NINOMANIA

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:: Friday, March 30, 2007 ::

Scalia v. Miller! Or, New Joisey v. Brooklyn.

It's even funnier if you had, as I did, Prof. Miller's taped lectures on Civil Procedure as a constant companion in law school.

:: David M. Wagner 2:20 PM [+] ::
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:: Tuesday, March 27, 2007 ::

“The Proof of the Common Law is by witness and jury: let Cobham be here, let him speak it. Call my accuser before my face.”

A serious challenge to Maryland v. Craig -- whoo hoo! Prof. Friedman, of Confrontation Blog, comments here.

Also (and hat-tip to Prof. Friedman), see this article in the ABA Journal about the Scalia-liberal coalition that is reviving originalism in Confronation Clause jurisprudence. Stanford Law prof. and Confrontation expert Jeffrey Fisher is quoted:

“Someone said to me, ‘Isn’t it crazy that Scalia writes all your opinions?’ But that’s the way I wrote the arguments,” says Fisher, who co-chairs the amicus committee for the National Association of Criminal Defense Lawyers. A former clerk to Justice John Paul Stevens, Fisher worked at Seattle-based Davis Wright Tremaine, where he still is a partner....

Explaining the lineup, Fisher says that labeling won’t garner a majority. “You have to think about issues that cut across the divide,” he says. “You have to look at it not so much in terms of politics, but jurisprudentially.” [Emphasis added]

Indeed, Fisher aimed his pitch right at Scalia’s jurisprudential wheelhouse: an originalist theory of constitutional law, a duty to the Constitution’s text, and an adherence to bright-line rules. Add for good measure a reverence of 18th century colonial history.

As it happens, my next article, forthcoming in our law review here at Regent, looks at Crawford v. Washington for signs that Craig is toast. Craig delendus est!

:: David M. Wagner 3:56 PM [+] ::
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Webb says he did not give aide his gun. Hm, there seems to be an epidemic of Washington bosses leaving staffers out to dry just at the moment. Some will say, hey, that's what staffers are for; plus, it's not like they're hard to replace. Perhaps that piece of Washingtonian cynicism is correct. But it does not look good to whatever portion of the electorate is watching, whether it's done by Democrats or Republicans.

:: David M. Wagner 3:51 PM [+] ::
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:: Sunday, March 25, 2007 ::

On Establishment Clause jurisprudence, written in a (Hugo) black humor

I love teaching the First Amendment, but one of the undeniable downsides of the assignment is having to re-read and teach those pompous and ignorant history lessons that Justice Hugo Black kept on working into his "landmark" opinions on the Establishment Clause.

For example, one reads in Everson this stock narrative:

A large proportion of the early settlers of this country came here from Europe to escape the bondage of laws which compelled them to support and attend government favored churches.

Or, from Engel v. Vitale:

It is a matter of history that this very practice of establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek religious freedom in America.

Actually, among "our early colonists to leave England" there were basically two groups, the Virginians and the Massachusettsers. The Virginians came here to get rich off tobacco and to boink Native Americans, so let's leave them to one side and talk about the Massachusettsers.

The Massachusettsers came over, as they themselves said in a document that Mr. Justice Black must at least have heard of, to found a new civil polity "for the glory of God, and advancement of the Christian faith...." They wanted, Justice Black goes on, to be free from "the accepted form and content of prayer and other religious ceremonies to be used in the established, tax-supported Church of England." Yet they considered themselves still part of the Church of England (though a dissenting part), and their leaders attended its services when back in the mother country, much to the distress of ultra-purists like Roger Williams. (Philip Hamburger, Separation of Church and State.)

The community the Massachusettsers established was not even remotely committed to "religious freedom" in Justice Black's sense, in which religion is something, as he puts it in Engel, "personal." Of course it's personal, but it also has a communitarian dimension. As Justice Scalia put the matter in his Weisman dissent:

Church and state would not be such a difficult subject if religion were, as the Court apparently thinks it to be, some purely personal avocation that can be indulged entirely in secret, like pornography, in the privacy of one's room. For most believers it is not that, and has never been. Religious men and women of almost all denominations have felt it necessary to acknowledge and beseech the blessing of God as a people, and not just as individuals, because they believe in the "protection of divine Providence," as the Declaration of Independence put it, not just for individuals but for societies; because they believe God to be, as Washington's first Thanksgiving Proclamation put it, the "Great Lord and Ruler of Nations."

Since our Massachusettsers (or, more popularly, "the Pilgrims") came over to constitute a religious "people," Justice Black constantly has problems accounting for the absence within the early Plymouth community of "religious freedom" in the modern "personal" or individualistic sense.

Once one understands what the Pilgrims' ideals and goals were, one sees that it makes no more sense to expect personal religious liberty within the Plymouth community than within a Discalced Carmelite convent. But since this concept is simply not in Justice Black's toolkit, he is forced to opine that something just went wrong. From Engel:

It is an unfortunate fact of history that when some of the very groups which had most strenuously opposed the established Church of England found themselves sufficiently in control of colonial governments in this country to write their own prayers into law, they passed laws making their own religion the official religion of their respective colonies.

