Wednesday, December 14, 2005

Monday, November 28, 2005

Serious Opinions on Interrogation of Terrorists

Andrew McCarthy, one of the prosecutors of the first WTC bombing, wrote this about the folly of the McCain amendments.

And Charles Krauthammer wrote this policy piece for the Weekly Standard.

They come to much the same conclusion...

Sunday, November 27, 2005

Judge Friendly's pre-Roe Draft Opinion

For anyone who has not heard about this Judge Randolph speech at the last Fed Soc Lawyers Convention this November, he spoke about a never-published 1970 opinion by Judge Friendly on the first abortion case brought in a federal court.

His analysis is hostile to both the reasoning and the outcome in Roe.

Randolph argues that there is no "harm principle" in the Constitution; legislatures can regulate behavior without a requirement that that behavior be directly harmful to others. I wonder, natural rights folks, if the 9th Amendment might mean that Randolph is wrong?

Thursday, November 24, 2005

One man, one vote?

I had hesitated to breach this subject, as it is a specialty of Misha's, but as he has not rushed in...

This begins to address what Sen. Biden has called a potential "extraordinary circumstance" that should permit a filibuster. Sen. Biden is not a member of the Gang of 14 that introduced this standard and may not be a competent authority.

It is my bet that Alito will openly support Baker v Carr but be more guarded on Reynolds v Sims.

Should states be allowed to have legislative districts apportioned, for instance, by territory, if they wish? The Constitution guarantees republican government in the states, but does it really mandate one-man-one-vote? Many republican governments have thought it advisable to OVERREPRESENT rural districts (Japan), or sections of the country that are the home to minority ethnic groups (UK). Why should it be viewed as impermissible BY IMPLICATION to adopt such measures here (and, pace Misha, against the express example of the US Sentate)?

So long as the overrepresentation is of the WEAK, should this not be seen as a question of policy, rather than principle? While Faction should be feared, should not counterweight-to-concentration be another prudential tool against tyranny?

Saturday, November 19, 2005

Law Students Against Alito

I was reading this story about law students gearing up for "the upcoming hearings on Supreme Court nominee Samuel Alito" It notes that many are "founding Law Students Against Alito chapters on their campuses." Now I have heard of single issue clubs before, but this is just silly. You would think that those opposed to Alito could organize directly through ACS (Constitution, not Cancer), Law Democrats, or one of the other leftist/socialist student organizations on campus. Maybe a new club allows these people to suck even more student money for their causes. Maybe I should start up a Law Students for Demeaning Hitlery Clinton. At least that club would have a shelf life of greater than 6 months.

Thursday, November 17, 2005

Wednesday, November 16, 2005

The 9th Circus Strikes Again: Teach Seven-Year Olds About Sex

I finally found something sufficiently infuriating for me to break my semester-long silence on the Fed Society blog. I hope our dearly beloved president Misha will be happy to see this.

On November 2, the 9th Circuit ruled in Fields v. Palmdale School District (2005 WL 2861946) that “there is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children, either independent of their right to direct the upbringing and education of their children or encompassed by it.” (emphasis in original). This shocking revelation that parents should not be allowed to protect their seven- to ten- year old children from being exposed to sexual content at their schools came from the same court who just three short years ago informed us that the Pledge of Allegiance “impermissibly coerces a religious act.” Newdow v. U.S. Cong., 328 F.3d 466 (9th Cir. 2002).

I realize that I live under a rock during the law school semester, but I certainly did not hear the public outcry about this case that I would have expected. Hence, my need to end my hiatus from this blog.

It’s nice to know that we can always count on the 9th Circuit to straighten us out when we think that the words “under God” are not a coercive state endorsement of religion and when we expect that our elementary school children will not be required to answer a survey that asks how often they think about sex. Apparently it is acceptable for a school to inculcate children with values about sex but not for a school to begin the day with recitation of the Pledge, which, of course, is not mandatory.
Parents have a right to inform their children when and as they wish on the subject of sex; they have no constitutional right, however, to prevent a public school from providing its students with whatever information it wishes to provide, sexual or otherwise, when and as the school determines that it is appropriate to do so.
Many people subscribe to different views about the moral import of sex, but parents should have discretion about how they address such weighty matters with their young children. Parents have a fundamental right to instill their values in their children, and when the school district has final say on when and where to perpetuate its own values, that right is undermined.

Hopefully the Supreme Court will grant cert in this case and, once again, put the 9th Circuit in its place. Meanwhile, the right of parents to raise their children in the way they see fit continues to be eroded by those who believe that the State knows best. I close with what I find to be chilling words from the NEA in 1885 (reprinted in Judith Areen, Family Law 1175 (4th ed. 1999)):
The first step of the State should be to get possession of the minds of men; get control of their ideas…. This can be accomplished by a system of uniform, well-organized and liberally supported public schools…. The power of education, rightly conducted, is almost omnipotent.

Monday, November 14, 2005

Proposed Mass. law to make animal sex less illegal

Check out this link about "An Act Relative to Archaic Crimes" that would, among other things, make sex with an animal subject to a far lower penalty. Hat tip to Redstate's RedHot. Some guy at redstate says this:
Senator Santorum was right. Who knew?! First they legalized gay marriage in
Massachusetts and now they are scaling back penalties on goat rape and other
crimes related to beastiality.

I should point out that I do not have a problem with allowing people to use their property as they wish (including aborting their own children) and that consenting adults should be allowed to engage in whatever acts they like. I just find pointing this out the liberals funny, because I do not think that there is a meaningful difference between allowing any type of sex (gay or straight) and allowing goat sex (as long as the goat owner consents). I know that some will say that the goat can not consent, but the goat cannot consent to lots of things. The goat cannot consent to being eaten, to being whipped, to being milked. I hardly see it as being that great of a leap to allow the goat owner to do other things for gratification by use of a goat. The law against animal sex wasn't about protecting the animal anyways; it was about outlawing the immoral activity. Perhaps if the law was part of a bill that regulated how animals are to be treated I would consider this issue differently, but as you can see from the above link, the law was to prevent immoral sex.

Sunday, November 13, 2005

In Defense of High Gas Prices

Last week saw another sad grandstanding display by our elected politicians. Trying to respond to the public clamor over high gas prices, the Senate dragged in executives from five major oil companies to demand answers. These hearings demonstrate a disturbing trend in our polity.

The underlying premise of the entire hearings misconceives the role of corporate employees, like CEO. Simply put, the Senators are calling these executives to task for doing their jobs. Consider the following questions- What exactly should these execs have done in the face of a rise in demand for their product? Do you realize that these people have jobs appointed by the board of directors with the purpose of enhancing shareholder value? Should they have charged less than the market rate (market rate= rate that they could obtain from the market) just because it is in the interests of some Americans? In fact, if oil executives failed to raise gas prices, their board of directors should fire them on the spot, and the company’s shareholders should sue them for breach of fiduciary duty.

If the government wants to subsidize people in their consumption of gas, they should give out a tax break or hand out a voucher for gas. This would be horrible and near-socialist, but it is miles better than calling in private businessmen who are violating no law and doing their jobs, and demanding that they sacrifice the interests of their employers for the sake of the so-called “public interest.”

Tuesday, November 08, 2005

Stare Decisis?

Don Cates, Monday lunch, made a persuasive case that the 2nd Amendment cannot mean what current Supreme Court jurisprudence seems to say: it's about the state militias, aka Nat Guard. Rather, he insists, its meaning is what it appears on its face: "keep and bear arms" gives INDIVIDUALS the un-infringable right to own and carry a gun, everywhere in the country.

The plain meaning, the original meaning and consistent reading of this amendment congruently with other contemporaneous amendments ("rights" refers to individuals, "powers" refers to states), he claims, ALL tend toward this understanding.

Can the Supreme Court persist in applying current precedent?

Monday, October 31, 2005

Alito is a Slam Dunk to be Confirmed

Alito is obviously among the numerous candidates that fulfills the President’s pledge to nominate someone in the mold of Scalia and Thomas- the only question now is whether he will be confirmed. I think he answer to that is a slam-dunk “yes.” During the Miers nomination debacle, some (including some on this board) blamed the Republicans in the gang of 14 for the choice, saying they made the nomination of a qualified conservative impossible. I think the Alito nomination will show that I was right to defend those Republicans and that Bush miscalculated greatly if that was his reason for nominating such an unknown as Miers.

Mike DeWine was just on TV (one of the gang of 14), saying that Alito is nowhere close to extraordinary circumstances. I expect John McCain and the rest of those who worked well with Democrats to save the filibuster for truly extraordinary circumstances will issue similar statements in the next couple of days. The Democrats will see the writing on the wall for any attempt at a filibuster, not want to lose the option for truly extraordinary circumstances, and back down after a bunch of posturing. Alito will be confirmed with over 60 votes, and the filibuster deal will be established as not something to be used as a litmus test, but rather as a last ditch measure for when the process goes really wrong.

This is a very good day for the American judiciary.

Welcome to the Lions' Den, J. Alito!

This is the kind of POLITICAL argument that must have argued in favor of Alito.

Could McConnell have been passed over because of Bush v Gore?

