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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 ::

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    :: Monday, June 27, 2005 ::
    Our Hero, concurring in Van Orden: "I join the opinion of The Chief Justice because I think it accurately reflects our current Establishment Clause jurisprudence–or at least the Establishment Clause jurisprudence we currently apply some of the time."

    Caution -- snark-infested waters! Some fun reads today!

    Btw, here is the entirety of O'Connor's dissenting opinion in Van Orden: "For essentially the reasons given by Justice Souter, post, p.___ (dissenting opinion), as well as the reasons given in my concurrence in McCreary County v. American Civil Liberties Union of Ky., post, at ___, I respectfully dissent." A tree died for that?

    :: David M. Wagner 12:34 PM [+] ::
    Only half-right about Van Orden: it did come out the other way, but the swing vote was Breyer, not O'Connor. Here are links to the opinions: McCreary County v. ACLU, and Van Orden v. Perry. (Many thanks to the Cornell Law School's Legal Information Institute, and please send them money.)

    :: David M. Wagner 12:27 PM [+] ::
    Well, I was right on the outcome of Van Orden. Apparently it's so split, we may have to play Follow The Concurrence for a while before we know exactly what Justice O'Connor did. Veteran Court journalist Lyle Denniston (whom I knew slightly at DOJ, and he was no spring chicken then!) says:
    Chief Justice Rehnquist announced the second decision on a religious display, finding no constitutional violation in the placement of a Ten Commandments monument on the grounds of the state capitol building in Austin, Texas. That decision was widely splintered. Announcing the votes of the various Justices, Rehnquist quipped -- to widespread laughter -- that he did not know there were so many Justices on the Court.

    :: David M. Wagner 11:03 AM [+] ::
    While waiting for the Van Orden decision, I'm going to predict it will uphold the Texas display. Two reasons:

    1. O'Connor was the swing vote in McCreary, and she likes to do the Grutter/Gratz two-step.

    2. She may particularly wish to do one here if she perceives, as I think is the case, that if the secularists sweep a double-header today, it will be too deep a draw-down on the Court's public credibility. Otoh, if such a double sweep does occur, it might be an advantage for Republicans in a (still-hypothetical) confirmation battle this summer or (more likely) fall.

    :: David M. Wagner 10:56 AM [+] ::
    BREAKING: Supreme Court rules against Ten Commandments in courthouses. More as the rubble piles up.

    UPDATE: From CNN --

    WASHINGTON (AP) -- A split Supreme Court struck down Ten Commandments displays in courthouses Monday, ruling that two exhibits in Kentucky cross the line between separation of church and state because they promote a religious message.

    The court's decision was 5-4, with Justice Sandra Day O'Connor casting the swing vote.

    That would be the McCreary case. Van Orden is still to come as of this writing.

    :: David M. Wagner 10:18 AM [+] ::
    :: Friday, June 24, 2005 ::
    Brave New London: more on Kelo

    Our local paper gets it: in its print edition this morning (not online), the Virginian-Pilot's headline ran: "City Has Plans For Your Home: Start Packing!"

    Say, you don't suppose Kelo is the Supreme Court's response to the "housing bubble," by any chance? You know -- put the guvmint a check away from owning anyone's house, and housing values just have to go down, don't they?

    But that's not all: the lower home values go, the more tempting the use of eminent domain will become. Soon every square foot of the country that isn't a national park or a wetland will be occupied, not by socially wasteful private homes, but by job-creating, revenue enhancing businesses!

    But wait -- the people who get those jobs -- where will they live? Not a problem: Walmart, Pfizer, et al. will put up tall, efficient apartment blocs right next to their workplaces. Or right above them, so that workers can elevator-commute and not pollute! Solves trafffic problems too, see?

    Eventually the whole nation will look like East Germany in the '60s, except it will be a business-goverment alliance, rather than a means-of-production-owning state, that will be in charge.

    Those Framers, with their 18th century notions of property rights -- what were they thinking?

    :: David M. Wagner 12:47 PM [+] ::
    :: Thursday, June 23, 2005 ::
    Kelo: O'Connormania

    That's quite a performance in the principal dissent in this morning's disastrous Kelo decision! Justice O'Connor is not known for staking out broad philosophical ground, and neither Justice Scalia nor the Chief is known for invoking natural law. Yet the dissent written by O'C and joined by the others and Thomas opens with nothing less than Justice Chase's hymn to natural-law judging from Calder v. Bull!

