NINOMANIA
:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::
:: 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 [+] ::
...
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 [+] ::
...
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 [+] ::
...
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 [+] ::
...
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 [+] ::
...
:: David M. Wagner 5:31 PM [+] ::
...
:: David M. Wagner 5:05 PM [+] ::
...
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 [+] ::
...
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 [+] ::
...
