NINOMANIA

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:: Wednesday, December 24, 2003 ::

As we prepare to stuff turkeys and geese, I offer again my annual list of things to "get stuffed":

"Happy Holidays"
"Season's Greetings"
"Winter Holiday"
"Sparkle Season"
Frosty the Snowman
Rudolf the Red-Nosed Reindeer
Every Who down in Whoville
and -- this year, just because of Lawrence v. Texas and McConnell v. FEC, I'll add the Supreme Court to the list. Helps me prepare to teach Con Law next term, don't you know.

Now, get out your Charlie Brown Christmas ("Sure, Charlie Brown, I can tell you what Christmas is all about...."), and of course your Bible, and have a very, very merry CHRISTMAS!

:: David M. Wagner 11:35 AM [+] ::
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In defense of the Malvo sentence

The Virginian-Pilot's headline says "Malvo's Life Spared." I see what they mean, but still, that strikes me as an odd way to describe the fate of a man under 20 who is going to spend the rest of his many decades in the slammer.

I don't think we estimate life-imprisonment-without-parole at its true value. We tend to react to it as if it were a week in Cancun, just because it's not the death penalty. Get real.

I don't know how I would have voted in the penalty phase of either sniper case, but the Malvo decision is eminently reasonable.

:: David M. Wagner 11:31 AM [+] ::
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:: Tuesday, December 23, 2003 ::

Stuart Taylor The National Journal, on the campaign finance decision: December 10: A Worrisome Day for the Freedom of Speech

:: David M. Wagner 6:40 PM [+] ::
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Washington Times: Majority in U.S. Opposes Same-Sex Marriage

:: David M. Wagner 6:25 PM [+] ::
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:: Sunday, December 21, 2003 ::

Daily Telegraph (London): Tory peers angry at Howard's stand on transsexuals
By Colin Brown, Political Editor
(Filed: 21/12/2003)

Furious Conservative peers demanded last night that Michael Howard withdraw his party's support for the Government Bill to give new legal rights to people who change sex.

:: David M. Wagner 7:12 PM [+] ::
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:: Saturday, December 20, 2003 ::

The Model Penal Code's sexual offenses provisions were quite radical enough in their time, but radicalism has moved on since then, and it's time for the MPC to do so too. Or so it's argued here.

:: David M. Wagner 3:38 PM [+] ::
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:: Friday, December 12, 2003 ::

BCRA case, cont.: On running down the street hollering

My colleague, Prof. Tom Folsom, cautions against the optimism I expressed here about the continuing freedom of this form of political speech. If the runner/hollerer is an hourly employee, the time he spends running and hollering could constitute an imputed political contribution by his employer, and be regulable as such.

Ah, but what if he takes his clothes off? "Expressive conduct"....

:: David M. Wagner 12:22 PM [+] ::
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More on the campaign finance decision

On principle I don't link to the New Orc Times, but here is how Linda Greenhouse leads off her "news analysis" on the campaign finance decision:

The Supreme Court that upheld the new campaign finance law on Wednesday was a pragmatic court, concerned less with the fine points of constitutional doctrine than with the real-world context and consequences of the intensely awaited decision.

What do we have a Supreme Court for, if not to apply "the fine points of constitutional doctrine" when Congress is tempted to ignore them? "Real-world context" is for consideration by those leaders who face reelection; "fine points of constitutional doctrine" are for consideration precisely by those who do not.

Anyway, since when is free speech a "fine point"? What makes it a "finer" point than, say, "privacy" and "autonomy", when free speech is in the text and privacy and autonomy are not?

"Fine points," my "left behind".

:: David M. Wagner 11:35 AM [+] ::
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:: Thursday, December 11, 2003 ::

As democracy, properly so called, gives way to "managed democracy" in Russia and elsewhere, and while the punditocracy focuses exclusively on anti-terrorist measures as the active threat to democracy in this country, we need to think about what Congress and the Supreme Court have just done to the right to speak out effectively against elected politicians.

Here is Justice Scalia's dissent in the campaign finance decision. Before I reprint excerpts, I'll just add that the First Amendment's speech and press clauses now offer blanket protection only to soft-core pornography. As for political speech, I still see a great future for running down the street hollering. As far as I know (and content-neutral nuisance laws to one side), you can still do that, for now, even within 60 days of an election!!

OK, here goes:

This is a sad day for the freedom of speech. Who could have imagined that the same Court which, within the past four years, has sternly disapproved of restrictions upon such inconsequential forms of expression as virtual child pornography, Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), tobacco advertising, Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001), dissemination of illegally intercepted communications, Bartnicki v. Vopper, 532 U.S. 514 (2001), and sexually explicit cable programming, United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000), would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government. For that is what the most offensive provisions of this legislation are all about. We are governed by Congress, and this legislation prohibits the criticism of Members of Congress by those entities most capable of giving such criticism loud voice: national political parties and corporations, both of the commercial and the not-for-profit sort....

[T]he present legislation targets for prohibition certain categories of campaign speech that are particularly harmful to incumbents. Is it accidental, do you think, that incumbents raise about three times as much “hard money”–the sort of funding generally not restricted by this legislation–as do their challengers? Or that lobbyists (who seek the favor of incumbents) give 92 percent of their money in “hard” contributions? Is it an oversight, do you suppose, that the so-called “millionaire provisions” raise the contribution limit for a candidate running against an individual who devotes to the campaign (as challengers often do) great personal wealth, but do not raise the limit for a candidate running against an individual who devotes to the campaign (as incumbents often do) a massive election “war chest”? And is it mere happenstance, do you estimate, that national-party funding, which is severely limited by the Act, is more likely to assist cash-strapped challengers than flush-with-hard-money incumbents? Was it unintended, by any chance, that incumbents are free personally to receive some soft money and even to solicit it for other organizations, while national parties are not? [Internal cites omitted. They are available at length in the published dissent.]

In any economy operated on even the most rudimentary principles of division of labor, effective public communication requires the speaker to make use of the services of others. An author may write a novel, but he will seldom publish and distribute it himself. A freelance reporter may write a story, but he will rarely edit, print, and deliver it to subscribers. To a government bent on suppressing speech, this mode of organization presents opportunities: Control any cog in the machine, and you can halt the whole apparatus. License printers, and it matters little whether authors are still free to write. Restrict the sale of books, and it matters little who prints them. Predictably, repressive regimes have exploited these principles by attacking all levels of the production and dissemination of ideas. See, e.g., Printing Act of 1662, 14 Car. II, c. 33, §§1, 4, 7 (punishing printers, importers, and booksellers); Printing Act of 1649, 2 Acts and Ordinances of the Interregnum 245, 246, 250 (punishing authors, printers, booksellers, importers, and buyers)....

History and jurisprudence bear this out. The best early examples derive from the British efforts to tax the press after the lapse of licensing statutes by which the press was first regulated. The Stamp Act of 1712 imposed levies on all newspapers, including an additional tax for each advertisement. 10 Anne, c. 18, §113. It was a response to unfavorable war coverage, “obvious[ly] … designed to check the publication of those newspapers and pamphlets which depended for their sale on their cheapness and sensationalism.” F. Siebert, Freedom of the Press in England, 1476—1776, pp. 309—310 (1952). It succeeded in killing off approximately half the newspapers in England in its first year. Id., at 312. In 1765, Parliament applied a similar Act to the Colonies. 5 Geo. III, c. 12, §1. The colonial Act likewise placed exactions on sales and advertising revenue, the latter at 2s. per advertisement, which was “by any standard . . . excessive, since the publisher himself received only from 3 to 5s. and still less for repeated insertions.” A. Schlesinger, Prelude to Independence: The Newspaper War on Britain, 1764—1776, p. 68 (1958). The founding generation saw these taxes as grievous incursions on the freedom of the press. See, e.g., 1 D. Ramsay, History of the American Revolution 61—62 (L. Cohen ed. 1990); J. Adams, A Dissertation on the Canon and Feudal Law (1765), reprinted in 3 Life and Works of John Adams 445, 464 (C. Adams ed. 1851). See generally Grosjean v. American Press Co., 297 U.S. 233, 245—249 (1936); Schlesinger, supra, at 67—84....

But what about the danger to the political system posed by “amassed wealth”? The most direct threat from that source comes in the form of undisclosed favors and payoffs to elected officials–which have already been criminalized, and will be rendered no more discoverable by the legislation at issue here. The use of corporate wealth (like individual wealth) to speak to the electorate is unlikely to “distort” elections–especially if disclosure requirements tell the people where the speech is coming from. The premise of the First Amendment is that the American people are neither sheep nor fools, and hence fully capable of considering both the substance of the speech presented to them and its proximate and ultimate source. If that premise is wrong, our democracy has a much greater problem to overcome than merely the influence of amassed wealth. Given the premises of democracy, there is no such thing as too much speech.

....If the Bill of Rights had intended an exception to the freedom of speech in order to combat this malign proclivity of the officeholder to agree with those who agree with him, and to speak more with his supporters than his opponents, it would surely have said so. It did not do so, I think, because the juice is not worth the squeeze. Evil corporate (and private affluent) influences are well enough checked (so long as adequate campaign-expenditure disclosure rules exist) by the politician’s fear of being portrayed as “in the pocket” of so-called moneyed interests. The incremental benefit obtained by muzzling corporate speech is more than offset by loss of the information and persuasion that corporate speech can contain. That, at least, is the assumption of a constitutional guarantee which prescribes that Congress shall make no law abridging the freedom of speech.

