NINOMANIA

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:: Sunday, March 27, 2005 ::

Well, what an Easter present -- this blog is mentioned in a feature article in The New Yorker! Margaret Talbot, "Supreme Confidence: Justice Antonin Scalia's opinions," March 28, 2005, on newsstands now.

Even before I came across this evidence of the writer's superior taste in blogs, I had resolved that this flawed but generally excellent article is compound-blogworthy. Watch this space for brief excerpts from it followed by my comments, whether for praise or blame.

Meanwhile, Prof. Kmiec has thoughtfully sent me a response to the challenge I laid down a couple of posts ago, and if I can find time between tooting my horn over the Talbot article, I will respond as best I can to the points he makes.

:: David M. Wagner 5:42 PM [+] ::
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:: Friday, March 25, 2005 ::

Jan LaRue, Chief Counsel, Concerned Women for America: "Too Bad Terri's Not a Terrorist or a Condemned Murderer." Excerpts:

What lawyer wouldn’t challenge probable cause for a search warrant based on the kind of stale and highly suspect hearsay that Judge Greer found to be clear and convincing evidence of Terri’s wishes, sufficient for him to order her death?...

There’s constant harping about how many judges have reviewed Terri’s case. So what? None of them has reviewed the evidence to see if, as a matter of law, it’s sufficient to sustain the court’s orders. That’s what Congress ordered to be done in “Terri’s law.” But it wasn’t.

Suddenly it’s all about state rights and limiting review to state courts and federalism. And how dare Congress interfere by enacting a statute that gives Terri the same kind of federal review that Scott Peterson will have? The reason “Terri’s law” applies only to her is because the Senate Democrats refused to agree to unanimous consent to pass a bill unless it applied only to Terri. How convenient that they now blame Republicans who wanted a bill that would apply to anyone in Terri’s circumstances.

...Even if we knew that's what Terri wants, Florida law makes aiding and abetting a suicide a felony, and there's no black-robed exemption.

Terri Schiavo isn’t dying from a disease, she isn’t on a ventilator, she doesn’t meet Florida’s definition of “persistent vegetative state,” and she committed no crime. She’s being killed by a judge on the flimsiest of evidence.

Some missing advocates need to step up to the Bar.

EDITED TO ADD: Though "persistent vegetative state" is a term used in the code of Florida and perhaps of other states, it is out place in the legal lexicon of any civilized polity, at least as applied to human beings. Catholic Hollywood screenwriter Barbara Nicolosi explains why:

"Persistent Vegetative State" - or PVS as the pundits are dropping it. This is my favorite line from the culture of death dictionary. It's right up there with calling a child in the womb "a product of pregnancy"! Fabulous! We call a person a vegetable or a product when we want to subjugate their lives to our own. It's what we used to call in college rhetoric, "The Define and Dismiss Argument".

Human beings are never in a "vegetative state." Beyond folks who are sick or in a coma, even those of us who are Nobel Laureates, or Federal judges, can't manage to make chlorophyl, which is, you know, kind of the defining act of a piece of vegetation. It's unfair, but it's a species thing.

So, why does the culture of death need PVS? Well, what do we do with vegetables? We chop them and fry them in a little oil and throw them down the garbage disposal. Basically, we do whatever we damn well please. There's no moral dilemma in clipping the sharp leaves off an artichoke.

:: David M. Wagner 12:23 PM [+] ::
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:: Thursday, March 24, 2005 ::

Terri near end of legal rope: Say, I may be hallucinating at this point, but didn't the Senate last week issue subpoenas to Terri and Michael? So, where's the enforcement? Where's the Little-Rock-1957-style dispatching of national guardsmen to keep Terri alive at least until the Senate has held hearings (in her room at the hospice, if necessary)?

:: David M. Wagner 4:57 PM [+] ::
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:: Tuesday, March 22, 2005 ::

"David Wagner at Loyola Law School." Aw shucks...!

:: David M. Wagner 5:21 PM [+] ::
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I just haven't had time to fisk all the idiocy that's rolling off the presses on the Schiavo issue; fortunately, some of the burden has been taken off my hands by Christopher Cross, the brilliant president of the Federalist Society chapter of Loyala Law School of Los Angeles, who comments here.

To the Republican legal academics who have been spending a lot of time on-line attacking what Congress is trying to do:

I really, really, really like federalism. But I think it's a wise practical principle, not a mandate of the natural law. The cardinal virtue of prudence requires that we put our priorities in a morally rational order.

