law of parental rights and educational freedom.

Seeing that in the blurb I sent to the conference organizers last summer I included "a form of conservative constitutionalism" as one of the "threats" to Meyer and Pierce that I would address, I discussed Justice Scalia's dissent in Troxel and the general case against substantive due process.

Additionally, my gratifyingly large audience (it was a breakout session, and I had excellent competition) was very interested to hear about emerging critiques of the parental prerogative, especially the theories of James Dwyer and Meira Levinson.

:: David M. Wagner 4:19 PM [+] ::
...

:: Tuesday, October 15, 2002 ::

An Iranian mullah has called for the president of my university to be killed. But hey, at least Iran isn't run by the Religious Right!

:: David M. Wagner 5:31 PM [+] ::
...

It would appear Sen. Leahy kept up what the Wall St. Journal calls his "smackmouth" judicial politics while I was away. Click here for a country editor's take on the Dennis Shedd nomination.

:: David M. Wagner 5:05 PM [+] ::
...

You know those kooky activists who say the UN wants to micro-regulate parent-child relationships?

Turns out they may be right. Clicke here for Eugene Volokh's comments on the latest from the UN's Commission on the Rights of the Child.

:: David M. Wagner 5:01 PM [+] ::
...

:: Thursday, October 03, 2002 ::

The Man and the Death Penalty

Interesting debate taking place on JURIST here.

I'd chime in, but I'm leaving today for a week-long trip abroad, so I'll put in my two cents' worth when I get back.

:: David M. Wagner 10:12 AM [+] ::
...

:: Friday, September 27, 2002 ::

11th Amendment again

After teaching Seminole Tribe to my students, I resolved to try to figure out why The Man adheres to an 11th Am. jurisprudence that seems at odds with some of his interpretive principles. Here's what I come up with.

Turns out the fons et origo for Justice Scalia's views on how to interpret the 11th Am. is his dissent in Pennsylvania v. Union Gas, 491 U.S. 1 (1989), the decision that was overruled in Seminole Tribe.

There, he weighed in on issue that the plurality opinion of the Court left unresolved: whether or not to overrule Hans v. Louisiana, 134 U.S. 1 (1890), the case that held that the 11th Am. bars suits against non-consenting by in-staters, even though the text of the 11th speaks only of out-of-staters.

It's an audacious dissent, because it starts of disagreeing with Justice White on a statutory issue, rejecting White's reliance on legislative history. It then goes on to defend adherence to Hans -- based largely on the legislative history of the 11th Amendment!!

Well, with Justice Scalia, you know this is not just sloppy drafting. You know that this juxtaposition is designed to force us to ask: what's the difference in these two instances of legislative history?

One is that the legislative history of the 11th Amendment is not "canned," the way leg.hist. in Congress usually is (committee reports drafted by staffers under pressure from lobbyists, scripted floor exchanges, etc.) By contrast, the remarkable national outrage at the Supreme Court's decision in Chisholm v. Georgia, 2 Dall. 419 (1793), is clear evidence of a national legislative intent in the drafting and ratification of the 11th Amendment, the overarching purpose of which was to overrule Chisholm.

Now, granted, the 11th speaks only of state immunity against suit by out-of-staters. But the argument (as I understand it) is this: the Constitution, including the 11th Amendment, was drafted and ratified against a background of Common Law principles, including Common Law notions of sovereign immunity.

Of course, the people as sovereign legislator, in drafting the Constitution, are free to derogate from the Common Law. In Chisholm, the Court said the people had done so, big time, on the question of state sovereign immunity. Therefore, by enacting an amendment designed to make Chisholm go poof, the people, by clear implication, restored the previous doctrine of Common Law sovereign immunity that Chisholm had momentarily obscured.

Scalia's argument in Union Gas doesn't end there. So far, he has (I think) been trying more to explicate Hans than to state how Hans should have been decided as an original matter. He establishes that Hans is intelligible and defensible, not necessarily that it was correct.

Stare decisis and reliance interests take Scalia the rest of the way to his conclusion that Hans should not be overruled. He goes through the standard indicia of overrulability and finds that Hans does not qualify for the block: it is not obviously wrong, and it has generated considerable legal reliance interests (as distinct from personal lifestyle reliance interests, such as the Court referred to in Casey). So, we keep it.

I don't know if that's completely convincing, but there it is.

:: David M. Wagner 9:07 PM [+] ::
...

Estrada

I'm not going to orate as I did on Owen: just consider everything I said there as incorporated by reference here, mutatis mutandis. (And BTW, one of the things to mutatis is the spelling of "Owen": I corrected it, but my archives have inexplicably reinserted the erroneous "s" at the end of her name.)

Then go read Stuart Buck and Byron York.

:: David M. Wagner 6:54 PM [+] ::
...

Plagiarism

Go here for an update on the student plagiarism problem. (Scroll down to post that begins "Eve Tushnet made her observations....") The Old Oligarch's observations deal with undergrads, but law students in courses requiring term papers should read them too. Especially the part about how the plagiarism-detection websites now available to professors.

:: David M. Wagner 1:48 PM [+] ::
...

:: Wednesday, September 25, 2002 ::

Good post here by U. of Chicago's Prof. Jacob Levy contrasting the McConnell and Owen nominations; and here, on the pestiferous 17th Amendment, by Prof. Todd Zywicki, chez Volokh.