Saturday, October 29, 2005

A Great Opportunity

In nominating Harriet Miers for the Supreme Court, George W. Bush made one of the biggest mistakes of his presidency. Having suffered the humiliation of having the intellectual wing of his own supporters shoot down his nominee, Bush has a golden opportunity to restore excellent and demonstrated ability, rather than stealth, as the most important qualification for a Supreme Court nominee. Bush must not miss this opportunity.

The Miers nomination was, as Robert Bork put it, “a disaster on every level.” Rather than putting forward someone with impeccable qualifications and a demonstrated ability to lead the nation’s highest court, Bush chose a supposedly “safe” pick- safe both because he knew how she would vote and because she had never publicly expressed any contraversial views. The broad response against this nominee was heartening and inspiring for those of us who are increasingly cynical about politics. As David Frum of National Review said upon Miers’ withdrawal- “[t]he system worked.”

In order to make up for the Miers mistake and set an important precedent for future nominees, President Bush should now appoint the anti-Miers. That is, he should appoint someone with (1) the longest paper trail of excellent scholarship he can find; and (2) someone respected by both the let and the right as being of the highest intellect. There are several excellent choice who would fill these qualifications, but I think probably the best selection would be 10th Circuit Judge Michael McConnell.

McConnell has several important factors working in his favor (for a similar defense of picking McConnell- see this post):

1. He is respected as having an incredible intellect by both the left and the right. It is uncontroversial to say that he is one of the most brilliant conservative academics of his generation.

2. He would have support from many of the intellectual on the left, many of whom signed this letter in support of his confirmation to the Circuit Court. Signatures of this letter include Cass Sunstien- currently the leading liberal academic in the country by many measures.

3. He holds many conservative viewpoints that should please those who voted for Bush- including unequivocal opposition to Roe v. Wade.

4. He was recently confirmed to the Circuit Court, without any threat of filibuster, so his nomination may not trigger a fight over the nuclear option.

5. He has a very long paper trail- meaning that he has defended his views in public and has had to put his thoughts to the test.

I believe the Robert Bork precedent has been overemphasized to the point where many wrongly believe that no one with a public record on important constitutional issues can make it to the Supreme Court. By nominating McConnell, George W. Bush can obliterate the Bork precedent. The juxtaposition between an embarrassed Harriet Miers- the ultimate stealth candidate- having to withdraw, with Michael McConnell overwhelming passing through the Senate, would be a powerful precedent for future nominations. It would once again establish excellence, and not stealth, as the primary qualifications for a Supreme Court nominee. By making this move, George W. Bush can turn one of his administration’s biggest mistakes into one of its most important achievements.

Judicial Nominations & Republican Politics

I would like to respond to a comment Dave Lane (glad we have intelligent liberal contributions on the blog - thanks!) made on a previous post:

"I will say this -- the following GOP talking points are now dead in the water (killed by the hand that fed them):
1. Every nominee deserves an up or down vote.
2. There should not be a litmus test on abortion for judges.
3. Bush was elected President, so he gets to pick who he wants for the Court.
4. Nominees should not be Borked (I suppose it's somewhat poetic that Miers was Borked by Bork). "

The Miers nomination raises reasonable doubts about the sincerity of conservatives who suggested that the presidential nominating power was sacrosanct. Many conservatives made compelling arguments that "advice and consent" could not mean that a president had the DUTY to prequalify nominees with the Senate. In the case of Miers, the President made a choice and the reaction was outrage - How dare he! In defense of the abovementioned conservatives, I would distinguish between saying that the Constitution requires senatorial participation in the selection of nominees (a novel interpretation of the Constitution opportunistically advanced recently by some Democrats) and saying that a president's choices can be criticized (a freedom fully exercised by Republican citizens in recent weeks). Republican senators did not initiate or even participate in the rebellion against Miers and their subtle telegraphing of a difficult confirmation seemed to underscore the generally accepted notion of senatorial veto power to a presidential power of choice.

"Every nominee deserves an up or down vote" refers not to public opposition, which derailed this nominee, but to (ab)use of Senate rules to prevent a vote coming to the Senate floor, notably the filibuster. The objection is not to free speech but to minority thwarting of the majority will. The Miers withdrawal was a submission to popular will.

Miers was not generally treated abusively. She was a very weak nominee, offering ample material for substantive objections, and the attacks hardly had the chance to get personal in the short time involved. Judge Bork, on the other hand, was subjected to the full fury of modern media politics.

You have a point on abortion litmus tests.

I believe the Miers nomination was, as Geoff Shipsides reported in a post before Miers' nomination, a sacrifice nomination. The abortion element was crucial to setting up the next nominee. Here's how:

It has by now been established that Miers opposes abortion (and Karl Rove made sure that we'd all find out) and it seems reasonable to assume that she would have been a vote to overturn Roe as well. The Democrats hardly raised a peep against Miers but instead held their fire as they saw Republicans seeming to do their work. BUT the Miers prologue simply strengthens the importance of QUALIFICATIONS in the public mind; opposition to abortion hardly got a chance to be brought up as a problem.

So, we are left with: 1) qualifications are the key to evaluating a nominee (another Republican talking point), and 2) opposition to abortion is not a problem.

I think the next nominee will be: Edith Jones, Emilio Garza, or Michael McConnell. And any of them will now have a much easier time getting confirmed after Miers. There will be a tough fight but the ground is well prepared for the engagement.

Monday, October 17, 2005

Fatal flaw?

One might wonder whether such a thing (a negative view of Roe, to such an extent that the decision should be overturned) should eliminate a nominee, but this indicates that Miers might have a serious problem in front of the Senate Jud Com.

Some odds-makers have turned against Miers...

Monday, October 10, 2005

Blame It On the Senate

In reading the most recent Fed Soc blogs on the nominations of Ms. Miers, I must say I'm a little surprised that two big points have been completely overlooked. First is the role of the "moderate Republicans" in the Senate. Second is the fact that the Court moves to the right regardless of the result of the Miers hearings.

Had a Luttig or Garza received this nomination, I doubt that the moderate Republican Senators would have stood solidly behind him. Their history with the fillibuster "compromise" proves very unpromising. If such a candidate had been nominated and challenged by the Demos, I doubt the Republicans would have used the nuclear option. They did not even stand for this principle in the abstract; why would they suddenly invoke it when it makes a practical difference and they would open themselves up to even more charges of partisanship? Cow-towing to Democrats on such a nomination would communicate that not even the Republican party wants to align itself with these "controversial conservatives," and could greatly set back the work that conservative groups like the Federalist Society have done in making conservative ideas part of the mainstream legal dialogue.

Because Luttig and Garza were not nominated, these same moderate Republicans are now up-in-arms. The Democrats seem to be happy enough. This is also a very good thing since the moderate Republicans are the ones that make or break the confirmation. If the Republicans do decide to reject Miers as a candidate, it puts them in a position to have to stick by their guns when Bush nominates a candidate with a more substantial conservative track record. The moderates could not avoid acknowledging the conservative branch of their party as easily the second time around if their reasons for rejecting Miers included inability to determine her jurisprudential views. It would put them in a position to have to take a stand for conservative jurisprudence by legitimizing judges with a solid conservative history. It would be much easier for a conservative judge to be confirmed if the Senate rejects Miers.

Secondly, I'm not as sure as my Fed Soc colleagues that Miers is such a horrible pick. I have to disagree that there is a certain path or a certain set of credentials that reveals a judge has a strong unassailable philosophy. Or even that a woman that doesn't have those credentials is intellectually inferior to those that do. Ultimately, the fears of Federalist Society members should not be that Miers is not intellectual; the fear should be that she does not have a consistent jurisprudential philosophy. Many Supreme Court justices that did not follow what we see today as the typical track were effective nonetheless in this important area, including Marshall, Warren, Harlan, Frankfurter, and Jackson. (http://writ.news.findlaw.com/commentary/20051005_gerber.html) Whatever criticisms can be made of these men (especially Warren and Marshall) not having a consistent judicial philosophy is not among them. The main point is that, if confirmed, I think Miers replacing O'Conner will move the court slightly "to the right." And that is a good thing.

Whatever happens next, it seems the court goes our way. Either the Senate denies her nomination and is forced to support someone with stronger conservative ties, or they confirm her, and we get a controversial candidate slightly more conservative than O'Conner. I'm not sure the Miers nomination is a great idea; I'm just not so sure it's a bad one.

Thursday, October 06, 2005

Ground shifting under us?

This indicates that the Miers nomination may not have stamina...

Wednesday, October 05, 2005

Just Good is Not Good Enough

There are certain stations in life that should demand the highest level of achievement and ability. Being a justice on the Supreme Court of the United States is one of those posts. While a President can have many criteria for selecting a nominee- including ideology, conformability and character- being one of the best minds of the generation should serve as a threshold to being considered. In selecting Harriet Miers as his nominee for the Supreme Court, George W. Bush failed to abide by this simple and essential threshold.

Miers is a good lawyer, maybe even a very good one. She was President of the Texas Bar Association, she was White House Counsel, she even managed a large law firm. This is very impressive- but good is not good enough. As George Will accurately pointed out - "If 100 [top legal minds] had been asked to list 100 individuals who have given evidence of the reflectiveness and excellence requisite in a justice, Miers's name probably would not have appeared in any of the 10,000 places on those lists." That no one would seriously challenge this contention shows that Miers fails the most essential prerequisite for being considered for the Supreme Court.

