Constitutional Law
stcynic | January 2, 2005Chief Justice William Rehnquist has released his annual report on the state of the judiciary, and I was glad to see that he made a point of responding to growing threats to the independence of the courts. With no fewer than four bills pending in Congress that would attempt to strip the court of jurisdiction in various types of cases, there is a very real threat of a constitutional crisis brewing. Rehnquist points out that there is a long history of tension between Congress and the Judiciary, going back as far as the attempted impeachment of Chief Justice Samuel Chase in 1805, and that to some…
stcynic | January 2, 2005I love having two of my favorite writers posting on the same blog. Rowe is guest blogging at Sandefur's Freespace this week and the two of them have really been cranking out some great stuff. Sandefur takes on conservatism (real conservatism, not the political variety) and points out the classical liberal foundations of the Constitution. Then Rowe has a brief post on textualism and original intent. Next, Sandefur goes after Robert Bork, much to my delight. Finally, Rowe looks at Judge Posner's recent statements on natural rights and constitutional law. Great stuff, guys.
stcynic | December 30, 2004You all should definitely be keeping up with the conversation going back and forth between Richard Posner (posting on Leiter's blog), Timothy Sandefur, Larry Solum and others. Follow the links. I like Sandefur's phrase "mass moral relativism", and it looks to me like Posner is getting thrashed pretty severely at this point.
stcynic | December 27, 2004The legal scholar weighs in on the issues in the Steven Williams case and says that the real issue is whether the school administration has the authority to put reasonable limits on what a teacher can say to their classes:
But even assuming his proposed lesson plans that make reference to religion would not violate the anti-establishment idea (and we don't have enough facts to answer this question one way or the other), the school authorities could still be within their legitimate power to prevent Williams from doing what he wants to. The crucial, if underappreciated, point is that a public…
stcynic | December 25, 2004Ed. note: This is a guest post on the ACLU lawsuit filed against the school board in Dover, Pennsylvania by Dan Ray. Dan is an attorney and the director of the Paralegal Studies Program at Eastern Michigan University. He studied in law school under the esteemed Jack Balkin of the Yale Law School.
Looking Over the Cliffs of Dover
by Dan Ray
Like all those who are interested in science, education, and the separation of church and state, I've been watching the developments in Dover very closely over the past several months. It has been fascinating on many different levels: religious and secular…
stcynic | December 24, 2004Marci Hamilton has an excellent column reviewing the situation with Ashley McKathan, Alabama's latest Robin to Roy Moore's Batman. She points out something that so many on the right want to gloss over when claiming that the judge has a free speech or free exercise right to have the Ten Commandments embroidered on his sleeve: that the conduct allowed as a private citizen is not the same as the conduct allowed while acting as a government representative. Just like in the case with the San Diego police officer who was fired for making pornographic movies while in his officer's uniform, there is…
stcynic | December 23, 2004And no, I'm not talking about Tim Conway doing a video about evolution and intelligent design. I'm talking about Michael Dorf, professor of law at Columbia, and his latest article at FindLaw. Dorf examines the question of whether teaching ID in public school science classrooms is unconstitutional and concludes that it is. It's an uneven article, with some arguments well reasoned and some poorly reasoned, but obviously I agree with the conclusion. In particular, I think he nails pretty well the question of whether ID is legitimately a scientific theory.
Dorf makes two arguments for why ID is…
stcynic | December 16, 2004Here are links to some of the briefs in the McCreary County v ACLU of Kentucky case that will be heard by the Supreme Court in March. The brief I mentioned in the post below, written by Herb Titus and William Olson on behalf of a bevy of religious right groups, can be found here. That brief takes the radical position that the 14th amendment doesn't apply any of the bill of rights to the states at all.
A brief from the Jewish Anti-Defamation League and the director of the Center for Christian-Jewish Learning at Boston College can be found here. This brief argues that the Ten Commandments are…
stcynic | December 16, 2004The Supreme Court has agreed to hear a case involving a display of the Ten Commandments on government property. The case is McCreary County v. ACLU of Kentucky. This morning I received a PDF of a brief filed in that case on behalf of several religious right organizations. I do not know if the brief is publicly available, so I won't post a link to it at this time. What makes this brief interesting is that it doesn't just argue that posting the Ten Commandments on public property doesn't violate the first amendment, it argues that the first amendment does not apply to the states at all, leaving…
stcynic | December 15, 2004Two articles that might be of interest for my fellow con law wonks. The first is from the new issue of Legal Affairs, a fairly glowing article about him from Stephen Presser. He writes quite a bit about Thomas' notions of originalism and his disbelief in stare decisis. The second is from Doug Laycock, one of our foremost scholars on the religion clauses of the first amendment, in a message posted to the religion law listserv that I am a member of. Laycock explains why Thomas' claim that the Establishment Clause should not be binding on the states is incorrect.