:: David M. Wagner 11:57 AM [+] ::
...

:: Friday, September 20, 2002 ::

The Justice is an opera fan, right? So am I, and so is my father, and my father has just published an article in Opera News (registration required) about buying opera recordings on-line. It details the many ways in which one can order records from the comfort of one's chambers.

The cite is Alan Wagner, "Windows Shopping," OPERA NEWS, October 2002, 38.

(I'm writing at home just now, away from my Blue Book, so someone correct me if I have not used the proper form for non-sequentially-numbered journals. And if there's a way to do large-and-small-caps in Blogger, please let me know.)

:: David M. Wagner 8:59 PM [+] ::
...

:: Thursday, September 19, 2002 ::

There's a USA TODAY profile of Our Hero, by Joan Biskupic, here.

It's generally a good piece, but I must reply to a few things that it is (as The Man once said in a much more important context) "beyond human nature to leave unanswered."

(USA TODAY in bold, me in plain type.)


He is especially critical of the middle-of-the-road reasoning of Justices Sandra Day O'Connor and Stephen Breyer. O'Connor, and to a lesser extent Breyer, have guided the court toward incremental changes in the law on issues ranging from abortion to crime and punishment. To them the law is fluid, the product of the specific facts of a case and evolving times.

Who elected "evolving times" to govern us, or the Justices of the Supreme Court to interpret "evolving times"? Article V is for "evolving times." The Court is for reading and applying the Constitution. Gaa, it's like talking to a brick wall.

Off the bench, the Catholic justice declared that any Catholic judge who wants to follow the church's stance against the death penalty, rather than legal precedent favoring it, should resign.

If the Church had a "stance against the death penalty," analogous to its teaching on abortion, as the article seems to imply, this hypothetical Catholic judge would be in a real bind. Read Evangelium Vitae -- not the whole thing, if you don't want to, but at least the capital punishment part. CP is specifically acknowledged to be potentially licit, though strongly discouraged. The Church's teaching on abortion is very different (something to do with the innocence of the killee).

Even so, Scalia is relatively young for a Supreme Court justice, and his influence could increase. With Republican George W. Bush in the White House and three justices (O'Connor, 72, Chief Justice William Rehnquist, 77, and John Paul Stevens, 82) possibly nearing the end of their tenures, Scalia eventually could be joined by other conservative appointees.

...Scalia's lack of influence on the court has led some analysts to speculate that his pointed opinions could be aimed as much at young lawyers who will be tomorrow's judges and attorneys general as they are at his colleagues.

All this grinning is giving me a headache.

Love him or hate him, students and scholars follow Scalia. That's partly because he's a wordsmith: He avoids legal jargon, and alternately quotes Shakespeare's Henry IV and the juvenile delinquents of West Side Story.

"People can actually understand his opinions," says Neal Devins, a law professor at the College of William and Mary in Williamsburg, Va. "Students remember Scalia opinions more than anyone else's."

Actually, he does use legal jargon, but in a way that shows sensitivity to English as well. The technical terms are all there, as many as necessary and no more, but with a flow that allows both lawyers and non-lawyers to follow his argument. Prof. Devins is exactly right.

But Georgetown University law professor Peter Rubin, president of the American Constitution Society, a nationwide group whose views are counter to Scalia's, says that "for all of his glibness, many students see that his vision is not faithful to the American tradition of respect for human rights and dignity."

One might expect to see "modern notions of" rather than "the American tradition of" in the above line. The claim as it stands is audacious.

Scalia has a reputation as the life of the party. He plays poker (sometimes with Rehnquist), sings and is a duck hunter. Scalia basks in his Italian heritage. He frequents the A.V. Ristorante Italiano in Washington, D.C.,

Darn tootin'. Best pasta in Our Nation's Capital!

taking anchovies on his pizza,

No joke? I started doing that too a little while back....

and once wrote to a reporter with whom he had sparred, "Nursing grudges is a very Sicilian vice, but ... not one of mine."

Oh, come, where's that old Rigoletto spirit? "Si vendetta, tremenda vendetta....!" (Just kidding, everyone.)

Before his appointment in 1986, Scalia had worked in the Nixon and Reagan administrations.

Nixon, not Reagan. He was Nixon's last AAG for OLC, holding that job during the impoundment controversy of 1974. And then in his dissent in Clinton v. NY he called Nixon "the Mahatma Gandhi of all impounders." Tee hee!

After he joined the high court, Scalia's aggressiveness irked some colleagues. He proved to be the opposite of Brennan: Rather than brokering compromises, Scalia fought over minutiae. It isn't unusual for him to join another justice's opinion, but to note that he doesn't agree with one paragraph.

Oh, sort of like footnote 6 in Michael H.?

Perhaps Scalia's most famous condemnation of O'Connor came in a 1989 abortion case, when he said her views "cannot be taken seriously."

And the way he cited Marbury there -- priceless! But "condemnation"? Come now. How about "critique of" or "dispute with"?

In 2000, when the court struck down Nebraska's ban on a midterm procedure it called "partial birth" abortion, Scalia's dissent again targeted O'Connor.

