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 ::
:: Thursday, March 30, 2006 ::
Massachusetts SJC upholds 1913 law: out-of-staters not eligible for Massachusetts same-sex marriages.
:: David M. Wagner 10:59 AM [+] ::
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:: Wednesday, March 29, 2006 ::
According to the redoutable Lyle Denniston, writing at SCOTUSblog, the consensus (though not universal) is that the guvmint got pretty well shellacked in yesterday's Hamdan oral argument.
:: David M. Wagner 12:59 PM [+] ::
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Read it yourself: photocopy of Scalia's letter to The Boston Herald. Or forget the photocopy, here's the text:
To the Editor:
It has come to my attention that your newspaper published a story on Monday stating that I made an obscene gesture - inside Holy Cross Cathedral, no less. The story is false, and I ask that you publish this letter in full to set the record straight.
Your reporter, an up-and-coming “gotcha” star named Laurel J. Sweet, asked me (o-so-sweetly) what I said to those people who objected to my taking part in such public religious ceremonies as the Red Mass I had just attended. I responded, jocularly, with a gesture that consisted of fanning the fingers of my right hand under my chin. Seeing that she did not understand, I said “That’s Sicilian,” and explained its meaning - which was that I could not care less.
That this is in fact the import of the gesture was nicely explained and exemplified in a book that was very popular some years ago, Luigi Barzini’s The Italians:
“The extended fingers of one hand moving slowly back and forth under the raised chin means: ‘I couldn’t care less. It’s no business of mine. Count me out.’ This is the gesture made in 1860 by the grandfather of Signor O.O. of Messina as an answer to Garibaldi. The general, who had conquered Sicily with his volunteers and was moving on to the mainland, had seen him, a robust youth at the time, dozing on a little stone wall, in the shadow of a carob tree, along a country lane. He reined in his horse and asked him: ‘Young man, will you not join us in our fight to free our brothers in Southern Italy from the bloody tyranny of the Bourbon kings? How can you sleep when your country needs you? Awake and to arms!’ The young man silently made the gesture. Garibaldi spurred his horse on.” (Page 63.)
How could your reporter leap to the conclusion (contrary to my explanation) that the gesture was obscene? Alas, the explanation is evident in the following line from her article: “ ‘That’s Sicilian,’ the Italian jurist said, interpreting for the ‘Sopranos’ challenged.” From watching too many episodes of the Sopranos, your staff seems to have acquired the belief that any Sicilian gesture is obscene - especially when made by an “Italian jurist.” (I am, by the way, an American jurist.)
Sincerely,
Antonin Scalia
:: David M. Wagner 12:51 PM [+] ::
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:: Tuesday, March 28, 2006 ::
Recuse in Hamdan? Fangool'!
According to The Washington Post:Scalia reportedly said it was "crazy" to suggest that combatants captured fighting the United States should receive a "full jury trial," and dismissed suggestions that the Geneva Conventions might apply to detainees at Guantanamo Bay, Cuba.
In his dissent in Rasul v. Bush, Justice Scalia wrote:Today’s opinion, and today’s opinion alone, overrules Eisentrager; today’s opinion, and today’s opinion alone, extends the habeas statute, for the first time, to aliens held beyond the sovereign territory of the United States and beyond the territorial jurisdiction of its courts. No reasons are given for this result; no acknowledgment of its consequences made. By spurious reliance on Braden the Court evades explaining why stare decisis can be disregarded, and why Eisentrager was wrong. Normally, we consider the interests of those who have relied on our decisions. Today, the Court springs a trap on the Executive, subjecting Guantanamo Bay to the oversight of the federal courts even though it has never before been thought to be within their jurisdiction–and thus making it a foolish place to have housed alien wartime detainees.
The Freiburg remarks are hardly a surprise. Nor are they are comment on the Hamdan case as such, as his Knights of Columbus remarks a few years back were a comment on the Newdow case.
:: David M. Wagner 9:45 PM [+] ::
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:: Monday, March 27, 2006 ::
"Fangool'," we used ta call in New Yawk.
:: David M. Wagner 7:19 PM [+] ::
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:: Thursday, March 23, 2006 ::
Justice Scalia, responding to Justice Stevens's concurrence in today's decision on consent searches, Georgia v. Randolph:There is nothing new or surprising in the proposition that our unchanging Constitution refers to other bodies of law that might themselves change. The Fifth Amendment provides, for instance, that “private property” shall not “be taken for public use, without just compensation”; but it does not purport to define property rights. We have consistently held that “the existence of a property interest is determined by reference to ‘existing rules or understandings that stem from an independent source such as state law.’ ”.... This reference to changeable law presents no problem for the originalist. No one supposes that the meaning of the Constitution changes as States expand and contract property rights. If it is indeed true, therefore, that a wife in 1791 could not authorize the search of her husband’s house, the fact that current property law provides otherwise is no more troublesome for the originalist than the well established fact that a State must compensate its takings of even those property rights that did not exist at the time of the Founding....