But let us not be deceived. While the Government’s briefs and arguments before this Court focused on the horrible “appearance of corruption,” the most passionate floor statements during the debates on this legislation pertained to so-called attack ads, which the Constitution surely protects, but which Members of Congress analogized to “crack cocaine,” 144 Cong. Rec. S868 (Feb. 24, 1998) (remarks of Sen. Daschle), “drive-by shooting[s],” id., at S879 (remarks of Sen. Durbin), and “air pollution,” 143 Cong. Rec. 20505 (1997) (remarks of Sen. Dorgan).... [I]t is not the proper role of those who govern us to judge which campaign speech has “substance” and “depth” (do you think it might be that which is least damaging to incumbents?) and to abridge the rest.

....I cannot say for certain that many, or some, or even any, of the Members of Congress who voted for this legislation did so not to produce “fairer” campaigns, but to mute criticism of their records and facilitate reelection.... [But] “[t]he fundamental approach of the First Amendment . . . was to assume the worst, and to rule the regulation of political speech ‘for fairness’ sake’ simply out of bounds.” Austin, 494 U.S., at 693 (Scalia, J., dissenting). Having abandoned that approach to a limited extent in Buckley, we abandon it much further today.

We will unquestionably be called upon to abandon it further still in the future. The most frightening passage in the lengthy floor debates on this legislation is the following assurance given by one of the cosponsoring Senators to his colleagues:

“This is a modest step, it is a first step, it is an essential step, but it does not even begin to address, in some ways, the fundamental problems that exist with the hard money aspect of the system.” 148 Cong. Rec. S2101 (Mar. 20, 2002) (statement of Sen. Feingold).

The system indeed. The first instinct of power is the retention of power, and, under a Constitution that requires periodic elections, that is best achieved by the suppression of election-time speech. We have witnessed merely the second scene of Act I of what promises to be a lengthy tragedy. In scene 3 the Court, having abandoned most of the First Amendment weaponry that Buckley left intact, will be even less equipped to resist the incumbents’ writing of the rules of political debate. The federal election campaign laws, which are already (as today’s opinions show) so voluminous, so detailed, so complex, that no ordinary citizen dare run for office, or even contribute a significant sum, without hiring an expert advisor in the field, can be expected to grow more voluminous, more detailed, and more complex in the years to come–and always, always, with the objective of reducing the excessive amount of speech.

:: David M. Wagner 4:37 PM [+] ::
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:: Wednesday, December 10, 2003 ::

Tony Perkins, the new President of the Family Research Council, in his letter to constituents, gets it spot-on about the campain finance law and today's decision upholding it:

It will protect incumbent Members of Congress from being defeated but it harms the public's interest, and our First Amendment right, to participate in our cherished democracy. For this reason, the law was opposed in Congress by a wide cross-section of groups, from FRC to the ACLU.

Many will say that the Court's ruling today is a political victory for the Republican Party, and that may well be why President Bush signed BCRA into law. Republicans hold an enormous advantage in still-permitted "hard-money" donations, which allow individuals to give $1000 per candidate per election. Yet it makes a shambles of the Freedom of Speech provisions of the U.S. Constitution.

I love it when the "far right" and the "far left" band together to protect freedom of speech. But I hate it when they lose.

:: David M. Wagner 6:58 PM [+] ::
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The Court has upheld most of the campaign finance law. It's one of the Court's most fractured set of opinions, and that's why the blogs are being slow to tell you what it means. But at a minimum, the ban on "soft money" was upheld, and so was the most 1st-Amendment-offensive portion of the McCain-Feingold monstrosity: the ban on "issue ads" close to an election date.

Political speech lies at the center of the core of the heart of the 1st Amendment. Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 INDIANA LAW JOURNAL 1 (1971). Yet the Court is getting us to a point where political speech can get regulated into powder, but pornography and nude dancing are hedged about with protections and can be regulated only thinly if at all.

:: David M. Wagner 2:39 PM [+] ::
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:: Tuesday, December 02, 2003 ::

To my students: One of you asked me privately "How do I get an A," and, believe it or not, I've actually written an answer. Not a handy-dandy, no-fuss-no-muss, hotsy-totsy-worked-on-Trotsky answer, but some helpful hints.

You can maximize your grade by doing the following. (Please note that your grade will depend on how well you do these things.)

* Spot all the issues.

* Allocate your space (I'd say "time," but, since this is a take-home, "space" is more relevant) so that the more important issues get more space, and the less important issues get less.

* The two main factors that may make an issue "more important" within a given question are: (1) to what extent does this issue dominate the fact pattern as given? And (2) how much time did we spend on this issue in class? Of course, I will try to design the exam so that these two factors pull in the same direction.

* Don't over-write on the "R" part of IRAC. There are no points available for giving details about a rule beyond those that are applicable to the fact pattern as given.

* In dealing with major issues, you are encouraged to argue "in the alternative," i.e., giving both sides. Use the "C" part of IRAC to state briefly which argument you think is better, and why.

* Interpret the "A" in IRAC as meaning "application," i.e., application of rule(s) to facts.

* In areas where there's an over-abundance of alternative rules, such as the actus reus of attempt, just pick any two. If possible, pick two that lead to opposite results.

* Don't cite cases, and don't recite the facts of cases. Just apply the rules we've studied to the facts in the exam.

:: David M. Wagner 11:18 AM [+] ::
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:: Monday, December 01, 2003 ::

To my students: Review sessions are now scheduled. Bring your questions: no new content will be introduced. Feel free to attend only part of the session(s).


Criminal Law: 12/1/03 2-5pm RH 105 -- TODAY


Con Crim Pro: 12/2/03 2-5pm RH 107

:: David M. Wagner 12:07 PM [+] ::
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An excellent op-ed on morality as a "rational basis" for legislation

This needed saying. Unfortunately, the headline that the Washington Post slapped on it -- "Undermining Society's Morality -- is gravely misleading: it implies that the essay is one more screed about same-sex marriage being bad for the social fabric. Well it is, and I've made a down payment on arguing that case here, but Raul is making an equally important point: notwithstanding Planned Parenthood v. Casey and Lawrence v. Texas, not only can we base legislation on moral notions -- we do so all the time.

In fact, there's no other way to legislate. Whatever utilitarian or aesthetic justifications may be cited for a particular measure, there's always a moral justification (usually unarticulated) at its base.

So if all legislation based on morality is unconstitutional, then, according to Casey, all legislation is unconstitutional. Alternatively, all legislation may be based on arbitrary will -- in which case it would again be unconstitutional, because "rational basis" scrutiny, whether in Lochner, in Cleburne, or in Lawrence, rules out legislation for which no justification beyond legislative will can be cited.

Either way, all legislation would be unconstitutional. I presume this is what Scalia meant when he said in his Lawrence dissent that the Casey "mystery passage" either means nothing, or else it's "the passage that ate the rule of law."

:: David M. Wagner 11:37 AM [+] ::
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:: Monday, November 24, 2003 ::

We're now covering theft in my Criminal Law course. Any crim-law casebook, imho, should take an historical approach and include that old chestnut from 1473, The Carrier's Case.

Here's my song about it:

WOAD RUNNER

That Judge Bryan is really a crazy clown.
When will he learn that there’s larceny goin’ down?
Woad Runner, Woad Runner, where have you gone to sulk?
If not intent, then we’ll get you for breaking bulk.

Woad Runner
The Sheriff is after you
Woad Runner
If it’s larceny you’re through!

Woad Runner, Woad Runner, did he have possession? Yes.
So then no larceny – no, take another guess!
Woad Runner, Woad Runner never burgles anyone
Just rummaging through stuff is his idea of having fun!

Woad Runner
The Sheriff is after you
Woad Runner
If it’s larceny you’re through!

:: David M. Wagner 2:39 PM [+] ::
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:: Friday, November 21, 2003 ::

Criminal Law students: please note that on Monday we pick up with the unit on theft crimes, starting at p. 1017. Also, we will meet all "three" days next week.

:: David M. Wagner 9:16 PM [+] ::
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:: Thursday, November 20, 2003 ::

To my Con Crim Pro students: Tomorrow (Friday 11/21) we're doing Atkins v. Va., last case in the book.

:: David M. Wagner 4:43 PM [+] ::
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:: Wednesday, November 19, 2003 ::

The satire-to-reality gap is down to about 48 hours

I had no sooner noted (in the post immediately below) the point made by the lead dissent in Goodridge, about how the majority's reasoning would require marital status for single parents, than I found this.

:: David M. Wagner 10:58 PM [+] ::
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Massachusetts same-sex marriage

Here is Goodridge. Or if that doesn't work, go here and click on Opinions, then look for it.

For all of history, the human race has been implementing a marriage policy that turns out, once the Massachusetts Supreme Judicial Court gets ahold of it, to lack so much as a rational basis. The things one learns. But then, Bostonians have always had the weary duty of serving as the moral vanguard for the rest of us. Or not.

First observations:

1. Lawrence is not much of a factor. The opinion is based on Massachusetts constitutional law. Meanwhile, fwiw, the only two courts that have considered the issue of whether Lawrence requires SSM proprio vigore -- in New Jersey and Arizona -- have held that it does not.

2. A lot in Goodridge about benefits; precisely one reference to corresponding "obligations," and not a word, zip, bupkus, about what those obligations might be. (This is based on my first readthrough.) Hmm, just like the discussion at that Boston conference in this regard.

3. Marital benefits help parents raise children; many gay couples raise children; so let's order the legislature to give all marital benefits to gay couples too. Lead dissenter: well gollllllleeee, single parents raise children too; why not order the legislature to give them "married" status, or to let them marry themselves? (For those who are tired, for now, of the polyamory issue.)

Maggie Gallagher comments here.

:: David M. Wagner 9:29 PM [+] ::
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:: Tuesday, November 18, 2003 ::

Goodridge is out, as 'twere, and same-sex marriage is now deemed required by the Massachusetts Constitution. 4-3 decision, from what has to be the most liberal state court in the nation. Court holds back from requiring immediate issuance of marriage licenses to same-sex couples and instead gives legislature 180 to do so, thus simulating legislative cooperation. Comments to follow as more details emerge.