Kennedy, actually. That's because the dissent was aimed at those who thought the Casey compromise would allow for regulations such as the one struck down in Stenberg. That describes Justice Kennedy, not Justice O'Connor.

The pragmatic Breyer also is a regular foil of Scalia.

Except when they're together in an isolated dissent, as in Clinton v. New York.

During a forum at the University of Chicago last winter, he said that "the constitutionality of the death penalty is not a difficult, soul-wrenching question...."

Of course it isn't. The morality of the death penalty is a difficult, soul-wrenching question (to me, though not to Justice Scalia). The constitutionality of the death penalty is a real easy question. Or is everything that's immoral unconstitutional? Aren't you glad Justice Scalia doesn't think so?

The Rev. Robert Drinan, a Georgetown University law professor, says Scalia seems to adhere only to Catholic Church positions that match his conservative philosophy. Drinan calls Scalia's stance on executions "disappointing."

See reference to Evangelium Vitae, supra. I call the the Rev. Robert Drinan's casuistry disappointing.
(Yo, Father, hello! I used to attend your noon Mass at St. Joe's on the Hill from time to time!)

U.S. Appeals Court Judge Alex Kozinski is among the court observers who say Scalia is trying to influence the next generation while putting pressure on his colleagues. "The sheer power of his criticism forces legal thinkers to deal with his arguments," says Kozinski....

And deal they will.

:: David M. Wagner 4:40 PM [+] ::
...

I've added a few more "blawgs" to my right margin. More to come. Also, I'm planning another post on the 11th Amendment, and one on Chadha and Bowsher as nondelegation cases.

And by the way, if law students stop blogging, it's because of us law professors. Bwa-ha-ha-ha-ha-ha-hah!!

:: David M. Wagner 2:58 PM [+] ::
...

:: Saturday, September 14, 2002 ::

Jonathan Riley-Smith, Crusade historian

This post is first and foremost for the edification of my Regent Law colleagues, who asked me to post it. For other readers, please excuse the momentary divergence from constitutional law. If you like medieval history too, read on.

Cambridge historian/theologian Jonathan Riley-Smith (hereinafter JRS) is the world's leading authority on the Crusades. Besides The Oxford Illustrated History of the Crusades and A Short History of the Crusades, he has written particular studies of the demographics of the First Crusade, the idea of crusading, and the military orders.

Last week he was in our area as the Presidential Lecturer in History at Old Dominion University, Norfolk, Virginia. I had the honor of being asked to help host him thanks to Prof. Robert Holden, professor of history at ODU, and founder of the Tidewater Forum, an association of Hampton Roads-area Christian scholars.

In his public lecture on Sept. 12, JRS focused on the historiography of the Crusades in the past two centuries, and the impact of this historiography on mass movements. Among the things I learned (and any errors herein are mine alone):

* Saladin: This mediocre Crusade-era Muslim warrior was turned into a model of chivalry by Sir Walter Scott in his novel The Talisman. Scott, as both a medieval-nostalgist and a "lowlands Calvinist" (JRS's term), wanted to valorize the Crusades without also valorizing the Catholic Church. This agenda was eventually reflected in academic historiography in classic 4-volume History of the Crusades by Sir Steven Runciman -- another "lowlands Calvinist." The Talisman was widely translated and read, but not into Arabic. The transmission of the Saladin myth to the Muslim world was unwittingly carried out by Kaiser Wilhelm I when he made an ostentatious pilgrimage to the Levant, and build a monument to Saladin at his dilapidated tomb in Damascus. Today, Saladin is seen by radical Islamists as the very model of a Muslim major-general; Islamist pamphleteers commonly sign their works "Saladin." For centuries before the Kaiser's journey, JRS specifically noted, there is zero evidence of Muslims even knowing about Saladin, much less revering him. For that matter, he also insisted, there is no evidence that they had any consciousness of the Crusades at all until the late 19th century, despite their current claim to be heirs of nine hundred years of humiliation.

* Politically loaded uses of the term "Crusade": In France, the romantic royalism of the Restoration Era (1815-30) brought forth a school of Crusade historiography that aggressively valorized the Crusaders, the Church, and the French nobility. The historian Michaud is one of these writers. Several decades later, France and other European nations were using the Michaud view to justify imperialism. Today's Islamists -- who see all resistance to Islam, whether coming from Christians, capitalists, Israelis, or even Communists as "crusading" (yes, the Soviets in Afghanistan in the '80s were "Crusaders," you see, because they were fighting against Muslims) -- got this idea from the Michaud-influenced imperialists. They ought to stop, JRS says: "Crusading" is an identifiable movement -- a papally endorsed military pilgrimage -- and the term loses meaning when applied to virtually anything disliked by Islamists.

* The First Crusaders: From such of JRS's published work as I was able to peruse before meeting him, I learned that his computerized tab-keeping on individual Crusaders (enabling him and his graduate students to keep track of individual Crusaders who turn up at random intervals in the fragrementary sources) has shown that the First Crusaders were not, as commonly thought, ne'er-do-wells and useless third sons: they were often heads of families, people with something to lose. Their religious fervor may be totally alien to today's zeitgeist, but the notion that they didn't have any -- that it was only a cover for greed, etc. -- is, JRS believes, overthrown by the evidence.

