This Would Be a Problem...

From M. Drudge: "Patriot Act Catches a Baby-Food Thief - The case of Samih Jammal, convicted with the help of the Patriot Act and FISA wiretaps of fencing stolen baby formula, sits on the fine line between the government's terrorism-fighting role and its duty to protect citizen's rights. The WALL STREET JOURNAL reports the use of FISA warrants helped prosecuted Arizona grocery wholesaler Jammal, who was convicted of operating a baby formula theft ring.The JOURNAL notes that Jammal, a "U.S. citizen born in Lebanon, was never charged with any offense related to terrorism." Jammal "is appealing, contending that FISA evidence used against him was illegally obtained and crippled his defense. ... 'It's baby formula of mass destruction here,' he said at one pretrial hearing." Developing..."

Mr. Jammal has a point. Someone should save me from my continued slip and slide toward the left!

Views on Georgia v. Randolph?

I have deleted my original post to help make more immediately visible Galen's post about TOMORROW evening's event featuring Judge Silberman. It should be a delightful occasion for Federalists and non-Federalists alike! Hope to see you there!

Family Voters

This is an ingenious discussion of the political and legal shifts of the "family vote" over the last 100 years. For instance these passages:

The dominant wing of the GOP tilted in favor of the banks, the great industries, and--perhaps more surprisingly--the feminist movement. Indeed, as early as 1904, the National Association of Manufacturers had formed an alliance with the feminists, for they shared an interest in moving women out of their homes and into the paid labor market. When the feminists reorganized as the National Woman's party in 1917, the manufacturers' association apparently provided secret financial support. More openly, Republican leaders embraced the feminists' proposed Equal Rights Amendment, first advanced in Congress in 1923. The GOP was also the first major party to endorse the ERA in its platform. ...

The Democrats also welcomed the "Maternalists" into their ranks, female activists who--while believing strongly in equal legal and political rights for women--also emphasized the natural differences between the sexes when it came to childbirth and child care. They favored federal programs for the training of girls in home economics and for "baby saving," meaning efforts to reduce infant and maternal mortality. They fiercely opposed working mothers and day care. Under this Maternalist influence, every New Deal domestic program openly assumed or quietly reinforced the goal of a "family wage" and the model American family of a breadwinning father, a homemaking mother, and an average of three or four children. In short, from 1912 until 1964, the Democrats were--on balance--the pro-family party. The Republicans, on balance, were the party of business interests and the feminists. ...

For the Republican party as reshaped by Reagan now saw pro-family social conservatives in political alliance with the interests of the banks and the large corporations. Main Street and Wall Street were under the same tent, which was a very new development. ...

Indeed, the GOP has done absolutely nothing to curb the egalitarian frenzy and the gender-role engineering set off by Title VII of the Civil Rights Act and Title IX of the Education Amendments of 1972 and enshrined at the Pentagon. Equity feminism still rules these roosts.Or consider child care. A timely veto by Richard Nixon stopped the government's day care juggernaut in 1971, but only for a few months. The same year, Nixon signed a Republican-designed measure also backed by the National Organization for Women (heir to the GOP-favored National Woman's party). This law allowed families to deduct day care costs from their income tax, cleverly labeling them "business expenses." This has since grown into a credit worth between $1,500 and $2,100 in reduced taxes for households using day care. Even the wealthiest qualify. Meanwhile, families that sacrifice a second income to keep a mother or father at home receive nothing except a higher net tax. Bills to correct this gross inequity have been regularly introduced in Congress since 1996, most recently the Parents' Tax Relief Act of 2006 (H.R. 3080). However, the Republican leadership has ignored them. To underscore the lost opportunity here, note that conservatives in Canada rode to victory just a few weeks ago by embracing a plan to extend that nation's day care benefit to stay-at-home parents; not a whiff of this, though, in the recent State of the Union address.

Regardless of whether one agrees with the author's obvious preference for mothers staying at home, the political analysis is insightful and the presentation of policy tradeoffs and interests honest - the stresses average people face.

Follow-up on Epstein and Google

A suit against Google was dismissed by a Philadelphia judge. The judge didn't discuss fair use doctrine--which is one of Google's two main legal claims supporting their project--at all.

Epstein's prediction was that east-coast courts would be unfavorable to the Google Library project because that area is the seat of the publishing industry. Though Epstein specifically mentioned the suit in the Southern District of New York, my guess is that he'd classify Philly as east coast. Maybe Google will have an easier time that Epstein thought.

See the article on WSJ here.

Debate Leads to More Law, Less Politics?

This article by Terry Eastland ends with the following interesting comment on the effect CJ Roberts is having on the Court:

"The other day Justice Breyer told an Alabama audience that the justices discuss cases more under Roberts than they did under Rehnquist. Roberts is surely responsible for that, and it marks an important change.

Justices Stevens and Scalia have both complained over the years about the conferences held on the Fridays of weeks with oral arguments. It is then that the justices at least tentatively decide cases, and yet under Rehnquist the justices typically did little more than declare their votes. For Roberts to invite discussion means that Roberts himself has to come to the conference table fully prepared. That's not hard to imagine. But the other justices have to come prepared as well, or risk embarrassment.

Over time, the Roberts effect may produce not only larger majorities and more stable rulings but also a Court that, thanks to conferences that really are conferences, pays more attention to working out the relevant law and less to mere politics. The distinction between law and politics is, of course, precisely what Roberts (and Samuel Alito) insisted upon during their confirmation hearings, and it lies at the heart of judicial conservatism. The prospect of the continuing advancement of that philosophy is a happy one, and a reason to say hail to this particular chief."

