NINOMANIA

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:: Wednesday, November 15, 2006 ::

Justice Scalia was in fine form at the Yale Political Union last Thursday night, and participated in the ensuing debate as well as giving a speech. Though he had to leave the debate before its end due to leg-stretching needs (so YPU student leaders told me), he answered questions from students at the subsequent reception for about an hour.

The next day's write-up in The Yale Daily News suggests that many students were favorably impressed.

In the speech, he made one point that I have not heard him make off the bench before (though it's in his Casey dissent): that, while ideologically polarized judicial confirmations are regrettable, they are inevitable -- and even appropriate! -- as long as the Court conceives its business to be the writing of a new Constitution every day, or at least, whenever a novel but fashionable new rights-claim is made. The American people aren't fools, as he said in the Casey dissent and again at Yale, and they have naturally realized that if the Constitution is continually rewritten by the Court, their only bite at the lawmaking apple is the confirmation process, with their Senators representing them.

To my surprise and relief, even the most hostile questioners did not assume that originalism means restoring the status quo of 1787, in every detail, through judicial action. That's a common view in -- if not the liberal blogosphere -- then at least the liberal blog comment-o-sphere. I guess either people so, um, rudimentary in their understanding still don't get into Yale, or they do but they avoid the danger (with which Yale, thanks to its prestige, can still present them) of hearing a contrary argument straight from its foremost proponent.

No, the hostile questions and opposing speeches, most of which were quite intelligent, all pointed to problems with originalism. But Scalia had prepared for this: the final point in his speech was that originalism does have problems, but that all alternatives to it have even more problems, beginning with the fundamental problem of legitimacy.

The next morning, Scalia spoke at the Yale Law School. I was not there, but it was live-blogged here. Much of the same material as the evening before -- but note the frank discussion of how he and Thomas disagree over the scope of stare decisis. (Clearly the context here is the Commerce Clause: there's no disagreement between them over the stare-decisis nullity of, say, Roe.)

:: David M. Wagner 2:41 PM [+] ::
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:: Thursday, November 09, 2006 ::

I should be blogging about the partial-birth abortion oral argument yesterday, but the fact is, I have to teach a class and then dash off to the Yale Political Union to hear Justice Scalia keynote a debate on constitutional interpretation.

When I get back I may be able to post about the former, and, since it's a public event, the latter too.

:: David M. Wagner 8:10 AM [+] ::
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:: Saturday, November 04, 2006 ::

More on the New Jersey ssm decision: At NRO's Bench Memos, Ed Whelan stresses a different aspect of the New Jersey decision, one that I missed in the course of trying to compare NJ's Equal Protection analysis with that of other state courts that have recently addressed this issue. Ed points out that the NJ state constitutional text on which the court based its decision is a preambular passage that more closely tracks the Declaration of Independence than the 14th Am. E.P. Clause.

The text in question says:

“All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.”

Says Ed:

Based on this provision, and on previous judicial decisions construing it, the New Jersey Supreme Court has just ruled (unanimously) that all the rights and benefits of marriage need to be made available to same-sex couples. This is, simply put, judicial activism run amok, even if it reflects the gradual judicial accretion of power over some decades. So many judges today view judicial decisionmaking as essentially an autonomous process, unmoored from the meaning of the actual text. Not a single justice on the New Jersey Supreme Court did a simple sanity check: Is it remotely plausible, remotely compatible with democratic principles, to read this constitutional provision as supporting the court’s result? One could, with equal implausibility, maintain that the Declaration of Independence declares that the rights and benefits of marriage must be extended to same-sex couples.

And that's comin' up down the road. This is one reason why I cringe just a little when my West Coast Straussian friends (among whom I number the editors of the fantabulous, rockin', you-all-should-use-it casebook that I use) tell us not to worry 'cause constitutional interpretation is rightly controlled by the good ol' Declaration.

:: David M. Wagner 9:52 PM [+] ::
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My recent Weekly Standard pieces on state same-sex marriage decisions: on California; on New Jersey.

:: David M. Wagner 9:33 PM [+] ::
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