Constitutional Law

Stuart Buck has a post about People for the American Way's use of a case in disparaging Michael McConnell as a potential nominee for the Supreme Court. And I think he has a point: If you do a search for "Judge Michael McConnell," one of the first results is this page from People for the American Way. It's one of a series of pages modestly titled "Confirmed Judges Confirm Our Worst Fears." The page for the Tenth Circuit notes that McConnell voted in a single case to overturn a ruling by the National Labor Relations Board. That's it. Anyone who is familiar with appellate law knows that there…
Steve "Feddie" Dillard, Grand Poobah of Southern Appeal, has revealed that a reliable source has told him that Chief Justice Rehnquist will be stepping down in the next 4 weeks. Feddie is pretty well connected in those circles, so I have no reason to doubt it. Besides that, it's what everyone is expected anyway. He is predicting that Michael McConnell will be the choice to replace him, which is the same person I've been predicting for the last few months. McConnell is solidly conservative, but not in a partisan manner. He's an intellectual conservative, not a political conservative and that…
The Supreme Court issued an opinion yesterday in a major religious liberty case, Cutter v. Wilkinson. The case involves the Religious Land Use and Institutionalized Persons Act, passed by Congress in 2000, which said that jails and prisons could not "impose substantial burden on the religious exercise of a person residing in or confined to an institution" unless there was a "compelling governmental interest" at stake and the "least restrictive means" was used to secure that interest. The suit was brought by a group of inmates and former inmates against the state of Ohio, who claimed that the…
Stuart Taylor, the always excellent court analyst for the National Journal, has written a review of William Rehnquist as Chief Justice and the court he has presided over for 18 years. It's quite a thorough look for such a short article, both in terms of the legal analysis of the court's influence and the more private aspects of the man. I had no idea how well liked and respected he is by the justices who serve under him, especially the more liberal ones. Well worth reading for those afflicted, as I am, with the potentially fatal disease of being a court watcher.
The US is hardly the only democracy in the world that seeks to limit the power of government, but we do have one thing that many of our fellow western democracies do not have - the first amendment. To the American mind, it's bracing to read about the existence of "human rights commissions" in nations like Canada. The laws which establish such commissions generally establish protected groups that may not be insulted in any way, and the list of protected groups is rather broad. The Alberta Human Rights, Citizenship and Multiculturalism Act, for instance, says that: no person shall publish…
As I've written many times, censorship certainly does not always come from the right. The left has more than its fair share of Torquemade wanna bes, they just tend to couch their arguments in terms of diversity rather than morality. Case in point: a group of folks from the University of Arkansas is attempting to prevent the Promise Keepers from being able to rent Razorback Stadium for a rally June 10-11. The arguments are predictable: "I don't think this singleminded group should have their meeting here. It's not an all-encompassing group and we are promoting diversity at the university,"…
Jack Balkin has a couple of fascinating essays on how easily originalism is used to justify a particular result, an argument I have long made myself. I'm not an enemy of originalism, nor am I a "living constitutionalist", and I think that both original intent and original understanding or original meaning are important tools of constitutional interpretation and analysis. But when conservative originalists pretend that their judicial theory allows for an objective analysis that is divorced from results, like a mathematical formula that always reaches the correct answer, I think that's nonsense…
This is good news. In a 5-4 decision, the Supreme Court has overturned state laws banning the shipment of wine over state lines. 24 states have laws that treat direct shipments of wine from winemakers out of state to customers in that state differently than shipments from winemakers within the state. 24 states had laws either banning or restricting such sales and they are now overturned. I've not read the decision, but it's worth noting that the majority opinion was joined by a rather odd collection - Kennedy, Scalia, Souter, Ginsburg and Breyer. That's two fairly reliable liberals, two…
Last night's radio appearance with Herb Titus went pretty well, I thought. Jim Babka invited me on the show to discuss the 14th amendment and incorporation with Titus primarily because I had written critically of a brief he filed in the McCreary ten commandments case that is currently before the Supreme Court. In that case, the court will be deciding whether two displays of the ten commandments at courthouses, one in Kentucky and one in Texas, violate the establishment clause. The brief linked to above, written by Titus and William Olson on behalf of a variety of conservative religious groups…
In a major victory for free speech, and for the Foundation for Individual Rights in Education in particular, Dartmouth College has decided to do away with its 4 year old "hate speech code". FIRE has been involved in negotiations with Dartmouth for many months, and it became a major issue in the trustee elections for the college. What makes it even more compelling is that Dartmouth is a private college, so they did not legally have to do this. But they did. Bravo to the Dartmouth administration for taking this very important step.