* Women in the Crusades: In response to a question, JRS noted after his lecture that women played two roles in the Crusades. One was as actual Crusaders, much to the surprise of the Muslims. The other -- "infinitely" more significant, JRS says -- was as transmitters of Crusading culture within families. His tracking studies show that an individual male was much more likely to go on Crusade if his mother or wife came from a family with a Crusading tradition.

:: David M. Wagner 9:54 PM [+] ::
...

:: Wednesday, September 11, 2002 ::

And the result of the Florida gubernatorial primary is...

...unknown, due to voting irregularities, and the apparent loser, Janet Reno, is planning a challenge! (Click here.)

Back to the salt-mines, Florida election officials -- and this time, make sure everyone's Equally Protected! (Sigh....)

:: David M. Wagner 10:51 AM [+] ::
...

:: Tuesday, September 10, 2002 ::

National Review Online on Christian universities

Interesting NRO piece here on Christian higher education, in which my law school is mentioned.

Just one quibble: author Naomi Schaefer appears to agree with the view that "many Christian scholars have grown 'weary' of the 'culture-wars mentality, led by spokesmen such as Jerry Falwell and Pat Robertson,' which pits the religious against the intellectuals."

Not sure just what that means, but, as the rest of the article makes pretty clear, the idea at Regent and elsewhere is to reclaim and deploy a rich Christian intellectual tradition. Any "pitting of the religious against the intellectuals" (I assume we're using "religious" here to mean "people of religious conviction and motivation") is being done by our critics, not by us. We believe there is "no dichotomy" here, and we're trying to prove it.

If the cited remark means that more Christian leaders are moving from an activist paradigm to an intellectual and academic one, well, it's good that that's happening, and it's good that NRO has reported it.

:: David M. Wagner 1:54 PM [+] ::
...

:: Monday, September 09, 2002 ::

Owen mailbag

First come, first served.

Jim Nickens writes:

Oh come on.........
1. She got a hearing and a vote in the committee, more than many Clinton nominees
got.
2. ABA ratings are routinely derided by GOP hacks when they don't suit their purposes, and embraced
when they are favorable.
3. The GOP called the game and set the stakes on judicial nominations. Now they want to complain when they lose.
4. She was nominated for her ideological purity. There is no compelling reason she shouldn't be rejected on that basis.

Numbers 1 and 4 rather bounce off each other, don't they? If there's no compelling reason why Democrats (or rather, the Democratic leadership and those on the Judiciary Committee) shouldn't reject Owen for ideological impurity, surely there's no reason to complain of similar treatment of (a few) Clinton nominees. (BTW, did Clinton ever, as a courtesy either to his predecessor or to an adverse Senate majority, re-nominate a judicial candidate who had been nominated by his predecessor but not confirmed? I'm thinking of the esteemed Judge Gregory of the 4th Circuit, who, I'm proud to add, will be helping to judge a national moot court competition here at Regent next February.) On the ABA etc., more below.

T. Karney writes:

Mr. Wagner,
I see a couple of problems with your arguements (I can't address the
question of whether or not a single one of the judges nominated in the 16
years of the three presidents you mentioned were held from the floor, I
have not the data, so I shall take it as read, but the claim is sweeping).

The first is that, while not a judge, an ambassador was refused hearing
on te floor (and IIRC refused a hearing in committee) because Sen. Helms
was offended, personally, by the man's admitted homosexuality.

So that knife cuts both ways.

I can't speak for Sen. Helms himself, but -- assuming the reference is to the case of Mr. James Hormel -- the gentleman in question provoked entirely unnecessary opposition to his candidacy, not by his homosexuality per se, nor by being "out," but by his close association with a group in San Francisco whose stock in trade was scabrous, blasphemous, in-your-face mockery of the Catholic Church and its belief system, which is (as anyone with manners knows) also mockery of those who belong to that church and adhere to that belief system. Mr. Hormel refused to disassociate himself from that group in any way, despite repeated invitations.

Perhaps Sen. Helms would have maintained his opposition to Mr. Hormel even if the latter had issued a televised apology on prime time to all who had been offended (including Masons such as Sen. Helms, as well as Catholics). But as this was very far from what happened, the Hormel case remains a problematic one by which to assess any Senator's confirmation habits.

As this may apply to Justice Owen -- if she were a dues-paying member of Operation Rescue, at the Patron level, we would have a remote analogy to l'affaire Hormel.

Second is the bruitingof the ABA evaluation of the Judge in question.
If the Office of the President need not consider the rating when
nominating, why need the Senate consider it when deciding.
Sauce for the goose is sauce for the gander.

Very true, and this is the reason why I avoided exclusive reliance on Justice Owen's ABA rating. But surely Justice Owen's opponents are out there balancing the other end of the see-sawing skewer on which I am impaled: if high ABA ratings are effective to give a pass to ideologically charged Clinton nominees, and if low or mixed ones give effective cover to opponents of ideologically charged GOP nominees, then we have the same inconsistency in reverse. What's sauce for the gander is sauce for the goose.


Mitchell J. Freedman writes:

Wasn't the seat that Owens was going to fill the subject of two previous
Clinton nominees who didn't even get a hearing by Republican Senators?