:: David M. Wagner 10:34 AM [+] ::
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:: Monday, November 10, 2003 ::

"Justice for Judges"

For at least three days this week, the Senate majority is going to force the Democrats to filibuster in real life, not just on paper, if they want to insist on their position that views shared by a majority of Americans (e.g. that parents should be notified of their children's abortions) are "extreme" and "outside the mainstream," and that judges who allow legislatures to make such choices are unfit for judicial service.

Commentary by Roger Pilon here. Click here for my earlier comment on filibustering.

Should be fun.

:: David M. Wagner 6:06 PM [+] ::
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Sixth Circuit declares Religious Land Use and Institutionalized Persons Act unconstitutional, disagreeing with five other federal appeals courts. AP story here.

A case could be made (though I would disagree) that RLUIPA suffers from the same constitutional flaw as the Religious Freedom Restoration Act, which it to some extent replaced: that it is outside Congress's 14th Am. Sec. 5 power. (I never took the Commerce Clause rationale very seriously.) But the 6th Circuit seems to have gone for the weakest argument -- that it violates prong one of Lemon. (So does the Free Exercise Clause, come to that. See Justice Scalia's dissent in Texas Monthly v. Bullock.)

Maybe this is the Court's best opportunity to overrule Lemon explicitly.

:: David M. Wagner 4:39 PM [+] ::
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To my Criminal Law students -- updated page ranges for this week and next:

Wed. Nov. 12 -- 793-819
Fri. Nov. 14 -- 821-850

Mon. Nov. 17 -- 850-871 (end unit on complicity at that point)
Wed. Nov. 19 -- 893-914
Fri. Nov. 21 -- 914-924

:: David M. Wagner 4:36 PM [+] ::
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:: Sunday, November 02, 2003 ::

Prof. Peter Augustine Lawler on the Man's ISI speech

:: David M. Wagner 6:30 PM [+] ::
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New England Law Review conference on same-sex marriage

OK, a lot of you have been kind enough to ask, so here’s what happened at that conference in Boston.

The title was: “Same-Sex Marriage: Can Anyone Show Just Cause Why These Two Should Not Be Lawfully Joined Together?” The sponsor was the law review of the New England School of Law, a school that, like Suffolk Law School, is in the heart of downtown Boston.

Among the editors who organized the conference, there was a desire that both sides should be heard. This was particulary true of the indefatigable (and opposite-sex-married) Flavia da Silva-Benson, a Brazilian-American student and New England Law Review board member. This breadth of viewpoint was, however, rather less than the title of the conference would suggest. Out of seventeen presenters, three were opposed to SSM. That would be myself, my Regent colleague Prof. Lynne Marie Kohm, and Daniel Avila, an attorney on the staff of the Massachusetts Catholic Conference.

I’ll leave to one side the presentations that were mere cheerleading for SSM. Quite a few of those. (One Canadian gay leader referred to the Catholic Church as one of “the usual suspects.” Given the secret-police overtones of that famous Casablanca quip, I’m more glad than ever that I don’t live in Canada.)

More interesting, among the morning panels, were the presentations by European law profs who have recently been active in various forms of SSM/civil union legislation in Western Europe. Overall, I sense that Europeans are less passionate about this, on both sides. It seems France, the Netherlands, the Nordic countries have all created some form of civil union for same-sex couples; some benefits traditionally associated with marriage go with these, others are still reserved for marriage. Good old European urbanity: not much principle, but not much venom-spewing either.

Then came the religious leaders, both of whom supported SSM. It seems hard to believe that no man or woman of the cloth opposed to SSM was willing to speak; more likely it was assumed that clergymen are opposed, so the only clerical phenomenon needing to be showcased was that of the supporters. Rabbi Devon Lerner stressed how there are 450 – 450! – clergypersons in her coalition. On Scripture, she made these points: (1) we should interpret Leviticus 18 et al. as being about temple prostitution, not gay sex (here I couldn’t help wondering if perhaps she was confusing Leviticus with my former prof John Boswell’s fanciful notions about Romans 1); (2) we should interpret Scripture in general as being written a long time ago and not all that relevant to our times. (I wondered how the latter could be called “interpretation.” Seems to me, if you want to argue for dismissing Scripture, go right ahead, but don’t claim that in doing so you’re actually “interpreting” it.)

Then Mr. Avila made the point that it’s not enough to guarantee that objecting churches will never be required to “bless” same-sex unions: religious liberty will be impinged on in other ways, e.g. religious businesses forced to provide benefits for anyone that civil law regards as as “spouse.” A questioner raised a point that I could willingly have raised myself: if Catholic Church agencies already employ, and give spousal benefits to, persons who are divorced and remarried without an annulment (and thus are married to their present partners in the eyes of the state but are adulterers in the eyes of the Church), what’s the biggie about doing the same with same-sex couples? The answer is probably that the Church should avoid any action that gives scandal by treating non-marriages as marriages, but I guess it’s easier for me than for Mr. Avila to say so.

The luncheon address was an embarrassingly short speech by E.J. Graff, a lady who has authored a book called What Is Marriage For: The Strange Social History of Our Most Intimate Institution. From the program, it appears that her qualifications for explaining this are that she has published articles in numerous leftwing opinion magazines. Her take is that because marriage has played different societal roles at different periods of history (true), it therefore has no essence and can be whatever you want it to be (beg to differ).

And what did most of us at the Boston Radisson’s 6th floor conference room that day want it to be? The answer was very clear: benefits. About 1400 of them. One speaker managed at one point to shoehorn the word “obligations” into the discourse of rights and benefits, but no particular obligation was specified. This is all about benefits, as far as this day’s SSM advocates were concerned. There’s a big bag of them out there, marked “marriage.” We want them.

Are certain reasonable benefits (such as the right to be with a loved one in the hospital, or the right to designate one’s partner as executor of one’s estate) available without legal marriage? SSM advocates are constrained to say no – yet at one of the afternoon panels, Scott M. Donohue, Esq., a practicing attorney who clearly supports SSM somewhat embarrassed his allies by detailing the numerous ways in which, with a smart lawyer like himself, same-sex couples can in fact secure many of the legal benefits of marriage.

The rest of Mr. Donohue’s panel consisted of gay people raising children – and my colleague, Prof. Kohm. In other words, Lynne was assigned to give an academic discussion of the downside of gay adoption, while the gay parents got to tell their stories and show pictures of their kids. If that’s not an ambush, it’ll do until an ambush comes along.

“Studies.” SSM supporters cited them all morning, without challenge. Prof. Kohm cited one too – and in the Q&A, someone wanted to know every detail of its methodology and its funding. (Lynne was ready with the best answer: “It’s all in footnote 173.”)

I haven’t mentioned yet that Lynne already had a speaking engagement on her calendar for 8 pm in Florida the same evening. She squeezed in the afternoon presentation in Boston, facing a 4 pm flight out of Logan. The moderator apologized in advance for Lynne’s need to depart right after her talk, and she did (as I have noted) leave time for Q&A focused solely on herself. That did not stop one of the gay parents from accusing her of “hit and run.”

And so we come to my panel, on SSM and the Constitution. This one was graced by Prof. Mark Strasser, a gay scholar who is consistently knowledgeable and collegial. Ideological screeds and rehashing of oral arguments aren’t his style: careful analysis of applicable precedent is, and he did it again.

As for me, I talked about how Lawrence need not be read as requiring SSM. Mark and I both derived mirth from the “Scalia role-reversal,” whereby gay advocates are urging the interpretation of Lawrence that Scalia offered in dissent, while Ninomaniacs are disagreeing, ever so respectfully, with our Main Man on this issue. I also discussed Loving v. Virginia, which in my view simply removed a rule, unrelated to marriage and unconstitutional because it classified by race, that Virginia had layered onto marriage.

Then I expatiated a bit on the role of marriage in harnessing destructive male sexuality to the requirements of female patterns, which include helping in childrearing. I cited a Harvard-educated (but otherwise reliable!) inner-city minister in Boston – Rev. Dr. Ray Hammond, MD – to the effect that tying men to the children they father is a vital need served by marriage. This need is going unmet, and this causes grave problems among people who don’t look like the lily-white asembly at the Boston Radisson.

Then I acknowledged that marriage has changed a lot in the “developed” world in the past fifty years. As soon as neither procreation nor permanence nor fidelity are seen by most straights as integral to marriage, then, from a gay point of view, what’s not to like? I differed from most people at the conference only in thinking that these changes are (a) bad, and (b) to some extent reversible.

Mine was the last speech on the agenda. I got far fewer questions, and less hostile ones, than I had anticipated. Of course, I was the last obstacle between the audience and dinner. Come to that, I was also the last obstacle between myself and a vigorous walk through the Boston Common, around Beacon Hill and the State House, and back to the hotel by way of Tremont St., all the while wearing a Red Sox cap that I had borrowed for the occasion.

I was still wearing the Red Sox cap when I went through airport security the next morning. After I had cleared, one of the TSA guys asked:

“So, you da next manager?”

“Grady Little is not long for this town?” I asked.

“Shorta shelf-life dan milk, dey’re sayin’!”

So it turned out to be, and so I said goodbye to Beantown, until we meet again.

:: David M. Wagner 12:04 AM [+] ::
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:: Tuesday, October 14, 2003 ::

Recusal?

It's unclear from this story whether Justice Scalia has recused himself from any participation in the Pledge case, or whether he merely did not take part in considering the cert petition.

I can't imagine a valid reason from him to recuse himself. Maybe he's a Knight of Columbus; it was the Knights who successfully campaigned back in the Ike era to get "under God" added to the Pledge. There's a rough analogy there to Justice Thomas recusing himself in the VMI case because his son was a student at the Citadel.