Miers’ defenders point out that she is not from the judicial monastery and brings a different experience to the bench. First, I am unsure as to why not having been a lower court judge gives one more ability to be a judge at the highest level. Imagine someone arguing that she should be CFO of a fortune 500 company, and responding to the charge that she has never performed high level financial analysis by saying she will bring a different background to the job of CFO. Even more importantly, there are numerous lawyers who have never been judges that would fit the threshold criteria I propose. For example, former Solicitor General Theodore Olson is acknowledged by legal experts on both the left and the right as one of the most brilliant legal minds in America. And if Bush was insistent on picking a woman, he could have selected Maureen Mahoney, who is a former Rehnquist clerk and one of the most respected advocates in the country. There are dozens such names that I or anyone else familiar with the American legal universe would pick before we would even consider mentioning Harriet Miers.

Miers may end up being one of the great justices in American history. She could have the intellect and ability to prove her detractors wrong. Most likely, this will not occur. In selection John Roberts, George W. Bush picked someone who has excelled at the highest level at the most difficult tasks a legal mind can tackle. In moving away from selecting from the universe of the best legal minds of the generation, Bush has made a terrible mistake. Even worse than the one Reagan made in 1981.

Tuesday, October 04, 2005

Meaning of Miers

Two thoughts:

1) A friend has pointed out that putting up an originalist/pro-life nominee and having that nominee lose in committee and ultimately, after the nuclear option or due to it, on the floor of the Senate would be much worse banishment of Republican jurisprudential views from broad acceptability than is the current, conciliatory stealth approach. Rather than viewing all occasions as an opportunity to confront the adversary, the President has rightly shown good judgement in avoiding unnecessary controversy in a context of generally increasing, incremental acceptance of originalism and restrained jurisprudence.

2) President Bush conducted the most extensive Senate consultation in history, perhaps 70 senators out of 100. Those Senators were more liable to share their considered political judgment in private with the president than with the press (moderate Republicans were key to the vote). Therefore, his decision was 1) a sober analysis of the current political landscape, and 2) an attempt at building bridges with the Democrats. Bush has no more elections to win but he would like to get things done: peace with the Democrats is key to Social Security reform. Harry Ried proposed Harriet Miers...

Barnett On Miers

I am currently too disappointed to make any coherent post on this matter, so I want to just put up this article for consideration: Georgetown Law's Randy Barnett on Why Alexander Hamilton Wouldn't Approve of Justice Harriet Miers

Monday, October 03, 2005

New SCOTUS Pick - a Scalia or a Souter?

It's official: as of 0800 EST, President Bush has chosen Harriet E. Miers, White House Counsel, to replace retiring Associate Justice Sandra Day O'Connor on the US Supreme Court. Apparently Miers was suggested by and has support from both sides of the aisle.

As a Bush supporter, I must say that I am thoroughly unimpressed with his latest pick. It seems that he has found his 'consensus nominee' and has found her deep inside the ranks of the ranks of the White House insiders. She has no judicial experience and no significant paper trail - which, on the one hand, deprives the Dems of ammunition for attacks on her record, but on the other hand strips the GOP base of any assurance that this woman won't turn out to be a David Souter. Is it too much to ask, from a President who has gotten so much support from his base in times of intense political pressure, that a solid, proven conservative/textualist jurist be selected?

I know it's too early in the game to be criticizing this woman, and she may very well turn out to be a highly impressive nominee (see Chief Justice Roberts). Judgment must be reserved until we find out more about her. I hope we're all pleasantly surprised, but mostly, I wish we didn't have to hope.

14th Amendment: Original Meaning?

This site gives an interesting smattering of historical information tending to indicate that the drafters, at least, of the 14th Amendment DID see it as an affirmation of the Bill of Rights to be applied to the states.

I'd appreciate others thoughts on this...

Wednesday, September 28, 2005

Tuesday, September 27, 2005

Originalism Mainstream?

This article by Akhil Amar at Slate is a paean to Originalism, which, he is claiming, is not hostile to liberal views.

It is interesting to consider that, as Brennan feared in the Supreme Court's ruling on the extent of 7th amendment jury right, the Court could become a historical debate club.

Anyone who favors the restraint imposed by textualism must welcome this potential shift of the terrain of battle.

Sunday, September 25, 2005

Roberts' "Detachment"

This morning on This Week, George Will pointed out some truly amazing excerpts from Dianne Feinstein’s press release explaining her opposition to Judge Roberts. Here is one such gem:

And I asked him about end of life decisions – clearly, decisions that are gut-wrenching, difficult, and extremely personal. Rather than talking to me as a son, a husband, a father – which I specifically requested that he do. He gave a very detached response.

To quote Will, What in the Name of James Madison does that have to do with judging? I guess Feinstein wanted Roberts to emote about “poor Joshua” in the tradition of Justice (I use this term loosely) Blackmun. The ideal of the judge as a detached decision maker- applying reason, history and text to particular facts to particular factual circumstances- was lost on the Senator.

Aristotle once explained that “The law is reason, free from passion.” What this quotation means is not that human beings should not be passionate about law, or that legal results cannot give us either joy or sadness. Rather that the law should be applied to each person in a fair, impartial and dispassionate way. This is the essence of the rule of laws, not men.

Wednesday, September 21, 2005

Sacrificial Lamb for O'Conner Seat?

Redstate is suggesting that Bush might put up a sacrificial lamb for O'Conner's seat.

Interestingly, I'm told the White House is more and more leaning toward a sacrifical lamb to call that bluff. They'll put up a good conservative, have the Dems vote against the nominee, and then put up someone else with similar views daring the Dems to block the second nominee too.

I just hope that if Bush is going to try this that he first puts up Brown. I would hope that she would get through, but if not, at least it would be interesting and help the second nominee get through.

Saturday, September 17, 2005

Appointment of Justices

I would be interested to hear what others have to say regarding the proper (as opposed to constitutionally required) method for the appointment of justices to the Supreme Court.

Until the last few years, for instance, it was the tradition that senators would defer to the president on the basis of the jurisprudential philosophy of the nominee. Justices Ginsburg and Breyer got votes from most Republicans. Justice Thomas was approved by a Democrat-controlled Senate and such opposition as he got was largely premised on his fitness, though his views did receive considerable criticism. At the ACS debate a couple of weeks ago, both Professors Tushnet and Barnett agreed that the Republican votes in favor of Clinton's nominees was an error.

Some claim that this deference is constitutional in nature: the Congress is bound to allow the president to select amongst qualified candidates. To make this more clear, and in the context of the filibustering of judicial nominations, a Senate rule which required a president to first consult with senators before advice and consent would, according to this thinking, be unconstitutional. To convert senatorial votes on nominees into policy approval would subvert the president's constitutional powers.

Isn't this argument weaker in relation to judges than it is to subordinate executive officials, such as the Secretary of State? That is, if the Republican Senate had forced Clinton to accept a Secretary of State to its liking, that action would have been unconstitutional (Madeleine Albright was certainly not liked by Republicans). Given that the Supreme Court is the head of another coordinate power, shouldn't the presidential power be weaker and the duty of the Senate to confirm according to ITS best judgment stronger?

Or is the tradition correct and the more apparent check of Congress on the Judiciary, the Exceptions Clause, is the appropriate vehicle for legislative power?

If the Democrats do vote largely in favor of Roberts, I think they will strengthen the hand of the next Democratic president, a political consideration. That this consideration seems to be playing so little role in the matter may reflect their honest assessment of their own PRESIDENTIAL prospects...

Sunday, September 11, 2005

More than food and clothes

An official in Baton Rogue asked for them. A publisher in Nashville sent them. Sounds commendable enough at a time when aid is pouring into the part of the country torn apart by Katrina. Seems even reasonable that such aid would consist of items local officials were asking for. What's the problem, you may well ask? The items themselves seem to be causing all the controversy. The donors sent the refugees Bibles.

Critics of the Christian publishing house that sent the Bibles (and matched their employees' monetary contributions up to $50,000) say that they would be offended if they received a Bible in such a time as this. (There was no comment on whether they would have been offended by the monetary contribution as well. I assume they would not.) These critics do not seem to realize that, in a crisis, many people draw more comfort from their faith than their full stomachs. If an individual does not want a Bible for whatever reason, no one is forcing him to take one. Why should such an individual compel the donor to stop giving to those that want to receive? Local officials specifically asked for this aid. It would be wrong to deny spiritual comfort by imposing a purely naturalistic world-view on those refugees who believe that life is more than food and the body more than clothes. And is this belief, which at least 83% of Americans hold, really so unbelievably controversial? Most of us have gotten over our insecure belief that we are no more than unfeeling brutes.

The incident brings me back to feelings I had in the wake of September 11. I was at music school, and felt that I was wasting my time there. I could have been studying something that would have been more useful to people in need. A dear friend - a non-musician - stopped me and told me a story of a NY violinist. This violinist had walked around all day and night and played his instrument for the people that were sitting in the streets, walking in the debris, and looking for their loved ones. He wept as he played. People later said that his music meant more to them than the food and water they received from the Red Cross, or the practical physical aid they received from doctors. And why? He was feeding their souls. He was reminding them what it meant to be human. He was reminding them that our bodies house something special and unique. Each man gives what he can: the violinist, the song; the Christian publisher, the Bibles. Why has it become trendy to let our souls starve?

