NINOMANIA
:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::
:: Thursday, 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 [+] ::
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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 [+] ::
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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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:: David M. Wagner 8:25 AM [+] ::
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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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:: David M. Wagner 6:30 PM [+] ::
...
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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:: David M. Wagner 10:01 PM [+] ::
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:: David M. Wagner 5:52 PM [+] ::
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:: David M. Wagner 5:21 PM [+] ::
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:: David M. Wagner 9:20 PM [+] ::
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:: David M. Wagner 9:10 PM [+] ::
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:: David M. Wagner 2:50 PM [+] ::
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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 [+] ::
...
:: David M. Wagner 3:12 PM [+] ::
...
:: David M. Wagner 4:49 PM [+] ::
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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 [+] ::
...
You know what that means, don't you?
"We are Zion! And we are NOT AFRAID!!"
:: David M. Wagner 10:44 PM [+] ::
...
:: David M. Wagner 5:18 PM [+] ::
...
:: David M. Wagner 12:11 PM [+] ::
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Disclosed here; translated here and here.
:: David M. Wagner 4:53 PM [+] ::
...
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 [+] ::
...
:: David M. Wagner 4:11 PM [+] ::
...
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 [+] ::
...
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 [+] ::
...