I don't know. It seems unlikely that Senate Republicans could have gotten up the gumption to block (by whatever means) not one but two nominees for the same vacancy. But it is possible. (See Joseph A. Miller infra for more about GOP treatment of Clinton nominees, etc.)


If one takes a look at the records of Clinton nominees, one sees very few
"ideologues," unlike Bush nominees from what I've seen. One would think by
Bush's nominees that he won in a landslide and thinks he had a "mandate."

How to escape -- and whether escape is possible -- from ideologically driven use of terms such as "ideological" is a wonderful subject for academic research. In Blogistan, I don't believe it can be done. The second point here is more easily addressed. Is there any clause in the Constitution that conditions the President's powers on the margin of his election (either electoral or popular)? If so, why was it not discovered following the 1980 election?

Unlike Daschle's rather silly comment, Leahy's comments were more honest and
ultimately more sensible. And I would add that since Bush lost the popular
vote to a candidate who had his most disagreement with Bush over judicial
philosophies, why should Bush get any different treatment than Clinton
received at the hands of Republican Senators? Painting Daschle as, say,
Trent Lott...I wish. He's usually Tom Docile from where I see things.

Since Daschle's remarks were a major focus of my post, Mr. Freedman and I have a zone of agreement on this. I didn't catch Sen. Leahy's remarks. If they were along the lines of "Hey, this is culture-war politics, and we have the votes -- deal with it," then he would have earned much grudging respect from me.



I agree, however, with your point that this battle between Reeps and Dems
over judicial nominations is one important consequence of politicizing
issues within the judiciary. But I agree with that point less than I would
have thought. In terms of judicial activism, Baker v. Carr has nothing on
the mystical 11th Amendment/States' rights jurisprudence of the Rehnquist 5.

We may be closer here than Mr. Freedman thinks. As I have already blogged here, the Court's recent 11th Amendment jurisprudence hangs on a thin thread, and requires preferring precedent over text in a most un-Scalian fashion. As this line of cases develops, along with criticisms of it, I predict it will be a recurring feature of this blog.

And if I recall constitutional history, in terms of political activism, the
late 19th Century Supreme Courts beat Warren and his buddies by a mile. The
late 19th Century courts grafted corporate capitalism into our Constitution,
ignored the import of the 14th Amendment, overturned laws left and sometimes
right, etc. Rehnquist's pals are getting close to the late 19th Century
guys, though, I must admit, at least in terms of overturning laws by
judicial decision/fiat.

Are things at the point where defenders of (some of) the work of the Rehnquist Court are assumed to be defenders of Lochner as well? This ignores a verifiable fact -- that since the 1960s, under the intellectual leadership of Judge Bork and Justice Scalia, conservative constitutionalists have nailed to their mast the declaration that judicial activism is wrong in all its forms, and that the pro-business judicial activism of the Gilded Age was just as bad -- and bad for the same reason -- as the forms of judicial activism that emerged in the '60s.

Chuck Cooper, AAG for OLC under Reagan, used anti-judicial-activism quotes from Justice Robert Jackson to express the Reagan Administration's judicial philosophy -- and Rehnquist, let us not forget, clerked for Jackson. Mr. Freedman is preaching to the choir, if not to the curia.

And last but by no means least, Joseph A. Miller writes:

Dr. Wagner:
Re your blog article on the Owens nomination and the supposed obstructionism of the Democrats: Is your article supposed to be a joke, especially in its references to the "fair procedure" and upright behavior of the Republicans when Clinton was President? Why don't you tell us how many of Clinton's nominations were deliberately stalled by the Republican majority, especially at the behest of Jesse Helms, rightfully called by David Broder "the last outright white racist in the Senate"? But I shouldn't be surprised--I've come to understand that "conservative activists" like you will continually lie through their teeth and distort the record to win--at any cost.


Actually, any good game of "He Started It: Judicial Nominations Version" would have to include the potential Reagan candidates who never even made it to the nomination stage, because as soon as the administration sent the names to the ABA for its confidential evaluation, the names also ended up on the desks of the liberal interest groups, who then -- out of urgent moral necessity, of course -- shared their concerns, and the names, with equally concerned members of the media. The would-be-nominees thereby became "controversial," or even "embattled," which are Washington media-speak for "dying" and "dead," respectively.

How the groups got the names remains a mystery. Personally, I'd say Colonel Mustard, with the candlestick.


By the way, tell your friend Scalia that constitutional government finds its ultimate support in popular sovereignty, not God. If there were no God whatsoever, a powerful and convincing case could still be made for democratic-republican government. People like you and Scalia are a true threat to our country's Constitutional system, and are willing to bend the law out of all recognition in order to impose their "moral" vision on all of us.

Actually, Justice Scalia has defended almost the exact view of the sources of legal legitimacy that you espouse -- and has taken heat for it from religious conservatives. What I think the latter fail to understand is that the Justice does not read God out of the process altogether, but holds rather that in a regime committed to representative democracy, such as ours, the democratically accountable lawmaking process is the ordinary means by which the natural law (whether conceived in divine or secular terms) is to be implemented. So the natural law will be implemented if -- but only if -- the people want it.

