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 ::
:: Saturday, June 26, 2004 ::
Torture memos -- first comment
I'm going to be away for a few days, with limited computer access, so if the Court upends the nation again and I don't comment immediately, that's why.
When I get back I hope to post something about the "torture memos". The one I've looked at so far -- the one from OLC in August of 2002 -- makes a rather strange move, it seems to me, in construing the "intent" term in the federal torture statute. It's first-year black-letter law that something done "knowingly" is done intentionally. You aim to blow up Mr. A; you do it by blowing up a commercial on which Mr. A and 200 other people are flying --> you're guilty of 201 counts of murder, not one. You may only have "intended" to kill Mr. A, but you knew other passengers would die too.
So why would OLC lawyers think that the torture statute is not violated if the defendant "merely" knew his acts would cause torturous pain? The answer may have to do with the fact that the statute, rather unusually, uses "specifically intends" as its mens rea term -- but that still may not give OLC a solid argument.
More when I get back.
:: David M. Wagner 10:32 PM [+] ::
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:: Friday, June 25, 2004 ::
Blakely v. Washington: Another Scalia libertarian crim pro opinion that scrambles the usual coalition. Held: factors leading to an upward departure from legislated sentencing guidelines must be found by a jury, beyond a reasonable doubt, and not be a judge.
The line-up: Scalia, J., delivered the opinion of the Court, in which Stevens, Souter, Thomas, and Ginsburg, JJ., joined. O’Connor, J., filed a dissenting opinion, in which Breyer, J., joined, and in which Rehnquist, C. J., and Kennedy, J., joined except as to Part IV—B. Kennedy, J., filed a dissenting opinion, in which Breyer, J., joined. Breyer, J., filed a dissenting opinion, in which O’Connor, J., joined.
To savor: This case requires us to apply the rule we expressed in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000): “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” This rule reflects two longstanding tenets of common-law criminal jurisprudence: that the “truth of every accusation” against a defendant “should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours,” 4 W. Blackstone, Commentaries on the Laws of England 343 (1769), and that “an accusation which lacks any particular fact which the law makes essential to the punishment is … no accusation within the requirements of the common law, and it is no accusation in reason,” 1 J. Bishop, Criminal Procedure §87, p. 55 (2d ed. 1872).5 These principles have been acknowledged by courts and treatises since the earliest days of graduated sentencing; we compiled the relevant authorities in Apprendi, see 530 U.S., at 476—483, 489—490, n. 15; id., at 501—518 (Thomas, J., concurring), and need not repeat them here.
This is a matter not only of defendants' rights but also of constitutional structure: Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary. See Letter XV by the Federal Farmer (Jan. 18, 1788), reprinted in 2 The Complete Anti-Federalist 315, 320 (H. Storing ed. 1981) (describing the jury as “secur[ing] to the people at large, their just and rightful controul in the judicial department”); John Adams, Diary Entry (Feb. 12, 1771), reprinted in 2 Works of John Adams 252, 253 (C. Adams ed. 1850) (“[T]he common people, should have as complete a control … in every judgment of a court of judicature” as in the legislature); Letter from Thomas Jefferson to the Abbé Arnoux (July 19, 1789), reprinted in 15 Papers of Thomas Jefferson 282, 283 (J. Boyd ed. 1958) (“Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative”)....
Between Blakely and Crawford, this has been a good year for the Sixth Amendment, and for Our Hero's project of reviving its protections. (And a deservedly bad year for the state of Washington. How 'bout them apples?)
:: David M. Wagner 5:49 PM [+] ::
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:: Thursday, June 24, 2004 ::
SG Olsen to return to private practice.
:: David M. Wagner 10:39 PM [+] ::
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:: Friday, June 18, 2004 ::
Another unanimous reversal for the Ninth Circuit.
:: David M. Wagner 1:05 PM [+] ::
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:: Thursday, June 17, 2004 ::
A leftist e-zine called BuzzFlash has interviewed Katrina vanden Heuvel, editor of The Nation magazine, and caused an embarrassment to the American left -- or would have done, if the left were embarrassable.