How would I feel if the tables were turned? One might argue the reason the Bible donation sits so lightly on my mind is that I am a Christian. What would I do if a publisher of another faith handed me a Torah, or a Koran along with some money for food? Would I be offended that he was trying to comfort me with a belief I don't share? Not in the least. I would be thankful and grateful to any human being that tried to meet a hunger that, for most people, runs deeper than physical hunger. And I would understand that such a longing is part of our shared humanity.

Religion and music can sustain people in ways that food never can. And woe to the critics that have forgotten this truth. Maybe they should sit in a room filled with Bach sonatas and read a Psalm.

Tuesday, September 06, 2005

Misha says to start posting again.

so here is my first post of the new school year...

I would very much prefer it if all of the fed soc bloggers made comments about posts in separate posts rather than in the comments section of that post in order to keep the blog going.

I am very happy to be in Randy Barnett's class this semester: Recent Books about the Constitution. I was going to live blog it, but... well... not anymore.

I am also going to try to be less of... well... myself this year. I am off to a really bad start so far, but I will hopefully be a completely different (boring) person by the time I start my professional career.

More posts to come.

Monday, September 05, 2005

Rehnquist: a tribute

Over at Mirror of Justice, Rick Garnett (Notre Dame professor and former Rehnquist clerk) honors the Chief:

"The chief was a lawyer's lawyer. He taught and inspired me, and all of his clerks, to read carefully, to write clearly, and to think hard. He will, quite appropriately, be remembered as one of the few great chief justices. For me, though, William Rehnquist is more than a historic figure and a former boss. Today, thanks in no small part to him, I have a great job: I get paid to think, research, and write about things that matter and to teach friendly and engaged students about the law. I will always be grateful. And I hope that the deluge of political spin to come will not drown out what Americans should remember about the chief: He was a dedicated public servant, committed to the rule of law and to the court. He regarded himself as the bearer of a great trust and of a heavy obligation of stewardship. In my judgment, he was faithful to that trust, and he fulfilled that obligation."

Sunday, September 04, 2005

Rehnquist In Perspective

The Passing of Chief Justice Rehnquist makes this a sad day, but it also gives us an opportunity to appreciate how the Chief’s tenure has improved American jurisprudence. Coming from the complete liberal activism of the Warren Court and the somewhat bumbling “this far, but no further” Burger Court, Rehnquist’s elevation proved a subtle but important event in Supreme Court history.


There are numerous areas where the Rehnquist era has improved American jurisprudence, but the most important achievement of Rehnquist’s tenure is taking the first step to save the Constitution as a serious limit on the power of the Federal Government. Before the Rehnquist Court, it was orthodoxy that Congress could achieve any end it wanted under its Commerce Clause power. From stopping a single farmer from growing food for his own farm and his own family to enforcing esoteric endanger species protections, the Commerce Clause had become a panacea of unlimited federal power.

In 1995, the Rehnquist Court, for the first time in almost seventy years, struck down a law as exceeding the Federal Government’s power under the Commerce Clause. In U.S. v. Lopez, the Federal Government had the gall to argue that stopping people from bringing guns into school zones was part of the Government’s power over interstate commerce! The Court took a further step in this same direction in U.S. v. Morrison, when it rejected the Federal Government’s claim that its power over “interstate commerce” allowed it to criminalize domestic violence.

The work the Chief and his fellow conservatives on the Court started to save the Constitution is still in its infancy. Lopez and Morrison are still only blips, and as the Raich case illustrated this year, the Court’s left wing has no intention of abandoning the idea that Congress’ power under the Commerce Clause is virtually unlimited. The important work of future justice Roberts and whoever replaces the Chief will be to guide the Court into respecting the role of the national government as one of limited and enumerated powers. I will end with Rehnquist’s simple statement from U.S. v. Lopez:


We start with first principles. The Constitution creates a
Federal Government of enumerated powers.


The greatest honor the Supreme Court can do to Rehnquist’s work and to the Constitution our framers created is to start taking that truth seriously again.

Saturday, September 03, 2005

George Will on Liberalism and Professor Edelman

An excerpt from a 1987 article:

"Here, then, is contemporary liberalism in crystalline clarity: American society is savagely unjust; it is so because the majority, which has the knowledge and means to make things right, will not; therefore the majority is immoral; therefore majority rule is immoral and rule by an enlightened judiciary is obligatory. If liberals wonder why their label has become an epithet, they should note the vigor with which liberalism libels America. . . ."

Monday, August 22, 2005

Roberts, Catholicism, and the Senate

The following essay is a very useful reminder:

Will John Roberts Judge Faithfully?

In two weeks, Judge John Roberts, President Bush’s nominee to succeed Sandra Day O’Connor on the Supreme Court, will come before the Senate Judiciary Committee, raise his right hand, swear to tell the truth, and answer a seemingly endless number of questions.

Among the questions he almost certainly will be asked is whether or not his Roman Catholic faith will bias his decisions as a Supreme Court justice.

Article VI of the Constitution requires all public officials to be "bound by oath or affirmation to sup-port" the Constitution as the supreme law of the land. But what if the teachings of the Catholic Church or the Pope clash with the Constitution? Will a Catholic such as Judge Roberts follow the Constitution or side with his Church? That is the question troubling some commentators.

Some think such a question poses an inescapable dilemma for Judge Roberts. He could declare his faith to be a purely private matter that will in no way affect his judgments as a Supreme Court justice. But such a response would ring false. It is unlikely that a deeply committed, thoughtful Catholic such as Judge Roberts could or would simply abandon his faith at the door when he enters the judicial chambers.

But if Judge Roberts responds that his Catholic faith will indeed affect his rulings as a Supreme Court justice, won’t he be caught on the opposite horn of the dilemma? Critics will argue that he is unfit for service on the Court if he might put the teachings of his church ahead of the Constitution he will have sworn to uphold.

But the dilemma is a false one. It ignores the reality that all of us—Protestant or Catholic, Christian or Jew, believer or nonbeliever—have been led by our life experiences and the teachings we have received to adopt certain moral beliefs and values as our own. None of us lives a value-free life; all of us possess a framework of presuppositions and values, a set of convictions, that undergirds and shapes our view of life and human society.

Thus, Judge Roberts, as a Christian believer in the Catholic tradition, is not somehow in a different position than anyone else President Bush might have nominated to the high Court. Any nominee would come with a background that has shaped his or her outlook on life and with values and beliefs relevant to how he or she views issues to come before the Court.

If he is confirmed, Judge Roberts will be called upon to interpret and apply the Constitution and law in many conflicted areas, where precedents are unclear and the relevant legal standards less than obvious. He will be guided, as all judges are, by his understanding of the law, legal precedents, and the facts in the case—and also by his sense of values, his under-standing of human society, and his insights into the meaning of a just order. In doing so, Judge Roberts will no doubt be influenced by his Catholic faith, but he will be no more or no less influenced by his belief system than any of the other justices who have ever sat on the Supreme Court have been influenced by their belief systems.

Thus, in his upcoming hearings before the Judiciary Committee, Judge Roberts should freely acknowledge his Catholic faith and even give some examples of how it has shaped his approach to the law and legal issues. At the same time, he can and should insist that his situation is no different than that of any other nominee to the Court.

—Stephen V. Monsma, Fellow of the Center for Public Justice [Dr. Monsma is co-editor of Equal Treatment of Religion in a Pluralistic Society (1998) and editor of Church-State Relations in Crisis: Debating Neutrality (2002).]

Wednesday, July 27, 2005

Are You, or Have You Ever Been a Member of the Federalist Society?

Frustrated by the lack of embarrassing personal details and quotes that are outrageous when repeated out of context, the press has decided that the question of Supreme Court nominee John Roberts’ Federalist Society membership is incredibly important. The suggestion, of course, is that membership in the Society portends some extremists positions that are unacceptable for a Supreme Court justice. As president of the Georgetown Law Center Federalist Society, I can tell you that those who attempt to characterize the Society and its member with a broad, extremist brush show only their own ignorance and agenda.

As an excellent op-ed article by Federalist Society member Eugene Volohk explains, the Federalist Society embraces a wide variety of conservative and libertarian viewpoints. The Federalist Society was founded by libertarians and conservatives who felt marginalized by the left wing domination of the legal academia. It has certain founding principles- including broad statements about individual rights and the courts saying what the law is, not what they wish it to be- but those principles are so broad as to encompass the views of most Americans.

My personal experience illustrates the diversity of viewpoints of the people who are both members of the Federalist Society and speak at our events. I have argued with our previous chapter president about military tribunals in Guantanamo (I am against them, she is for them); I have debated with other members about abortion (I am against abortion, they were for it); I have argued with one of my current officers about Bush’s Medicare plan (I am against it, he is for it). At our National Student Symposium, noted liberal Alan Dershowitz debated the use of pre-emption and often took more hawkish views than the Federalist Society member who was debating him. On the panel before that, ACLU leader Nadine Strossen explained that the Society’s founding principles of protecting individual rights are in line with the ACLU’s mission.

I am a proud member of the Federalist Society- but that tells you little about me. You would not know my opinions on any particular issue, or my view of what the Constitution requires. All you would know is that I belong to a Society that believes that the liberal domination of the legal academy does not adequately represent my viewpoint. There are a lot of more controversial aspects to my views- but like with John Roberts- you will not know them by finding out if I paid my 5 dollar yearly dues to the Federalist Society.