This rules out (at least for purposes of the American regime) two alternative means of applying natural law: (1) unmediated recourse to revelation (not a popular choice, even among the "religious right," if Mr. Miller will credit me as a makeshift spokesman for this diverse and amorphous movement); and (2) discernment and enforcement of natural law by judges (all too frequent, Justice Scalia would say).

Mr. Miller should learn to recognize his allies on the Court.

:: David M. Wagner 9:59 AM [+] ::
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:: Friday, September 06, 2002 ::

Priscilla Owen

It's hard to add anything to the Wall Street Journal's editorial yesterday. The reduction of judicial confirmation to brass-knuckles ideological combat is perhaps best illustrated by the fact that the leaders of the current Democratic Senate -- unlike those of the Democratic Senate faced by Reagan in his last two years and by Bush the First in all four years, and the Republican Senate faced by Clinton in all but his first two years -- hasn't even allowed the controversial nominees to get to the floor.

They can't afford to: said nominees would be confirmed (Senator Miller of Georgia would vote with the Republicans), and Democratic Senate leaders can't afford that. They can alienate their liberal base on some issues, but not on judges. Because, regrettably, this is where the nation's real political issues -- unlike the ones we pretend to be interested in during presidential elections -- get fought out.

It's an unavoidable feature of the Warren legacy: no issue is too political to be outside the scope of judicial resolution under the 14th Amendment (see Baker v. Carr); indeed, perhaps the more politically charged it is, the more it needs judicial resolution (see Casey). So we have presidential and congressional elections over pot-hole issues, the great questions get judicialized, and the only politics that matters -- the only politics that deals with what human nature is and what the best regime is -- is fought out behind the scenes in the judicial appointment/confirmation process.

And since this is the only politics in which ultimate issues are implicated, it cannot suffer compromises. If "we" have the votes to kill "their" nominees on the floor, we'll send them to the floor. If not, we'll kill them in committee, even though this was not done even in the '80s or '90s, which were not exactly eras of peace and good will on the judicial appointment front. Whatever it takes.

The Washington Post's reporting was actually fair on this one, noting that Justice Owen received the highest possible rating from the ABA (though bracketing this information as a Republican talking point). Then comes Daschle: "I should say the message is this: We will confirm qualified judges. We've already confirmed 73 circuit and district court judges. Don't send us unqualified people."

It is to laugh.

Republicans, and others still caught up in antiquated notions of fair procedure that date from before scorched-earth politics came to the judicial nomination arena, stand aghast at someone entrusted with high political office labelling as "unqualified" a jurist of Justice Owen's standing, as measured in part, but by no means exclusively, by her triple-A ABA rating.

Indeed, who can tell whether there's still a human Thomas Daschle under there, who has difficulty looking at himself in the mirror. It doesn't matter. His party, sitting atop a rafer-thin Senate majority, has lost the confidence of many of its formerly reliable coalition members. He cannot afford to alienate coalition members who are still solidly in the party's camp. That includes the organized cultural Left, whose number one concern is the courts.

:: David M. Wagner 6:41 PM [+] ::
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:: Thursday, September 05, 2002 ::

APSA

That is, the American Political Science Association, and its annual conference, recently completed, in Boston.

First, I was very pleased at how my own paper "Civil Blood: the Political Science of Romeo and Juliet" was received. It was part of a panel called "Shakespearean Warriors," sponsored by the Claremont Institute.

For those of you who haven't made its acquaintance, Clarement is a wonderful think-tank out in California, centered around the "West Coast Straussianism" of Prof. Harry Jaffa. It is primarily interested in the American founding, seen as embodying certain permanent principles. In what I may call the Claremont view, the American founding borrowed judiciously both from the Enlightenment and from the Christian and classical traditions, and came up with a synthesis that was eventually undermined by the Progressive movement of the late 19th century.

Different schools of conservative thought locate the "original sin" of the USA at different points. Some Christian trads, especially Catholics of the Bozell school, see it in the (oft-exaggerated) "deism of the Founders." Southern conservatives see it in the triumph of industrialism and the defeat of localism in the Civil War, or even in the failure of the (mis-named) Anti-Federalists to prevent the adoption of the Constitution. Claremonters see it in the explicit rejection of 1780's constitutionalism by Woodrow Wilson, Frank Goodnow, Herbert Croly, and other theorists of the Progressive movement.

You'll notice I've declined to select a personal favorite among these views. I'll take my stand on this, though: Claremont puts on the best panels at APSA conferences. Besides the one at which I spoke, Claremont held panels on:

Ancient and modern views of property. Here, Prof. Jackson Barlow of Juniata College took issue with those who read Cicero as a proto-Lockean: Cicero defended property not as a natural right of individuals but as part of a Rome's balanced constitution; i.e. emphasizing the public good that comes from the institution of property, rather than the private goods of owners. Prof. Eric Claeys, a former Rehnquist clerk now teaching at St. Louis University Law School, argued that Founding-era concepts of property had environmental concerns (as we would call them today) built into them.

The American version of the "knight": Prof. Thomas Engeman, of Loyola University of Chicago, argued that pioneers, cowboys, "hard-boiled" detectives, and Mad Max are Americanized, democratized versions of the Christian knights of medieval and renaissance literature. Diana Schaub, of Loyola College (the one in L.A.?), the designated respondent, argued that these "knight" characters get less chivalrous and less Christian the more Americanized they become; one sensed she had a beef with Prof. Engeman for having obliged her to watch all three Mad Max movies.

