Constitutional Law
sciencepunk | April 8, 2010Given that the much-reviled Digital Economy Bill has been forced through Parliament into law, I thought I'd share the very long and very thoughtful email I received from my MP Richard Younger-Ross after I wrote to him in protest of some measures included in this proposed legislation (particularly odious is making the account-holder responsible for whatever allegedly happens through their connection, a plan that will likely wipe out wifi sharing in this country). Ross doesn't seem to have turned up to vote on the bill, but I don't hold much of a grudge against him for that: scheduling a vote…
stcynic | December 21, 2005In looking for reactions to yesterday's ruling from legal scholars, I found this post on a Federalist Society blog by someone named P.A. Madison. The arguments, which run the gamut from the false to the downright silly, would make a great exam answer for my buddy Dan Ray to grade. I can almost see him shaking his head and getting out his red pen. He begins:
I cannot say I am surprised by the Kitzmiller v. Dover Area School District ruling handed down by U.S. District Judge John E. Jones III, but as always, surprised how such cases are so easily seen as a federal issue. The ruling as usual is…
stcynic | December 21, 2005I got into a conversation the other day with someone who doesn't understand what the big deal is when it comes to the NSA spying on Americans. He gave what I'm sure is a common response from Americans, which is essentially that he trusts the government not to abuse such power. He said, "Do you really think they're using that power to just go after people they don't like? They're using it to go after terrorists so the only people who should be concerned about it are terrorists." It's a common argument, but it is breathtakingly naive and betrays a serious ignorance of history.
The US…
stcynic | December 13, 2005Noah Graubart has an excellent essay on the varieties of judicial conservatives, particularly in respect to the Alito nomination. Unlike most commentators, he recognizes that there are different varieties rather than casually lumping Scalia and Thomas together. That alone is refreshing to read. He writes:
Of course Bush has selected a nominee who is hostile to Roe v. Wade (any who doubt that Chief Justice Roberts is equally hostile are fooling themselves). But, does Judge Alito share Justice Thomas" belief that the president"s commander-in-chief powers are virtually unbridled, or does he…
stcynic | November 8, 2005Jack Balkin has an interesting post picking up on David Bernstein's comments on Samuel Alito and originalism. There are many different issues jumbled together in the post, some of which I don't agree with, but I want to point out one statement that I think will come as a surprise to many people, especially many on the left. Many on the left believe that libertarianism is favored by big business because it would get rid of government regulation that reduces their profits. But in fact, big business often uses that regulation to its advantage to keep competitors out of the market and thus they…
stcynic | November 3, 2005David Bernstein and Randy Barnett have interesting posts up at Volokh about the growing split among conservative originalists. Barnett's post came first and he notes that when conservatives today invoke the idea of "judicial restraint" in opposition to judges "legislating from the bench", they are in fact buying in to a New Deal era concept that spawned the idea of a presumption of constitutionality. He quotes from an endorsement of Alito's nomination in the Weekly Standard pointing out that Alito is not a Thomas-style originalist but a pragmatist who defers to government greatly:
More…
stcynic | October 7, 2005The Supreme Court heard oral arguments in Gonzales v Oregon a couple days ago, a case where the federal government is asserting that the Controlled Substances Act (CSA) - or at least this administration's interpretation of it - trumps the Oregon assisted suicide law, which was passed by popular referendum not once but twice (and remember, this is the same administration that screams bloody murder about those "unelected judges" subverting the "will of the people" whenever they rule in a way they don't like). John Ashcroft, then a Senator from Missouri, was furious and attempted to pass a…
stcynic | September 30, 2005Yet another example of why Jason Kuznicki is one of the truly indispensible writers in the blogosphere. Jason blasts the indefinite detention of an American citizen without charges being filed, a flagrant violation of both the letter and the spirit of the constitution. He also shreds the excuses being made for that policy.
stcynic | September 26, 2005Jon Rowe has an excellent post at Positive Liberty looking at the views of Jack Balkin and Akhil Amar, one a "living constitutionalist" and the other a "liberal originalist". He makes the important point that rejecting the Bork/Scalia version of originalism does not necessarily make one an advocate of "living constitutionalism". Liberal originalism (liberal in the classical sense, not the modern political sense) reaches many of the same results but for different reasons. Rowe, Sandefur and I are all advocates of liberal originalism. In fact, I just finished rereading Sandefur's brilliant…
stcynic | September 14, 2005One really has to wonder why an organization as large as the Associated Press can't at least get someone with a legal background to write their reports on the confirmation hearings. It would help them avoid simple mistakes like this:
Early in his testimony on Wednesday, Roberts' second day of answering senators' questions, the nominee told Sen. Sam Brownback, R-Kan., that Congress has the right to counter Supreme Court rulings including a divisive decision giving cities broad power to seize and raze people's homes for private development.