An example. I, too, harbor doubts as to whether Congress "really" has the enumerated powers necessary to pass, say, a ban on partial birth abortion. But when that issue gets to court, I would be honored to be on the team trying to make the best possible case for the affirmative on that question.

I love federalism, but I wouldn't kill for it.

:: David M. Wagner 5:08 PM [+] ::
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Chicago Tribune: Schiavo statute unusual but not necessarily unconstitutional.

"The biggest criticism I might have is that I've never seen anything like it," said Akhil Amar, a professor at Yale Law School. "But that doesn't automatically mean it's unconstitutional."

Stephen Presser, a law professor at the Northwestern University Law School, said he initially had thought the law would fail constitutional review, but ultimately concluded, "It's a closer call."

"I go back and forth," he said.

I'm very disappointed with Prof. Douglas Kmiec (quoted further along in the article), whose con law casebook I'm using -- for now. Hey, students, let's go back and review the part where the editors strongly imply that the Dred Scott case should have been resolved on the basis of natural law as declared in the Declaration of Independence! The U.S. Constitution protects certain inalienable rights, including life -- that is your position, isn't it, Doug? If it were 1856 and the federal courts had refused to hear Dred Scott's appeal, and Congress had passed a statute requiring that they do so (but not directing the outcome), would that have been an "abomination," Doug? Undoubtedly the fault is mine, but I must say that I Do Not Get It.

ACLJ's amicus brief in support of preliminary injunctive relief.

:: David M. Wagner 12:14 AM [+] ::
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:: Tuesday, March 15, 2005 ::

Democrat Reid Threatens to Block Senate Action Over Rule Change

March 15 (Bloomberg) -- Senate Democratic leader Harry Reid threatened to bring the Senate to a halt if Republicans try to change the chamber's rules to prevent the minority party from blocking President George W. Bush's judicial nominees.

You mean, a governmnent shut-down? Like Gingrich, only with Democrats in dunce corner this time? Oh boy oh boy!

I've been wondering how to refocus the public's attention on judicial nominations (short of more attention being paid to this issue by the President, ahem, ahem). Looks like Harry Reid has figured out a way to do this. The man's a genius.

:: David M. Wagner 9:15 PM [+] ::
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The California trial opinion creating a right to same-sex marriage certainly appears thorough: on the one hand, there no rational basis for restricting marriage to opposite-sex partners (so, civilization has been irrational until Judge Kramer, Justice Margaret Marshall, et al. came along), but on the other hand, just in case a rational basis should turn up -- well, surprise surprise, the "ban" is also gender discrimination, so (in California, anyway) strict scrutiny applies.

All bases covered. All current liberal pieties assuaged. Is there anything else we can do for you...?

:: David M. Wagner 9:04 PM [+] ::
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:: Saturday, March 12, 2005 ::

Death in the Afternoon comments on:

1. Recent IP outrages. You can't, of course, use copyright to remove titles (I don't mean duke or earl, I mean, you know, "Ninomania," or "Death in the Afternoon") from the use of fellow human beings, but it's amazing what you can do with the far more fascistic field of trademark.

2. Should law-student bloggers have to run a conflicts-check before they do any legal analysis on their blogs? This may be more of a problem for "Death"'s Elm City colleagues than for (many of) my students, simple because, at this point in time (I say nothing of five years from now!) more of the former than of the latter have summer jobs with firms big enough to be able to make themselves unpleasant over this. Still, there it is.

Oh and by the way, the above trashtalking of IP and of big firms should not be taken as my considered or definitive position, in case there are any big IP firms reading this! (Just kidding. You couldn't pry me away from teaching with a crowbar.) (Yessir, I love teaching with a crowbar. Kidding again!)

:: David M. Wagner 2:46 PM [+] ::
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:: Thursday, March 10, 2005 ::

Ten Commandments side-argument: religion = natural law?

The Pittsurgh Post-Gazette's Michael McGough doesn't quite understand natural law. Well, few do -- I certainly don't, and I've been at it for a while -- but one really ought not commit the traditional floater of equating natural law with religion. Writing in Slate, McGough highlights these words used by Justice Scalia at the oral argument in the Ten Commandments case:

"It's not a secular message. I mean, if you're watering it down to say that the only reason it's OK is it sends nothing but a secular message, I can't agree with you. I think the message it sends is that law is—and our institutions come from God. And if you don't think it conveys that message, I just think you're kidding yourself."

For McGough, these words indicate (with due allowance made for the fact the oral argument is often play-time for the Justices) a departure from Justice Scalia's "usual preference for a 'positivist' rather than a natural-law approach to constitutional interpretation."