A foreign policy based on Founding principles: In the shadow of a possible war with Iraq, Prof. Thomas West, of the University of Dallas, parsed Locke's Second Treatise closely and found there a duty on the part of the state to protect the life, liberty, and property of its citizens (but not necessarily those of the people of other nations!), and a right in Sovereign Nation A to attack Sovereign Nation B not only when SN A is attacked by SN B, but also when SN B has a "known and settled" plan to violate the lives, liberties, or property of the citizens of SN A.

Congratulations to the Claremont Institute folks, and to the APSA for including them among its "related group" panel organizers.

:: David M. Wagner 11:48 AM [+] ::
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:: Wednesday, August 28, 2002 ::

Can a law professor give a paper on Shakespeare at a political science convention? Well, in these interdisciplinary days, why not?

Anyway, that's what I'm fixin' to do this weekend at the APSA convention in Boston, courtesy of the Claremont Institute, whose interest in the political thought lurking in great literature is enduring and commendable.

Slim postings likely here at NINOMANIA until I get back.

"Yes, but every one will, in his way -- or in her way -- plead the cause of the new truths. If you don't care for them, you won't go with us."

"I tell you I haven't the least idea what they are! I have never yet encountered in the world any but old truths -- as old as the sun and moon. How can I know? But do take me; its such a chance to see Boston."

"It isn't Boston -- it's humanity!"

-- Henry James, The Bostonians

:: David M. Wagner 6:25 PM [+] ::
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Classes have started (for me, Constitutional Law and Criminal Law). I've had the experience of teaching Con Law to two different groups of students in one semester, but never before have I taught both of these courses to (substantially) the same students in the same semester. I guess it's no different from doing two different characters for (substantially) the same audiences during the course of a rep season, but it feels strange.

I see where the Bush administration is taking a hard stand on executive privilege with regard to presidential pardons, in response to Judicial Watch's lawsuit concerning the last-minute Clinton pardons.

Meanwhile, the 6th Circuit -- the same one that, according to some, rushed an affirmative action onto the docket before two of its most liberal members could retire -- has disallowed the closing of deportation hearings to the media on the mere say-so of the executive branch.

Not having read the background opinions, I'd venture that both of these developments show checks and balances at work. Judicial independence is a check (though not the most important one) on the executive's prosecution powers. This 6th Circuit opinion may be a tempest in a teapot, since it doesn't set a very high bar for closing these hearings: the executive branch just has to give some specific reason, beyond "We say so."

But judicial independence and a free press are not the most important checks on federal prosecutions that the Framers gave us: the most important one is political accountability. That's why independent prosecutors are such a bad idea: independent means unaccountable. (And of course, that's why Morrison v. Olson is wrong, and why Justice Scalia's Morrison dissent mega-rocks. Click on previous link and scroll down to the good stuff.)

Strangely enough, the pardon power is part of executive accountability, even when it's exercised (as it often is) by a president who is about to retire and therefore is not really *personally* accountable. Thanks to the pardon power, the President becomes in a sense personally responsible for *every* federal prosecution.

I admire Judicial Watch, and its counsel-impresario Larry Klayman; but I think their extensive document demands in this case would in the long run injure executive accountability.

:: David M. Wagner 6:01 PM [+] ::
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:: Saturday, August 24, 2002 ::

Speaking, debating, and leaking

The Washington Post reports today about the FBI seeking the phone and appointment records of Senate Intelligence Committee members for the period just after a top secret briefing at which were discussed certain Sept-11-sensitive FBI intercepts that were not translated until Sept. 12. News of this failure appeared in the media shortly after the Committee briefing.

Quite apart from the FBI's legitimate share in the executive branch's mandate to "take care that the laws be faithfully executed," one can understand its position here. Naturally, they don't like the public forming mental images of FBI agents feverishly translating on Sept. 12 a message that says "They're going to knock down the World Trade Center." Witticisms about envelopes marked "Open Immediately" are inevitable.

One can also understand Senators' fears for the independence of their branch of government. The Anti-Federalists of 1787-88 had nightmares about the proposed Presidency with its various monarchical features (as they saw it), such as reeligibility (i.e. no term limits).

On the other hand, the extent of the President's law-enforcement powers -- and therefore of the FBI's -- is the enforcement of the laws that Congress itself makes. If Congress wants to allow its members to leak sensitive data, it can try enacting such an exemption. The President of course would veto it: checks and balances work. Congress might override the veto; in that case, I don't think there'd be all that many sensitive intelligence briefings on the Hill any more. Once again, checks and balances work.

The constitutional text most on point is the speech and debate clause of Art. I Sec. 6 clause 1: "...and for any Speech or Debate in either House, they [i.e. Senators and Representative] shall not be questioned in any other place."

As the Post points out, Sen. Mike Gravel claimed the protection of this clause when he read portions of the Pentagon Papers into the Congressional Record back in the early '70s. But this claim was rejected in the courts: not because what Gravel did was not a legitimate contribution to deliberation over legislation (the courts wisely avoid making that distinction), but because the s&d clause is not a free pass for violating an otherwise-valid law. (So what is it for? Probably, to allow debate to flow without fear of libel suits.)