The difference may be subtle, but it's important. He…
stcynic | September 6, 2005Jonathan Bunch informs me that Dissent magazine has an interesting debate between three prominent constitutional scholars that they've made available on the web for free. Mark Tushnet, a contributor to Jack Balkin's blog and con law prof at Georgetown, takes the position that judicial review - the authority of the Supreme Court to invalidate laws they deem to be unconstitutional - should be gotten rid of. This is a highly surprising position for a prominent liberal legal scholar to take. You can see his initial essay on the subject here. Lawrence Tribe of Harvard replies here. Jeremy Waldron…
stcynic | August 4, 2005Marty Lederman has an essay on Jack Balkin's page arguing that the recess appointment of John Bolton as our Ambassador to the UN is unconstitutional, as are almost all such appointments made not just by Bush but by Clinton and most presidents before him. I fully agree with him. Lederman authored several briefs for a case brought against the recess appointment of Judge William Pryor and his briefs are right on the money, in my view. The Recess Appointments clause says that the President "shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting…
stcynic | July 29, 2005Timothy Sandefur has a review of Randy Barnett's book Restoring the Lost Constitution available on SSRN. It's an excellent review that adds some additional background to Barnett's work and the importance of the presumption of liberty. There are a couple of points I want to highlight from that review. One of the arguments one hears constantly from critics of the presumption of liberty, and you can see it in the many immediate responses to my earlier post on the subject at Positive Liberty, is that there is no objective way for judges to determine what is and is not a right other than by…
stcynic | July 27, 2005I'm on the ReligionLaw listserv moderated by Eugene Volokh, an email list of dozens of law profs around the country with the discussion focused on areas where religion and law intersect. Yesterday a discussion kind of veered off that subject and into the 9th amendment and libertarian legal theory, until Prof. Volokh herded us all back onto the ranch. But I think the way the discussion went before it stopped is indicative of a real split between libertarian and conservative thinking. The discussion was primarily between myself, Rick Duncan (a Nebraska law professor) and Sam Ventola (a Denver…
stcynic | July 25, 2005Timothy Sandefur has an op-ed piece in the Whittier Daily News pointing out the many loopholes in California law that allows property to be seized for redevelopemnt projects and the dishonesty used to claim that there are adequate safeguards currently. As my consulting firm prepares to put a referendum on the ballot here in Michigan, we are expecting similar arguments based upon a recent court case, Wayne v Hathcock. Sandefur, incidentally, filed briefs in that case as well. This decision reversed the infamous Poletown decision and would appear to offer far more protection against such…
stcynic | July 20, 2005Just noticed this very odd response by Mark Olson to my post about Robert Bork's mythical martyrdom. Much of the rhetoric in Olson's response would serve as a perfect example of how to execute the strategy known as poisoning the well, as he puts his own unique characterizations on events and pretends that I have said them or would agree with them. It begins with the very first sentence:
Ed Brayton, writing at Dispatches from the Culture Wars, is of the decided opinion that it was a good thing that Mr Bork's reputation was besmirched by the Judicial Committee.
Uh, no. I am, however, of the…
stcynic | July 19, 2005The Institute for Justice is asking the Supreme Court to rehear the Kelo case, arguing that in just the few weeks since the decision was handed down, much has changed that should make them reconsider their decision. It's a desperate move, not likely to succeed, but they have a point about what has happened in the last 3 weeks:
As the petition points out as the first basis for the rehearing, the floodgates to eminent domain abuse have already begun to swing open. "Justice O'Connor predicted a world in which a Motel 6 can be taken for a Ritz-Carlton, and homes for a shopping mall," said Dana…
stcynic | July 12, 2005In my appearance on the Harry Browne show, we focused a lot on how to respond to the Kelo decision and what could be done to protect property rights. I urged the listeners to organize at the state and local level by putting propositions on state ballots to require that eminent domain be invoked only for direct public use and making sure that local politicians knew that there are political consequences for violating property rights. It looks like the Connecticut legislature if jumping on that bandwagon, declaring a moratorium on such development projects while they rewrite the state law…
stcynic | July 11, 2005Jonathan Chait has an essay in Friday's LA Times about Robert Bork and the myth of his unfair demonization and martyrdom. Among the partisan and pedestrian right (though in many cases not the intellectual right), Bork is still viewed as The One Who Started It All, the Supreme Court nominee whose case turned the nomination hearings into a televised bloodbath of opposition research and false claims. Chait sets the stage:
The legend of Robert Bork's martyrdom casts a shadow over the upcoming Supreme Court nomination, as it has over every nomination for the last 18 years. Bork, for those who…
stcynic | July 6, 2005I've long thought that the Constitution Party - which postures as being libertarian-minded - was quite badly named. They're really a far right - and I mean far right - social conservative party with a very disturbing vision of what the constitution means. And here's more proof of that. Their chairman and former Presidential candidate, Howard Phillips, is urging Bush to nominate none other than Roy Moore:
"President Bush should nominate former Alabama Supreme Court Chief Justice Roy Moore to replace Sandra Day O'Connor in the U.S. Supreme Court," Howard Phillips, chairman of The Conservative…