Both recusals are or would be, in my view, unnecessary. C'mon, where's that old Marbury v. Madison spirit? You can be a player in the facts of the case -- and your brother too -- and still not have to recuse!! For Marshall, recusal was unnecessary unless you had a financial interest in the case (Hunter's Lessee). Anything short of that -- you're there!

:: David M. Wagner 2:40 PM [+] ::
...

:: Wednesday, October 01, 2003 ::

Oops -- the President has recognized that "fourth branch" of the federal government:

But I want to tell you something -- leaks of classified information are a bad thing. And we've had them -- there's too much leaking in Washington. That's just the way it is. And we've had leaks out of the administrative branch, had leaks out of the legislative branch, and out of the executive branch and the legislative branch....

Justice Sutherland's nasty piece of work in Humphrey's Executor continues to turn our leaders into constitutional mutants.

:: David M. Wagner 4:07 PM [+] ::
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:: Wednesday, September 24, 2003 ::

TheHill.com: GOP sees ‘obstruction’ of Bush nominees as 2004 campaign issue

:: David M. Wagner 4:25 PM [+] ::
...

Just when you thought it was safe to answer the phone...

...a federal judge rediscovers the nondelegation doctrine (though without citing it), and blocks the FTC's do-not-call registry. See decision here.

Actually, there may be some merit to the argument that the statute under which the FTC promulgated the registry, in contrast to a similar statute that gave power over telemarketers to a different agency (the FCC), did not give the FTC power to promulgate the registry. But it did give the FTC power to regulate telemarketing abuses, and under long-standing (though wrong) nondelegation precedents, that's a broad enough grant of power to allow the FTC to set up the registry.

The court's reasons for refusing to extend Chevron deference to the FTC in this matter is that the registry is constitutionally infirm as a regulation of speech. This is absurd: since when is your home or mine a public forum?

:: David M. Wagner 2:47 PM [+] ::
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:: Tuesday, September 23, 2003 ::

TO MY CRIMINAL LAW STUDENTS:

First, about Montana v. Egelhoff. The only part of it that was assigned was the part that's in the book
-- Justice Ginsburg's concurrence. And admittedly, she discusses mens rea (and that's what the chapter is about) more than the Scalia opinion does. But if you want a much clearer exposition of what the case was about, go read the Scalia plurality opinion. This is not an assignment -- it's for your enjoyment.

Btw, with all due respect, I think the editors of our book are flat-out wrong in characterizing the O'Connor opinion as "plurality" just because it has four Justices on it. Both its content and its placement in the official reports make clear that it is a dissent.

Also, I believe the editors mischaracterize the Scalia opinion. "[W]ith three others" --what kind of language is that? Like, he went down to Little Italy and picked up three paesans to join him? The "three others" are the Chief Justice, and Justices Kennedy and Thomas. Furthermore, last time I checked, "three others" plus one makes four, and with Justice Ginsburg's concurrence (concurring with Scalia, that is, not with O'Connor), that makes a holding (though not an opinion) of the Court.

In short, Egelhoff is as much a Scalia opinion as, say, Michael H. (remember that from Con Law or Family Law?), though you'd never know it from the summary in the book.

All right, now here's a question that one of you sent me, with my answers:


Q. 1. At common law, if a crime requires a specific intent (purposely or knowingly) then the accused may present a defense to negate that element of the crime?

A. First, remember that the state must prove every element of the crime beyond a reasonable doubt. Going into a trial, the defense has nothing to prove: it's the government, not the defense, that must prove stuff. That said, I should add this: when a legislature limits the ways in which defendants can defend themselves, it's sailing close to the edge of what Due Process allows. But, as Egelhoff shows, depending on the history of certain defenses at Common Law, states may disallow particular defenses.

Second, don't confuse the specific/general dichotomy with the four MPC categories of mens rea. "Specific intent" means "with intent to..." or "with knowledge of..." etc.; at any rate, statutory expressions like that are markers for specific intent crimes. Your question seems to assume that we don't have specific intent unless the mens rea is "purposely" or "knowingly." That's intuitively true, since the terms "recklessly" and "negligently" don't really describe intent at all. Yet crimes of recklessness and negligence are at least crimes of general intent, no? Anyway, the MPC drafters didn't like the specific/general distinction, and weren't trying to accommodate it. If you try to mesh "specific v. general" with the MPC categories, you'll end up with a headache and blue smoke coming out your ears. I know -- I've tried it.


Q. And if there is no specific intent listed in the elements of the crime then the accused cannot present evidence to negate intent?

A. Well, he can always present evidence to negate general intent, but because general intent is usually proved from the conduct itself, evidence against general intent will often also be evidence against actus reus; e.g., "it was a muscle spasm, not an action."

Also, other mens rea defenses against a general intent crime may be available, such as reliance on an authoritative official statement of law.


Q. 2. But if a state does not recognize the specific/general intent distinction [as] common law does, then how does the court determine whether to allow the accused to bring a defense or evidence negating his intent?

A. A mens rea defense is usually possible for a general intent crime -- just harder to pull off than with a specific intent crime. Also, state legislatures have leeway in allowing or disallowing certain defenses: that's what Egelhoff is about. Finally, note that the mythical common-law jurisdiction of Multistateland -- which is also where my exams take place -- does have the specific/general distinction.


Q. My next questions are about mistake of law.
3. From my reading of US v. Learned and the following notes, I concluded that a person is presumed to know the law and is liable for violation of the law unless his mistake of the law negates the required intent of an otherwise lawful act. Is this correct?

A. Learned is in the book as an illustration of an older approach. Balance it out with Bray. Should this issue come up on the exam, analyze the problem both ways, and tell me which one you think is better, and why.


Q.4. Is there a distinction between mistake of governing and non- governing law? Or are they both not excuses or defenses to crimes?

A. One thing I said on Wednesday was that you can interpret the terms "governing law" and "non-governing law" as, respectively, "the statute under which the defendant is charged" and "some legal rule, external to that statute, that has an impact on the defendant's case." Mistake about the latter is much more likely than mistake about the former to function as a defense (see Bray), but the former may also do so, especially if it negates the mens rea of a specific intent crime.

:: David M. Wagner 8:29 PM [+] ::
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:: Monday, September 22, 2003 ::

ATTENTION STUDENTS: Interesting post here about law firm interviews on campus. (From Sapere Aude, a blog by students at Indiana University School of Law.)

:: David M. Wagner 2:15 PM [+] ::
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:: Tuesday, September 16, 2003 ::

The full 9th Circuit is taking the recall election decision en banc.

Say, Bush v. Gore found an Equal Protection violation where different counties used different standards for determining voter intent, didn't it? Does it follow that there's an Equal Protection violation when different counties use different types of voting machines? That would be a novel wrinkle in constitutionalized election law -- one that Robert Bork foresaw (in a short article in FIRST THINGS, I think), but not one that Bush v. Gore requires.

Sorry for lack of links, but there's this hurricane, see....

:: David M. Wagner 3:36 PM [+] ::
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:: Monday, September 15, 2003 ::

Hurricane Isabel and American legal education

My school, Regent, is going to get it first, and on the chin. But then the thing moves on to the Washington D.C. area, where there's a tempting smorgasborg of law schools: George Mason (my alma mater legis), Georgetown, Catholic, American, Howard, GWU. (Did I leave anyone out? I didn't mean to.)

Then it's up through the Maryland panhandle and into central Pennsylvania, like it thinks it's Robert E. Lee or something. Perhaps U. of Pittsburgh Law will get nicked. Finally, on to Syracuse, alma mater legis to various Regent faculty members over the years.

Then, even if the thing still has any power, it passes further north, and ceases to be of interest to American legal education.

:: David M. Wagner 6:23 PM [+] ::
...

The 9th Circuit has forced a postponement of the California recall election on equal protection grounds, citing, of course, Bush v. Gore. (En banc and S.Ct. action still possible.)

Well, I said it back then too: I don't really think the Equal Protection Clause has anything to do with voting -- but my side lost that fight back in the '60s, and does anyone really expect the Supreme Court in 2000, or the 9th Circuit now, to resolve these cases as if Baker, Reynolds et al. were not good law?

:: David M. Wagner 6:13 PM [+] ::
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:: Tuesday, September 09, 2003 ::

Ever have a client like this? (Via Zorak.)

:: David M. Wagner 12:09 PM [+] ::
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:: Monday, September 08, 2003 ::

Stanley Kurtz in NRO: The Federal Marriage Amendment gets the silent treatment. Not just your basic aint-media-bias-awful piece. The Alliance for Marriage doesn't fit the media script, and some of them don't want you to know that.

:: David M. Wagner 2:14 PM [+] ::
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:: Friday, September 05, 2003 ::

Solum on Estrada

Good post here by Prof. Solum on the Estrada withdrawal (via Eve Tushnet).

One of my lingering questions: a real 24/7 filibuster may be rough for the majority, as Larry indicates, but isn't that in part a function of how important you think the issue is? Also, the hardships can be smoothed out, you know. You can move cots into the cloakrooms, send staffers to and from your house for changes of clothing and David Baldacci novels, and Capitol Hill is full of restaurants that would just love to cater a filibuster! Greek food from Taverna, and Chinese from Young Chow, 'round the clock? Yum yummm!

What about judges and "ideology"? Larry says:

If judicial selection is all about political ideology, there is a cost to be paid. Ideological judges are legal realists. They vote on the basis of their political preferences and not on the basis of the law. Ideological judges can be highly skilled in the craft of judging, but this is unlikely. If you see the law as a mere instrument of power, you are unlikely to care enough about the law to spend the long hours required to achieve true mastery of intricate and interconnected web of legal doctrine.