stcynic | December 12, 2004David Bass, in another of those famous Worldnutdaily "exclusives" - which means an article so mind-numbingly moronic that only WND would even consider publishing it - has written an absolutely hilarious column about the decision by the Canadian Supreme Court that the legislature could legalize gay marriage. What makes his article so amusing is that it's incredibly obvious that he hasn't actually bothered to read it. The evidence begins in the very first sentence:Many words in the English language can be used to describe the Supreme Court of Canada's ruling on Thursday condoning homosexual…
stcynic | December 9, 2004Publius, of Legal Fiction, has written an entry about the uproar over Sen. Reid's statement that Clarence Thomas has been an "embarrassment to the court". It's worth reading. While he's harsher on Thomas than I would be, he does hit on an important distinction in how one can judge a judicial opinion:As I said, Reid's error was in using the word "embarrassing," as it implies that Thomas's opinions are somehow unprincipled or intellectually lightweight. That's not true at all. Thomas's jurisprudence is the most coherent and principled of all the Justices. But that's not to say it's good. One…
stcynic | December 7, 2004Let me add my voice to that of Sandefur, Unlearned Hand, Feddie and others in saying that Senator Harry Reid's comments about Clarence Thomas were way out of line. Reid said:
When asked to comment on Thomas as a possible replacement for Chief Justice William Rehnquist, Reid told NBC's "Meet the Press": "I think that he has been an embarrassment to the Supreme Court.
"I think that his opinions are poorly written. I just don't think that he's done a good job as a Supreme Court justice."
That's just completely unjustified rhetoric from Reid. Obviously, my readers know that I'm a fairly staunch…
stcynic | December 7, 2004It's amusing to watch Farah and his minions at the WorldNutDaily work themselves into a rage at the ACLU. They spit and sputter and contradict themselves and display rank hypocrisy, knowing full well that most of their readers are too clueless to catch them at it. The latest example is this "exclusive" whistleblower article (naturally, you have to pay to see the actual article; WND prints virtually nothing that isn't tied to something they're pimping for profit). This time they're up in arms over the fact that when the ACLU sues a governmental body successfully, the legal fees are usuallly…
stcynic | November 29, 2004The Supreme Court today refused to hear a case asking them to overturn the Massachusetts State Supreme Court decision on gay marriage. Now one might wonder why on earth someone would try to appeal a state supreme court decision based solely on provisions in that state's constitution to the US Supreme Court. One would be right to wonder. Just look at the argument the plaintiffs made:
Critics of the November 2003 ruling by the highest court in Massachusetts argue that it violated the U.S. Constitution's guarantee of a republican form of government in each state. They lost at the 1st U.S.…
stcynic | November 28, 2004Having tired of hearing all of the mindless blathering about "judicial activism", the right wing catchphrase that means "judges refusing to allow us to do whatever we want to other people", I hereby propose a new phrase: legislative activism. In response to unpopular court opinions, particularly the Lawrence decision that overturned state sodomy laws and the Massachusetts decision instituting gay marriage, we are witnessing an all out assault on the idea of an independent judiciary. There are now six separate bills in Congress that would strip the courts of their jurisdiction to hear certain…
stcynic | November 26, 2004In perusing Heidi Bond's reports on the speech and Q & A session that Scalia held last week at the University of Michigan, one thing jumped out at me. I'll post this just as she wrote it, but keep in mind that these are live blogged notes, not a written out report or a transcript:
Says he'll say a few words about something other than originalism. Says that he thinks he'll lose it; "it's a hard sell to tell people that the Constitution doesn't mean whatever it ought to mean." "My other great cause is. . .the elimination of the last legal fiction in. . .our law: the use of legislative…
stcynic | November 25, 2004You know the religious right is going to go ballistic about this. In Cupertino, California, the principal has apparently barred a teacher from handing out a copy of the Declaration of Independence to his students. Now, I suspect that this teacher is one of those pious crusaders who wants to play up the "Christian nation" angle to his students and mistakenly thinks that the Declaration supports that idea. But even if that's the case, barring him from handing out perhaps the most important document in American history to his students is not only stupid, but destined to feed into the very thing…
stcynic | November 19, 2004Here's a quote you aren't likely to have seen from our old pal Robert Bork:
[I]t is naive to suppose that the [Supreme] Court's present difficulties could be cured by appointing Justices determined to give the Constitution its true meaning," to work at "finding the law" instead of reforming society. The possibility implied by these comforting phrases does not exist...History can be of considerable help, but it tells us much too little about the specific intentions of the men who framed, adopted and ratified the great clauses. The record is incomplete, the men involved often had vague or even…
stcynic | November 18, 2004Seth Cooper, the Discovery Institute counsel I mentioned a couple days ago, has now written, rather surprisingly perhaps, that he supports Arlen Specter for the chairmanship of the Judiciary Committee. But in the course of his rather lukewarm endorsement, he makes this statement:
In fact, I find Sen. Specter's treatment of Judge Robert Bork in his 1987 confirmation hearings to be nothing short of shameful. Sen. Specter had recently made reference to his actions in that painful episode. It was a mistake for Sen. Specter to do that. He should have expected the much-deserved backlash for it.
It…