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

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    :: Friday, March 21, 2003 ::
    No Whine Ye

    In a mini-editorial entitled No Hear Ye, The Washington Post today gripes at my man for declining to open up one of his speeches to journalists.

    Get a life, Post. People at all levels of public as well as private life are entitled to say things now and then that are off the public record.

    The Post sees an irony in the fact the particular speech in question is to be an acceptance of a Free Speech Award (conferred by the City Club of Cleveland). Well, sure enough, if a reporter got hold of a tape of the speech, then attempting to impose, by state action, a prior restraint on publishing a news story about; or trying, again by state action, to impose a post-publication penalty for doing so -- now these would violate the First Amendment.

    But speaking privately to a chosen audience? Seems to me the First Amendment rights-holder in this picture is Justice Scalia himself. To the extent the First Amendment is relevant here, it protects his right to speak or not to speak to whom he chooses, at least against state action that would force him to choose between expanding his audience or shutting up.

    Sure, the Post is not proposing such state action, but it is implying that the Justice is unfriendly to the First Amendment because he would rather speak with a minimum of concern over how any given phrase from his speech would look if blazoned on tomorrow's front page. Sheer special pleading for the journalism profession.

    (What about Al Gore closing his Columbia Umiversity course to reporters, you ask? I don't see a problem with that either. In fact, quite apart from Gore himself, Columbia should have the right to close his lectures to non-members of the Columbia community.)

    :: David M. Wagner 11:20 AM [+] ::
    This week I'm doing the 1970s Establishment Clause cases with my church/state students. Then, on Wednesday, I saw Johann Strauss's DIE FLEDERMAUS at the Virginia Opera. In Act II of this operetta, Rosalinda is called upon to prove she is pervasively Hungarian....

    :: David M. Wagner 9:30 AM [+] ::
    :: Thursday, March 20, 2003 ::
    Headline of the day

    Not the start of the war, but this (from The Washington Post): "FBI Recovers Copy of Bill of Rights."

    I know, I know -- "Maybe this time they'll read it!" -- OK, can we move on now?

    (Actually, the linked story is kind of interesting....)

    :: David M. Wagner 4:24 PM [+] ::
    :: Tuesday, March 18, 2003 ::
    PARDON OUR DUST, cont.

    Hey, this one I kind of like. What do you think?

    :: David M. Wagner 2:26 PM [+] ::

    Gosh, this is an ugly template. I hope I've changed it by the time you read this.

    :: David M. Wagner 2:05 PM [+] ::
    :: Sunday, March 16, 2003 ::

    As I found out when I tried to add JURIST's "Paper Chase" blog (see post immediately below) to my bloglinks, there's something wrong with the coding of this template that prevents me from doing this. So, over the next few days I'm going to be experimenting here with new templates. In the course of this, some of my current links may be temporarily lost. I promise to put you all back eventually. In the meantime, accept my apology while Ninomania goes through the ol' Calvin and Hobbes transmogrifier a few times.

    :: David M. Wagner 10:20 PM [+] ::
    :: Thursday, March 06, 2003 ::
    "Paper Chase," the blog section of the esteemed JURIST website, now has its own URL: go here.

    (I'll add it to my bloglinks as soon as Blogger starts letting me do that again. Is anyone else having problems making changes to their templates...?)

    :: David M. Wagner 6:43 PM [+] ::
    The three-strikes case

    The sentence in Ewing is grossly disproportionate, and I hope I would have voted against such a sentencing regime as a member of the California legislature. Whether it violates the Eighth Amendment is a separate question, unless one accepts, as I do not, that the Constitution bans all Bad Things.

    The scary views in this case, to me, are not those of Scalia and Thomas, adhering to their long-expressed views that the Eighth Amendment does not address proportionality, but those of the plurality, who do see some requirement of proportionality in the Eighth Amendment, but find that 25-to-life for stealing three golf clubs is perfectly proportional.