That would be true if the so-called right-wing nominees of the past three Republican administrations were activists, as they are portrayed. But for the most part they are precisely the jurists who reject the instrumentalization of law for political purposes -- and that's what gets them in trouble! Larry's "neoformalism" is what Chuck Schumer calls "right-wing extremism," because it excludes, on principle, the use of judging for the advancement of leftist (or rightist, but it's the leftist stuff that Schumer cares about) political goals. Thou canst not win.

:: David M. Wagner 3:42 PM [+] ::
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:: Thursday, September 04, 2003 ::

Estrada withdraws, for now.

The speculation about "backlash at the polls" strikes me as though Napoleon had rejoiced that Waterloo had made his forced leaner and meaner.

Given more time I could probably come up with a better metaphor, but even if a great many Latinos do vote Republican as a result, the fact remains that the Democrats have effectively altered the Constitution to require sixty votes for confirmation of an identifiably conservative judge, and that the Republicans have done diddlysquat about it. (A few desultory cloture votes do not rise above the level of diddlysquat, imho.)

:: David M. Wagner 6:26 PM [+] ::
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:: Tuesday, August 26, 2003 ::

National Review v. Republican pooh-bahs, re Senator Specter.

:: David M. Wagner 6:19 PM [+] ::
...

I've been preparing for a conference on an unrelated issue, so I haven't been following the Roy's Rock issue as closely as I should.

In the meantime, here for your enjoyment are then-Associate Justice Rehnquist's remarks in dissent in Carey v. Population Services, the case that held that states may not regulate access to contraceptives by minors. Here and in Eisenstadt, Justice Brennan's smoothly-executed pirouettes through means-ends analysis and then-brand-new precedents -- strongly reminiscent of Lochner in these regards -- can easily suck one into playing his game. Rehnquist breaks the spell:

Those who valiantly but vainly defended the heights of Bunker Hill in 1775 made it possible that men such as James Madison might later sit in the first Congress and draft the Bill of Rights to the Constitution. The post-Civil War Congresses which drafted the Civil War Amendments to the Constitution could not have accomplished their task without the blood of brave men on both sides which was shed at Shiloh, Gettysburg, and Cold Harbor. If those responsible for these Amendments, by feats of valor or efforts of draftsmanship, could have lived to know that their efforts had enshrined in the Constitution the right of commercial vendors of contraceptives to peddle them to unmarried minors through such means as window displays and vending machines located in the men's room of truck stops, notwithstanding the considered judgment of the New York Legislature to the contrary, it is not difficult to imagine their reaction.

I do not believe that the cases discussed in the Court's opinion require any such result, but to debate the Court's treatment of the question on a case-by-case basis would concede more validity to the result reached by the Court than I am willing to do. There comes a point when endless and ill-considered extension of principles originally formulated in quite different cases produces such an indefensible result that no logic chopping can possibly make the fallacy of the result more obvious. 431 U.S. 678, 718 (1977)

:: David M. Wagner 5:40 PM [+] ::
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:: Thursday, August 21, 2003 ::

The sort of thing the New York Times usually does

...only this time it's the Washington Post. Lede graf of its story today on Judge Moore and "Roy's Rock":

MONTGOMERY, Ala., Aug. 20 -- They still talk about Gov. George C. Wallace here, defiantly standing in that long-ago schoolhouse door. And from now on, they also will be talking about Chief Justice Roy S. Moore and his modern-day version of Alabama-style civil disobedience.

See? The Ten Commandments are just like segregation! Toldja so!

:: David M. Wagner 2:36 PM [+] ::
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:: Wednesday, August 20, 2003 ::

In Ireland, it may be illegal to promulgate or distribute the Vatican's recent statement on homosexual relationships. Illegal, as in, i-l-l-e-g-a-l.

:: David M. Wagner 4:30 PM [+] ::
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:: Tuesday, August 19, 2003 ::

Washington Post headline last Sunday -- I'd link to it, but they rephrased it before it went up on the website (we get the very early edition down here in Virginia Beach):

Iraqi Shiites' Ties Alarm U.S.

Yeah -- they're all polyester! We're trying to educate them about silk reppe and foulard via the State Department's Radio We're-Not-as-Bad-as-You-Think-We-Are, but it's a long process.

:: David M. Wagner 5:22 PM [+] ::
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:: Monday, August 18, 2003 ::

Another blogging law prof and Ninomania linker:

Prof. Ken Parish, who teaches in Australia, and whose blog is The Parish Pump. Actually, his most recent post is from last January, so let's wish him a swift return to the blogosphere.

Oh, and about Owen, and Democratic and Republican delaying tactics (Ken mentions these, so I will): in about two cases, the GOP Senate during the Clinton administration sank nominations by refusing to hold hearings on the nominee. Judge Ronnie White was one of these, if memory serves. I can't really defend that tactic in non-activist terms, but set it alongside the unprecedented tactic of the filibuster, and which is worse? For better or worse, powerful committee chairmen in both houses have been able to block legislation and nominees for decades. Effectively raising the confirmation threshhold to 60 deforms the advice and consent in a new, if not worse, way.

And no, what Strom did to Marshall is not a precedent, mainly because it was just Strom (and maybe a couple of others; Eastland, probably) being jerks for a couple of weeks. That Marshall would be confirmed was never seriously in doubt.

I think it's the stop-them-whatever-it-takes 'tude that's so annoying, especially when accompanied by rhetoric about protecting the people.

BTW, Ken linked to me almost a solid year ago; I only found him today, via a search engine I read about in the Wall St. Journal: teoma.com.

:: David M. Wagner 10:29 PM [+] ::
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:: Sunday, August 17, 2003 ::

Thanks to Adam White, of white-noize, for naming Ninomania "site of the week."

BTW, the only reason it's capitalized is that I wanted the name to dominate the banner. As you see, I spell it without all-caps in other contexts.

:: David M. Wagner 6:47 PM [+] ::
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:: Thursday, August 14, 2003 ::

The GOP tactic of charging Sen. Schumer and other filibusterers with anti-Catholicism may or may not conform to the highest standards of intellectual honesty (for myself, I'm totally unsure where and how the categories of extreme disagreement with Catholic teachings, extreme dislike of the Catholic Church, and bigotry toward Catholics meet or overlap), but one thing is clear -- it's got the Democrats on the defensive.

Click here for some letters to the editor in the New York Post, responding to a columnist's attempt to defend Schumer on this issue.

:: David M. Wagner 5:07 PM [+] ::
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:: Tuesday, August 12, 2003 ::

Is Colorado the new California?

"Ensure domestic tranquility" -- that, of course, is one of the desiderata of the Constitution's preamble. But voters in Denver are taking this as a literal duty, according to this story in the Las Vegas Sun (via Drudge).

According to Jeff Peckman, the citizen who initiated the petition drive for the referendum:

[C]ouncil members should favor his proposal because it supports their duty under the U.S. Constitution to provide for the common defense and ensure domestic tranquility.

The measure doesn't advise how the city should reduce stress but requires the city to research the idea and scientifically prove which methods work. Some of Peckman's ideas include playing soothing music in public places and improving the quality of school lunches.

The pharmaceutical sales force will no doubt eagerly await the outcome of the November ballot initiative.

:: David M. Wagner 9:54 PM [+] ::
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:: Friday, August 08, 2003 ::

Gary O'Connor, from the Statutory Construction Zone, mentions this blog in an article on law blogs in the Journal of Appellate Practice and Process (text here). His co-author is Stephanie Tai, of Blue Blanket.

Thank you, Gary and Stephanie!

:: David M. Wagner 11:49 AM [+] ::
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:: Thursday, July 31, 2003 ::

Britain to demand EU constitution changes, in the pro-sovereignty direction.

:: David M. Wagner 8:25 AM [+] ::
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:: Wednesday, July 30, 2003 ::

Howard Bashman of How Appealing says here:

Tomorrow it will be Eleventh Circuit nominee William H. Pryor, Jr.'s turn to lose a cloture vote, and then Ninth Circuit nominee Carolyn B. Kuhl will have her turn on Friday. For Pryor and Kuhl, those will be the very first cloture votes their nominations have endured.

Sigh, sniff -- You never forget your first cloture vote!

:: David M. Wagner 5:42 PM [+] ::
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:: Sunday, July 20, 2003 ::

Your Ninomaniac, who taught a summer course this year but has nonetheless discovered a week between that and the fall term, will be away until July 28. (Just kidding about the fall term -- that doesn't start until August 25. But I will be away for a week.)

:: David M. Wagner 6:30 PM [+] ::
...

A Knight-Ridder reporter who evidently knows about as much constitutional law as most reporters who cover it says here that Scalia's dissent in Lawrence is a lot like Taney's opinion for the Court in Dred Scott, because:

In both cases, Dred Scott in 1857 and Lawrence v. Texas in 2003, justices faced crucial questions about constitutional liberties: Are they set in stone? Or should the court take an evolving view of the Constitution and extend rights to groups the founders left out?

Actually that was not the issue, or even an issue, in Dred Scott. The majority and the dissenters agreed that the original intent of the Declaration and the Constitution was determinative; they disagreed on what that intent was. Taney -- using "everyone knows, "gimme a break" reasoning -- declared that the Founders considered blacks to be scarcely human. Curtis replied, not that rights evolve with human progress, still less that the Court is the proper vehicle for fomenting this evolution, but rather that Taney had misread the Founders' intent -- and he produces evidence to prove it. That's the Scalia way.

Via How Appealing.

:: David M. Wagner 6:23 PM [+] ::
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:: Saturday, July 19, 2003 ::

This new blog couldn't be timelier: MarriageDebate.com.

:: David M. Wagner 10:01 PM [+] ::
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:: Friday, July 18, 2003 ::

Here's an interesting blog on criminal law issues, called CrimLaw. It's also in my blogroll now.

