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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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    :: Monday, March 31, 2003 ::
    PARDON OUR DUST, cont.

    I'm still trying alternative templates. How's this?

    :: David M. Wagner 5:59 PM [+] ::
    Many thanks

    ...to the Yale Law students and Yale undergrads who attended my talk last Friday and made it so much fun to give!

    :: David M. Wagner 5:40 PM [+] ::
    :: Wednesday, March 26, 2003 ::
    From the argument today in Lawrence:

    What about laws against adultery or rape? And what about bigamy, Scalia asked.

    "I mean, who are you to tell me that I can have only one wife, you blue-nosed bigot?" he said, joking.

    :: David M. Wagner 9:02 PM [+] ::
    More on whether the Congress that drafts an amendment knows what it means, and whether we should care

    Jack responds here to my post below. (Actually this is a general link to his blog; for some reason, the link that should take one to his March 26 post instead takes one to his March 24 post. Anyway, if necessary, just scroll down to "Originalism and Consistency".)

    Jack is of course right that, insofar as he himself is not an originalist, the question of what the 39th Congress thought the 14th Amendment means, or of what the 1st Congress thought the 1st Amendment means, need not mean as much to him as it must mean to Justice Scalia.

    With typical thoroughness, though, Jack does not let matters rest there, but goes on to discuss the religious accommodations made by early Congresses:

    The antebellum Congress did a lot of things that we today would think violated separation of church and state; they supported Protestant Christianity nonpreferentially. It is mistake to think that they supported all religions equally, or even all Christian denominations equally. Rather, they tried as best they could to be neutral as between Protestant sects, much to the chagrin of Catholic immigrants who began entering the country in large numbers in the 1830's. Nobody thought there was any obligation to be even handed with respect to Judaism or Islam. So the practices of the antebellum Congress are hardly an appropriate model for constitutional conduct today. (Again, this is part of the problem of invoking original understanding as a justification without knowing how deeply embarassing the actual history often is).

    All this is true; one might even cite Story's stark line about "Judaism, Mahometanism, and infidelity." (In fact, in the Jaffree dissent, Rehnquist does quote it!) But -- and I speak as a Catholic here, keenly aware of the anti-Catholic animus behind much of our Establishment Clause jurisprudence, as described by Justice Thomas in his plurality opinion in Mitchell, and at length in Phil Hamburger's book -- it seems to me that the ante-bellum Congresses (I limit this observation that way so that I can avoid, for now, taking account of Blaine) were making an honest effort to accommodate "what's out there" in terms of religion. In a polity that is overwhelmingly Protestant Christian, it's no surprise, and no scandal, that government measures to accommodate public religiosity take on a Protestant flavor.

    One example of the Framers' intent to accommodate the religion that is actually "out there," rather than to put the thumb on the scale for Protestantism, is the approval by Jefferson -- of all people! -- of federal funds for Catholic schools for certain of the native-American tribes in the territories. Why Catholic schools in that case? Because that's who was "out there," not because Jefferson had a Catholic bias (which I don't think he's ever been accused of anyway!).

    One consequence of the "who's out there" approach is that non-preferential aid to religion becomes broader as our society becomes more religiously diverse. And so it does: e.g. we pay Muslim chaplains in the armed forces even as we are at war with a (nominally, sort-of) Muslim state (and Justice Story can just suck it up!).

    One more thing: I heartily endorse Jack's call for original intent jurisprudence to base itself on accurate historical information. Both the necessity and the feasibility of this are, I think, pre-supposed in Justice Scalia's famous Footnote Six in Michael H., where he argues that substantive due process should be cabined by historical inquiry into what our legal traditions actually are.

    :: David M. Wagner 12:31 PM [+] ::
    :: Tuesday, March 25, 2003 ::
    Prof. Balkin endorses Establishment Clause non-preferentialism

    Interesting debate going on here, here, here, here, and here between Jack Balkin and Stuart Buck over whether, and to what extent, the Reconstruction Congress adopted race-conscious remedies even after enactment of the 14th Amendment (indeed, perhaps relying on Sec. 5 of the 14th to enact them), and what this may or may not mean for the debate over the constitutionality of race-conscious admissions policies at public universities.

    I'm going to take it as proved by Prof. Balkin that the Reconstruction Congress approved race-conscious remedies for racial injustice, extending beyond the ex-slaves themselves.

    This proves that race-conscious remedies are constitutional under the 14th Amendment -- why? Obviously, because measures taken by the very Congress that approved a particular constitutional amendment and sent it to the states are powerful evidence of the original meaning of that Amendment.

    (I say "original meaning" rather than "original intent" to keep the focus on the text as understood at the time, rather than on the subjective intent of the drafters.)

    I can see accepting race conscious remedies on this basis. But then surely Prof. Balkin can see (perhaps he has never denied it -- I don't know) that the accommodations of public religiosity undertaken by the federal government in the 18th and 19th centuries, as detailed by Justice Rehnquist in his Jaffree dissent, must have been perfectly in keeping with the Establishment Clause.

    Some of Rehnquist's exhibits, it must be noted, antedate the ratification, though not the enactment by Congress, of the 1st Amendment. Does that mean Congress was hastening to enact financial and symbolic support for religion (e.g. reenactment of the Northwest Ordinance; resolution requesting a Thanksgiving Day proclamation) that it knew perfectly well was about to become unconstitutional? Does it not seem (quoting Rehnquist) "highly unlikely that the House of Representatives would simultaneously consider proposed amendments to the Constitution and enact an important piece of territorial legislation which conflicted with the intent of those proposals"?

    Justice Souter, directly answering the Jaffree dissent in his concurrence in Lee v. Weisman, finds he must ultimately account for the adverse evidence with the phrase "Homer nodded." In other worrds, the first Congresses to legislate under the First Amendment didn't understand what it really requires.

    If that reasoning is valid, why is it not equally valid to argue that the first Congress to legislate under the 14th Amendment didn't fully understand it? Maybe it really does mean no racial classifications by government, period, only the 39th Congress didn't grasp the implications of this.

    It would have been easy enough to enact: "Congress shall have power to enact all laws necessary and proper to removing the badges and incidents of past conditions of servitude," or something to that effect. Instead, it enacted something that, while not perfectly clear on this point, looks more like a mandate of race-neutrality than an authorization of race-conscious remediation.

    Ah, but the very Congress that drafted the 14th didn't think it meant strict race-neutrality in legislation. Fine. (Let's leave to one side the possibility that Congressional race-conscious legislation was deemed permissible because the Equal Protection Clause applied only to the states.) By the same token, the very Congress that drafted the 1st Am. didn't think it meant an Eversonian no-aid rule. So Rehnquist must be right, and Souter wrong, about the non-sect-preferential support of "civic" religion. No?

    :: David M. Wagner 2:27 PM [+] ::
    :: 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 [+] ::

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