The interviewer said, and Ms. vanden Heuvel agreed, that If one were even to accept at face value a strict constructionist's viewpoint -- which Scalia doesn't in reality accept because he's actually an interventionist judge and an activist judge in defiance of the Constitution -- but in any case, if one were to accept what he claims as strict constructionism, we would still have slavery in this country and women wouldn't have the right to vote.
KvH: I think that's absolutely right....
These are the intellectual leaders American leftwing journalism -- and they think strict construction/original intent/original meaning jurisprudence means refusing to apply the 13th and 19th Amendments?
Don't let your guard down, American conservatives -- but don't panic either. The other side's heavyweights are lightweights.
:: David M. Wagner 6:16 PM [+] ::
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:: Monday, June 14, 2004 ::
Newdow doesn't have standing! Newdow doesn't have standing!
Great victory for the First Amendment, and even more for the standing doctrine.
:: David M. Wagner 11:25 AM [+] ::
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:: Tuesday, June 08, 2004 ::
Spence Publishing is bringing out a lot of titles on constitutional law, religious liberty, and other subjects, expressing perspectives that would otherwise have a hard time trying to fit into the straitjacket of contemporary publishing, whether academic or commercial. I now proudly display their banner in my left margin (and will just as proudly pocket my cut if, as you should, you click there and buy a lot of their books).
:: David M. Wagner 12:05 AM [+] ::
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:: Monday, June 07, 2004 ::
PRESIDENT REAGAN
Justice Scalia's remarks: "Ronald Reagan needs no one to sing his praises. The man who presided over the bloodless dissolution of the Soviet Empire will go down in history as one of our great presidents.
"He was shamelessly patriotic and infectiously optimistic. My sympathies go out to his family, in particular to his wife, Nancy, who enabled him to fill out his time here in privacy and dignity. May he rest in peace."
Thanks to How Appealing for the link. Other obits and coverage here, here, here, and here
:: David M. Wagner 6:58 PM [+] ::
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:: Friday, June 04, 2004 ::
Raoul Berger writes: "On traditional canons of interpretation, the intention of the framers being unmistakably expressed, that intention is as good as written into the text." Government by Judiciary 7 (1977).
Wait a minute. If the intention really is "unmistakably expressed", then it is part of the text -- and in such a case, why talk about intent at all? As one who used to write speeches defending the "jurisprudence of original intent", let me suggest that legislative intent has no importance whatsoever when it conflicts with legislative text. This is because text is voted on, and intent is not.
(As for those speeches, we became aware after a while that we should have been talking instead about a "jurisprudence of original meaning".)
:: David M. Wagner 10:58 AM [+] ::
...
I'm going to be away for a few days, with limited computer access, so if the Court upends the nation again and I don't comment immediately, that's why.
When I get back I hope to post something about the "torture memos". The one I've looked at so far -- the one from OLC in August of 2002 -- makes a rather strange move, it seems to me, in construing the "intent" term in the federal torture statute. It's first-year black-letter law that something done "knowingly" is done intentionally. You aim to blow up Mr. A; you do it by blowing up a commercial on which Mr. A and 200 other people are flying --> you're guilty of 201 counts of murder, not one. You may only have "intended" to kill Mr. A, but you knew other passengers would die too.
So why would OLC lawyers think that the torture statute is not violated if the defendant "merely" knew his acts would cause torturous pain? The answer may have to do with the fact that the statute, rather unusually, uses "specifically intends" as its mens rea term -- but that still may not give OLC a solid argument.
More when I get back.
:: David M. Wagner 10:32 PM [+] ::
...
The line-up: Scalia, J., delivered the opinion of the Court, in which Stevens, Souter, Thomas, and Ginsburg, JJ., joined. O’Connor, J., filed a dissenting opinion, in which Breyer, J., joined, and in which Rehnquist, C. J., and Kennedy, J., joined except as to Part IV—B. Kennedy, J., filed a dissenting opinion, in which Breyer, J., joined. Breyer, J., filed a dissenting opinion, in which O’Connor, J., joined.