Jon Rowe has an excellent post about originalism and the application of general principles in constitutional law. As he points out, one of the major problems for conservative originalists is that they often get stuck having to defend the heinous results that their version of originalism would lead to if applied consistently. This is because the same arguments that they typically use against rulings that push out the limits of individual rights today were also used against rulings that no one considers controversial today and that they do not wish to defend. For example, the arguments against…
Timothy Sandefur has a follow up on my post about fulfilling the promises of the Declaration of Independence, discussing why he loves the Constitution so much. It's a fascinating read, as usual, and I love this quote he gives from Frederick Douglass: There is no negro problem. The problem is whether the american people have loyalty enough, honor enough, patriotism enough, to live up to their own constitution. Brilliant. And true. It wasn't merely blacks who demanded an end to slavery; slavery had to end in order to make the promises of the Declaration a reality. The same is true of allowing…
Via Patterico, I found something that tells me I have to eat some crow. I have read in numerous places the story of Patricia Owen casting a dissenting vote in a Texas case involving a minor and abortion and Alberto Gonzalez accusing her of an "unconscionable act of judicial activism" for that dissenting opinion. I have even repeated that story many times myself, assuming it to be true. Turns out it's not. In the many places I've read this story, it has been presented as Owen having written a decision to void the judicial override, the legitimacy of which was not being challenged, rather than…
As anyone who reads this blog knows, I am a passionate advocate for the principles of natural rights as expressed in the Declaration of Independence. But I am also firmly convinced that our nation is far closer to living out those ideals today than at any time in the almost 230 years since that document was written. It has taken the extraordinary sacrifice of many great men and women, an enormous amount of social upheaval and even a civil war to put those principles into action, but it has brought us closer to making the promise of those self-evident truths a reality for a far higher…
This post is a continuation of an exchange with Patterico, of Patterico's Pontifications, that began in the comments on another post. Patterico is an assistant district attorney in LA County, so is obviously a worthy adversary and someone whose views, especially where it concerns the law, should be taken seriously. I'm going to shift gears a bit in our debate, however, because I think we were getting off on a tangent. The real disagreement between us, I think, revolves around the question of what limitations are placed upon the government (i.e. the majority) by the Constitution. We both agree…
Good news from the 11th Circuit Court of Appeals that is hearing the appeal of the Cobb County evolution disclaimer case. The appeals court has refused to stay Judge Cooper's lower court ruling during the appeals process. Just like in the Terri Schiavo case, one of the key questions the courts consider when deciding whether to grant a stay is whether the appeal has a realistic chance of succeeding. That's not the only criteria, of course, but it's an important one. Unfortunately, I don't have the text of the judge's ruling to see whether that is explicitly stated or not, but the attorney…
I have been challenged to defend my claim that Robert Bork is "insane". It's not a terribly artful term, I admit, and I meant it figuratively rather than literally. But I will certainly defend the assertion I've defended many times before, which is that Robert Bork's views on constitutional law are incredibly dangerous to a free society and little more than an apology for authoritarianism. I first became acquainted with Bork, like most Americans, during the confirmation hearings when he was nominated for the Supreme Court in 1987. Because of a class I was taking at the time, I had the…
Jason Kuznicki is asking some tough questions about Randy Barnett's conception of governmental legitimacy and is looking for responses. The question of legitimacy, for those not familiar with the debate, is essentially this: what makes a government legitimate? Is it the consent of the governed? Whether it conforms to preconceived notions of legitimate authority? Respect for individual rights? Many Americans have long argued that the consent of the governed grants legitimacy to a government, an idea rejected by Barnett, following Lysander Spooner. I think they are right to reject that basis…
Timothy Sandefur has an op-ed piece in the San Francisco Chronicle today supporting the nomination of Janice Rogers Brown for the Federal Appeals Court. He urges Democrats to end their opposition to her nomination and praises her for taking strong libertarian stands on issues. Much of that praise seems warranted to me based on what little I know. My only concern is a quote that someone gave in a comment on another post that she apparently said in a speech to a religious group. That quote was: "The United States Supreme Court, however, began in the 1940s to incorporate the Bill of Rights into…
My latest exchange with Eric Seymour on the subject of judicial activism has veered off into a discussion of the doctrine of incorporation with a rather irritating anonymous commenter who seems to specialize in logical fallacies. His favorites appear to be the appeal to authority and poisoning the well. He seems to believe that mere reference to a scholar who disagrees with someone defeats their argument, even if he doesn't bother to actually cite a substantive claim that they make or any evidence they produce for that claim. In this case, he is arguing against the notion that the bill of…