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, April 30, 2009 ::
Totenburg says Souter retiring.
:: David M. Wagner 11:23 PM [+] ::
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:: Wednesday, April 29, 2009 ::
Justice Scalia, asked for comment by Above the Law's David Lat:It is not a rare phenomenon that what is legal may also be quite irresponsible. That appears in the First Amendment context all the time. What can be said often should not be said. Prof. Reidenberg's exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any.
The full story.
:: David M. Wagner 4:34 PM [+] ::
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:: Tuesday, April 21, 2009 ::
Thoughtcrime by legal analysis
Very oily: first, send out Rahm Emanuel to say, no, prosecuting ex-DOJ officials for the legal memos they wrote is a bad idea. Then, say well maybe we'll do it after all, but it's up to the AG, and maybe Congress will want to do a bunch of stuff here, but we're not sure yet.
Whether with economic or with legal measures, this administration seems to love uncertainty. Keep those you're dealing with guessing.
The phrase "criminalization of policy differences" -- which first arose in the '80s, and with good reason, given how Congress was trying to deal with the Reagan administration, first over EPA issues and later over the Latin-American policy -- is at risk of becoming a cliche. But the message is clear: conservatives, don't go to Washington, or if you do, don't commit conservatism. It is easily shoehornable into some sort of criminal category, and Democrats are willing and eager to follow through.
Senate Intelligence Committee Chairman Dianne Feinstein (D., Calif.) has said she would like to conduct her own inquiry.
I'm sure she would.
Note (in the linked WSJ article) Senator Leahy's use of the term "truth commission." That's the name for what they had in South African during the transition away from apartheid. That's what the Leahys of the world think is going on, and, more to the point, what they want you to think is going on. 2009 = 1945, and we're now in a Nuremberg phase.
:: David M. Wagner 7:46 PM [+] ::
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:: Monday, April 20, 2009 ::
SOUTER TO RESIGN IN JUNE? The re-launched Underneath their Robes details the grounds for speculation.
:: David M. Wagner 11:30 AM [+] ::
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:: Tuesday, April 14, 2009 ::
Stephen Colbert skewers a liberal Biblical critic. (Hat tip: Mark Shea)
:: David M. Wagner 2:32 PM [+] ::
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:: Monday, April 13, 2009 ::
And now for something completely different (or not): a lady who has married the Eiffel Tower, but who is considering an affair with the Golden Gate Bridge. (Hat-tip: Never Yet Melted)
:: David M. Wagner 11:30 PM [+] ::
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:: David M. Wagner 5:21 PM [+] ::
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:: Thursday, April 09, 2009 ::
National Review: The Future of Marriage
:: David M. Wagner 11:55 AM [+] ::
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:: Wednesday, April 08, 2009 ::
Iowa? Vermont?
First, if you haven't already, read Eugene Volokh's post about slippery slopes, inspired by the Iowa decision. Some slopes are slippery, others aren't. This one is, regardless of past outrage by editorialists and gay activists over the other side's "absurd" slippery-slope arguments.
I would just add: the Iowa decision and the Vermont were timed to influence, and to provide "emerging consensus" cover for, the California Supreme Court, which will use these events to support a finding that Prop 8 was a "revision" and not an "amendment," and hence not enactable through the initiative process. Not convinced? Just remember where you read it first.
So, what's the next step? What, you had to ask? (For future reference: the usual euphemism for reparations is "transitional justice." Recognize it when you hear it.)
And the religious liberty angle? Maggie Gallagher sums up the emerging fate of any non-supporter of same-sex marriage who doesn't want to go into the anti-same-sex-marriage biz full time (with all the litigation and security costs that this will entail):The deal they will be offered by the government and the culture dominated by same-sex marriage is: Mute your views on marriage so you may continue your other good works. Many good and brave people, to preserve their ability to save lives in Africa or to protect the poor in this country, will take that deal.
I'm not here to criticize him or them -- merely to point out the underlying power of the movement that can get a Baptist minister to recant about marriage on national television. [The ref is to Rick Warren, who now insists he is not an anti-gay-marriage "activist."]
Take it seriously. On a religion and the law list-serve, the widely respected UCLA law professor Eugene Volokh, who favors same-sex marriage, took time out to acknowledge that the religious liberty implications of same-sex marriage are not "scaremongering."
"It seems to me plausible that judicial decisions banning opposite-sex-only marriage rules would likewise come to be extended -- by legislatures or by courts -- to go beyond their literal boundaries (a decision about government discrimination) and instead to justify bans on private discrimination," Volokh wrote. "It seems quite likely that they will spill over into diminishing any constitutional (or Religious Freedom Restoration Act-statutory) claims to engage in such discrimination by private entities, including Boy-Scout-like organizations, churches, religious universities and other institutions."
Me -- I've got quite a few crusades going. I want to separate federal powers, keeping as much lawmaking as possible in Congress and out of the judiciary, and as much independence as possible in the executive. I want to end the unjust regime of withholding legal protection from human children because of their gestational status. I want to learn more and teach more and political philosophy and legal history. I want to protect and preserve marriage, and you know goddarn well what that is. And I want to keep going to the opera, whether people who recognize me there like it or not. I can't back down from any of these.
:: David M. Wagner 2:49 PM [+] ::
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Malvolio loses tort action against Olivia.
:: David M. Wagner 2:31 PM [+] ::
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:: Friday, April 03, 2009 ::
Iowa Supreme Court: state's EP clause requires same-sex marriage. Next: Prairie Prop 8?
:: David M. Wagner 12:42 PM [+] ::
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:: Wednesday, April 01, 2009 ::
Hawaii case: If the Court had given the the prefatory clause apologizing for the "illegal" coup against their monarchy, would that have amounted to expelling Hawaii from the Union?