    To reach this ugly view, the plurality has to hold that proportionality is not an inherently retributive principle, and that, therefore, a sentence may be proportional even if it is out of all proportion to retributive goals, as long as it is proportional to some other penal goal, such as incapacitation. But any sentence will be proportional to some non-absurd penal goal. The plurality's view not only opens the door to grossly disproportionate sentences -- the Scalia and Thomas concurrences do so too -- but opens it even wider, because it holds that such sentences are within the reassuring adjective "proportional."

    The Scalia-Thomas view scares me far less. All it says is that something that probably should be unconstitutionalized hasn't been, and that the Court lacks authority to do it unilaterally.

    Scalia virtually concedes that the sentence here is disproportionate from a retributive point of view (attributing to the plurality "a discussion which, in all fairness, does not convincingly establish that 25-years-to-life is a 'proportionate' punishment for stealing three golf clubs"), and explicitly insists on the link between proportionality and retributivism.

    This might be a good time to re-read C.S. Lewis's essay "The Humanitarian Theory of Punishment." (Couldn't find it on the Web, but click here for a good discussion of it by Chuck Colson). It shows how the much-maligned retributivist view is essential to proportionality. The Ewing plurality opens the door far wider to the "therapeutic" punishments that Lewis warns about than do the Scalia and Thomas concurrences.

    By the way, Ewing showcases Scalia's standards for observing stare decisis in constitutional cases: he will apply a wrongly-decided precedent if he can do so in a principled, "lawyerly" way, but not if he cannot. The latter is the case wherever the Court's announced standards are too vague to be anything other than policy analysis, and hence legislative rather than judicial. (Yes, of course I'm a formalist.) The Eighth Amendment proportionality cases, along with Roe, are examples of the latter.

    :: David M. Wagner 2:06 PM [+] ::
    :: Saturday, March 01, 2003 ::
    Latest on "under God"

    The 9th Circuit's latest Pledge decision is here.

    Apparently, as Vikram Amar notes in this news story, the court has backed off its holding that Congress violated the Establishment Clause when it added "under God" to the Pledge," and insists only that the school district violates that clause when it implements a policy of organized recital of the Pledge in class.

    Doesn't that turn the case into more of a Free Exercise problem than an Establishment Clause problem? As a descriptive matter, the problem now is merely that Ms. Newdow is being, er, coercively encouraged to say "under God" when she doesn't want to.

    I had to make up that phrase "coercively encouraged," because if the issue is one of being "forced" to recite the Pledge, that issue was disposed of, in the student's favor, a half-century ago; and not as either a Free Exercise matter or an Establishment matter, but a Free Speech matter. This of course was the Barnette decision, the very opinion that Judge Reinhardt quotes from to try to undermine Judge O'Scannlain's view, in dissent, that judges should care, at least a little, what the public thinks of their decisions.

    Let me suggest two options for the Supreme Court (apart from the obvious one of reiterating its own countless dicta citing "under God" in the Pledge as the very model of a noncontroversial accommodation of civil religion, and telling the Ninth Circuit to get serious).

    1. Hold that Barnette -- which prohibits public schools from forcing students to say the Pledge, while leaving schools (and the communities they supposedly, supposedly, represent) free to make the Pledge ("under God" and all) a non-mandatory but organized part of the school day -- solves the problem here, and no extension of Barnette is needed to protect Ms. Newdow's rights.


    2. Dismiss the whole case on standing grounds. There is no evidence that Ms. Newdow herself ever objected to "under God," and there is evidence in the record from her present guradian that she doesn't and never did. The whole case therefore looks like a game of Let's Make Some Law.

    :: David M. Wagner 2:54 PM [+] ::
    :: Thursday, February 27, 2003 ::
    Re this item, Mitchell Freedman writes in:

    Did it ever occur to anyone that Pelosi was zinging Dornan for possible racism in making the remark? To Pelosi, Dornan was a right wing racist (in her mind, often a redundant phrase) who opposed most civil rights law protections while he served in Congress--though he claims to have been a supporter of civil rights and marched in the 1963 march on Washington where King spoke about his "dream."

    For Pelosi and other abortion rights persons--and I know this is hard for anti-abortion rights folks to see--abortion rights are part of civil rights for women. It is about autonomy for their bodies. We have all argued the pros and cons of this position till we're blue in the face, but without that context, it is unfair to paint Pelosi as a racist or having a Trent Lott moment.