:: David M. Wagner 5:52 PM [+] ::
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Fellow Virginian Matthew Franck, chairman of the Political Science Department at Radford University, analyzes the media analyses of the Justices here.

:: David M. Wagner 5:21 PM [+] ::
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:: Thursday, July 17, 2003 ::

Major 4th Amendment victory for families (for privacy, too, if you want to put it that way) in North Carolina.

:: David M. Wagner 9:20 PM [+] ::
...

Says here my Chancellor is appealing from the Supreme Court to God. Amen! But let's specify "the God of Abraham and Isaac," or "God on High," or something like that -- otherwise, the Supremes will think it's just a petition for rehearing.

:: David M. Wagner 9:10 PM [+] ::
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:: Wednesday, July 16, 2003 ::

Why it's a good thing Britain has a House of Lords with some real powers, with all due respect to Mr. Blair

:: David M. Wagner 2:50 PM [+] ::
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:: Tuesday, July 15, 2003 ::

Belgium no longer self-appointed world court

This is a momentous development in public international law, and it's been virtually ignored in this country. The Washington Post noted it deep inside; I don't think the New York Times mentioned it at all.

:: David M. Wagner 10:57 PM [+] ::
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:: Saturday, July 12, 2003 ::

Some of you asked to see again my post on the Hibbs case. Click here.

:: David M. Wagner 3:12 PM [+] ::
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:: Friday, July 11, 2003 ::

Oldest Known Planet Identified. Yeah, I was cleaning out my office, see, and....

:: David M. Wagner 4:49 PM [+] ::
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Sen. Specter Could be Key Vote on Pryor Nomination

Says the Pennsylvanian: "I've got two big stacks of paper on my desk -- one for and one against, and I'm going to try to read it tonight." Unspecified: which pile the Toomey tracking polls go into....

:: David M. Wagner 2:47 PM [+] ::
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:: Thursday, July 10, 2003 ::

Re-reading Meyer v. Nebraska. Did you know that the school where Robert Meyer taught was called Zion Parochial School?

You know what that means, don't you?

"We are Zion! And we are NOT AFRAID!!"

:: David M. Wagner 10:44 PM [+] ::
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:: Saturday, July 05, 2003 ::

Anne Applebaum: in the New York versus Washington debate, a strong argument for Washington. (Has applications as well to the lesser-included debate, New York Times versus Washington Post.) Linked with gratitude by this born-and-bred New Yorker.

:: David M. Wagner 5:18 PM [+] ::
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Krauthammer on why not every activist decision is Brown.

:: David M. Wagner 12:11 PM [+] ::
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:: Friday, July 04, 2003 ::

Overlooked maxims of equity

Disclosed here; translated here and here.

:: David M. Wagner 4:53 PM [+] ::
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:: Thursday, July 03, 2003 ::

Lawrence, Lochner, and my (current) template

Be sure to visit Sub Judice here for some interesting comments.

BTW, Sub Judice suggests I go back to my former template. The reason I changed was that the old one was no longer allowing me to do the kind of template-tinkering that I had gotten used to. But now that Blogger has re-vamped its software, that's probably not a problem anymore.

I must say I kind of like(d) the present template, in part because it was the one PejmanPundit used to use back when he was with Blogger, and I thought it looked cool for him. But maybe Sub Judice is right. E-mail me with your views (perhaps put "change template" or "keep template" in the subject line). (Is there a way to keep the template but enlarge the standard type? Can any of you HTML experts point me to the line in the template code that controls that?)


By the way, Sub Judice notes that I've been "on fire" about Lawrence. I have, but that's because of the opinion's openly Casey-esque reasoning. I predicted a narrow EP decision, along the lines of the O'Connor concurrence. I would not have agreed with such a result, but it would not have put me on warpath the way the actual opinion did.

Happy 4th!

:: David M. Wagner 9:34 PM [+] ::
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The Catholic Family and Human Rights Institute (C-FAM) questions role of implied threat from international law in Lawrence.

:: David M. Wagner 4:11 PM [+] ::
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:: Wednesday, July 02, 2003 ::

Welcome, "B.I." Bill

William P. Sulik, "Born by the great Ocean of Peace in the West, in the land of Reagan the Great," has a blog called Blithering Idiot. That's not what I would have called it, and I gladly add it to my blogroll!

:: David M. Wagner 11:15 AM [+] ::
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:: Tuesday, July 01, 2003 ::

More about Kennedy and rational basis

Sooner or later I'm going to have to wind down the "all Lawrence all the time" format (and thanks for the link, Howard!) that I've been following since last Thursday, but in the meantime, there's a bit more to cover.

First, a very interesting column by Jeff Rosen (thanks again to Howard, and to others who pointed it out to me). Finally, someone from the center-left who realizes that Lawrence does not, in fact, boil down to whether you think gays are human beings (which, for the record, I do); that there are, in fact, serious jurisprudential questions here, and that they don't uniformly point toward dancing in the streets over this decision!

Second, a reader has reminded me about Heller v. Doe, in which the Court, per Justice Kennedy, turned aside an Equal Protection challenge to Kentucky's differential treatment of the mentally ill and the mentally retarded in civil commitment cases. (The decision also had a Due Process component, but procedural, not substantive.)

The interesting thing about Heller for present purposes is that Kennedy repeated the classic Railway Express-style content of the rational basis test. He wrote:

We many times have said, and but weeks ago repeated, that rational basis review in equal protection analysis "is not a license for courts to judge the wisdom, fairness, or logic of legislative choices." FCC v. Beach Communication, Inc., 508 U. S. ___, ___ (1993) (slip op., at 5-6). See also, e. g., Dandridge v. Williams, 397 U.S. 471, 486 (1970). Nor does it authorize "the judiciary [to] sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines." New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per curiam). For these reasons, a classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity. See, e. g., Beach Communications, supra, at ___ (slip op., at 7); Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 462 (1988); Hodel v. Indiana, 452 U.S. 314, 331-332 (1981); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314 (1976) (per curiam).

One notes, as one must, the qualification "neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity." The first, of course, covers Kennedy's view of consensual sex, and the second cover's O'Connor's view of legislation that distinguishes by "gender."

Where do fundamental rights begin for Kennedy, after Heller and Lawrence? To put it brutally (but hey, these are Kennedy's views, not mine!!): not north of the neck, but south of the belt!

:: David M. Wagner 12:34 PM [+] ::
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:: Monday, June 30, 2003 ::

Interesting Novak column here. Bob says, inter alia:

There is no doubt Lawrence Silberman, a senior judge on the U.S. Court of Appeals for the District of Columbia, had O'Connor in mind when he skewered the Supreme Court in a candid speech to the conservative Federalist Society last November. Pointing to the court's decisions on abortion, religion and (even before last Thursday) homosexual rights, Silberman declared: ''I do not think it even can be seriously argued that any of these lines of decision had a shadow of true constitutional justification.''

''How does the court get away with it?'' Silberman asked. His answer: ''It maintains its legitimacy so long as its activist opinions coincide with the views of a broad national consensus of elite opinion.''

:: David M. Wagner 11:49 AM [+] ::
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:: Sunday, June 29, 2003 ::

Bill Buckley's ironic paraphrase of an Anthony Kennedy internal memo on Lawrence.

At least I think it's ironic.

At least I think it's a paraphrase....

:: David M. Wagner 8:12 PM [+] ::
...

Daniel 3:13-18

[13] Then Nebuchadnez'zar in furious rage commanded that Shadrach, Meshach, and Abed'nego be brought. Then they brought these men before the king.
[14] Nebuchadnez'zar said to them, "Is it true, O Shadrach, Meshach, and Abed'nego, that you do not serve my gods or worship the golden image which I have set up?
[15] Now if you are ready when you hear the sound of the horn, pipe, lyre, trigon, harp, bagpipe, and every kind of music, to fall down and worship the image which I have made, well and good; but if you do not worship, you shall immediately be cast into a burning fiery furnace; and who is the god that will deliver you out of my hands?"
[16] Shadrach, Meshach, and Abed'nego answered the king, "O Nebuchadnez'zar, we have no need to answer you in this matter.
[17] If it be so, our God whom we serve is able to deliver us from the burning fiery furnace; and he will deliver us out of your hand, O king.
[18] But if not, be it known to you, O king, that we will not serve your gods or worship the golden image which you have set up."

:: David M. Wagner 8:04 PM [+] ::
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:: Friday, June 27, 2003 ::

The New York Times is adhering rigorously to the script: Lawrence is the new Brown, and ALL the anti-Lawrence sources quoted are conspicuously identified as being from southern states.

:: David M. Wagner 5:29 PM [+] ::
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Lawrence and "rational basis"

Ramesh Ponnuru in NR has an interesting take: the Texas sodomy statute did not, in fact, have a rational basis -- but then, why should states have to prove to federal judges that their legislative decisions have a rational basis?

Ramesh is even righter than he (perhaps) knows. When the modern form of the "rational basis test" first entered constitutional law (and Ramesh is right that it's a judicial gloss, not an authentic constitutional rule), in the wake of the New Deal, it was a thinly disguised form of "no review at all." So lenient towards legislation was this test that, as the Court demonstrated in Railway Express v. NY, one of the first of the modern r.b. cases, if the legislature can't produce a rational basis of its own, the Court will reach out and imagine one -- sort of like the way snooty restaurants used to provide ties to patrons who "forgot" theirs.

One of the interesting sidelights to Lawrence is that Justice Kennedy, and perhaps others on the Court, seem to be reaching back to the way the r.b. test was applied before the New Deal -- i.e., Lochner-style. See e.g. Kennedy's concurrence/dissent in Eastern Enterprises v. Apfel ("Although we have been hesitant to subject economic legislation to due process scrutiny as a general matter, the Court has given careful consideration to due process challenges to legislation with retroactive effects") and his opinion for the Court in State Farm v. Campbell ("The Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor").