(also posted at Watchblog

Tuesday, June 07, 2005

Supreme Court Chooses Unlimited Federal Power as the Most Important Constitutional Value

"Respondents... use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything- and the Federal Government is no longer one of limited and enumerated powers"- Justice Thomas, dissenting in Gonzales v. Raich

Yesturday, the Supreme Court held that the Controlled Substances Act constitutionally extinguished efforts by states like California to allow individuals suffering from serious medical illnesses to use marijuana to ease their pain.

The 6-3 majority was led by all four liberal justices, joined by centrist Justice Kennedy, with a concurrence from Justice Scalia. Justices OConnor, Rehnquist and Thomas dissented, with Thomas writing a separate dissent which was the best opinion in the case. While many people may focus on the drug aspect of this case- the principle that the majority was trying reaffirm was far more dangerous than even the drug war- as long as the Congress can frame its legislation in a clever enough way, if can regulate any activity, in any facet of life.

Gonzales v. Raich is the result of the convergence of two disturbing lines of cases. One line began with Champion v. Ames, where the Supreme Court held that Congress had the power to ban the interstate shipment of lottery tickets, even though Congress’ goal had nothing to do with the original reason for the commerce clause. Second, in Wickard v. Filburn, the Court approved congressional regulation of a single individual growing food for consumption on his own farm. The Court’s rationale was that the farmer’s isolated activity, if aggregated with other such isolated activities, would substantially affect interstate commerce. If one combines these two lines of cases, then Congress can regulate or ban any item from interstate shipment, no matter what its reason, and it can regulate any activity by any individual that, aggregated with other similar activities, would help make the national regulatory scheme more effective. To put it simply-it is a perfect storm of unlimited Congressional power.

Due to the convergence of this unlimited power, Ms. Raich’s small attempt to ease her own pain amazingly became a matter of national concern and national regulation. Since, under Ames, Congress could regulated controlled substances in interstate commerce, and since Ms. Raich’s attempt to grow some marijuana for herself was not that different from the farmer making food for himself on his farm, the federal government had the power to punish Ms. Raich. This result must be amazing to any non-lawyer, but this is the actual mess that the Supreme Court has turned the commerce clause into.

When this case came up for oral argument, I posted about this topic here and almost everyone agreed that Ms. Raich was right here, and the federal government was wrong. Yet, when I tried to explain that to the liberals on the Court, the idea of unlimited federal power is the most important constitutional value- no one seemed to believe me. Well, my friends, the proof is in the pudding. The quest to expand the power of the national government has trampled on the original reason for the commerce clause; destroyed all notions of enumerated powers; and today, it ran roughshod over the rights of a woman with brain cancer, for whom medical marijuana gave the only serious prospect of a decent life. Thats progressive jurisprudence for you.

Tuesday, May 17, 2005

Funny but painful...

Everyone should read this Volokh post. Not only does she break his penis, but he can't even sue her for breaking it.

Also, I was just checking out the Huffington Post and came accross this post asking when "they going to bring back the draft." It further said, "I have three sons -- all nearly teenagers -- and am terrified that they will. Why don't they make it that just Republican kids get called up?" I wanted to respond to the author by asking them if they were stupid and to tell him/her that Democrats are the only ones wanting to bring back the draft and that it is not going to happen. Then I realized that both that the Huffington Post does not allow you to respond to their bloggers and THAT THE BLOGGER IN QUESTION IS KATHY IRELAND. Again, funny but painful.

Friday, May 13, 2005

Events in Canada...

We should really be paying attention to the events going on right now in Canada. I do not really know very much about this, but it appears that Conservatives have a chance to take over with the help of the Bloc Quebecois. Captain's Quarters posted this a while ago about the liberals problems. The liberal government is ignoring a non-confidence vote (apparently it was not a technical non-confidence vote) and is putting off a real non-confidence vote till after Thursday (apparently two of the conservative MPs are having health problems.)

Ok, now here is my purely uninformed speculation. This is probably very unlikely, but here I go. If the Conservatives and Bloc Quebecois are able to bring down the liberal government, then there seems like there would be a realistic possibility of Quebec getting independence from Canada. This break up of Canada might lead to other parts of Canada (like for instance British Columbia) feeling like they might as well go it alone. This break up might make some Canadian providence decided that they ought to just become States of the United States. This is probably wishful thinking on my part as I want a united North America under the US flag (with the exception of Quebec of course), but this might be a start to my Manifest Destiny dreams.

Executive Calendar Filibusters Unconstitutional?

Andrew McCarthy is someone I have come to respect. Please read this article. I am persuaded and I also did not think these filibusters were unconstitutional, just a very bad way of running the Senate.

Wow, this Reid is hitting below the belt...

"Henry Saad would have been filibustered anyway," Mr. Reid said on the floor yesterday, about the Michigan Appeals Court judge who is nominated to the U.S. Court of Appeals for the 6th Circuit.
"All you need to do is have a member go upstairs and look at his confidential report from the FBI, and I think we would all agree that there is a problem there," Mr. Reid continued.


Full story here.

This type of smear is obviously unethical, but the question is: What can be done now to punish Reid?

Wednesday, May 11, 2005

Was Wisconsin Stolen From Bush in 2004?

Powerline asks just this question and links to this article. No proof that it would actually change the result in Wisconsin, but it is something that all non-socialists should remember whenever one of the brain dead liberal radicals at GULC (a large number of them professors here) start going on about voter fraud in Florida in 2000. The worst instance is when professors go on about how it is worse to deny one person a vote than to mistakenly allowing others to illegally vote multiple times (the thumb on the scales to allow easy voting). These fools should know that without a secure vote that democracy will break down.

Monday, May 09, 2005

Good News/Bad News

Maybe it is not surprising that the NYT puts all Iraq news in the worst possible light...

But this story is interesting because, pace NYT, rather than declining to serve in the new Cabinet out of solidarity with his disempowered ethnic group, Mr Shibli rejected the post on the principle that he is A HUMAN BEING, not a pawn for some tribe.

Ethnic spoils systems are dangerous and this principled man has, whether all understand it or not, spoken loudly in favor of human dignity.

Tuesday, May 03, 2005

Comparative Law Prep

Thoughts in preparation for Thursday exam...

Is federalization of the law harmful or beneficial?

The question could be one of fact versus principle. The Civil Law is said (by Prof Wolff, just turned 99!) to work from principles to fact, the Common Law the reverse. To the extent facts predominate in determining justice (in courts or in policy), the closer to the specific circumstances one would want to be, justifying local law and legislatures. To the extent principles carry greater weight, the further from the blurring circumstances one would want to be, justifying universal law and government.

Our brilliant Constitution satisfies both theories, combined in creative tension. Erie was a particularly good decision for the very reason that the Common Law is best when local and codified law best when developed by the "aristocracy" of the mind from the center.

Are Congress and the Federal Judiciary so wise? It is reasonable to posit that the best tend to rise, so Senators will be smarter than Congressmen, who will be in turn be smarter than state senators, etc. The same is thought to be the case for the federal bench versus the state bench.

Long Live Federalism!

best,

Charles

Nostalgia Option for Filibusters

I am studying for exams right now, so no long posts... but I thought that this is a great reading for anyone concerned about Filibusters. It seems that the rules were changed in the 1980s to make the traditional filibusters really difficult for the majority and very easy for the minority. Count me as a supporter as the Nostalgia Option for Filibusters.

Monday, May 02, 2005

Study Break - Part II

Clearly this religion-as-the-basis-of-morality-for-lawyers idea struck a chord with a few people, and/or the debate is a welcome distraction from studying. I received this thoughtful response to my last post from Frank Walsh:

Faith, in its diverse and complex manifestations, operates at level much more fundamental than as an indeterminate cousin of ethical argument. Using faith as a moral compass is predicated not on outlining a cogent set of rules upon which to base conduct or contrasting the Catholic and Jewish dogma on a given activity. Rather, faith offers a perspective through which to analyze the normative problems of our day: faith tells us to think of ourselves in a larger context.

By seeing ourselves as just one small part in a vast system with goals infinitely more important than any personal targets we set, the very way young lawyers make ethical choices would be changed. Small term gains pale in comparison to the work that serves a greater purpose. In economic terms, externalities that are not taken into account when thinking only of oneself are efficiently allocated when thinking of the bigger picture. Central to all organized faiths is the concept that to serve the greater good rewards the individual; this is exactly the normative paradigm young lawyers need in the murky waters of legal ethics.

Ethical reasoning deliberated through the perspective of a rational, utility-maximizing person is the cornerstone of moral relativism. Fundamental to any purely secular pursuit of an ethical code is the assumption that we should look at the greater good; all I argue is that religion is a way to ensure the proper goals are maintained. Reasoning holds a central place in the articulation of an ethical code, but that reasoning must begin from the right starting point. To quote our Commander-in-Chief, this normative foundations tells us to "make the choice to serve in a cause larger than your wants, larger than yourself- and in your days you will add not just to the wealth of our country, but to its character."

So yes, teach rational thought in law schools. But teach it in the right context. It just might be that looking through the lens of a religious faith is what is needed to put the blurry line between right and wrong back into focus.