I mean, if the coup was illegal, then the monarchy is still in power in Hawaii, and Congress had no right to accept its application for statehood. Plus, there's the ambiguous but obviously anti-monarchical Guaranty Clause: surely no potential state can be assumed to desire statehood when the Constitution gives Congress power to change its state government.
Perhaps statehood, plus the Guaranty Clause, cures the illegality of the coup, since the coup simply achieved, avant la lettre, what the Guaranty Clause would have empowered Congress to do anyway.
:: David M. Wagner 5:26 PM [+] ::
...
:: David M. Wagner 11:23 PM [+] ::
...
It is not a rare phenomenon that what is legal may also be quite irresponsible. That appears in the First Amendment context all the time. What can be said often should not be said. Prof. Reidenberg's exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any.The full story.
:: David M. Wagner 4:34 PM [+] ::
...
Very oily: first, send out Rahm Emanuel to say, no, prosecuting ex-DOJ officials for the legal memos they wrote is a bad idea. Then, say well maybe we'll do it after all, but it's up to the AG, and maybe Congress will want to do a bunch of stuff here, but we're not sure yet.
Whether with economic or with legal measures, this administration seems to love uncertainty. Keep those you're dealing with guessing.
The phrase "criminalization of policy differences" -- which first arose in the '80s, and with good reason, given how Congress was trying to deal with the Reagan administration, first over EPA issues and later over the Latin-American policy -- is at risk of becoming a cliche. But the message is clear: conservatives, don't go to Washington, or if you do, don't commit conservatism. It is easily shoehornable into some sort of criminal category, and Democrats are willing and eager to follow through.
Senate Intelligence Committee Chairman Dianne Feinstein (D., Calif.) has said she would like to conduct her own inquiry.
I'm sure she would.
Note (in the linked WSJ article) Senator Leahy's use of the term "truth commission." That's the name for what they had in South African during the transition away from apartheid. That's what the Leahys of the world think is going on, and, more to the point, what they want you to think is going on. 2009 = 1945, and we're now in a Nuremberg phase.
:: David M. Wagner 7:46 PM [+] ::
...
:: David M. Wagner 11:30 AM [+] ::
...
:: David M. Wagner 2:32 PM [+] ::
...
:: David M. Wagner 11:30 PM [+] ::
...
:: David M. Wagner 5:21 PM [+] ::
...
:: David M. Wagner 11:55 AM [+] ::
...
First, if you haven't already, read Eugene Volokh's post about slippery slopes, inspired by the Iowa decision. Some slopes are slippery, others aren't. This one is, regardless of past outrage by editorialists and gay activists over the other side's "absurd" slippery-slope arguments.
I would just add: the Iowa decision and the Vermont were timed to influence, and to provide "emerging consensus" cover for, the California Supreme Court, which will use these events to support a finding that Prop 8 was a "revision" and not an "amendment," and hence not enactable through the initiative process. Not convinced? Just remember where you read it first.
So, what's the next step? What, you had to ask? (For future reference: the usual euphemism for reparations is "transitional justice." Recognize it when you hear it.)
And the religious liberty angle? Maggie Gallagher sums up the emerging fate of any non-supporter of same-sex marriage who doesn't want to go into the anti-same-sex-marriage biz full time (with all the litigation and security costs that this will entail):
The deal they will be offered by the government and the culture dominated by same-sex marriage is: Mute your views on marriage so you may continue your other good works. Many good and brave people, to preserve their ability to save lives in Africa or to protect the poor in this country, will take that deal.Me -- I've got quite a few crusades going. I want to separate federal powers, keeping as much lawmaking as possible in Congress and out of the judiciary, and as much independence as possible in the executive. I want to end the unjust regime of withholding legal protection from human children because of their gestational status. I want to learn more and teach more and political philosophy and legal history. I want to protect and preserve marriage, and you know goddarn well what that is. And I want to keep going to the opera, whether people who recognize me there like it or not. I can't back down from any of these.
I'm not here to criticize him or them -- merely to point out the underlying power of the movement that can get a Baptist minister to recant about marriage on national television. [The ref is to Rick Warren, who now insists he is not an anti-gay-marriage "activist."]
Take it seriously. On a religion and the law list-serve, the widely respected UCLA law professor Eugene Volokh, who favors same-sex marriage, took time out to acknowledge that the religious liberty implications of same-sex marriage are not "scaremongering."
"It seems to me plausible that judicial decisions banning opposite-sex-only marriage rules would likewise come to be extended -- by legislatures or by courts -- to go beyond their literal boundaries (a decision about government discrimination) and instead to justify bans on private discrimination," Volokh wrote. "It seems quite likely that they will spill over into diminishing any constitutional (or Religious Freedom Restoration Act-statutory) claims to engage in such discrimination by private entities, including Boy-Scout-like organizations, churches, religious universities and other institutions."
:: David M. Wagner 2:49 PM [+] ::
...
:: David M. Wagner 2:31 PM [+] ::
...
:: David M. Wagner 12:42 PM [+] ::
...
I mean, if the coup was illegal, then the monarchy is still in power in Hawaii, and Congress had no right to accept its application for statehood. Plus, there's the ambiguous but obviously anti-monarchical Guaranty Clause: surely no potential state can be assumed to desire statehood when the Constitution gives Congress power to change its state government.
Perhaps statehood, plus the Guaranty Clause, cures the illegality of the coup, since the coup simply achieved, avant la lettre, what the Guaranty Clause would have empowered Congress to do anyway.
:: David M. Wagner 5:26 PM [+] ::
...
