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 ::
:: Sunday, June 29, 2008 ::
From Heller:In any event, the meaning of “bear arms” that petitioners and Justice Stevens propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving “bear Arms” its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war—an absurdity that no commentator has ever endorsed. See L. Levy, Origins of the Bill of Rights 135 (1999). Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.
I kicked there ere I filled thee, no way but this,
Kicking myself, to lie like Alger Hiss
Rip. Crumple. Toss.
:: David M. Wagner 12:06 AM [+] ::
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:: Thursday, June 26, 2008 ::
Yowza!
:: David M. Wagner 1:18 PM [+] ::
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:: Wednesday, June 25, 2008 ::
Kennedy v. Louisiana, the child-rape death-penalty case:
It would be hard to deliver a clearer, more workmanlike, here's-why-you're-wrong-any-questions kind of dissent than did Justice Alito today. Justice Scalia would have given off more sparks, but no one could have done a better job putting it down where the horses can get it: first of all, of course very few states adopt the death penalty for child rape -- they were scared by dicta in the Coker v. Georgia plurality.
Furthermore, the Court's "own judgment" consists of nothing but (1) a set of hyper-Allgeyerian susbtitutions of its own policy analyses (good though these may be) for those of the Louisiana legislature, (2) the steroidal judicial-supremacist notion that by allowing Louisiana to apply capital punishment in a way that many American states have traditionally done, the Court would thereby "expand" the death penalty (Coker, it will be recalled, did not in fact hold that the death penalty may constitutionally be applied only to murder -- that holding did not arrive until today); and (3) the judgment that murder is not only worse than the repeated rape of a child, but worse by such a margin the Eighth Amendment line between permissibility and impermissibility of the death penalty falls there.
That third argument is a very difficult one as a moral matter. Precisely because of its difficulty, combined with the absence of any constitutional text that resolves it, we may be sure that it is not an issue that the Constitution removes from the sound discretion of state legislatures. We may be sure, in other words, that Justice Kennedy's opinion in Kennedy v. Louisiana is profoundly wrong.
:: David M. Wagner 10:18 PM [+] ::
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:: Thursday, June 12, 2008 ::
I don't know when I'll have a chance to write something at length on Boumedienne, but:
1. It seems we are now the only country in the world that grants habeas corpus to prisoners of war, wherever or under whatever circumstances taken (is Guantanamo today different in any legally relevant sense from Germany during the Bulge?).
2. The constitutional hinge may be this: [I]f the understood scope of the writ of habeas corpus was “designed to restrain” (as the Court says) the actions of the Executive, the understood limits upon that scope were (as the Court seems not to grasp) just as much “designed to restrain” the incursions of the Third Branch. “Manipulation” of the territorial reach of the writ by the Judiciary poses just as much a threat to the proper separation of powers as “manipulation” by the Executive. [Scalia, dissenting]
:: David M. Wagner 5:08 PM [+] ::
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:: Tuesday, June 03, 2008 ::
Chuck Dunn on presidential Preacher Features: bad for candidates, bad for preachers. Amen.
:: David M. Wagner 6:10 PM [+] ::
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:: Monday, June 02, 2008 ::
As many headlines put it, Jim Gilmore "ekes out" a win over Bob Marshall in the race for the Va. Republican Senate nomination.
That must by why the Gilmore people were running around during the vote going "Eek! Eek! Eek!"
Yes, it was much closer than anyone would have expected when pro-life, pro-marriage maverick Marshall announced in January that he was going up against the state GOP establishment with a shoe-string campaign against erstwhile annointee Gilmore.
As The Virginian-Pilot's Warren Fiske perceptively remarks:Gilmore withstood a strong tide from social conservatives and libertarians – many of them first-time convention goers – to push the GOP to the right and overhaul the party’s leadership.
Rewind and replay: social conservatives and libertarians. Yes, a coalition deemed unlikely, even impossible, by many in the media; yet there they were, cheering every Marshall speaker's reference to "100% pro-life" -- and also sporting Ron Paul 2008 stickers.
And "first-time convention goers," like my son. Now they know how the system works, and they know the establishment isn't invulnerable. They're in the system, and time is on their side. Me? Not my first time: I was there to support Mike Farris for Lt. Gov. in '93, and Jim Miller for the Senate in '94. I don't share every detail of my son's Ron Paul enthusiasm, but, like him, I was there on Saturday to support Bob Marshall.
We lost on the Senate nomination vote, but we won on the party chairman vote, tossing out the establishment and putting in a young pro-life state senator, Jeff Frederick. (Many Gilmore delegates voted with us on that.)
