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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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    :: Wednesday, February 21, 2007 ::
    Yesterdays SCOTUS cases feature a wonderful assortment of alignments. For me, I can live with a Court in which the major disputes are intra-"conservative".

    As for the punitive damages case, Scalia has always maintained that punies, however outrageous, are not a matter of due process. By not insisting on a wholesale critique of substantive due process, he was able to join Ginsburg's dissent. In other cases we had some Scalia-Thomas splits.

    The D.C. Circuit's decision on detainee habeas is my kind of case, in this sense: it features both an argumentative opinion and a spirited dissent, both of which go deeply into 18th and 19th century sources.

    I don't know what to make of Judge Rogers's distinction (in dissent) between a constitutional right and a limitation on the powers of Congress, but a distinction like that might serve to reconcile the (dubious, imo) holding of the Court in Missouri v. Holland and the plurality opinion in Reid v. Covert: Congress can add to its powers by treaty, but can't override constitutional rights by treaty.

    :: David M. Wagner 3:03 PM [+] ::

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