So, ummm, "natural-law approach" = theistic, and "postivist" = non-theistic?

I'm afraid that is what McGough believes. He cements the connection further when he adds (referring to a brief by the Christian Legal Society in the Pledge of Allegiance case, but not distancing himself from this particular view):

References and monuments to God are not merely secular or historical; they are the fundamental building blocks of natural law.

There it is again: "secular" is on one side (along with "historical"), and "natural law" is on the other. On "historical," this antinomy may be correct: as John Finnis maintains, natural law, properly so-called, is timeless and therefore not historical.

But "secular"? Why is that opposed to natural law? Because the leading theorists of natural law have also been theologians? But that is to misunderstand gravely what those theologians were saying. For Thomas Aquinas, to take the most obvious example, a certain category of law was "natural" in contradistinction to "divine" and "eternal." Some aspects of law can only be known by revelation, i.e., by super-natural means; others, in contrast, are "natural," meaning they can be known by "natural" means. "Natural," in "natural law," is understood in contrast to "super-natural," not in contrast to "secular." On the contrary, it is secular.

Oh I know, I know: for some players in the jurisprudence game, including too many in academia, the most distinctive feature of the natural-law tradition is its historic connection to Christianity, and to Roman Catholicism in particular, and that gives such players a handy way to dismiss it out of hand. But Finnis and others have been fighting an increasingly winning battle against such laziness (at best) and such bigotry masked as academic hauteur (at worst). Time for Slate and the Pittsburgh Post-Gazette to catch up.

(Note to hardcore natural-law buffs: I'm not taking sides here between the Finnisites and the Hittingerians. I'm just citing Finnis for the timelessness point.)

:: David M. Wagner 5:18 PM [+] ::
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Quote of the day:

"The Common Law is the perfection of human reason -- just as alcohol is the perfection of sugar."

-- Robert Rantoul, codification advocate, in 4th of July speech, 1836

:: David M. Wagner 11:14 AM [+] ::
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:: Sunday, March 06, 2005 ::

I've got an article in this week's Weekly Standard. To read the whole thing, you'll have to subscribe. You should anyway.

:: David M. Wagner 10:21 PM [+] ::
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:: Thursday, March 03, 2005 ::

More on Roper v. Simmons (juvenile death penalty case)

1. I was wrong in implying that the international authorities cited are exclusively European: the opinion also includes glancing references to the American Convention on Human Rights (Pact of San Jose, Costa Rica) and to the African Charter on the Rights and Welfare of the Child.

2. It honks anyway.

:: David M. Wagner 10:01 PM [+] ::
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:: Tuesday, March 01, 2005 ::

Juvenile Death Penalty Banned by U.S. Supreme Court

March 1 (Bloomberg) -- A divided U.S. Supreme Court outlawed executions of murderers who were under 18 at the time of the crime, saying the practice violates the constitutional ban on cruel and unusual punishment.

Here is the slip opinion. Justice Scalia's dissent is here.

You know, state governments -- notoriously pinched for funds -- could save a bundle by disbanding their legislatures and just letting the Supreme Court rule them directly through its by-now-familiar process of consensus-discernment. The only downside would be that the views of "international" (read: European; certainly not African or Asian) jurists would frequently be enacted into American constitutional law, as they have been today.

I don't even particularly like the death penalty. The preaching of Pope John Paul II has given me a lot that I need to think about here. But the formulation of a moral judgment on it, and the translation of that judgment into votes every election year, is something I can handle myself, and I think most of my fellow-citizens can too. When did I resign that authority to litigators and courts? When did we vote on that? Oh, I forgot: resolving major issues by voting is so two hundred years ago.

And another thing I forgot: morality can't be the basis for legislating any more. Only for judging, it seems.

To get you started on the dissent:

In urging approval of a constitution that gave life-tenured judges the power to nullify laws enacted by the people's representatives, Alexander Hamilton assured the citizens of New York that there was little risk in this, since "[t]he judiciary...ha[s] neither FORCE nor WILL but merely judgment." The Federalist No. 78, p. 465 (C. Rossiter ed, 1961). But Hamilton had in mind a traditional judiciary, "bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them." Id., at 471. Bound down, indeed. What a mockery today's opinion makes of Hamilton's expectation, announcing the Court's conclusion that the meaning of our Constitution has changed over the past 15 years -- not, mind you, that this Court's decision 15 years ago was wrong, but that the Constitution has changed.....Worse still, the Court says in so many words that what our people's laws say about the issue does not, in the last analysis, matter....

:: David M. Wagner 2:41 PM [+] ::
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