See? An "unfortunate fact." A wrong turn taken. Actually the Plymouth community worked out, for at least two generations, exactly as it had been meant to; but Justice Black can see only a mistake; sort of the way, to someone with no depth perception, a turning disk looks like a circle turning into a line and then into a circle again.

In Everson he acknowledges that "[t]hese practices of the old world [i.e. religious persecution] were transplanted to and began to thrive in the soil of the new America." But still, it is essential for him that these things be, not merely a regrettable corollary of the Pilgrims' (and others groups') projects, but somehow the very antithesis of them. If the leaders of the Plymouth community and the members of Virginia's House of Burgesses didn't get the memo, then by golly, plain ordinary folk must have:

These practices became so commonplace as to shock the freedom-loving colonials into a feeling of abhorrence. The imposition of taxes to pay ministers' salaries and to build and maintain churches and church property aroused their indignation. It was these feelings which found expression in the First Amendment.

So now I'm confused: did "our" colonists come over to establish religious freedom, or did they come over the perpetuate European mischief until the Founding generation came along to overturn their wickedness? (Or until Justice Black came along and deployed, for the purpose of overturning state "establishments of religion," a text originally drafted to protect state establishments of religion?)

Let me not be understood as carrying unlimited water for the Plymouth community. I'm RC myself, and they wouldn't have liked me a'tall. But that doesn't reconcile me to sitting still for bad history lessons from some Masonic textbook or other that wanders into the United States Reports. Early Anglo-Americans should be understood as they understood themselves, not as they've been transformed into stock characters (good or evil) in some Deweyite morality play.

Furthermore, in Engel, when all the "historical" data on torture and martyrdom has been recited by the Court, we're talking, when all is done, about the dadburn "New York State Regents' Prayer," fer krynout loud. Yes, shocking as it may seem, New York State public school teachers and students were coerced (on what sanction, the record doesn't show: the Court itself only says they were "directed") to say every day: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country."

My gosh! Did the hills of New Hyde Park run with blood? Did they, Black? Were caravans of anti-Almightarians forming up to seek freedom out west? Were they, Black? Did the New York State Regents' High Court of Inquisition torture and burn those who didn't say this prayer loud enough? Did it, Black? Could one see every night on Cronkite the pitiful sight of atheists dying in the streets of second-class citizenship? Could one, Black?

Chuck it, Black.

(With apologies to G.K. Chesterton.)


EDITED TO ADD: A word about the connection between that Chesterton poem and my post.

Mr. F.E. Smith, later 1st Earl of Birkenhead, the lawyer and MP whom Chesterton was having a go at, had a cow about a minor (and probably long-overdue) adjustment of the status of an ineffectual religious establishment in Wales. Justice Black, whom I was having a go at, had a cow (several, actually, over time) about some arrangements that he thought were establishments of religion, that were just as ineffectual, religiously, as the Anglican establishment in Wales, and much less harmful (e.g., in contrast to the situation with Anglicanism in Wales, no one in New York was taxed for the support of full-time Regent's Prayer sayers).

In other words, the common theme is the tendency of otherwise sensible men to have cows over "religious establishment" bagatelles, as if feeling guilty for having missed the truly dangerous church-state action of the 4th or 11th or 16th centuries and needing to cadge themselves a slice of those heroic pies.

In fairness to "F.E.," he could gently take a judge down a notch when he had to:

(1)
JUDGE: Mr. Smith, I've heard your explanation, but I am no wiser than before.
SMITH: No, m'lud, but you are better informed.

(2)
JUDGE: Mr. Smith, are you showing contempt for this court?
SMITH: No, m'lud, I am concealing it.

:: David M. Wagner 1:04 PM [+] ::
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:: Wednesday, March 21, 2007 ::

Due Process limits on punitive damages?

I've just finished an on-line debate sponsored by the Manhattan Institute, "against," or I should say "with," my revered mentor and torts professor, Prof. Michael Krauss. You can read it here.

The subject was the Supreme Court's use of Due Process to cap what Michael aptly calls "bet the company" punitive damage awards. The news hook was the Court's recent decision in Philip Morris v. Williams, a coalition-busting case in which Justice Breyer led the Court further into (what I would call) a neo-Lochnerian grove, and the lead dissenter was Justice Ginsburg -- joined in full by Justices Scalia and Thomas.

In this debate I agreed with -- Justice Ginsburg! Ha ha! No, really, I did -- and with Our Hero too, natch. But (and this is what made the debate fruitful as well as interesting), I became convinced that the "excessive fines" clause of the Eighth Am. may -- may -- provide protection against what punitive damages have turned into in the last twenty years or so. Go, read.

Many thanks not only to Michael but also to Walter Olson and Vanessa Mendoza.