-Also, whoever said the original quote must be, based solely on the insightfulness of the quote, ruggedly handsome and possess insatiable boy-next-door charm.

Saturday, April 30, 2005

Snack Time

There's not much time to read or write on this blog with the burden of finals weighing heavily upon the law school crowd, but I just thought I would post a tiny little "food for thought."

I had a recent conversation with a friend about the surprising lack of religious influence at this "Catholic" university. My friend remarked the following: "For a profession that is criticized for losing its way in a system that has eviscerated ethical standards, the moral compass provided by faith could guide lawyers in their search for justice."

Indeed, with the divorce of religion from legal reasoning, it is no wonder that so many lawyers have no coherent system of ethics. Before anyone takes up arms against me, this is not to say that religion should be taught in the law school classroom. I am just reflecting on the fact that if religion took a more prominent role in the law school culture, there might be some hope of producing lawyers who have a sense of right and wrong to guide them in ethical practice.

Tuesday, April 26, 2005

Federalist Society's Echo Chamber?

I noticed that in this article it claims that to get a high level appointment in the DOJ, you need to have "references from conservative appellate Judge J. Michael Luttig, Supreme Court Justice Antonin Scalia or former Whitewater Independent Counsel Kenneth Starr," have gone to a top law school, and have gone to Federalist Society events.

Then the article continues with this criticism:

"It creates an echo chamber effect and weakens dissent," says Paul Light, a professor of public policy at New York University.

"This administration seems to have decided that it doesn't really want dissent," Light says. "What it wants are people who are absolute loyalists."


Let me just say that this guy Paul Light seems to be confusing the Federalist Society with ACS. Federalist events are marked by presenting many more points of view than any ACS event, at least on our campus. Social conservative and the libertarians often disagree on about every issue, and they do so in an open way. Honestly, I am not sure if anyone in the Federalist Society here could be described as an "absolute loyalist."

I also doubt that anyone smart enough to attend a top law school and get the top grades good enough to be a clerk for Scalia or Luttig would be willing to be an "absolute loyalist."

I feel that this criticism is really just sour grapes that there are not more Clinton/Gore loyalists at the DOJ to undermine the Bush agenda.

Wednesday, April 20, 2005

What's so great about Juries?

The 7th Amendment right to a jury trial may be a constitutional "freedom," but I doubt much it extends either liberty or efficiency. Originally a Norman innovation, the jury was a collection of interested, knowledgeable neighbors gathered together to decide a case. Obviously, today that is precisely the sort of thing that would get one disqualified, however, at the time, it made jurors efficient decisionmakers. Considering the complexity of law today, however, I don't see how one can argue that jurors can (a) assurably and predictably act unemotionally when finding fact or (b) understand the technical vagaries of the law. Jury nullification exists, sure, but that swings both ways--e.g., klansmen acquitted in the South. Nor are judges agents of "the state" in the sense that they inevitably desire to expand state power. They are mostly legal scholars and practitioners with varying ideological views cabined by the authority of their office. I guess my problem is that while jury trials might be a civil or political right, I've yet to hear them defended on utilitarian or natural right grounds.

Caloo Calay,

dustin kenall

Monday, April 18, 2005

Social Security Calculator

Heritage has an interesting social security calculator up that you should check out. Just put in your expected salary and see how much social security will steal from you every month- its truely scary!

Constitution-in-Exile

When does the Movement meet? Does anyone know?

Saturday, April 16, 2005

France and Free Speech

Not long ago in a comment to Geoff, I praised the French limitation on the press: images may not be published without the consent of the person pictured.

In today's readings for Comparative Law with aged Professor Wolff, we read one of his law journal articles from 1941, in which he wrote the following on the subject of "Unfair Competition by Truthful Disparagement":

"Suppose A has committed some minor offenses in his youth but has later reformed and become a respectable and respected business man. Let us further suppose that B, a competitor, drags these all but forgotten misdeeds into the open to divert his rival's trade to himself. A may sue for libel but in a civil action for libel truth is a complete defense and it makes no difference whether defendant is a competitor or not. [That is, truth trumps malice.] A may also bring an action for unfair competition. The question has not arisen yet in this country whether, in such an action, truth would be a defense. But the French courts have held for ninety year [so, since around 1850] that in an action for unfair competition the truth of the defamatory statement is no defense. The reason for the rule is that matters of no real concern to the public should be kept out of the competitive struggle, that competition should proceed on the merits of the goods and services rather than on a comparison of the personalities of the rival traders."


I find no principled reason why "free speech" should involve the unfettered right to maliciously use words where physical contact is prohibited. Rather, our unbounded freedom to speak and propagate images seems prudentially based on the errors coming from abuse of the law and, more importantly, from an untested belief that such limitations outside politics will lead to hindered speech and thought in the political sphere. Or is the European tendancy to political extremes linked to such limitations?

Charles

PS: Professor Wolff, as is not surprising from a "comparatist," is a lifelong believer in the use of foreign law in deciding US cases. "Even the most provincial lawyer can hardly deny that in trying to find out what unfair competition is, the experience abroad should be of invaluable aid." He noted the SC case of Muller v Oregon, in which then advocate Brandeis entranced the Court. It stated: "The legislation and opinions referred to [from England, France, Switzerland, Austria, Holland, Italy and Germany] ... may not be, technically speaking, authorities, and in them is little or no discussion of the constitutional question presented to us for determination, yet they are significant of a widespread belief that woman's physical structure, and the functions she performs in consequence thereof, justify special legislation." As they say in France, plus ca change.

Thursday, April 14, 2005

Porky the Pig Goes to Congress

I tried paying my taxes with a smile…they wanted money.

Tomorrow is April 15 – Tax Day – and a great day to start thinking about how the government is spending all of the hard-earned money they have taken from you throughout the year. While government serves a necessary function in our society, and incurs some reasonable costs in the process, the amount of money spent by the federal government on pork barrel projects is astronomical. Citizens Against Government Waste provides a complete list of the nearly 14,000 projects that contribute to our nation's $427 billion budget deficit, including such important ventures as $2 million for the buyback of the USS Sequoia Presidential Yacht, $400,000 for educational outreach for the Washington Opera, and $100,000 for the Tiger Woods Foundation.

Whether or not you think these are legitimate uses of your tax dollars, the fact remains that bloated spending by the federal government is steadily increasing, even under a Republican Congress (up 19% from fiscal year 2004 and a total increase of 21% since fiscal year 2003, acccording to CAGW). This should be of great concern to the citizens of this country, for what goes into these programs must come out of our pockets. Increasing dependency on government equals increasing bondage for citizens. Limited government was one of the fundamental principles that our government was founded on, and uncontrolled spending is a threat to the freedom and autonomy that we enjoy as Americans.

Wednesday, April 13, 2005

Senate Majority or Super Majority?

Each party accuses the other of an anti-constitutional break with tradition. While such a thing seems patently nonsensical in a country with a written constitution, the hesitation with which the Republicans approach what they legally have the power to do underscores the fact that the terms of the US Constitution are not the lone arbiter of political process. Yet the full scope of the filibuster rule is forever obscure: it is a negotiation, even today, not a supermajority requirement.

It is worth considering that the Republicans are now only proposing to ban the filibuster of judicial nominations. This makes no sense in connection to the argument they have made that "advice and consent" can be made only by a simple majority; why do only these presidential nominations need haven from the filibuster? Clearly, this is yet another compromise with a beloved tradition of obligatory, relative consensus.

Here's a recent political comment on the issue.


I have the impression that once John Bolton is confirmed many things will start moving. Ending the filibuster for judges is one. Bush SocSec proposal is another. Aggressive action in Middle East is another...

Tuesday, April 12, 2005

Not About Control Over Your Own Body

A Volokh post reminds me that most abortion advocates are not generally for abortion because of a woman right to control her own body:

If they really articulate abortion rights as simply a woman's nearly absolute right to control her own body (as some pro-choice advocates) do, then they should also take the same view as to potentially dangerous surgical procedures.

But the strongest pro-choice arguments -- and, I think, the true views of most pro-choice advocates -- aren't just that a woman has a right to control her own body. Rather, they also focus on the magnitude of the burden that an unwanted pregnancy, and the creation of an unwanted child, imposes on the woman. That's why many pro-choice people aren't also pro-drug-legalization: Snorting cocaine also relates to what you do with your own body, but unwanted abstinence from cocaine is generally seen as a much lesser burden than unwanted pregnancy. Likewise, that one thinks women have a right to avoid an unwanted pregnancy doesn't mean that they have a right to seriously risk their own health for merely cosmetic purposes. (The matter is more complex when the issue isn't just increasing the breast size of healthy but small breasts, but reconstructing breasts after a mastectomy, but I set that aside for now.)


I think that people should be able to completely control their own body, but those of you who are confronted with a pro-abortion person's argument that it is about control over the woman's body, you should ask them how they feel about silocone breast implants or crack cocaine. If they are for any restriction on drugs, you should explain to them that their real argument is that babies are inconvenient.

