Constitutional Law
stcynic | November 17, 2004John Ashcroft, after resigning as Attorney General, gave a speech to the Federalist Society in which he took a final shot at the judiciary for "second guessing" the President and daring to limit his powers in the war on terrorism:
"The danger I see here is that intrusive judicial oversight and second-guessing of presidential determinations in these critical areas can put at risk the very security of our nation in a time of war," Ashcroft said in his first speech since his resignation became public Tuesday.
"These encroachments include some of the most fundamental aspects of the president's…
stcynic | November 15, 2004The title is the name of a conference to be held at Yale University in April 2005, which will include some of the most influential and respected constitutional law scholars in the nation (though the list at this point excludes some names that certainly should be there - Richard Epstein, Doug Laycock, Randy Barnett, and others - one hopes they will be added later). It also refers to a new blog put out by the organizers of that conference that also includes some prominent names. To this point there are posts up by the likes of Cass Sunstein, Paul Smith and Mark Tushnet (whose daughter, Rebecca…
stcynic | November 14, 2004Jim Anderson has a textbook example of why the phrase "judicial activism" should be forever struck from all political discourse. It is a meaningless phrase that, despite the pretensions of those who use it 27 times per paragraph, really just means "a judge did something I don't like." Alberto Gonzales is Bush's new nominee for Attorney General. He's strongly, almost maniacally, pro-death penalty (to the point where they almost needed to put a drive-thru into the Texas prison system to accomodate all the executions); he thinks torturing prisoners is okay; but once, when he was on the Texas…
stcynic | November 10, 2004I'm finding this story absolutely remarkable, have you noticed? It's just astonishing to me watching this coordinated campaign of stupidity and lies being thrown at Specter. The latest is this letter from a group calling itself, ironically, "Frontiers of Freedom" and signed by a bunch of obscure right wing think tank bosses. Like the articles by the National Review editors, Robert Novak and Donald Wildmon, this one is just chock full of lies and distortions. Some of the loonier claims:
The nation's protest against Democrat obstruction of qualified nominees added to this year's huge voter…
stcynic | November 9, 2004The Worldview Weekend folks have sent out their latest bit of idiocy to my email inbox, this one written by none other than the Rev. Donald Wildmon. In addition to the regular lies about Specter and what he didn't say, he added this new one:Specter is the person who killed the nomination of Robert Bork to the Supreme Court and tried to kill the nomination of Clarence Thomas.
Just a complete and utter lie. Not only did Specter not try to kill the Thomas nomination, he was the chief prosecutor grilling Anita Hill during the hearings and he led the fight for Thomas on the floor of the Senate.…
stcynic | November 9, 2004Tom Goldstein of the SCOTUSBlog has an essay up on potential nominees and makes some interesting points. First, I think he places the abortion question into context:
It is essential to Republicans that the President nominate someone who is very solidly conservative. To pick someone more moderate or liberal would move the Court to the left.
In this context, "conservative" (like "non-activist" or "strict constructionist") is often mistakenly perceived a code word for - or reduced by the press the simplistic formulation of - "willing to overrule Roe v. Wade." Abortion is certainly the most…
stcynic | November 9, 2004Jon Rowe looks at the possibility that Bush might nominate either Arlen Specter or Orrin Hatch for the Supreme Court in his second term. A Specter nomination, given the current enmity being shown him by Bush's bulldogs in the Senate, the media and various religious right organizations, seems slightly less likely than me being invited over to Robert Bork's house for dinner. But a Hatch nomination seems a very real possibility for several reasons.
First, Hatch would satisfy most of the folks on the Christian right. He is a reliable religious conservative on almost every issue, though the fact…
stcynic | November 8, 2004Jim Lindgren of the Volokh Conspiracy has weighed in with his thoughts on potential Bush judicial nominees:
Personally, my uninformed guess is that Bush will nominate Alberto Gonzales for the next vacancy on the Supreme Court, though this is far from certain. White House Counsel Gonzales has Bush's trust, has prior judicial experience, and is reputed to be competent. Gonzales would be as moderate an appointment as the Democrats are likely to see. Not only is Gonzales probably in favor of affirmative action, but he decided against parental notification for abortion in Texas. If there are two…
stcynic | November 8, 2004Timothy Sandefur has a brief post up about who might be named the new Chief Justice of the Supreme Court. He pointed out a problem with a possible Thomas nomination that I hadn't thought of - why would he accept it? While there might be some lure to being the first black Chief Justice, it would also mean going through another nasty confirmation fight, and why on earth would he want to do that after what happened the first time? I can't imagine it would be worth it to him for what, as Sandefur points out, is little more than a lot of additional responsibilities.
