NINOMANIA

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:: Wednesday, December 29, 2004 ::

On this day sacred to Thomas Becket, I wish you a Merry Christmas. I hope you said as much to many people, and really annoyed them.

When I get back after New Years, I'll have some exciting Confrontation Clause stuff to share. After that, maybe I'll see you at AALS.

:: David M. Wagner 10:43 PM [+] ::
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:: Wednesday, December 22, 2004 ::

America's founders were opposed to the "establishment" of religion, whose meaning is clear enough to any Englishman: the new republic did not want President Washington serving simultaneously as Supreme Governor of the Church of America, or the Bishop of Virginia sitting in the US Senate. Two centuries on, these possibilities are so remote that the "separation" of church and state has dwindled down to threats of legal action over red-and-green party napkins.

-- Mark Steyn, Daily Telegraph (London), Dec. 12, 2004

:: David M. Wagner 11:56 AM [+] ::
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Senators Brownback and Coburn will join the Judiciary Committee, replacing Chambliss (who takes over Ag) and Craig. Brownback key to anti-abortion strategy, says home-state paper.

:: David M. Wagner 11:49 AM [+] ::
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:: Monday, December 20, 2004 ::

New blog by Prof. Dru Stevenson: South Texas Law Professor.

:: David M. Wagner 5:32 PM [+] ::
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:: Tuesday, December 14, 2004 ::

ACLU Files Suit in Pa. Over Evolution
Tuesday, December 14, 2004

HARRISBURG, Pa. — The state American Civil Liberties Union plans to file a federal lawsuit Tuesday against a Pennsylvania school district that is requiring students to learn about alternatives to the theory of evolution.

The ACLU said its lawsuit will be the first to challenge whether public schools should teach "intelligent design," which holds that the universe is so complex that it must have been created by some higher power.

The Dover Area School District was believed to be the first in the nation to mandate intelligent design when it voted 6-3 in October in favor of including the concept in the science curriculum.

continuation

Amazing. This is not a Scopes-type case, where the government prosecutes a teacher who taught a disfavored theory. Here, the government itself (the school board) is coming to the aid of a disfavored theory, and in so doing, is in effect broadening the intellectual options presented to students. The ACLU is suing to prevent this. When the subject at hand is that of human origins, the ACLU's take is that the First Amendment requires suppression of competing theories. It's trying to do exactly what Justice Douglas, reinventing Pierce in his Griswold opinion, called "contract[ing] the spectrum of available knowledge."

:: David M. Wagner 2:10 PM [+] ::
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:: Thursday, December 09, 2004 ::

TO MY CRIMINAL LAW STUDENTS (I mean -- oh, never mind):

Generally speaking, now that the exam is out, I can't answer substantive questions. However, this one came in before the exam was released, so I'll answer it:

I have looked online at the other exams and noticed that you gave points for things like battery and burglary, which we did not cover in this class. Do you want us to spot issues like that even if we did not go over them? If so, how in depth do you want the analysis to be?

Anything we discussed in class is "examinable." OTOH, the less we talked about it, the fewer points are likely to be attached to it.

:: David M. Wagner 8:18 PM [+] ::
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:: Tuesday, December 07, 2004 ::

Is this guy for real? At first I wondered why a law prof blogger would want to be anonymous. Then I had a look at his blog.

:: David M. Wagner 3:15 PM [+] ::
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:: Wednesday, December 01, 2004 ::

"Guarantee"-ed failure

Boston Globe: U.S. Justices Won't Hear Mass. Case, i.e. an appeal from Goodridge. Well of course not. This appeal was based on the "guarantee" clause, Article IV, Section 3: "The United States shall guarantee to every State in this Union a Republican Form of Government...." This is the archtypal non-justiciable clause, ever since 1849. Everyone is reasonably sure the clause does not mean that all states have to have GOP governors and legislative majorities, tee hee, but no one knows what it does mean.

(I have a hunch there's an anti-Catholic kick behind it: rule by a Catholic monarch was considered the antithesis of "a Republican Form of Government," and the Founders could not forget that the country was bordered by territories belonging to the crowns of France and Spain. Notice the "Invasion" clause that comes right after the Guarantee clause, separated only by a comma, which is less than separated New England and New York from Quebec, or Georgia from Florida.)

The suit the Supremes turned aside asked them to hold, basically, that the Massachusetts Supreme Judicial Court deprived Massachusetts of a "Republican Form of Government" by taking it upon itself to redefine marriage in that state. Courts violate the Guarantee Clause when they make decisions best left to legislatures? Oh yeah, I can see the U.S. Supreme Court holding that....

:: David M. Wagner 3:08 PM [+] ::
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