Finally, I must express grave doubt that today’s decision deserves Justice Stevens’ celebration as part of the forward march of women’s equality. Given the usual patterns of domestic violence, how often can police be expected to encounter the situation in which a man urges them to enter the home while a woman simultaneously demands that they stay out? The most common practical effect of today’s decision, insofar as the contest between the sexes is concerned, is to give men the power to stop women from allowing police into their homes—which is, curiously enough, precisely the power that Justice Stevens disapprovingly presumes men had in 1791.
:: David M. Wagner 11:54 AM [+] ::
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:: Monday, March 20, 2006 ::
NY Post editorial: Scalia's good sense
:: David M. Wagner 10:00 AM [+] ::
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:: Friday, March 10, 2006 ::
More on Rumsfeld v. FAIR. A friend writes:I do enjoy the professoriat not quite understanding how they've ended up where they are. I mean, using federal funding to suck universities into conforming to a nationally-dictated agenda seemed like such a good idea from 1964 to 1994. Remember how cool it was when all those yahoo schools had to dump their wrestling teams and give thefunding to women's ultimate frisbee instead? Good times.
:: David M. Wagner 2:40 PM [+] ::
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:: Monday, March 06, 2006 ::
How does he do it? Roberts delivers dissentless, concurrenceless opinion solidly upholding the Solomon Amendment.
:: David M. Wagner 1:14 PM [+] ::
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:: Thursday, March 02, 2006 ::
A good week
Good news: where the "compelling state interest" test applies, it actually requires a compelling state interest! This apparently obvious yet historically doubtful point seems to be the main lesson of Gonzales v. O Centro Espirita Beneficteuniao do Vegetal, in which Chief Justice Roberts, yet again, produced unanimity on a potentially controversial issue. (What on earth are we going to call this case? I'll go with "Centro Espirita" for now.)
Roberts has also waved his unanimity wand in another abortion-related case, bringing to an end NOW's 20-year campaign to bankrupt Joe Scheidler and intimidate pro-life protestors with RICO treble damages. In another unanimous opinion, delivered by Justice Breyer, the Court says, nope, the whole thing was a mistake, because it turns out the Hobbs Act, on which NOW was relying as a predicate felony for its RICO suit, does not forbid violent conduct unrelated to extortion or robbery.
Just about everybody got to deliver a unanimous opinion this week. (Unanimous meaning 8-0, because these cases were argued before Justice Alito was confirmed.) Justice Thomas did an antitrust opinion, something he had excelled in on the D.C. Circuit. Even the opinions with dissents produced atypical splits. Thomas dissented from a Scalia opinion on the applicability of federal arbitration rules to state proceedings, and from a Kennedy opinion on the Federal Tort Claims Act in which Scalia joined.
Roberts several times joined the majority when only Scalia and Thomas were in dissent, but then, Rehnquist often did that too. Before anyone starts writing "strange new respect" op-eds, remember that Roberts joined the Scalia dissent in Gonzales v. Oregon, a decision that could conceivably have been rightly decided but was not rightly reasoned. (It was actually a nondelegation case, and as such, should have been an easy one for the U.S. under Whitman v. American Trucking.)
:: David M. Wagner 12:03 PM [+] ::
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:: David M. Wagner 10:59 AM [+] ::
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:: David M. Wagner 12:59 PM [+] ::
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To the Editor:
It has come to my attention that your newspaper published a story on Monday stating that I made an obscene gesture - inside Holy Cross Cathedral, no less. The story is false, and I ask that you publish this letter in full to set the record straight.
Your reporter, an up-and-coming “gotcha” star named Laurel J. Sweet, asked me (o-so-sweetly) what I said to those people who objected to my taking part in such public religious ceremonies as the Red Mass I had just attended. I responded, jocularly, with a gesture that consisted of fanning the fingers of my right hand under my chin. Seeing that she did not understand, I said “That’s Sicilian,” and explained its meaning - which was that I could not care less.
That this is in fact the import of the gesture was nicely explained and exemplified in a book that was very popular some years ago, Luigi Barzini’s The Italians:“The extended fingers of one hand moving slowly back and forth under the raised chin means: ‘I couldn’t care less. It’s no business of mine. Count me out.’ This is the gesture made in 1860 by the grandfather of Signor O.O. of Messina as an answer to Garibaldi. The general, who had conquered Sicily with his volunteers and was moving on to the mainland, had seen him, a robust youth at the time, dozing on a little stone wall, in the shadow of a carob tree, along a country lane. He reined in his horse and asked him: ‘Young man, will you not join us in our fight to free our brothers in Southern Italy from the bloody tyranny of the Bourbon kings? How can you sleep when your country needs you? Awake and to arms!’ The young man silently made the gesture. Garibaldi spurred his horse on.” (Page 63.)
How could your reporter leap to the conclusion (contrary to my explanation) that the gesture was obscene? Alas, the explanation is evident in the following line from her article: “ ‘That’s Sicilian,’ the Italian jurist said, interpreting for the ‘Sopranos’ challenged.” From watching too many episodes of the Sopranos, your staff seems to have acquired the belief that any Sicilian gesture is obscene - especially when made by an “Italian jurist.” (I am, by the way, an American jurist.)
