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?