    Here it is, as cited by O'C:
    “An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority … . A few instances will suffice to explain what I mean… . [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it.” Calder v. Bull, 3 Dall. 386, 388 (1798) (emphasis deleted).
    Now, to be sure, O'C cushions this quotation so as to make it sound as though Chase were construing the Bill of Rights. She does this be prefacing the quotation with:
    Over two centuries ago, just after the Bill of Rights was ratified, Justice Chase wrote....
    But fans of Major League Natural Law-ball will see past this veil that O'C modestly draws over her reversion to First Principles.

    With humility very rare in any high governmnent officeholder, she acknowledges "errant language" in an opinion she herself wrote, namely Midkiff, which the majority relies on and extends:
    There is a sense in which this troubling result follows from errant language in Berman and Midkiff. In discussing whether takings within a blighted neighborhood were for a public use, Berman began by observing: “We deal, in other words, with what traditionally has been known as the police power.” 348 U.S., at 32. From there it declared that “[o]nce the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear.” Id., at 33. Following up, we said in Midkiff that “[t]he ‘public use’ requirement is coterminous with the scope of a sovereign’s police powers.” 467 U.S., at 240. This language was unnecessary to the specific holdings of those decisions....
    It's so good to read an O'Connor dissent that gets a little hot under the collar. So often, whether for the Court or concurring or dissenting, she's in a "Now you boys quit fighting and settle down" kind of mode. Today she's throwing punches.
    [W]ere the political branches the sole arbiters of the public-private distinction, the Public Use Clause would amount to little more than hortatory fluff.
    Now, does today's decision follow from Midkiff and its predecessors? Certainly I had thought that Midkiff virtually turns the Takings Clause's public use requirement into nothing more than a pleading formality, and that fidelity to the Takings Clause would require that Midkiff be overruled. Justice Thomas calls in that direction, as we will see. But the principal dissent, which Thomas has also signed, insists there was a meaningful judicial role even after Midkiff, until today:
    The Court’s holdings in Berman and Midkiff were true to the principle underlying the Public Use Clause. In both those cases, the extraordinary, precondemnation use of the targeted property inflicted affirmative harm on society–in Berman through blight resulting from extreme poverty and in Midkiff through oligopoly resulting from extreme wealth. And in both cases, the relevant legislative body had found that eliminating the existing property use was necessary to remedy the harm. Berman, supra, at 28—29; Midkiff, supra, at 232. Thus a public purpose was realized when the harmful use was eliminated. Because each taking directly achieved a public benefit, it did not matter that the property was turned over to private use....

    It was possible after Berman and Midkiff to imagine unconstitutional transfers from A to B. Those decisions endorsed government intervention when private property use had veered to such an extreme that the public was suffering as a consequence. Today nearly all real property is susceptible to condemnation on the Court’s theory. In the prescient words of a dissenter from the infamous decision in Poletown, “[n]ow that we have authorized local legislative bodies to decide that a different commercial or industrial use of property will produce greater public benefits than its present use, no homeowner’s, merchant’s or manufacturer’s property, however productive or valuable to its owner, is immune from condemnation for the benefit of other private interests that will put it to a ‘higher’ use.” 410 Mich., at 644—645, 304 N. W. 2d, at 464 (opinion of Fitzgerald, J.).

    Justice Thomas contributes an additional dissent, being once again the prophetic voice of original meaning, and, ahem, it sure would have been nice if Justice Scalia could have seen his way clear to joining this one, since it's so much in the spirit of his opinion for the Court in Nollan v. Coastal Commission and his partial concurrence/partial dissent in Pennell v. San Jose. Anyway.

    After a tour of founding-era dictionaries and early takings jurisprudence, Thomas then rubs the majority's nose in the Peckhamite origins of its theory:
    As the Court notes, the “public purpose” interpretation of the Public Use Clause stems from Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 161—162 (1896). Ante, at 11. The issue in Bradley was whether a condemnation for purposes of constructing an irrigation ditch was for a public use. 164 U.S., at 161. This was a public use, Justice Peckham declared for the Court, because “[t]o irrigate and thus to bring into possible cultivation these large masses of otherwise worthless lands would seem to be a public purpose and a matter of public interest, not confined to landowners, or even to any one section of the State.” Ibid. That broad statement was dictum, for the law under review also provided that “[a]ll landowners in the district have the right to a proportionate share of the water.” Id., at 162.
    And so on. Peckham, Peckham, Peckham! Yes, the Court is relying on a constitutional turn taken while the author of Lochner was driving, but the Court can't bring itself to say so, so Justice Thomas will, frequently.

