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 ::
:: Tuesday, September 22, 2009 ::
Prof. Paul Robinson, U. Penn Law School:The rules of international law governing the use of force by victims of aggression are embarrassingly unjust and would never be tolerated by any domestic criminal law system. They give the advantage to unlawful aggressors and thereby undermine international justice, security and stability.
The rest.
:: David M. Wagner 11:32 PM [+] ::
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:: Friday, September 18, 2009 ::
Go put My Friend Vinnie in the Netflix queue: Politico explains; Above the Law comments
:: David M. Wagner 9:35 AM [+] ::
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:: Sunday, September 13, 2009 ::
"Where the rights of others are not involved, however," writes Prof. Michael McConnell is his great article in 103 Harv.L.Rev., describing the view of free exercise of religion taken in the early state constitutions, "the free exercise right prevails." (103 Harv.L.Rev. 1409, 1464)
Pardon me, but in what kind of legislation are the rights of others not involved?
Oh I know -- in lots and lots of laws and regulations. But in saying so, all we're saying is that we don't like those laws and regulations, that we'd vote against them, that we're in the market for politicians who will abolish them, etc. etc. I.o.w., we're making a LEGISLATIVE judgment.
But within the range of decisions that COURTS are allowed to make, what on God's green earth is the difference between a law in which "the rights of others are not involved," and any other kind of other law? Unless perhaps a "law in which the rights of others are not involved" is a completely irrational law that would fail the most lenient rational basis review -- thus de-necessitating the strict scrutiny for which McConnell is arguing.
:: David M. Wagner 10:01 PM [+] ::
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:: Friday, September 11, 2009 ::
I'm re-reading Gonzales v. O Centro and appreciating for the first time the Court's sense of irony. "Oh yes, Congress, first you enacted broad Controlled Substance Act exemptions for Native Americans, then you enacted freakin' RFRA -- and *now* you want us to go all neutral-and-generally-applicable. Oooh no! 'Compelling state interest' test -- it's what you said you wanted, isn't it? Enjoy your *hoasca*, morons!"
:: David M. Wagner 12:07 AM [+] ::
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:: Wednesday, September 09, 2009 ::
Ronald Dworkin on Justice Sotomayor at her confirmation hearings (one of his frequent New York Review of Books screeds -- this magazine publishes excellent essays, plus many by Prof. Dworkin):She demonstrated her clarity and technical skill in correcting several senators' misunderstandings of constitutional issues and explaining the facts of a large number of her own lower court and recent Supreme Court decisions to them.
Yeah? Robert Bork took that tack too, and look where it got him.
:: David M. Wagner 3:36 PM [+] ::
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Lyle Denniston at ScotusBlog on CJ Roberts and Justice Alito at the Citizens United oral argument:While both have been skeptical in the past about campaign finance laws, supporters of such laws had fashioned an array of arguments they hoped would lead Roberts and Alito to shy away from casting their votes to create a majority to free corporations to spend their own treasury money to influence federal elections. None of those arguments seemed to appeal to either Roberts or Alito.
:: David M. Wagner 3:27 PM [+] ::
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The rules of international law governing the use of force by victims of aggression are embarrassingly unjust and would never be tolerated by any domestic criminal law system. They give the advantage to unlawful aggressors and thereby undermine international justice, security and stability.The rest.
:: David M. Wagner 11:32 PM [+] ::
...
:: David M. Wagner 9:35 AM [+] ::
...
Pardon me, but in what kind of legislation are the rights of others not involved?
Oh I know -- in lots and lots of laws and regulations. But in saying so, all we're saying is that we don't like those laws and regulations, that we'd vote against them, that we're in the market for politicians who will abolish them, etc. etc. I.o.w., we're making a LEGISLATIVE judgment.
But within the range of decisions that COURTS are allowed to make, what on God's green earth is the difference between a law in which "the rights of others are not involved," and any other kind of other law? Unless perhaps a "law in which the rights of others are not involved" is a completely irrational law that would fail the most lenient rational basis review -- thus de-necessitating the strict scrutiny for which McConnell is arguing.
:: David M. Wagner 10:01 PM [+] ::
...
:: David M. Wagner 12:07 AM [+] ::
...
She demonstrated her clarity and technical skill in correcting several senators' misunderstandings of constitutional issues and explaining the facts of a large number of her own lower court and recent Supreme Court decisions to them.Yeah? Robert Bork took that tack too, and look where it got him.
:: David M. Wagner 3:36 PM [+] ::
...
While both have been skeptical in the past about campaign finance laws, supporters of such laws had fashioned an array of arguments they hoped would lead Roberts and Alito to shy away from casting their votes to create a majority to free corporations to spend their own treasury money to influence federal elections. None of those arguments seemed to appeal to either Roberts or Alito.
:: David M. Wagner 3:27 PM [+] ::
...
