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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 ::

-- Eve Tushnet

"Frankfurter was born too soon for the Web, but I'm sure that, had it been possible, there would have been the equivalent of Ninomania for Frankfurter."
-- Mark Tushnet
(I agree, and commented here.)

"The preeminent Scalia blog"
-- Underneath Their Robes

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    :: Thursday, September 30, 2004 ::
    I happen to be pro-refugee. If other conservatives don't like that, too bad. I'm adding the Immigrant and Refugee Appellate Center to my blogroll. Meanwhile, H.R. 10 wants careful attention lest it become a vehicle for sending refugees, or anyone, to places where they will be tortured. (Hat-tip: Eve.)

    :: David M. Wagner 5:39 PM [+] ::
    Found this on How Appealling:

    Justice in the Balance: Catholic Lawyers and Scholars Speak out on the Threat to Catholic Values Posed by a Kerry Presidency

    :: David M. Wagner 5:07 PM [+] ::
    WASHINGTON (AP) -- The Supreme Court will get rid of a little bit of its secrecy next week when it abolishes the practice of keeping justices' names out of the official record of argument sessions.

    This is a welcome development, though it will take the sportsmanship out of figuring out where the questions were coming from. Until now, we could only go by leitmotifs. If the question sounded like it was from another case (or planet), it was Breyer. If two questioners interrupted each other, it was Ginsburg and O'Connor. If it reminded you of first year, it was Souter. If there wasn't a question, it was Thomas. And if it was snarky, well....

    :: David M. Wagner 4:07 PM [+] ::
    :: Tuesday, September 28, 2004 ::
    Princeton Review is out with its first-ever guide to law schools. Regent is second, out of 117, in "quality of life," behind UVa and ahead of Stanford. And we're ninth (again, out of 117) in "Professors Rock (Legally Speaking)."

    :: David M. Wagner 10:00 PM [+] ::
    Court will hear Connecticut eminent domain case. The linked Bloomberg.com story quotes a friend of mine, Institute for Justice litigator Dana Berliner.

    :: David M. Wagner 4:21 PM [+] ::
    :: Monday, September 27, 2004 ::
    Quote of the day:

    The story is told of the elderly judge who, looking back over a long career, observes with satisfaction that "when I was young, I probably let stand some convictions that should have been overturned, and when I was old I probably set aside some that should have stood; so overall, justice was done." I sometimes think that is an appropriate analog to this Court's constitutional jurisprudence, which alternately creates rights that the Constitution does not contain and denies rights that it does. Compare Roe v. Wade, 410 U.S. 113 (1973) (right to abortion does exist) with Maryland v. Craig, 497 U. S. 836 (1990) (right to be confronted with witnesses, Amdt. 6, does not).
    -- Justice Scalia, dissenting in County of Riverside v. McLaughlin

    :: David M. Wagner 7:33 PM [+] ::
    :: Sunday, September 26, 2004 ::
    Scalia and Frankfurter

    Over at Balkinization, guest poster Prof. Mark Tushnet speculates that, had Justice Frankfurter lived in the digital age, he would have inspired a blog much the equivalent of this one. I thank Professors Tushnet and Balkin for the link.

    And now, my opinion. Frankfurter and Scalia, despite major differences which I will mention, were alike in that they clung to Anglo-American Common Law reasoning, and the legal ideals behind it, with a fervor that is perhaps only possible in those who, by family background, are outsiders to that tradition, and thus in some sense, converts to it, rather than being (to stretch the metaphor) "cradle Common Lawyers."

    Both were “New Deal” Justices. If that label sits oddly on Scalia, consider that he, like Frankfurter, stands for broad legislative power and a sharply restrained, though still independent, role for the Court. Scalia appears to accept without remainder the Reagan administration view (which I more than once articulated on the word-processor screen as a DOJ speechwriter -- whether I fully adhere to it now is a separate question) that there's not a dime's worth of difference between the judicial activism of the Lochner era and that of the Warren and early Burger Courts.