Extending Daylight-Savings Time

Apparently Congress is considering passing a law extending daylight-savings time (DST) by two months because it will save energy. (Hat Tip to Jonah Goldberg) Hell, if it saves energy, then why not extend DST indefinitely. I hate adjusting my body clock and John Miller reports that cows do also. Miller points out that:

[I]t turns out that DST had nothing to do with farmers, who traditionally haven't cared much for it. They care a lot less nowadays, but when the first DST law was making its way through Congress, farmers actually lobbied against it. Dairy farmers were especially upset because their cows refused to accept humanity's tinkering with the hands of time. The obstinate cud-chewers wanted to be milked every twelve hours, and had absolutely no interest in resetting their biological clocks — even if the local creameries suddenly wanted their milk an hour earlier.

As Michael Downing points out in his new book, Spring Forward: The Annual Madness of Daylight Saving Time, urban businessmen were a major force behind the adoption of DST in the United States. They thought daylight would encourage workers to go shopping on their way home. They also tried to make a case for agriculture, though they didn't bother to consult any actual farmers. One pamphlet argued that DST would benefit the men and women who worked the land because "most farm products are better when gathered with dew on. They are firmer, crisper, than if the sun has dried the dew off." At least that was the claim of the Boston Chamber of Commerce, chaired by department-store magnate A. Lincoln Filene. This was utter nonsense. A lot of crops couldn't be harvested until the morning dew had evaporated. What's more, morning dew has no effect whatsoever on firmness or crispness.


From this, my take is that we should extend DST indefinitely. It will save more energy and the consistency will please both me and the cows. The extra evening daylight will please the Environmentalists and businessmen. I guess that it would mean driving to work in the dark, but that is why we have lights on our cars. And sure, it might make those time zone maps silly, but the whole process of setting back and forward our clocks is already a silly process.

Monday, April 11, 2005

The Unspeakable Sins of Larry Summers

It is no secret that Larry Summers maintains a peculiar relationship with the conservative organizations at Harvard University. The Harvard Republican Club may be the only group on campus that still sends him a holiday greeting card. I am sure that this is not the position in which the Clinton Democrat imagined himself when he took the job. I am also fairly certain that this is little comfort to him as he endures the lashes of just about everyone else. The latest episode has left him now almost completely isolated among the academic elite.

The situation is grave indeed. You see, Summers did not just make an insensitive remark or transgress the bounds of decency; he committed a wanton act of sacrilege. Surely Larry’s funny little heresy must have brought even the statue of old John Harvard to weep as the tourists rub his foot. It is doubtful that this sinner can ever be cleansed of his iniquities, and he must be excommunicated and cast down from the exalted tower.

For those who don’t really care about Harvard politics (I don’t blame you), this is only the latest apostasy. The recent symbolic, no confidence vote by the faculty is the result of a long struggle that finally came to a head. The truth is that the faculty of Harvard University has never liked the round, sometimes sleepy Summers. Unlike Neil Rudenstine, his milquetoast predecessor, President Summers has constantly been stirring up trouble with the faculty like a dance contest at a Baptist picnic. In 2002, he dared to tangle horns with AfAm Scholar and Fletcher University Professor Cornel West, questioning West’s dearth of recent scholarly work. Dr. West had been busy working on Al Sharpton’s exploratory committee, playing the role of the wise elder councilman in the “Matrix” sequel and producing his R&B/hip-hop CD. The audacity, the temerity, the barbarity! I guess Summers wasn’t trippin’ on the “70s Song.”

Summers called upon the faculty to address the problem of grade inflation at the college. The blue blood boiled at this affront to the faculty’s evaluation procedures. Although Summers may have couched his language in concern for the academic integrity of the students and the university, the faculty knew this as merely a veiled assault on fairness, tolerance, and pedagogical freedom. Grade inflation, after all, was an issue that had been brought to the forefront by the agitator, Kenan Professor of Government Harvey C. Mansfield. Mansfield, one of a precious few conservatives on the faculty, enjoys committing a thought crime and instigating hysterical fits among his more enlightened colleagues once every three years or so. No Harvard president should associate himself intellectually with such a dastardly man or his profane suggestions.

Finally, Summers blasphemed that most righteous Crimson Crusade, the total dissociation of the university with the United States Military. Summers has been a relatively consistent supporter of the Reserve Officers Training Corps and particularly its student cadets. The prodigal president, in fact, was the first Harvard President to preside over the ROTC commissioning ceremony since the faculty sanctimoniously voted to ban the organization from official recognition in 1971 amidst rabid anti-war protests. While the war in Vietnam had quieted down by the late ‘80s, the faculty found another lofty justification to continue its disassociation with the group. The faculty reasoned in 1990 that the military’s “Don’t ask, don’t tell” policy intolerably ran counter to the University’s strict tolerance guidelines. I have no doubt that for most of the faculty, whose aspirations of fame and fortune in the real world were cut short by the need to find refuge from Vietnam in academia or in Canada, the gay rights aspect of the debate is a very convenient subterfuge to continue their deep resentment of the military and ROTC. In the same breath in which he praised the ROTC cadets, Summers lamented the “cleavage between coastal elites and certain mainstream values” that had developed as a result of the Vietnam era. Sounding more like an apostle of that moralistic bigot who now occupies the White House than of his old boss, Summers described the war on terror as a conflict “between wrong and right, fear and hope, and…without the moral ambiguity of Vietnam.” Wrong and Right? You could feel the collective outrage.

It is not necessarily the views that Summers expressed in these instances that have made him a favorite among conservatives at Harvard, although certainly many of them rejoice in his stand on scholarly diligence, academic integrity, and patriotism. What is most commendable is his willingness to stand up to the faculty and its dogma. It takes an incredible amount of courage to confront the entrenched prejudices of the powerful and vindictive elite. I believe that conservatives on campus identify their own struggle with his. I certainly did.

I will say that during my own time at Harvard I never really faced any overt persecution based upon my political beliefs. You often encountered disbelief rather than anger. Disclosing your political colors was sometimes like revealing that you are a serial killer. “You’re a conservative? You seem like such a nice guy…we would have never expected it.” I was never worried that I would be treated unfairly; I was more concerned with two trends that I perceive as feeding off of each other and rotting away at the fundamental virtue of the university. The first is the lack of true, respectful diversity of thought among students but more pronouncedly among the faculty. The second is the silencing and deligitimization of dissent on issues that are earnestly important to the academic dialogue and to the general public.

Diversity is a wonderful goal for a university to pursue. A community representing a variety of rich backgrounds strengthens the university by broadening and deepening the discourse within the arena of ideas. Fairness and justice are admirable, but the free exchange of thought is the central concept around which the academy is formed. If only the university would concern itself as much with intellectual diversity as it does with diversity of other sorts. Students and the institution itself suffer just as much from homogeneity of ideas as they did when Harvard Yard was populated entirely by wealthy young men with roman numerals after their last names. It is absurd that a university which prides itself in reflecting the larger community could get it so terribly wrong when it comes to representing the views of the nearly 40% of Americans who self-identify as conservative. Southerners, too, are peculiarly absent on campus. It is no wonder the students and faculty of so many campuses were so deeply stunned at the results of November’s election. If all those around you are ideologically indistinguishable, you start to get the idea that everyone, at least everyone that matters, must think that way. I am still waiting to see the masses that were supposed to take to the streets and burn the cities if George W. Bush were reelected.

The disparity among faculty is even more alarming. (See Deb Oborny’s “Those Who Can Indoctrinate, Teach” below) In a study which I am sure will be cited from now until the end of time by those on our side, Santa Clara University Professor Daniel Klein found that among a survey of 1,000 of the nation’s university faculty, Democrats outnumber Republicans in the humanities and social sciences. This is about twice the disparity found thirty years ago. If you are comfortable at taking party identification as a proxy for ideology, the numbers shock the conscience. Granted, there need not be anything close to parity in ideology among professors, but the gap should certainly not be widening at the current pace. While of course most of us good conservatives would eschew a call for affirmative action for ideology, this data bespeaks an institutional bias that must be acknowledged and understood by the whole academy and by the public at large. This bias affects not only the academics themselves, but also the course of scholarly pursuits given legitimacy by the university and the impact had upon the minds of students. (My fellow Federalist, Mike McClellan, who attended that New Haven school, is much better at covering this topic on his blog than I could hope to be.)

The other deadly venom poisoning the foundation of the university is so mired in a disturbing hypocrisy that is almost comedic. That is the curbing of speech on campus. I cannot think of anything more contemptible and contrary to the goal of the academy than the speech police that have invaded the collegiate halls and perched themselves upon a pedestal, hovering over the discussions of students and scholars. Among the rights to life, liberty, and the pursuit of property under fair and well-regulated conditions, apparently now exists the right to be free from offensive language. Hate speech is the watch word these days. The university should be the last place where the free expression of ideas is shackled no matter how shocking they may seem to the enlightened and sensitive souls. False, even malicious ideas should not be silenced in what should be a marketplace of ideas. Widely held beliefs remained unchallenged and gradually seem unassailable. When points of view cannot even be discussed let alone seriously advocated within the university, everyone loses from the lack of discussion.

When Larry Summers made his latest remark, the call at Harvard was not made for a discussion on the contribution of women to the fields of math and science, nor was there a discussion about behavioral psychology or genetics. What did take place in Cambridge looked more like what happened a few score back in another Massachusetts town.