So, from the point of view of a 1940s liberal, Lawrence is reactionary, not progressive. I don't pretend to be a 1940s liberal, but I am definitely a fan of irony in "constitutional decisionmaking" (a phrase that, I am forced to concede, may be much more accurate than "constitutional law").

This is not said in mitigation of Lawrence. If the Court was going to revive Lochner jurisprudence, it should have done so in a principled, non-selective fashion -- in short, it should have adopted the views of Prof. Randy Barnett's brief for the Institute for Justice. (For the record, however, I do not agree with Ramesh that the Robert George/Gerard Bradley brief for the Family Research Council "fails to persuade." But I'm not going into the subtleties of new-natural-law theory today.)

:: David M. Wagner 10:31 AM [+] ::
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"Emerging" question about Lawrence

On the one hand, the Court tells us there is an "emerging" international consensus against sodomy prohibitions. Yet it also tells us (based on unquestioning acceptance of the version of history served up by Professors Tribe and Eskridge, in their briefs for the ACLU and the Cato Institute, respectively) that in the U.S., such statutes are really quite recent.

Well, which "emerging" trend should control? Maybe the point is that an "emerging" international consensus should trump an equally "emerging" U.S. consensus, but the Court never makes an argument for that preference -- or even notices the contradiction.

:: David M. Wagner 10:09 AM [+] ::
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:: Thursday, June 26, 2003 ::

Lawrence

Well, Rick Santorum may as well save that little list of his. It's going to be the syllabus of much of the Court's agenda over the next few years. Assuming, that is, that the Court views what it says today as binding in the future. "You can't assume a g__d___ thing in this Navy," said Capt. Queeg, or in the Court, say I.

For instance, who would have thought that the Casey mystery passage would ever be heard from again? Dismissed as a legal embarrassment even by some who agreed with it as a matter of political philosophy (assuming any meaning at all can be inferred from it), the Court barely even acknowledged it the one time between Casey and today that it had occasion to apply it: Washington v. Glucksberg. Today, the Court does not even mention Glucksberg, and quotes -- actually quotes -- the Casey mystery passage.

The revival of the Casey mystery passage means that the Court -- at least in cases involving "intimate" personal rights claims, cases that have "culture-war" overlay -- has abandoned law in favor of abstract normative political theory. There's a distinction there that used to be maintainable; now, after decades of Critical Legal Studies, plus Casey and Lawrence, I doubt that there any longer is.

But the Court's institutional prestige (not to mention the life tenure and salary protection that the Framers gave its members) is premised on its doing something different from what the political branches do. Today that premise is a smoldering ruin, by the Court's own hand, and the Court should be made to pay the price for its vandalism. We need a return to the constitutionalism of Lincoln's first inaugural address: no Supreme Court decision should be taken as permanently settling anything, and the coordinate branches of the federal government may and should make their contrasing views known.

By the way, I'd like to come to Dick Gephardt's defense on this. I don't know what he meant by executive orders opposing (hypothetical) Supreme Court decisions against affirmative action; I don't know whether he knew what he meant by that. But there was no need for him to retreat: whether he knew it or not, he was endorsing the Andrew Jackson/Abe Lincoln view of judicial supremacy, and he shouldn't have backed down.

In the interesting interview I just did with Nina Totenberg, she gave it as her impression that the Court was uneasy about Bowers as soon as they handed it down, and became more so over the years as people in general, including Supreme Court Justices, become more personally familiar with gay people. I think this is factually correct and has much explanatory power re today's decision. But still, one can imagine a decision that would have gone something like this:

"Seventeen years ago we held that sodomy laws are not prohibited by the Constitution. But that holding left states free to adopt, retain, or repeal such laws. Since that time, as societal attitudes towards homosexual persons have changed, many states have in fact repealed their sodomy statutes. Today we are called upon to overrule Bowers and hold that the Constitution forbids sodomy laws. But the very fact of widespread repeal of such laws shows that such overruling is unnecessary. The democratic process is today, as it was in 1986, an adequate vehicle for the reflection of society's moral views, including changes in those views. To overrule Bowers would give an unneeded boost to a political movement that is making progress anyway; it would also create further confusion in this already-confused area of constitutional law, and would unnecessarily brand as discriminators, and hence as bad people, those who in the democratic arena voice opposition to the progressive trends we have described."

I think there is tremendous significance in the fact that the Court did not issue the above-sketched opinion. For the gay movement, political progress is not enough, because it fails to place legal obstacles in the way of political counter-change, and (is this perhaps the most important gain of all?) it fails to bring down on the opposition the stigma of being bigots and discriminators as a matter of law.

We read a lot in the Lawrence opinion and briefs about negative stereotyping; the decision will accelerate the negative stereotyping of all who are not on board with the "gay movement"'s agenda. This is crucial for the cultural revolution: moral conservatives must be seen as KKK activists; Ken Connor must become Bull Connor. This is not about incremental political reform: it's about scorched-earth cultural politics. And the Supreme Court has just joined in the scorching, while preening over its own broadmindedness.

Read Our Hero's dissent here.

:: David M. Wagner 1:55 PM [+] ::
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:: Wednesday, June 25, 2003 ::

I usually find it hard to agree with Michael Kinsley, but today I find it hard not to. He writes in Slate that the U.Mich. Law School's affirmative action program

makes "a flexible assessment of applicants' talents, experiences, and potential …" blah blah blah. This is how it should be done, the court said.

Yes, but does the law school give an advantage in admissions to blacks and other minorities? Well, says the court, quoting the law school's brief, it "aspires to 'achieve that diversity which has the potential to enrich everyone's education.' " The law school "does not restrict the types of diverse contributions eligible" for special treatment. In fact, it "recognizes 'many possible bases for diversity admissions.' "

Yes, yes, yes, but does the law-school admissions policy favor minorities? Well, since you insist, yes: "The policy does … reaffirm the Law School's longstanding commitment to 'one particular type of diversity,' " i.e., "racial and ethnic diversity." But O'Connor's opinion immediately sinks back into a vat of fudge, trying not to acknowledge that "racial and ethnic diversity" means that some people will be admitted because of their race and others will be rejected for the same reason—exactly as in the undergraduate admissions system the court finds unconstitutional.

Zeroing in further, he adds:

The majority opinion says that its preferred flexible-flier style of affirmative action does "not unduly harm members of any racial group." Well, this depends on what you mean by "unduly," doesn't it? As noted, we're dealing with an all-or-nothing-at-all decision here. Every time affirmative action changes the result, a minority beneficiary benefits by 100 percent and a white person is burdened 100 percent, in the only currency on issue, which is admission to the University of Michigan. This burden may be reasonable or unreasonable, but it is precisely the same size as the burden imposed by the mathematical-formula-style affirmative action that the court finds objectionable.

Kinsley perhaps finds the burden reasonable because it remedies the effects of past discrimination, or he may, like the dissenters, find it unreasonable because it departs from more than a half-century of equal protection jurisprudence. But the Court takes neither view, holding that equal protection jurisprudence must be tweaked to achieve diversity within elites. See post immediately below.

:: David M. Wagner 10:13 AM [+] ::
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The elitist twist in Grutter

Washington Post analyst Charles Lane implicitly picks up on the point raised in the Thomas dissent: this isn't about "diversity" (or, as Thomas would have it, "aesthetics") as such, nor even about diversity/aesthetics in higher education, but about diversity/aesthetics within elites.

The Court's opinion represents a strange reversion to good old pre-1960s WASP noblesse-oblige elitism, with the WASP aspect suppressed as far as race is concerned, but flourishing in spirit. America, the Court has saying, has an elite, needs an elite, and needs to have confidence in its elite. This requires that the elite have a racial composition such that the rank-and-file can have confidence in it. And achieving all this is a "compelling state interest," comparable, apparently, with protecting the United States against a hostile foreign invasion (the original compelling state interest, from Korematsu.)

:: David M. Wagner 9:31 AM [+] ::
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:: Monday, June 23, 2003 ::

What'll really bend your noodle is...

After Grutter, is it permissible for states to maintain HBUs? After all, diversity in university education is a compelling state interest. A compelling state interest justifies every otherwise-unconstitutional action that the Court has ever considered (assuming that action is "narrowly tailored"). May a state act directly contrary to a compelling state interest?

See the Claremont Institute's amicus brief.

:: David M. Wagner 10:42 PM [+] ::
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Affirmative action

Links to Grutter and Gratz via How Appealing, here. Some early commentatin' here and here.

These decisions have already proved controversial within the Regent Law faculty. Some us are Ninomaniacs on this issue; others believe "equal protection of the laws" does not necessarily mean "equal laws" or "equal protection of social policy." Under the latter view, a law saying whites but not blacks may sue and be sued, or that homicide shall consist of the intentional killing of a white person (or of a black person, for that matter), would be a core EP violation -- but that beyond those "clear mistake" cases, federal courts should not interfere with decisions that state officials (responsible to their state's legislature, which in turn is responsible to the voters) make in pursuit of what they take to be their mandate.

:: David M. Wagner 11:48 AM [+] ::
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:: Sunday, June 22, 2003 ::

Lawrence prediction:

Here's how I'm calling it: Bowers is upheld, but the Texas statute is struck down on equal protection grounds. Sodomy laws are permissible, but must be "gender"-neutral.

The controlling opinion will be plurality only. Rehnquist will write it, joined in full by O'Connor and Kennedy, conceivably by Souter as well (on stare decisis grounds). There will be a "scathing concurrence" by Scalia (dissenting on striking down the statute, obviously), joined by Thomas. Breyer will write the opposite concurrence-dissent, joined by Ginsburg, Stevens, and Souter if he doesn't join the controlling opinion. Stevens will file an opinion condemning morals laws and blaming them on religion.