    Frankfurter and Scalia are most noticeably similar in Free Exercise cases. Both stand for the privileges and dignity of self-government over against the self-defining, self-expressing individual. One and the same strain of republicanism can be seen in Gobitis ("Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities."), the Barnette dissent ("[T]he history out of which grew constitutional provisions for religious equality and the writings of the great exponents of religious freedom -- Jefferson, Madison, John Adams, Benjamin Franklin -- are totally wanting in justification for a claim by dissidents of exceptional immunity from civic measures of general applicability, measures not in fact disguised assaults upon such dissident views."), Smith ("The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind...."), and the Boerne concurrence ("Who can possibly be against the abstract proposition that government should not, even in its general, nondiscriminatory laws, place unreasonable burdens upon religious practice? Unfortunately, however, that abstract proposition must ultimately be reduced to concrete cases. The issue presented by Smith is, quite simply, whether the people, through their elected representatives, or rather this Court, shall control the outcome of those concrete cases.").

    But the resemblance starts to fade after that. It does not even extend to the other side of the Religion Clause, as Frankfurter took the religion-as-troublemaker view (see McCollum: "Designed to serve as perhaps the most powerful agency for promoting cohesion among a heterogeneous democratic people, the public school must keep scrupulously free from entanglement in the strife of sects" etc. etc.), which is self-evidently far from Scalia’s view (see the Weisman dissent: "The Baptist or Catholic who heard and joined in the simple and inspiring prayers of Rabbi Gutterman on this official and patriotic occasion was inoculated from religious bigotry and prejudice in a manner that cannot be replicated").

    They were also rather different cultural characters. Though both in a sense “ethnic,” Frankfurter’s personal merger into Harvard-based WASP culture was fairly complete, while Scalia – himself not lacking in Harvard credentials -- retains just enough Italian-American truculence to be willing to call American law to account for how it lives up to its Common Law roots, and to do so with a convert’s fervor. He doesn’t care whether he’s invited to give the graduation speech as long as he can loudly remind the college of its mission. He’s not trying to get into the Club; he’s trying to revive the principles that built the society that made the Club possible.

    Behind many of the opinions in which Justice Scalia extols the “Anglo-American” legal tradition, and the dissents in which he warns against the statist seductions of Continental law, I hear a voice that says (and please understand that these are my words, not Justice Scalia's):

    “I know about a tradition older than yours. My people discovered legal science in the lecture-halls of Bologna while yours were discovering novel disseisin at the Sussex Assizes. Mine were giving the most advanced law the world had ever known to the entire Mediterranean world while yours were marauding their way across the wastes of northern Europe. I have given my tradition up because I was raised instead in yours, and because yours protects freedom better than mine did. Do not let it go. For once it is gone, others will be waiting to take its place that you know not of. Do not let it go.”

    :: David M. Wagner 8:16 PM [+] ::
    :: Monday, September 20, 2004 ::
    Criminal law questions

    A student asks:
    Do general and specific intent have any correlation with the concepts of mala in
    se and malum prohibitum, respectively? Some of the note portions of the text
    indicated that if something was wrong in itself, only general intent is required
    (this also supplements your in-class definition about the same evidence proving
    both the act and intent.
    I think the answer is yes. I've tried to imagine a malum prohibitum crime that is neither strict liability nor specific intent, and I haven't succeeded yet. In order for a jury to jump rationally from proof of a voluntary act to proof of mens rea, the act has to be recognizable as bad; otherwise, you're talking strict liability.

    Another student asks:
    I am still confused about the difference between specific and general intent. I
    understand the concept about specific intent being about the consequences beyond
    the act. However, could you further explain general intent to me? What are some
    other examples of general intent besides battery?
    Statutory rape might be an example, except in jurisdictions that make knowledge of the victim's age an element. Common-law rape might be another example, though there are arguments over whether, if at all, knowledge of the woman's non-consent should be an element. If it isn't, then rape is a general-intent crime.

    There's a reason why the general/specific distinction has been criticized, and why LaFave in his hornbook ignores it except for his discussion of intoxication as a defense.

    The easy part of this problem is that whenever you see a statute or a common-law definition that includes words like "with intent to..." or "with knowledge of...", you can be sure you're looking at a specific intent crime.

    :: David M. Wagner 11:22 AM [+] ::
    :: Monday, September 06, 2004 ::
    Here, at PolState.com, two Virginia politics-watchers say more or less what I think about Ed Schrock.

    :: David M. Wagner 3:14 PM [+] ::

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