    As he occasionally does, Thomas makes himself the spokesman for the likely effects of the Court's decision on African-Americans, effects that of course are the opposite of what the liberal authors of those effects publicly intend:
    Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful. If ever there were justification for intrusive judicial review of constitutional provisions that protect “discrete and insular minorities,” United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4 (1938), surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects....

    ....In the 1950’s, no doubt emboldened in part by the expansive understanding of “public use” this Court adopted in Berman, cities “rushed to draw plans” for downtown development. B. Frieden & L. Sagalayn, Downtown, Inc. How America Rebuilds Cities 17 (1989). “Of all the families displaced by urban renewal from 1949 through 1963, 63 percent of those whose race was known were nonwhite, and of these families, 56 percent of nonwhites and 38 percent of whites had incomes low enough to qualify for public housing, which, however, was seldom available to them.” Id., at 28. Public works projects in the 1950’s and 1960’s destroyed predominantly minority communities in St. Paul, Minnesota, and Baltimore, Maryland. Id., at 28—29. In 1981, urban planners in Detroit, Michigan, uprooted the largely “lower-income and elderly” Poletown neighborhood for the benefit of the General Motors Corporation. J. Wylie, Poletown: Community Betrayed 58 (1989). Urban renewal projects have long been associated with the displacement of blacks; “[i]n cities across the country, urban renewal came to be known as ‘Negro removal.’ ” Pritchett, The “Public Menace” of Blight: Urban Renewal and the Private Uses of Eminent Domain, 21 Yale L. & Pol’y Rev. 1, 47 (2003). Over 97 percent of the individuals forcibly removed from their homes by the “slum-clearance” project upheld by this Court in Berman were black. 348 U.S., at 30. Regrettably, the predictable consequence of the Court’s decision will be to exacerbate these effects.

    A bad day for ordered liberty, but a good day for dissents, and that's about all I've learned to hope for from this Court.

    One reads a lot about this terrible "conservative activist" Court that we have. If the Court was "conservative" even for a brief interval, that era stopped when Justice Ginsburg replaced Justice White. As Kelo and Raich show, to say nothing of the abortion cases since Hodgson, the Court has working liberal majority. The only exception has been the substantial relaxation, throughout the '90s and early '00s so far, of the Court's extermination campaign against religion in the public square. And I'm betting that trend will be reversed next week when we find out that Establishment Clause bans public placement of the Ten Commandments.

    :: David M. Wagner 8:33 PM [+] ::
    Kelo comes down as loss for property rights. More lamentation to follow. At least Our Hero is on the right side this time (joining Justice O'Connor's dissent)!

    :: David M. Wagner 11:24 AM [+] ::
    :: Wednesday, June 08, 2005 ::
    Raich -- the morning after

    Many thanks to the many who discussed my "Bad dream" post about Raich yesterday, e.g. Howard Bashman, Peter Sean of Lex Communis (also here), Eve Tushnet, and Marty Lederman, writing at Scotusblog.

    Am I going to give this blog a new name? Marty suggested "Clarencemania." Hmm. How about "Better than Toast"? (Does anyone remember that Thomas's English Muffins ad campaign from about 20 years ago -- "Thomas's is better than toast"?) And you'll notice that there is, and always has been, a link in my margin to the Justice Thomas Appreciation Page.

    But no -- no changes here. On issues concerning the scope of federal power, Scalia has in general been a consistent New Deal Justice, full of the Spirit of '37. His critique of Humphrey's Executor in his Morrison v. Olson dissent blasted H.E. as "considered at the time the product of an activist, anti-New Deal court," and nothing in that dissent suggests that he does not share that view. (To be sure, Humphrey's Executor can never be sufficiently condemned, but I'm not sure I, personally, would have listed its anti-New Deal nature as one of its vices. In fact, I don't think H.E. is "anti-New Deal" at all, though it was anti-FDR -- but I digress.)