Anyway, if Gravel's s&d clause claim was a loser despite his taking the trouble actually to read that dreary prose into the Record, surely the same is true of the fly-by-night phone calls -- and document drops, for aught we know -- of the present Senate Intelligence Committe members and their staffs.

:: David M. Wagner 9:50 PM [+] ::
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More like me?

Well, I'm not changing the name of this blog, but it turns out I'm not the mouth-foamingest Ninomaniac on the block. Go here, then come back to me so I can look more moderate. (Strictly an illusion, of course!)

Thanks to Eve Tushnet for the link.

Oh, of course (where are my manners?): thanks also to Cacciaguida for linking to me.

:: David M. Wagner 2:51 PM [+] ::
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:: Tuesday, August 20, 2002 ::

11th Amendment and the Court's new federalism

Stuart Buck has an interesting post here summarizing widespread criticisms (some voiced lately by the venerable Judge John T. Noonan of the 9th Circuit) of the Supreme Court's recent federalism jurisprudence.

He writes:

On the Court and the 11th Amendment: [A]s should be obvious, the conservative majority has extended the 11th Amendment's protection to state governments far beyond what that amendment actually says. (It says that federal courts can't hear suits brought by a citizen of one state against another state. The Supreme Court has held that this means citizens can't sue their own state, and has extended the idea to state courts as well if the suit is based on federal law.)

This is a knotty one. Buck, Noonan, and my arch-textualist colleague John Tuskey are clearly right that the 11th Amendment says nothing about barring suits in federal court against the plaintiff's own state. So why does the Court's present majority (including Justice Scalia, though usually as a silent member on this issue) interpret it as if it contains such language?

One reason is precedent, namely, Hans v. Louisiana. Can a dubiously reasoned precedent be allowed in effect to add to the Constitution's text? Most post-1960 Supreme Court case law says of course it can, and con-law scholars from then until very recently relied on that assumption in spinning their theories about how courts should remake society. But today, scholars from Lino Graglia on the textualist Right (as distinct from the natural-law Right, e.g. Richard Epstein, Randy Barnett, Hadley Arkes) to Mark Tushnet on the (insert qualifier here) Left are questioning this assumption. So, of course, has Justice Scalia, often and sharply. What makes the 11th Amendment different?

Is it a simply a question of water under the bridge? Justice Scalia holds that on some issues, water has never passed under the bridge: Roe and Casey, for example. But this, he says, is not because of the inherent horribleness of those decisions, but because they give "us lawyers" nothing to work with (what's an "undue burden," anyway?), whereas there is nothing about the 11th Am. as interpreted by Hans that is not "lawyer's work."

Well, was Hans wrongly reasoned? It interpreted the 11th Amendment in light of its undisputed history: contrary to the assurances given by Federalists during the ratification struggle, the Court held in Chisholm v. Georgia in 1793 that states were wide-open to suit in federal court. The 11th Amendment was the result - the remarkably fast result, given the deliberately protracted nature of the amendment process, and the slow communications of the day. Congress produced the 11th in a mere three weeks after Chisholm was handed down -- and this was a Federalist-dominated Congress, which might have been expected to favor the result in Chisholm.

The Court in Hans relied in part on the sheer vehemence of the nation's rejection of Chisholm to conclude that 11th Amendment in effect enacted Justice Iredell's Chisholm dissent.

Is this a good reading of the 11th? Or does it amount to the use of legislative history to add to -- almost to contradict -- the plain wording, something that Justice Scalia rejects in statutory interpretation? Is there a reason to allow wider play for legislative history in constitutional interpretation? (Maybe the greater difficulty of amending the Constitution, as opposed to passing a statute, means the Court should be more careful to give effect to what the drafter and ratifiers "really meant." But surely this cuts both ways, because the same factor means that erroneous readings of "intent" by the Court are harder to correct in constitutional cases.)

Then there's the Court's limitations on Section 5 of the 14th Amendment -- the section that provides that "Congress shall have the power to enforce, by appropriate legislation, the provisions of this article." In a 1997 case (City of Boerne v. Flores), the Court essentially held that Congress can enforce the 14th Amendment, alright, but only if it does so to enforce the Supreme Court's view of that amendment. No disagreeing with the Court, in other words. That might sound uncontroversial, but it wouldn't have sounded so to the men who wrote the 14th Amendment. The Radicals and Republicans who adopted the 14th Amendment would have been astonished at the idea that what they had done allowed the Supreme Court, which they detested for its Dred Scott decision, to limit Congress's enforcement authority. One would expect the originalists on the Court to take notice of this. Oh well.

All true. But notice where it leaves us: if Congress can define as well as enforce 14th Amendment rights, then it is truly a government of general jurisdiction rather than one of enumerated powers. Did the framers of the 14th (which includes the states, remember) intend that?

:: David M. Wagner 1:32 PM [+] ::
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:: Tuesday, July 23, 2002 ::

I may not begin regular posting to this blog until the fall semester starts. On the other hand, that will be August 26. When did American universities turn to starting their "fall" semesters in the middle of summer? I'm sure it's not a "tradition" within the meaning of Footnote Six!

:: David M. Wagner 8:59 PM [+] ::
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