And can you guess what happened on Monday? Young activists -- not me, but people like my son -- got e-mails announcing that, surprise surprise, there are suddenly lots of job vacancies at Republican Party of Virginia headquarters! Personnel is policy, as Morton Blackwell always taught us.
:: David M. Wagner 9:53 PM [+] ::
...
In any event, the meaning of “bear arms” that petitioners and Justice Stevens propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving “bear Arms” its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war—an absurdity that no commentator has ever endorsed. See L. Levy, Origins of the Bill of Rights 135 (1999). Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.I kicked there ere I filled thee, no way but this,
Kicking myself, to lie like Alger Hiss
Rip. Crumple. Toss.
:: David M. Wagner 12:06 AM [+] ::
...
:: David M. Wagner 1:18 PM [+] ::
...
It would be hard to deliver a clearer, more workmanlike, here's-why-you're-wrong-any-questions kind of dissent than did Justice Alito today. Justice Scalia would have given off more sparks, but no one could have done a better job putting it down where the horses can get it: first of all, of course very few states adopt the death penalty for child rape -- they were scared by dicta in the Coker v. Georgia plurality.
Furthermore, the Court's "own judgment" consists of nothing but (1) a set of hyper-Allgeyerian susbtitutions of its own policy analyses (good though these may be) for those of the Louisiana legislature, (2) the steroidal judicial-supremacist notion that by allowing Louisiana to apply capital punishment in a way that many American states have traditionally done, the Court would thereby "expand" the death penalty (Coker, it will be recalled, did not in fact hold that the death penalty may constitutionally be applied only to murder -- that holding did not arrive until today); and (3) the judgment that murder is not only worse than the repeated rape of a child, but worse by such a margin the Eighth Amendment line between permissibility and impermissibility of the death penalty falls there.
That third argument is a very difficult one as a moral matter. Precisely because of its difficulty, combined with the absence of any constitutional text that resolves it, we may be sure that it is not an issue that the Constitution removes from the sound discretion of state legislatures. We may be sure, in other words, that Justice Kennedy's opinion in Kennedy v. Louisiana is profoundly wrong.
:: David M. Wagner 10:18 PM [+] ::
...
1. It seems we are now the only country in the world that grants habeas corpus to prisoners of war, wherever or under whatever circumstances taken (is Guantanamo today different in any legally relevant sense from Germany during the Bulge?).
2. The constitutional hinge may be this:
[I]f the understood scope of the writ of habeas corpus was “designed to restrain” (as the Court says) the actions of the Executive, the understood limits upon that scope were (as the Court seems not to grasp) just as much “designed to restrain” the incursions of the Third Branch. “Manipulation” of the territorial reach of the writ by the Judiciary poses just as much a threat to the proper separation of powers as “manipulation” by the Executive. [Scalia, dissenting]
:: David M. Wagner 5:08 PM [+] ::
...
:: David M. Wagner 6:10 PM [+] ::
...
That must by why the Gilmore people were running around during the vote going "Eek! Eek! Eek!"
Yes, it was much closer than anyone would have expected when pro-life, pro-marriage maverick Marshall announced in January that he was going up against the state GOP establishment with a shoe-string campaign against erstwhile annointee Gilmore.
As The Virginian-Pilot's Warren Fiske perceptively remarks:
Gilmore withstood a strong tide from social conservatives and libertarians – many of them first-time convention goers – to push the GOP to the right and overhaul the party’s leadership.Rewind and replay: social conservatives and libertarians. Yes, a coalition deemed unlikely, even impossible, by many in the media; yet there they were, cheering every Marshall speaker's reference to "100% pro-life" -- and also sporting Ron Paul 2008 stickers.
And "first-time convention goers," like my son. Now they know how the system works, and they know the establishment isn't invulnerable. They're in the system, and time is on their side. Me? Not my first time: I was there to support Mike Farris for Lt. Gov. in '93, and Jim Miller for the Senate in '94. I don't share every detail of my son's Ron Paul enthusiasm, but, like him, I was there on Saturday to support Bob Marshall.
We lost on the Senate nomination vote, but we won on the party chairman vote, tossing out the establishment and putting in a young pro-life state senator, Jeff Frederick. (Many Gilmore delegates voted with us on that.)
And can you guess what happened on Monday? Young activists -- not me, but people like my son -- got e-mails announcing that, surprise surprise, there are suddenly lots of job vacancies at Republican Party of Virginia headquarters! Personnel is policy, as Morton Blackwell always taught us.
:: David M. Wagner 9:53 PM [+] ::
...