:: David M. Wagner 12:26 PM [+] ::
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Constitutional showdown over subpoenas and executive privilege? Orin Kerr at the Conspiracy says "litigation would be likely to narrow the scope of executive privilege rather than expand it."

Well, we know at least this, from Jan Crawford Greenburg's book if not from research and common sense: neither Roberts nor Alito were chosen because they don't like executive power...!

:: David M. Wagner 12:20 PM [+] ::
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:: Tuesday, March 13, 2007 ::

We use Turnitin here at Regent.

:: David M. Wagner 6:15 PM [+] ::
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:: Friday, March 09, 2007 ::

Going great guns: In Parker v. Fenty, the D.C. Circuit (Silberman, Senior Circuit Judge, writing) has resoundingly adopted the individual-rights theory of the Second Amendment, long advocated enthusiastically by gun groups -- and reluctantly yet firmly by leading liberal scholars such as Sandy Levinson.

Like the First Amendment, the court says, the Second allows for reasonable regulations of the rights that it protects -- but D.C.'s 1976 gun law isn't one of them

In dissent, Bush I appointee Karen LeCraft Henderson scoffed at the notion that a court can resolve the academic debate, noting that the majority has just added x-number of pages to the "pile." Ewwww, "pile"!

She also adopted the view that "the District of Columbia is not a state within the meaning of the Second Amendment," a view that could have interesting implications for Bolling v. Sharpe now that D.C. has "home rule," rather than the direct federal control that prevailed at the time of Bolling.

Bolling, you'll recall, held that what the Equal Protection clause of the 14th Am. requires of the states, the Due Process clause of the 5th Am. requires of the federal government. But D.C. isn't run by the federal government any more; not directly, anyway. So, I would guess that in Judge Henderson's view, the coming of home rule to D.C. legalized segregated schools in the District, unless she can find, which I cannot, some reason why D.C. is not a "state" for 2nd Am. purposes but is one for the 14th.

:: David M. Wagner 11:37 PM [+] ::
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:: Wednesday, March 07, 2007 ::

So, you all want to know what I think of the Libby verdicts?

Well for one thing, it's typical Indepedent Counsel/Special Prosecutor work: if you can't nail anyone for the crime you were appointed to investigate, just use the grand jury process to manufacture one. No two people ever remember the same phone call the same way. Just get your man to tell the grand jury how he remembers it -- and in the difference between that recollection and those of others will be found your career-making perjury and/or obstruction verdict.

A pardon? It's a crucial weapon of self-defense for the executive branch. What makes this case something other than a perfect example of the "pardon power as separation of powers defense mechanism" theory is that here, the aggressor was not Congress (as in Ted Olson's case) but a rogue branch of the executive: the CIA, in making that referral to the Justice Department.

The pardon power is not the executive's only defense mechanism. The execrable "Independent Counsel Statute" no longer being in force, the AG had complete freedom to refuse the CIA's request for a Special Prosecutor. (Under the IC statute, he would have been obliged either to appoint an IC or explain publicly that there was no -- no -- grounds for investigating further. Of AGs who served during the IC regime, only Janet Reno had the cojones to do that, in re Al Gore and the dialing-for-dollars inquiry.)

So, what I'm getting at here is, based on what I can see (which of course is not the whole picture), the executive branch should have repelled this attack at its first defense perimeter -- the AG -- rather than its last, the pardon power. This is the only reproach I can offer to my esteemed faculty colleague John Ashcroft, to be set against his manifold virtues and many acts of courage and wisdom.

For further sound reading on this issue, see today's Wall Street Journal editorial, yesterday's National Review Online editorial. Today's Journal also has a pro-pardon op-ed by Ron Rotunda, not yet on-line.

:: David M. Wagner 5:21 PM [+] ::
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:: Tuesday, March 06, 2007 ::

Troxel too fuzzy? Try Fausey:

The Family Research Council has submitted an amicus brief in support of cert in a parent's rights case, Fausey v. Hiller, in which the Court could clarify -- as it omitted to do in its last parent's rights case, Troxel v. Granville -- what the standard of review is when third parties seek visitation or other rights over children whose own parents have not been adjudicated unfit.

This case puts FRC, as amicus, on the same side as the estimable Howard Bashman, who is representing the plaintiff.

I note that in Howard's reply brief in support of cert, there is a section devoted precisely to the concerns voiced by Justice Scalia when he declined to join the majority in Troxel: "Providing States a Clear Legal Standard to Safeguard Troxel's Fundamental Right Will Not 'Constitutionalize' New Areas of Law Or 'Enmesh' the Court In Case-By-Case Adjudication."

Bingo. Though, myself, I'd have done without the scarequotes around "constitutinalize" and "enmesh." But whatever. Good luck. Scalia's views are trenchant as always, but it is Justice Thomas's concurring view in Troxel (including his intriguing footnote) that the Court should adopt.

:: David M. Wagner 10:48 PM [+] ::
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