He does point out a very…
stcynic | November 7, 2004As I noted yesterday, presumptive Senate Judiciary Chairman Arlen Specter has sparked a controversy that has been blown out of all proportion. The editors of the National Review appear to have lost their minds completely over what was, to any sane person, a very innocuous statement. It begins with this big lie:
Senator Arlen Specter (R., Penn.), who by virtue of Senate seniority rules is in line to become the chairman of the powerful Senate Judiciary Committee, fired a shot across the president's bow, warning Bush that he would block any judicial nominees that he deemed too conservative.…
stcynic | November 6, 2004Jon Rowe predicts that Bush will have as many as 3 appointments to the Supreme Court in his second term, and most court-watchers would agree. One seems a bare minimum, two seems quite likely and three is very possible. Much of the focus has been on Chief Justice Rehnquist lately, given his ongoing health problems, but with John Paul Stevens at 84 years old and Sandra Day O'Connor not far behind, those two are also likely to be retiring soon. The court has an interesting split at the moment, with a predominantly conservative block (Rehnquist, Scalia and Thomas), a predominantly liberal block (…
stcynic | October 31, 2004I was looking at some of the recent silliness from Charles Colson, who often writes for Christianity Today, and came across an article on last year's infamous Lawrence v Texas decision. In it, Colson characterizes the decision in this way:
Three weeks later, in Lawrence v. Texas, the U.S. Supreme Court declared (6-3) that sodomy is protected behavior under the Constitution's so-called "right to privacy" provision.
Then I followed a link to a roundup of evangelical opinion on the Lawrence decision and found that Colson was hardly alone in thinking that it was based upon a right to privacy.…
stcynic | October 26, 2004Eugene Volokh discusses Bush's statement that he's okay with civil unions and has a different version of the FMA than I had. The original Musgrave amendment that was rolled out with a good bit of fanfare said:
Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.
This obviously banned civil unions as well as gay marriages. But the bill that Volokh…
stcynic | October 25, 2004Timothy Sandefur has been writing furiously since his return from Memphis on Friday (a trip that made me quite jealous. Memphis is known for two things, blues and BBQ - if there's a heaven, it must look a lot like Beale Street). If you're at all interested in constitutional law, his latest essay, on substantive due process, is a must read. He writes:
One strong argument against this theory is that the phrase "no person shall be deprived of life, liberty or property without due process of law" merely requires some fair procedure to be satisfied before a person is deprived of life, liberty or…
stcynic | October 19, 2004Timothy Sandefur has taken note of the posts on Bork by myself and Jon Rowe and added his own voice to the discussion (if there is anything that bonds the three of us together, it's our shared distaste for Robert Bork). I like this passage a lot:
The cure, you see, for the misery of homosexuals in a society which condemns homosexuality, is to ratchet up the persecution. This is the logic of Torquemada, for Christsake! How can this man be taken seriously? And yet he is not only taken seriously; he is the intellectual leader of today's conservatives. He is alluded to by the President of the…
stcynic | October 18, 2004Thanks to Jon Rowe for the heads up on the latest screed by Robert Bork. Rowe rightly points out how thankful we should all be that when Bork's nomination was voted down in the Senate, we ended up with Anthony Kennedy on the court instead. In stark contrast to Bork's authoritarian agenda, Kennedy has moved increasingly toward an expansive, libertarian-leaning perspective. Indeed, as Randy Barnett has written in his review of Kennedy's decision in Lawrence v Texas, Kennedy's decision may well portend the end of the "presumption of constitutionality" notion in Supreme Court jurisprudence. He…
stcynic | October 16, 2004As a follow-up to my last post on threats to free speech from the left, it may be instructive to look at some very disturbing trends going on in our neighbor to the north. Canada has increasingly squashed free speech in the name of protecting minorities from offense. For instance, it is now illegal in Canada to make any statement in opposition to homosexuality. Just last week, a Quebec man was fined $1000 for telling one man that his traveling companion was a "fifi", a French slang term for gay. The man filed a complaint with the Canadian Human Rights Commission, saying that the comments…
stcynic | October 15, 2004Eugene Volokh points out a pretty stunning example of a university violating the free speech rights of students. This sort of thing is not new, of course. Many universities have "hate speech codes" that violate the first amendment in a rather flagrant manner. At a time when a lot of attention is being paid to the risks to our liberty posed by the Patriot Act, it's important to recognize that threats to the first amendment come as often from the left as they do from the right.
stcynic | September 27, 2004Jason Kuznicki has followed my lead in giving a positive review to Timothy Sandefur's recent article on liberal originalism in the Harvard Journal of Law and Public Policy. Incidentally, Jon Rowe agreed with us as well. Mr. Sandefur sent copies of the article to the three of us (and perhaps others) and we all agree that he has written a very valuable contribution to the debates over original intent. Indeed, I think we are seeing the beginnings of what could be a serious movement in constitutional theory, as scholars like Sandefur, Randy Barnett, Scott Alan Gerber and a few others map out a…
stcynic | August 27, 2004One of the most overlooked events in American history is the battle between Lincoln and the Supreme Court over habeas corpus. One would think that the recent Supreme Court cases involving the authority of a president to suspend habeas corpus would have been an ideal time for those in the media to give the story some historical context by discussing that history, but that would mean they might actually be doing their job, so what were the odds of that really? I've written briefly about this before in the larger context of how our government has frequently crushed free speech in times of war to…