Comparative Federalism

Thought this Slate article on the UAE was worth Federalists pondering. Particularly:

"It's a federation of seven somewhat autonomous sheikdoms—Abu Dhabi, Dubai, Sharjah, Ajman, Umm al-Qaiwain, Ras al-Khaimah, and Fujairah. Under the country's constitution, each emirate maintains principal control of its own oil revenues and other natural resources. They turn over a set percentage of their revenues to the federal government, which takes care of defense, diplomacy, education, public health, banking, and several other concerns for everyone. But that's the extent of it: The constitution gives each emirate explicit and exclusive control over any matter not specifically assigned to the federation. For example, a conservative emirate like Sharjah has the right to institute its especially strict code of decency, which prohibits bathing suits, midriffs, and skirts above the knee."

Unlike some federal systems (eg Russia), this one has real teeth: the component parts have bargaining power with the federal government. Japan is a unitary state, so by contrast there is little possibility of experimentation regionally; the Japanese generally must get fresh policy ideas from abroad.

Great News

Word on the street is that Randy Barnett has accepted GULC's offer.

Thoughts from the Symposium

Several chapter members went to the Federalist Society Student Symposium at Columbia University this weekend. I highly recommend that everyone attend next year. The speakers and discussion were thoughtful and engaging....if only school were like this all the time!

Over the course of the week, it struck me that the panelists who favored extensive application of international law focused exclusively on the most formal aspects of the law: treaties, accords, etc. They argued that the US has an obligation to adhere to these agreements because we believe in the rule of law. You sign a contract, you honor it. That's a great argument to make to Federalists.

But rule of law depends on law being knowable, procedural, and definite. No wonder that the internationalists talk only of treaties and accords. In the case of agreements negotiated by our elected officials, I am very persuaded by their claims that strict adherence is both a legal obligation and good policy. We follow legitimate law partially because it's the right thing to do, regardless of whether anyone will enforce it against us; we also do it because honoring our agreements bolsters our reputation in the long run. The same arguments apply to nations as well as individuals--but only with respect to defined obligations voluntarily undertaken.

Their argument doesn't hold for custom, the court of opinion, the law of nations, or haphazard judicial consideration of foreign law in interpreting our Constitution. The part of international law that stirs controversy isn't usually treaties. I think what we're usually arguing about is the piecemeal importation of ill-defined customary law that we don't get a chance to vote on. It's the customary fluff that lacks institutions to legitimately create or enforce it. By applying that part of international law here, we undermine the procedural safeguards that allow us to protect ourselves. Americans haven't had clear input into it. We don't trust it or respect it, and we have no reason to do so.

So although the rule-of-law argument is alluring, I think the argument only goes so far. It just doesn't extend to the gritty issues.

It was a great conference. I hope you all attend next year.

Partial Birth Politics

This from WaPo:

"Oral argument in the case, Gonzales v. Carhart , No. 05-380, is likely to take place during the run-up to the 2006 congressional elections"

On the contrary, I'd be surprised if it wasn't scheduled for later, in November, to avoid the politics. In any case, the decision won't come down till 2007.

Betting seems to be that O'Connor's departure tips the balance on this issue and has triggered the granting of cert.

I speculate that another opening will occur on the Court soon after the elections. Most likely Stevens. Given the obvious willingness of the Court to revisit this law, and if the Republicans retain the Senate (likely), can Roe long stand?

NSA Program Defended

Andrew McCarthy takes George Will to task here.

I wish the Fed Soc would get McCarthy and Cole to debate.

Congress's Authority to Limit President's War Power

Professor Cole has written this on Slate. I imagine at least 50% of the Federalist Society members agree with him.

"Theistic Metaphysics"?

Justice Scalia has reviewed a new book from the Harvard University Press on Philosophy and the Law.

He is in fine form... check out particularly the last bit. Is law possible without God to furnish right and wrong?

The author of this tome seems to be seriously pondering the bon mot of Voltaire:

Si Dieu n'existait pas, il faudrait l'inventer. (If God did not exist, it would be necessary to invent Him.)

Crying Baby Keeps Mrs. Murphy Up All Night

Just a quick though from Civil Rights class the other day. We were discussing the Fair Housing Act and the prof. asked if we thought the Mrs. Murphy exemption and the private club exemption were good ideas or bad ones. A number of people said they thought the exemptions should exist so that there would be a place for racism to "vent"; a place away from the general public. Others said this was a bad idea because if racism is bad, it is bad everywhere. The most interesting comments to me, however, were from the students who were very adamant that the exemptions should go, but were sympathetic to the defendants in Oxford House because the plaintiffs in that case were recovering drug addicts, not members of a racial minority. One student said she could understand why the community might not want the recovering addicts in the neighborhood. Another student implied it would be legitimate for an elderly couple to avoid renting to potential tenants that have children that might cry at night. No one raised the point that such discrimination is as much in violation of the statute as race discrimination, even though these two students were clearly not as sympathetic to statutory protections for the disabled (as the recovering drug addicts were) or based on familial status. And I was thinking that I wouldn't want to be told I couldn't discriminate on the basis of sex in picking an apartment-mate now or in the future. So, perhaps the problem is not solely with the exemptions themselves. Perhaps the breadth of the exemption should be inversely related to the number of protected classes. The counter-argument is, I suppose, that this keeps our determination of what constitutes "impermissible discrimination" static. But I think it could also stand for the proposition that there are some discriminations based on sex, familial status and disability that might be legitimate. At least, a number of students in my class seemed to find them less morally reprehensible than discrimination based on race.

We Have a New Board!

Check out the right frame/margin where it says "administration"....