To savor:
This case requires us to apply the rule we expressed in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000): “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” This rule reflects two longstanding tenets of common-law criminal jurisprudence: that the “truth of every accusation” against a defendant “should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours,” 4 W. Blackstone, Commentaries on the Laws of England 343 (1769), and that “an accusation which lacks any particular fact which the law makes essential to the punishment is … no accusation within the requirements of the common law, and it is no accusation in reason,” 1 J. Bishop, Criminal Procedure §87, p. 55 (2d ed. 1872).5 These principles have been acknowledged by courts and treatises since the earliest days of graduated sentencing; we compiled the relevant authorities in Apprendi, see 530 U.S., at 476—483, 489—490, n. 15; id., at 501—518 (Thomas, J., concurring), and need not repeat them here.This is a matter not only of defendants' rights but also of constitutional structure:
Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary. See Letter XV by the Federal Farmer (Jan. 18, 1788), reprinted in 2 The Complete Anti-Federalist 315, 320 (H. Storing ed. 1981) (describing the jury as “secur[ing] to the people at large, their just and rightful controul in the judicial department”); John Adams, Diary Entry (Feb. 12, 1771), reprinted in 2 Works of John Adams 252, 253 (C. Adams ed. 1850) (“[T]he common people, should have as complete a control … in every judgment of a court of judicature” as in the legislature); Letter from Thomas Jefferson to the Abbé Arnoux (July 19, 1789), reprinted in 15 Papers of Thomas Jefferson 282, 283 (J. Boyd ed. 1958) (“Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative”)....Between Blakely and Crawford, this has been a good year for the Sixth Amendment, and for Our Hero's project of reviving its protections. (And a deservedly bad year for the state of Washington. How 'bout them apples?)
:: David M. Wagner 5:49 PM [+] ::
...
:: David M. Wagner 10:39 PM [+] ::
...
:: David M. Wagner 1:05 PM [+] ::
...
The interviewer said, and Ms. vanden Heuvel agreed, that
If one were even to accept at face value a strict constructionist's viewpoint -- which Scalia doesn't in reality accept because he's actually an interventionist judge and an activist judge in defiance of the Constitution -- but in any case, if one were to accept what he claims as strict constructionism, we would still have slavery in this country and women wouldn't have the right to vote.These are the intellectual leaders American leftwing journalism -- and they think strict construction/original intent/original meaning jurisprudence means refusing to apply the 13th and 19th Amendments?
KvH: I think that's absolutely right....
Don't let your guard down, American conservatives -- but don't panic either. The other side's heavyweights are lightweights.
:: David M. Wagner 6:16 PM [+] ::
...
Great victory for the First Amendment, and even more for the standing doctrine.
:: David M. Wagner 11:25 AM [+] ::
...
Spence Publishing is bringing out a lot of titles on constitutional law, religious liberty, and other subjects, expressing perspectives that would otherwise have a hard time trying to fit into the straitjacket of contemporary publishing, whether academic or commercial. I now proudly display their banner in my left margin (and will just as proudly pocket my cut if, as you should, you click there and buy a lot of their books).
:: David M. Wagner 12:05 AM [+] ::
...
Justice Scalia's remarks:
"Ronald Reagan needs no one to sing his praises. The man who presided over the bloodless dissolution of the Soviet Empire will go down in history as one of our great presidents.Thanks to How Appealing for the link. Other obits and coverage here, here, here, and here
"He was shamelessly patriotic and infectiously optimistic. My sympathies go out to his family, in particular to his wife, Nancy, who enabled him to fill out his time here in privacy and dignity. May he rest in peace."
:: David M. Wagner 6:58 PM [+] ::
...
Wait a minute. If the intention really is "unmistakably expressed", then it is part of the text -- and in such a case, why talk about intent at all? As one who used to write speeches defending the "jurisprudence of original intent", let me suggest that legislative intent has no importance whatsoever when it conflicts with legislative text. This is because text is voted on, and intent is not.
(As for those speeches, we became aware after a while that we should have been talking instead about a "jurisprudence of original meaning".)
:: David M. Wagner 10:58 AM [+] ::
...