    Want to attack her for supporting the murder of fetuses? Want to say she's wrong to think right wingers like Dornan who voted against most civil rights laws during his Congressional tenure is a sign that Dornan is racist? Fine. But Pelosi as Trent Lott? No way.

    I don't really care whether Pelosi "is Trent Lott." That was just some journalist's tag for the incident. Shall we talk about the substance, not the tag? Unless she was just making a ghoulish joke, Pelosi offered Dornan a blatantly racist argument for abortion that she evidently hoped, perhaps expected, that Dornan would buy.

    I don't know what Dornan did to deserve such a low opinion from Pelosi; maybe she too concluded that someone who so often votes against bills labelled "civil rights" must be a racist. On the other hand, Dornan and Pelosi had frequently worked together on issues involving human rights in China, including the case of Harry Wu back in '95.

    But Dornan's not the issue: he's now out of Congress, while Pelosi is Minority Leader, and one may -- and I do -- make an issue of her willingness to deploy an argument straight out of the twilight world of pre-World War II eugenics. Click e.g here and here.

    :: David M. Wagner 2:48 PM [+] ::
    :: Wednesday, February 26, 2003 ::
    Richard Posner reviews a new biography of William O. Douglas. Man, oh man...!

    :: David M. Wagner 5:23 PM [+] ::
    A memo from a colleague:

    On Saturday, February 22, 2003, for the first time since 1988, a Virginia law school won William and Mary's prestigious William B. Spong, Jr. Moot Court Tournament. The winning team was from Regent University School of Law!

    We were blessed to have two outstanding teams represent Regent at the Tournament. E. Lauren McCay and T. Mark Moseley advanced to the finals where they defeated South Texas College of Law by delivering a flawless argument. In round after round of tough competition before distinguished panels of Virginia judges and practitioners, Lauren and Mark demonstrated outstanding case knowledge and skill at the podium. After William and Mary's Dean, Taylor Reveley, announced that Regent had won the Tournament, state and federal judges from around the Commonwealth made it a point to seek Lauren and Mark out and congratulate them on a job well done.

    Jody Fauley, David Ratz and Eugene Harris performed admirably and advanced to the quarterfinals where they were narrowly edged out by a team from Fordham University. Jody, David and Eugene also showed exceptional skill and savvy. These three men worked incredibly hard this year in preparing for the Tournament and have grown tremendously. I am hopeful that their success as Quarterfinalists at the Tournament this year will lead to even greater accomplishments in our Moot Court program next year.

    :: David M. Wagner 4:05 PM [+] ::
    Court rules 8-1 against NOW in RICO case

    Here is the decision.

    :: David M. Wagner 12:25 PM [+] ::
    Estrada filibuster begins to unravel

    Hispanic groups are divided, more Democrats support Estrada outright (hat tip to How Appealing for that link), and in course of time more will vote for cloture, even if they oppose Estrada, just to get a life.

    :: David M. Wagner 8:22 AM [+] ::
    Apparently there weren't four votes to review a 7th Circuit decision upholding Indiana's abortion law, which requires face-to-face counselling, which Pennsylvania's waiting-period law, upheld in Casey, did not.

    :: David M. Wagner 8:15 AM [+] ::
    :: Monday, February 24, 2003 ::
    Right shoulder

    OK, by now most of you probably know that the Justice is out for a few days because of surgery on his right shoulder. It's a rotator cuff injury of a type common among enthusiasts for racquet sports, but no one is saying exactly how the squash-playing Justice got hurt.

    So why not a top-ten-suggestsions list? I'll get us started, which includes nailing the easy ones.

    * Leaning too far to the right
    * Tossing the pizza dough too high
    * If he didn't make such a racquet during oral argument, he wouldn't have a racquet-related injury

    That's all I can think of right now. If I receive some more good ones, I'll publish them.

    In the meantime, we all wish the Justice a speedy recovery, don't we? I mean, you might as well -- it's not holding him back from participating in cases!

    :: David M. Wagner 4:35 PM [+] ::

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