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 ::
:: 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 [+] ::
...
:: 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 [+] ::
...
:: Tuesday, November 19, 2002 ::
Asbestos plaintiff firm gets burned for forum-shopping.
:: David M. Wagner 12:00 PM [+] ::
...
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 [+] ::
...
:: 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 [+] ::
...
:: 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 [+] ::
...
:: 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 [+] ::
...
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 [+] ::
...
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 [+] ::
...
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 [+] ::
...
:: Tuesday, November 12, 2002 ::
:: David M. Wagner 3:08 PM [+] ::
...
:: 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 [+] ::
...
Welcome back...
...Charles Pickering and Priscilla Owen!
:: David M. Wagner 8:49 PM [+] ::
...
:: 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 [+] ::
...
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 [+] ::
...
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 [+] ::
...
:: David M. Wagner 12:00 PM [+] ::
...
Isn't con law great, folks?
:: David M. Wagner 10:33 AM [+] ::
...
:: David M. Wagner 12:56 PM [+] ::
...
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 [+] ::
...
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 [+] ::
...
:: David M. Wagner 5:41 PM [+] ::
...
:: David M. Wagner 5:32 PM [+] ::
...
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 [+] ::
...
:: David M. Wagner 3:08 PM [+] ::
...
Eve, that is -- writing on judges and originalism here and here.
RTFM!
:: David M. Wagner 8:54 PM [+] ::
...
...Charles Pickering and Priscilla Owen!
:: David M. Wagner 8:49 PM [+] ::
...
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 [+] ::
...