Where were those defenders of academic liberty that rushed valiantly to the rescue of University of Colorado Professor Ward Churchill when he compared 9/11 victims to Nazi collaborators? Apparently Churchill’s paranoid ramblings are more worthy of protection then Summers’ positing that men and women might somehow be different. It is revealing to me about the value system of the academic elite that Summers’ comments could elicit the same emotions as those educed from most Americans upon hearing Churchill’s remarks. I do not think that Churchill should be summarily dismissed, primarily because I would not want to see him walk away with millions from the resulting lawsuit. However, I do think that Professor Churchill’s scholarship is rightfully open to question as are Summers’ credentials. I would not venture to speculate myself about the man, but I would take to heart the comments of a friend of mine from Currier House who had occasion to deal personally with him. Churchill was dead wrong and the best way to express that is to expose him to scrutiny. The outraged left should take the same approach to Summers rather than calling for his charred corpse.

Larry Summers’ gumption in challenging the self-righteous behemoth was a breath of fresh air for conservatives at Harvard who for decades had seen the administration cowed by the faculty. Summers, perhaps not an ally so much as an enemy’s enemy, honestly tried to address the problems of academic vitality and cultural relevance within the university only to realize full well the consequences of questioning the doctrine of the mighty. I only hope his soul may be spared from eternal perdition.

Sunday, April 10, 2005

A great exchange...

I highly suggest you use your Westlaw or Lexis privileges and check out this exchange (53 Drake Law Review 205) between future visiting Georgetown Prof. Randy Barnett and Cass Sunstein. Barnett's arguments are essential for those who have fun refuting leftist-statists on their blurring of individual negative rights with positive "rights" to certain outcomes...

Friday, April 08, 2005

Military Commissions and the Inalienable Rights

Thursday, a three judge panel of the D.C. Circuit Court heard oral arguments in Hamdan v. Rumsfeld, a challenge to the first military tribunal convened by our national government since the WWII-era. I have helped Hamdan’s co-counsel, Professor Neal Katyal, in this case since August. In this article, I will only try to explain why a “federalist” or “conservative” should care that Mr. Hamdan, a driver for Osama Bin Laden and an alleged terrorist, is being tried in a military commission whose rules, procedure and composition are all created under the complete and total discretion of one man- the President of the United States.

I start from first principles. Since all men are naturally equal and free, no man may have his liberty taken from him by another without proper justification. As a result, the central tenant of a just regime that claims the moral authority to take an accused's liberty is the correct differentiation between the guilty and the innocent. That is, people can argue about what should or should not be a crime- but a regime that ultimately makes a determination of this threshold inquiry must provide adequate process to anyone, citizen or not, that it subjects to its legal adjudicative force. Mr. Hamdan has been accused of conspiring to commit terrible crimes- whether those conspiracy charges even state a recognizable charge under the current laws is a tricky issue- but even assuming those charges are valid, the onus is on the authority that purports to have the right to brand him guilty. That authority must prove that its adjudicative process is transparent and fair, and that he has really done what they accuse him of.

The obvious follow-up question is what does “proper process” entail? The customary/legal argument encompasses certain traditionally protected and statutory rights that accused generally enjoy. One such notable right is the right to be present- something that was denied to Mr. Hamdan already, and will be denied again if the D.C. Circuit rules against him. I think the moral requirements are more messy than these formalistic traditional procedures, but also more expansive. That is, when a person is accused of committing a crime, he must have a fair, independent decision-maker determine whether he is guilty or innocent based on transparent procedures that are set up to get the factual issue correct. I do not think many of the President’s supporters disagree with the previous statement, in theory. Yet, if one were to take the government’s arguments on their face, the president could label any person (at least any non-citizen) as an enemy combatant, draw up novel charges against him, appoint his commissioners, lay out the procedures and have final review authority over the execution. I do not think this comes even close to meeting the threshold for determining guilt or innocence.

The decision of the Circuit Court will address more than these rather uncontroversial moral dictates. There are issues about whether this challenge to the tribunal is timely, what level of protections the Universal Code of Military Justice offers, and what rights a person who has been designated “Al Qaeda” but claims to be a civilian has under the Geneva Conventions. Yet, the principle that is being vindicated is not nearly as complicated- the regular, proper and just differentiation between the guilty and innocent is the ultimate hallmark of how just our regime is.

As to why a “federalist” should care, I will close with a quote from one of the greatest federalists (a quote the co-counsel I worked for liked to use), Chief Justice John Marshall: “[The] government of the United States has been emphatically termed a government of laws, and not of men.” A system of determining guilt and innocent based on a law written by one man, prosecuted by that man’s authority, and decided by that same authority is not a “government of laws.” Those of us who believe in absolute right and wrong, and that government is set up to protect inalienable rights, should care most of all that a fair process decide whether those our government brands as criminals are truly guilty. That many of our friends do not seem to care about these principles when it comes to people presumptively labeled as “terrorists” makes me wonder whether they truly understand what inalienable rights are.

Thursday, April 07, 2005

Those Who Can Indoctrinate, Teach

I read this article today by an anonymous European university professor, decrying the totalitarianism exercised by the Left in academia. His testimony is part of a rising movement among conservatives that involves many professors and students speaking out about the overwhelming liberal bias in higher education. David Horowitz and crew are leading the way by lobbying for the Academic Bill of Rights.

This conservative movement for academic “diversity” (funny how liberals cringe at their own buzz word when it comes to diversity of thought) is not insignificant or marginal, as evidenced by the number of professors (maybe twenty-five or more out of a crowd of forty) who attended a lecture here at Georgetown two weeks ago by Yale Law professor Robert Post. Post’s talk, entitled “The Structure of Academic Freedom,” denounced the Academic Bill of Rights and proclaimed the benefits of self-regulating ethics among university faculty. Post pointed out the moral hazard created by such systems of self-regulation in other fields such as medicine, accounting, and architecture, but somehow maintained that university professors would be immune to the traps that those lesser mortals have fallen into.

Okay, he didn’t say “lesser mortals,” but that was the basic idea conveyed. I guess when you spend so much time looking out from the ivory tower, the reality of your own moral vulnerability escapes you. It must be that allegory-of-the-cave-induced blindness from seeing the scorching light of your own brilliance.

With names like Ward Churchill and Lawrence Summers making recent headlines for their provocative statements, the Academy is circling the wagons, scurrying to be the first and fiercest defenders of “free speech.” Yet, these same academics are working hard to stifle any dissent in their ranks.


[A] conservative faculty member – junior professor, still far from going up for tenure – was harassed for his political beliefs on an almost daily basis. The harassment was executed by tenured, senior members of his department and took such extreme measures that he simply packed up and left his position at the school.


This isn’t late-breaking news or anything, especially for anyone who has spent time as a conservative on a university campus, but it is more than just a nuisance for those of us who have to tolerate having our views belittled on a regular basis. As the anonymous professor points out, liberal professors who use their classrooms to present their ideologies as truth breed liberal college graduates who vote for liberal politicians.

I started this post with a point in mind, so here’s the part where I actually get to it: I think the more serious problem than the fact that a majority of college graduates vote for liberals is the fact that college graduates become teachers in elementary and high schools. Thus the liberal indoctrination that infiltrates college campuses is more than just an abstract problem for conservatives who dislike the one-party state that is academia. This is something that Americans need to take seriously for the long-term good of our children and our culture.

Wednesday, April 06, 2005

A Mistrust of "Societal Good"

I lately find myself cringing when professors and fellow-students invoke the idea of “societal good” to support policies from Euclidean zoning laws to eugenics. We can, so the arguments go, bar the poor from residential areas so that society as a whole will benefit; we can eliminate the mentally retarded because the rest of us will have better lives without them.

Who are the people that belong to this “society” and what gives them the right to enforce these policies’ burdens on other members that have not agreed to accept them? “Society” becomes an independent being, not bound by the policy wishes of its individual members, or even by a democratic determination of “majority will.” Rather, “society” becomes a tool of elite social engineers whose agenda is to enforce the policies they deign “good” without gathering the input of those upon whom the policies are imposed. Society becomes a name-less, face-less entity that represents “the rest of us.”

The law seems replete with images of race-less, face-less, gender-less beings. One need only consider the “reasonable person” standard to confront the abstraction epitomized. When it comes to defining criminal or negligent behavioral standards, the personality-less abstraction is a good thing. Justice must, after all, be blind. However, when these abstractions creep into our social policies and begin to regulate the behavior of people that have committed no wrong, the abstractions work their queer evils. Generally, an individual does not believe he derives benefit from barring a poor family from moving in next door or from killing the human being that is most dependent upon him. But when the good of “society” is invoked as a justification for these things, good people unthinkingly accept the premise that someone else out there must be benefiting from such policies.

I humbly suggest not that readers immediately dismiss arguments based on “societal good” but rather that they press the question further and ask what determines “the good” and what distinguishes “the rest of us” from those bearing the harm of the proposed social policy. In the above examples, “the good” is defined as class segregation or a desire to rid ourselves of the “burden” of caring for the weak among us. What distinguishes “us” from “them” is financial status or mental capacity. If one can be made to bear the brunt of “societal progress” based upon such things, the next logical questions are, “How poor must you be? How smart?” It begins to seem that “we have seen the enemy and they is us.”

When a defender of “societal good” can come up with no better justification than those offered above, perhaps the best response is merely to shudder. It seems the non-reasonable thing to do.
S.K.