My major reasons for this prediction: Rehnquist's recent run of sex-equality opinions (VMI, Hibbs); Kennedy's opinion for the Court in Romer; O'Connor's love for splitting the difference and "contriving to do nothing of national importance" (I'm trying to quote from memory here from Scalia's Webster concurrence); Rehnquist's possible preference for keeping -- let's call it -- control of controlling opinions that could get out of control.

:: David M. Wagner 9:58 PM [+] ::
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I expect the Grutter decision tomorrow (Monday). Why? I saw Lee Bollinger in Washington yesterday. Or at any rate, someone who looks like him and who was wearing a lapel sticker that said "Lee Bollinger."

:: David M. Wagner 9:54 PM [+] ::
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:: Friday, June 20, 2003 ::

A Ninomaniacal blogroll welcome to The Curmudgeonly Clerk!

:: David M. Wagner 10:10 PM [+] ::
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Estrada poll data

According to this Washington Times report, separate polls by Democrats and Republicans show that most Hispanics don't know about the Estrada nomination, but that when told that an Hispanic judicial nominee is being blocked, they support his confirmation. Sounds like getting merely the word out is make-or-break. But Republicans don't always do such a good job of getting the word out.

:: David M. Wagner 9:16 PM [+] ::
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:: Thursday, June 19, 2003 ::

No Lawrence today -- but we do have, thanks to JURIST, this interesting op-ed by queer theorist Prof. Marc Spindelman, asking why, if straight domesticity has come under scrutiny as a haven of violence, gay domesticity should be exempt from such scrutiny, and arguing that gay equality arguments currently on offer to the Supreme Court point toward such exemptions. Prof. Spindelman draws on Our Hero's questions during oral argument in Lawrence as to whether gender-specific rape laws are unconstitutional.

:: David M. Wagner 3:53 PM [+] ::
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Howard Bashman has changed his template. Remembering the month in which I spend more time changing templates than I did writing this blog, I congratulate Howard on a handsome transition swiftly completed!

:: David M. Wagner 3:50 PM [+] ::
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:: Tuesday, June 17, 2003 ::

Sell v. U.S.

Yesterday's forced-medication decision may be less about when defendants may be compulsorily medicated than about when and how they can appeal forced-medication decisions. Justice Scalia's dissent, joined by Justices O'Connor and Thomas, says nothing about the constitutional propriety of the forced medication decision of the trial court, but a great deal about how it should have been appealed, versus how it was. Here is the dissent.

I draw attention to this section:

[T]he adverse effects of today’s narrow holding are as nothing compared to the adverse effects of the new rule of law that underlies the holding. The Court’s opinion announces that appellate jurisdiction is proper because review after conviction and sentence will come only after “Sell will have undergone forced medication–the very harm that he seeks to avoid.” Ante, at 9. This analysis effects a breathtaking expansion of appellate jurisdiction over interlocutory orders. If it is applied faithfully (and some appellate panels will be eager to apply it faithfully), any criminal defendant who asserts that a trial court order will, if implemented, cause an immediate violation of his constitutional (or perhaps even statutory?) rights may immediately appeal. He is empowered to hold up the trial for months by claiming that review after final judgment “would come too late” to prevent the violation. A trial-court order requiring the defendant to wear an electronic bracelet could be attacked as an immediate infringement of the constitutional right to “bodily integrity”; an order refusing to allow the defendant to wear a T-shirt that says “Black Power” in front of the jury could be attacked as an immediate violation of First Amendment rights; and an order compelling testimony could be attacked as an immediate denial Fifth Amendment rights. All these orders would be immediately appealable. Flanagan and Carroll, which held that appellate review of orders that might infringe a defendant’s constitutionally protected rights still had to wait until final judgment, are seemingly overruled. The narrow gate of entry to the collateral-order doctrine–hitherto traversable by only (1) orders unreviewable on appeal from judgment and (2) orders denying an asserted right not to be tried–has been generously widened.

The dissenters -- who include O'Connor, remember -- also focus on the Court's use of the term "severity of the intrusion," not disputing that the intrusion is severe but rejecting the constitutional conclusions that the Court draws from that severity.

Hints about Lawrence? There, too, the "intrusion" is "severe," but does this have constitutional consequences? Finding O'Connor voting with Scalia and Thomas on a substantive due process issue in mid-June of 2003 has to set people wondering.

:: David M. Wagner 1:03 PM [+] ::
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:: Monday, June 16, 2003 ::

You win some, you lose some

Paper Chase, the JURIST blog, notes that on June 15, 1215, Magna Carta (the first one, to be precise) was signed at Runnymede, England, and that on June 16, 1935, the New Deal legislative package was passed by Congress

:: David M. Wagner 7:51 PM [+] ::
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Court allow ban on non-profits giving to federal election campaigns

Per Souter, the apparently tradition-based opinion rests on long-established regulability of non-profits' use of their funds.

Thomas, joined by Scalia, would impose strict scrutiny on regulations that limit political speech.

They would have an ally in Justice Joseph Story, not generally considered a libertarian, and certainly not one where free speech is concerned. Discussing the common law of libel, Story wrote in his Commentaries:

Nay; it has farther been held, that the truth of the facts is not alone sufficient to justify the publication, unless it is done from good motives, and for justifiable purposes, or, in other words, on an occasion (as upon the canvass of candidates for public office,) when public duty, or private right requires it. Frohnen, ed., The American Republic: Primary Sources, 358 (2002).

I.e., even for a non-libertarian like Story, who had no problem with post-publication prosecutions for seditious libel, as long as no prior restraints were imposed, discussion of political candidates was so important as to recognition of a wider liberty in such cases.

:: David M. Wagner 7:47 PM [+] ::
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The Daily Telegraph pursues the Blair constitutional revolution story:

"Confusion over the constitutional implications of Tony Blair's reshuffle deepened last night amid claims that he committed a "gross discourtesy" by failing to warn the Queen of his plans to scrap the 1,400-year-old post of Lord Chancellor.

"Although Downing Street and Buckingham Palace tried to play down talk of a disagreement, the Queen was said to be 'livid'.

"The Prime Minister, who is due to visit Buckingham Palace tomorrow for his weekly audience, was under mounting pressure to explain the detail of his scheme to reorganise the judicial system....

"David Davis, who shadows the Deputy Prime Minister, said: 'If it is true that the Queen was not consulted it is entirely consistent with the haste and incompetence with which this whole exercise was carried out, as demonstrated by the fact that No 10 did not know that they needed primary legislation to remove the Lord Chancellor, and did not realise that without a Lord Chancellor the Lords could not sit.'"

:: David M. Wagner 12:02 PM [+] ::
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:: Saturday, June 14, 2003 ::

Frank Keating has got to go. And to think some of us once considered him for AG.

:: David M. Wagner 11:31 AM [+] ::
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Daily Telegraph: Reax to Blair's attempt at constitutional revolution under cover of routine cabinet reshuffle

Tory leader Iain Duncan Smith, smelling his first serious issue in months: the PM is acting like a "tinpot dictator" and treating the centuries-old British constitution as his "personal plaything".

Tory peer Lord Strathclyde: "trendy reforms cobbled together on the back on an envelope".

:: David M. Wagner 11:23 AM [+] ::
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:: Friday, June 13, 2003 ::

Bernsteinblog, by Prof. David Bernstein -- who teaches at my law alma mater, George Mason University School of Law -- is now on my blogroll. Welcome to Blogistan, David!

:: David M. Wagner 4:22 PM [+] ::
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A "supreme court" for Britain? Abolish the Lord Chancellor?

Having helped save the Iraqis and civilization (as to which, see this Charles Krauthammer column), Tony Blair is now reverting to his accustomed ways -- arbitrarily revolutionizing the British Constitution; or, in the inspired words of a Tory peer, "playing Pooh-sticks with 800 years of British history."

:: David M. Wagner 4:14 PM [+] ::
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:: Thursday, June 12, 2003 ::

Bill Pryor, speaking truth to power

:: David M. Wagner 7:46 PM [+] ::
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Washington Times: Senate GOP eyes high court strategy.

:: David M. Wagner 6:15 PM [+] ::
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:: Tuesday, June 10, 2003 ::

Donald Regan, RIP. He wasn't exactly a favorite of the Reagan Administration's "one-of-us"-es, such as myself, but hey, we all worked in the same administration.

:: David M. Wagner 1:17 PM [+] ::
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And another attempt to use the 14th Amendment -- this time the Equal Protection Clause -- to invalidate economic regulation goes down the tubes, unanimously (per Breyer) and without so much as a Thomas concurrence suggesting the result might be different under the P&I clause. Fitzgerald v. Racing Ass'n of Central Iowa.

Evidently the Iowa Supreme Court was more open to constitutionalized economic rights, as yesterday's SCOTUS decision overturned the Iowa court's decision reported at 648 N.W.2d 555 (2002).

:: David M. Wagner 12:56 PM [+] ::
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Nguyen v. U.S.: Scalia-Thomas split on whether an Article IV territorial-court judge may sit as part of an Article III appellate panel reviewing a criminal conviction from one of the territories. Thomas -- yes, with the majority; Scalia -- no, with the Rehnquist dissent. Less here than meets the eye, however: dissent rests on "harmless error" theory.

Question that is sure to arise: If a less-than-lifelong appointment makes one not an Article III judge, then is a recess-appointed Art. III judge a real Art. III, since he can be "un-confirmed" by the Senate? It would seem he is not, yet recess appointments of Art. III judges have occurred -- someone named Brennan comes to mind -- with no loss of authority for their decisions during their recess-appointed periods.

:: David M. Wagner 12:49 PM [+] ::
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