    Scalia's Raich concurrence is also unsurprising in light of his opinion for the Court in Whitman v. American Trucking. When I published a little reflection on that case myself -- 11 Baltimore J.Env.L. 25 (2003) -- I confined myself to its positive aspect, namely, its two-fisted rejection of the Sunsteinian "new non-delegation doctrine," under which the non-delegation doctrine leaves Congress free to delegate as much as it likes, while the agencies police their own use of those powers, and the courts police the agencies' self-policing.

    But American Trucking also has what I might call a "dark side," namely, its uncritical reliance on New Deal-era delegation decisions that find that phrases such as "in the public interest" give agencies sufficient guidance so that we cannot say that lawmaking has been delegated. Uh huh, and blackbirds can fly to Jupiter.

    My point here is, if those 1940s delegate-your-buns-off cases are good law, there's no reason by Wickard isn't too. Except -- they shouldn't be, and it shouldn't.

    For further clarification on why I remain a Ninomaniac, come to SEAALS this year and listen to my paper on "Justice Scalia and the Jurisprudence of Tradition."

    :: David M. Wagner 2:04 PM [+] ::
    :: Monday, June 06, 2005 ::
    The Court's other opinion today, Spector v. Norwegian Cruise Line, produced one of these:
    Kennedy, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II—A—1, and II—B—2, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined, an opinion with respect to Parts II—A—2, II—B—1, II—B—3, and III—B, in which Stevens and Souter, JJ., joined, and an opinion with respect to Part III—A, in which Stevens, Souter, and Thomas, JJ., joined. Ginsburg, J., filed an opinion concurring in part and concurring in the judgment, in which Breyer, J., joined. Thomas, J., filed an opinion concurring in part, dissenting in part, and concurring in the judgment in part. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and O’Connor, J., joined, and in which Thomas, J., joined with respect to Part I—A.
    And a good time was had by all.

    :: David M. Wagner 10:46 PM [+] ::
    On a happier note than just below, I've just returned from the 15th annual conference of University Faculty for Life, held this year at Ave Maria School of Law.

    This is an organization that deserves to be better known. It is not just for law profs, and I benefited from interacting on pro-life issues with philosophers, nursing teachers, literary scholars, communications profs, and at least one Straussian!

    :: David M. Wagner 4:04 PM [+] ::
    Bad dream: in Gonzalez v. Raich, Court turns Lopez and Morrison into outliers, bolsters the nonsensical "aggregation" doctrine of Wickard -- and does all this with a Scalia concurrence!

    Dissents are provided by Justices O'Connor and Thomas, with the Chief and Thomas concurring in most of O'Connor's dissent.

    This is the much-discussed "medical marijuana" case, but I am one of those who have seen it along as primarily a Commerce Clause case, posing not the question, is medical marijuana a good idea, but the question, will the Court's recent rediscovery of judicially enforceable limits on Congress's Commerce Clause powers continue, or be halted? The answer: halted, with a Scalia concurrence.

    Keep in mind that the case deals with the federal Controlled Substances Act as applied not only to economic transactions, but also to acts that the Court and Justice Scalia admit are non-economic, such as personal possession of marijuana, analogously to the possession of firearms in Lopez.