Sincerely,Antonin Scalia
:: David M. Wagner 12:51 PM [+] ::
...
According to The Washington Post:
Scalia reportedly said it was "crazy" to suggest that combatants captured fighting the United States should receive a "full jury trial," and dismissed suggestions that the Geneva Conventions might apply to detainees at Guantanamo Bay, Cuba.In his dissent in Rasul v. Bush, Justice Scalia wrote:
Today’s opinion, and today’s opinion alone, overrules Eisentrager; today’s opinion, and today’s opinion alone, extends the habeas statute, for the first time, to aliens held beyond the sovereign territory of the United States and beyond the territorial jurisdiction of its courts. No reasons are given for this result; no acknowledgment of its consequences made. By spurious reliance on Braden the Court evades explaining why stare decisis can be disregarded, and why Eisentrager was wrong. Normally, we consider the interests of those who have relied on our decisions. Today, the Court springs a trap on the Executive, subjecting Guantanamo Bay to the oversight of the federal courts even though it has never before been thought to be within their jurisdiction–and thus making it a foolish place to have housed alien wartime detainees.The Freiburg remarks are hardly a surprise. Nor are they are comment on the Hamdan case as such, as his Knights of Columbus remarks a few years back were a comment on the Newdow case.
:: David M. Wagner 9:45 PM [+] ::
...
:: David M. Wagner 7:19 PM [+] ::
...
There is nothing new or surprising in the proposition that our unchanging Constitution refers to other bodies of law that might themselves change. The Fifth Amendment provides, for instance, that “private property” shall not “be taken for public use, without just compensation”; but it does not purport to define property rights. We have consistently held that “the existence of a property interest is determined by reference to ‘existing rules or understandings that stem from an independent source such as state law.’ ”.... This reference to changeable law presents no problem for the originalist. No one supposes that the meaning of the Constitution changes as States expand and contract property rights. If it is indeed true, therefore, that a wife in 1791 could not authorize the search of her husband’s house, the fact that current property law provides otherwise is no more troublesome for the originalist than the well established fact that a State must compensate its takings of even those property rights that did not exist at the time of the Founding....
Finally, I must express grave doubt that today’s decision deserves Justice Stevens’ celebration as part of the forward march of women’s equality. Given the usual patterns of domestic violence, how often can police be expected to encounter the situation in which a man urges them to enter the home while a woman simultaneously demands that they stay out? The most common practical effect of today’s decision, insofar as the contest between the sexes is concerned, is to give men the power to stop women from allowing police into their homes—which is, curiously enough, precisely the power that Justice Stevens disapprovingly presumes men had in 1791.
:: David M. Wagner 11:54 AM [+] ::
...
:: David M. Wagner 10:00 AM [+] ::
...
I do enjoy the professoriat not quite understanding how they've ended up where they are. I mean, using federal funding to suck universities into conforming to a nationally-dictated agenda seemed like such a good idea from 1964 to 1994. Remember how cool it was when all those yahoo schools had to dump their wrestling teams and give thefunding to women's ultimate frisbee instead? Good times.
:: David M. Wagner 2:40 PM [+] ::
...
:: David M. Wagner 1:14 PM [+] ::
...
Good news: where the "compelling state interest" test applies, it actually requires a compelling state interest! This apparently obvious yet historically doubtful point seems to be the main lesson of Gonzales v. O Centro Espirita Beneficteuniao do Vegetal, in which Chief Justice Roberts, yet again, produced unanimity on a potentially controversial issue. (What on earth are we going to call this case? I'll go with "Centro Espirita" for now.)
Roberts has also waved his unanimity wand in another abortion-related case, bringing to an end NOW's 20-year campaign to bankrupt Joe Scheidler and intimidate pro-life protestors with RICO treble damages. In another unanimous opinion, delivered by Justice Breyer, the Court says, nope, the whole thing was a mistake, because it turns out the Hobbs Act, on which NOW was relying as a predicate felony for its RICO suit, does not forbid violent conduct unrelated to extortion or robbery.
Just about everybody got to deliver a unanimous opinion this week. (Unanimous meaning 8-0, because these cases were argued before Justice Alito was confirmed.) Justice Thomas did an antitrust opinion, something he had excelled in on the D.C. Circuit. Even the opinions with dissents produced atypical splits. Thomas dissented from a Scalia opinion on the applicability of federal arbitration rules to state proceedings, and from a Kennedy opinion on the Federal Tort Claims Act in which Scalia joined.
Roberts several times joined the majority when only Scalia and Thomas were in dissent, but then, Rehnquist often did that too. Before anyone starts writing "strange new respect" op-eds, remember that Roberts joined the Scalia dissent in Gonzales v. Oregon, a decision that could conceivably have been rightly decided but was not rightly reasoned. (It was actually a nondelegation case, and as such, should have been an easy one for the U.S. under Whitman v. American Trucking.)
:: David M. Wagner 12:03 PM [+] ::
...