    So, what does Our Hero have to say for himself?
    As we implicitly acknowledged in Lopez, however, Congress’s authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws directed against economic activities that have a substantial effect on interstate commerce. Though the conduct in Lopez was not economic, the Court nevertheless recognized that it could be regulated as “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” 514 U.S., at 561. This statement referred to those cases permitting the regulation of intrastate activities “which in a substantial way interfere with or obstruct the exercise of the granted power.” Wrightwood Dairy Co., 315 U.S., at 119; see also United States v. Darby, 312 U.S. 100, 118—119 (1941); Shreveport Rate Cases, 234 U.S., at 353. As the Court put it in Wrightwood Dairy, where Congress has the authority to enact a regulation of interstate commerce, “it possesses every power needed to make that regulation effective.” 315 U.S., at 118—119.
    Now, it's one thing to accept the Shreveport Rates doctrine that a proper federal regulatory scheme may reach intrastate economic activity, but another, imho, to accept supinely the New Deal add-on to Shreveport, as Our Hero does:
    As the Court said in the Shreveport Rate Cases, the Necessary and Proper Clause does not give “Congress … the authority to regulate the internal commerce of a State, as such,” but it does allow Congress “to take all measures necessary or appropriate to” the effective regulation of the interstate market, “although intrastate transactions … may thereby be controlled.” 234 U.S., at 353; see also Jones & Laughlin Steel Corp., 301 U.S., at 38 (the logic of the Shreveport Rate Cases is not limited to instrumentalities of commerce).
    O.H. then addresses the dissenters:
    Today’s principal dissent objects that, by permitting Congress to regulate activities necessary to effective interstate regulation, the Court reduces Lopez and Morrison to “little more than a drafting guide.” Post, at 5 (opinion of O’Connor, J.). I think that criticism unjustified. Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. See Lopez, supra, at 561; ante, at 15, 21, 22. This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.” Lopez, supra, at 567—568.
    If there's anything I like less than Justice Scalia being wrong, it's Justice O'Connor being right. But imo her response to the foregoing is spot-on:
    Until today, such arguments have been made only in dissent. See Morrison, 529 U.S., at 657 (Breyer, J., dissenting) (given that Congress can regulate “ ‘an essential part of a larger regulation of economic activity,’ ” “can Congress save the present law by including it, or much of it, in a broader ‘Safe Transport’ or ‘Worker Safety’ act?”). Lopez and Morrison did not indicate that the constitutionality of federal regulation depends on superficial and formalistic distinctions. Likewise I did not understand our discussion of the role of courts in enforcing outer limits of the Commerce Clause for the sake of maintaining the federalist balance our Constitution requires, see Lopez, 514 U.S., at 557; id., at 578 (Kennedy, J., concurring), as a signal to Congress to enact legislation that is more extensive and more intrusive into the domain of state power. If the Court always defers to Congress as it does today, little may be left to the notion of enumerated
    I could do without the scornful references to "superficial and formalistic distinctions." Law as such is full of those, and Justice O'Connor's tendency to belittle them is not her most endearing habit. But today she's right.

    Justice Thomas, for his part, reiterates the prophetic view from his concurrence in Lopez, that a clear commerce/manufacture distinction is key to the original meaning of the Commerce Clause, as the Court held in 1895 in E.C. Knight:
    The Clause’s text, structure, and history all indicate that, at the time of the founding, the term “ ‘commerce’ consisted of selling, buying, and bartering, as well as transporting for these purposes.” Id., at 585 (Thomas, J., concurring). Commerce, or trade, stood in contrast to productive activities like manufacturing and agriculture. Id., at 586—587 (Thomas, J., concurring). Throughout founding-era dictionaries, Madison’s notes from the Constitutional Convention, The Federalist Papers, and the ratification debates, the term “commerce” is consistently used to mean trade or exchange–not all economic or gainful activity that has some attenuated connection to trade or exchange. Ibid. (Thomas, J., concurring).

    :: David M. Wagner 1:37 PM [+] ::
    :: Thursday, June 02, 2005 ::
    For Smith and against wimpy Christians: a rant

    I've just learned from a Foxfire book that Appalachian sheriffs rarely felt any need to take directly into custody the men they caught moonshining. They'd just ask the gentlemen in question to present themselves, at their convenience, down at the courthouse -- and they did. Then they would pay their fines and move on. The alternative -- absconding -- would cause them to lose face with their highly honor-conscious Scots-Irish communities.

    This made me think of the fracas over Employment Division v. Smith. One of the reasons this decision is the greatest thing since sliced bread is that it treats religious believers with the level of respect with which those sheriffs treat the moonshiners. And it pains me that so many religious believers do not want that level of respect -- glorying in being less respectful of the community's laws than moonshiners are! -- and instead prefer to believe that the Constitution requires that they be treated differently from other citizens, not just as regards worship (as to which they are right), but across the board.

    Contrary to the propoganda, Smith does not mean you can't follow your conscience. It just means that, in certain circumstances, if you do so, you may go to jail. For the life of me I can't see the biggie about that. Do you have these convictions, or not? If you do, why aren't you glad to suffer for them? (Act 6:41).

    When Christians face jail for refusing to violate their consciences, the proper course of action is to agitate for changes in the law, not to sue for an exemption from it -- an exemption, not incidentally, that leaves the offending law standing.

    The early Christians often went to far worse than jail. They would be sick to see that their spiritual descendants are such whiners. Even Thoreau knew that committing civil disobedience meant accepting the consequences of civil disobedience. Christians less courageous than Thoreau? No wonder we're behind the eight ball in the culture wars.

    :: David M. Wagner 10:13 PM [+] ::

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