law
stcynic | May 7, 2004Randy Barnett has a post on the Volokh Conspiracy that is quite interesting, concerning criticism leveled at him by Stephen Bainbridge and a letter to the editor from Robert Bork in the Wall Street Journal. Professor Barnett, as usual, makes the point about judicial activism that I've been making repeatedly on my blog:
Both posts beg the question: what exactly IS judicial activism? Unfortunately, apart from his reference to "democratic values," Professor Bainbridge does not tell us, but given that he has chosen to single me out let me ask:
Is discovering and enforcing the original meaning of…
stcynic | April 22, 2004From the files of our intrepid vice police comes this story about Baltimore Ravens fullback Corey Fuller. His house in Tallahassee, Florida was raided by 20 - TWENTY - law enforcement officers on Tuesday night. Was he hiding stolen goods? Peddling crack? Storing bodies in his crawlspace? Nope. What was this obvious threat to society doing? Well, he was playing poker with his friends. And for this horrible crime against humanity, he now faces up to 5 years in prison and a $5000 fine.
Color me pissed, and not just because I participate in weekly poker games of this sort (though presumably for…
stcynic | March 19, 2004Supreme Court Justice Antonin Scalia has issued a memorandum in which he answers the request that he recuse himself from an upcoming case involving claims of executive privelege for Vice President Dick Cheney as it regards meetings he held in formulating the administration's energy policy, because he went on a duck hunting trip with Cheney. Not surprisingly, Scalia has denied the request and will not recuse himself from the case. My take? I tend to agree with him. He is right to point out that recusal is different on the Supreme Court than it is on a court of appeals. If a judge on a court of…
stcynic | March 12, 2004Ladies and Gentlemen, are you ready for your headliner? You've seen him on the Tonight Show with Jay Leno and on the HBO special of his sold out tour with Eugene Volokh and Glenn Reynolds, The Barristers of Comedy. Please welcome, from Yale University, Professor Jack Balkin:
Because the Federal Marriage Amendment seems not to have taken off, the Administration is offering this carefully worded substitute, the Protection of Democracy Amendment:
Democracy in the United States shall consist only of the union of one Republican candidate and one Presidency. Neither this constitution or the…
stcynic | March 11, 2004Jonathan Rowe, this month's guest blogger on Tim Sandefur's Freespace Blog, is in the middle of reading Randy Barnett's Restoring the Lost Constitution, and he's blogging about it. I have not read the book yet, but Barnett is probably my favorite constitutional scholar. The other day I mentioned the absurdity of the Boston Globe putting Barnett and Bork together in the category of those who advocate "original intent", and Rowe's post shows some of the reasons why it's so ridiculous. For instance,
Three, one of the most powerful arguments against a Bill of Rights at the time of the American…
stcynic | March 10, 2004Supreme Court Justice Antonin Scalia gave a speech at a conference in New Orleans yesterday. Among other things, he said the following:
"It is literally true that the U.S. Supreme Court has entirely liberated itself from the text of the Constitution," Scalia said at a conference Uptown on the merit selection of judges.
"So we now have a constitutional right to abortion, something that had been criminal for 200 years," he said. "We have a constitutional right to homosexual sodomy, something else that had been criminal for 200 years."
Now the article doesn't give the context for those comments…
stcynic | March 10, 2004I guess those who wondered just how far the depravity of the ACLU would go have their answer. We should have known that the slippery slope that the ACLU was on due to defending the rights of the KKK and NAMBLA would eventually lead to them defending even the likes of Jerry Falwell. Now remember, this is the same moron who, after the WTC bombings, said:
The ACLU's got to take a lot of blame for this. And, I know that I'll hear from them for this. But, throwing God out successfully with the help of the federal court system, throwing God out of the public square, out of the schools. The…
stcynic | March 10, 2004The Senate is once again holding hearings on a constitutional amendment banning flag burning. It's nice to know that in an age of 500 BILLION dollar deficits and terrorism around the world, this is what our elected leaders are wasting their time on. But of course, it's an election year and these kinds of issues help them display their shallow version of patriotism. So they'll posture and preen and gesture and whoop and it will be a grand show for the world to see. At what point do Americans grow up and drop this silly notion that patriotism is wrapped up in a colored piece of cloth? Probably…
stcynic | March 9, 2004The blogs interested in legal issues seem to be once again debating an issue, this time "judicial activism". As I mentioned in a post yesterday, the Boston Globe had a Sunday article on it quoting one blogger, Randy Barnett, and it seems to be spreading throughout the blogosphere. Barnett, of Boston University, has posted a brief tidbit on the article here.
Jack Balkin of Yale Law School has been taking on Jonah Goldberg and Stuart Buck on the issue.
Charles Petit, an intellectual property attorney, has one here.
And, as usual, Larry Solum of UCSD has come through with a terrific summation…
stcynic | March 8, 2004The Boston Globe had an article written by Dave Denison about judicial activism on Sunday. The results were mixed. On the one hand, Denison does a fine job of illustrating what I have said previously (here and here, among other essays), that claims of "judicial activism" rarely have any objective meaning and are really just a cover for disagreement with the substance of a decision. President Bush darkly warned of those "activist judges" who rule "without regard for the will of the people" in the State of the Union speech, while Pat Buchanan decries the "judicial dictatorship" that we…
stcynic | March 7, 2004Ryan Boots, of the Soundfury blog, has decided to vent his spleen about gay marriage. Basically, he doesn't like it one bit. And typical of those who oppose gay marriage, his arguments against it run the gamut from the outright false to the profoundly silly. He begins by saying:
I am weary of having of having to defend the institution. Marriage existed before any of the institutions we know today were created.
I'm always amazed that people think that they're defending the institution of marriage by preventing some people from participating in that institution. If marriage is such a good thing…
stcynic | March 5, 2004The late Supreme Court Justice Harry Blackmun left all of his papers to the Library of Congress, as is customary, and asked that they be relased on the 5th anniversary of his death on March 4, 1999. That release was made this week. For avid court watchers like me, this is an opportunity to get a glimpse behind the scenes on the internal working of the court, especially on the interplay of the personalities of the justices. Blackmun was apparently quite the packrat, keeping virtually every scrap of paper that ever crossed his desk and taking voluminous notes on every meeting and conference in…
stcynic | March 3, 2004Came across an interesting article about the possibility of Scalia replacing Rehnquist as Chief Justice if Rehnquist decides to retire. The article is a bit dated, being from November 2002, at a time when many were speculating that the Chief Justice would retire after that term expired in Summer 2003. Obviously that did not happen. It seems highly unlikely that Rehnquist would retire this summer, since it is an election year and he would not know who would pick his replacement.
For Supreme Court watchers like me, this is the equivalent of sports fans discussing who their team is going to…
stcynic | February 29, 2004Interesting article in this morning's San Francisco Chronicle titled Culture war being reshaped; Conservatives lower expectations. It points out that in the debate over gay marriage, the religious right seems to have pretty much given up on stopping the trend toward civil unions for homosexual couples:
Conservative activist William Donohue, the president of the Catholic League for Religious and Civil Rights, says he believes Bush's proposal for a constitutional amendment is a "cultural tipping point" that will restore a "culture of restraint and decency."
The ban will not prevent the…
stcynic | February 25, 2004John Scalzi has written an incredibly eloquent essay on why he, as a married man, supports gay marriage. He asks the same question I've been asking of every person I speak to who is against gay marriage, which is usually answered by nothing but empty rhetoric:
I keep hearing how allowing gays to marry threatens marriage. Fine. Someone tell me how my marriage is directly threatened by two men marrying or two women marrying. Does their marriage make my marriage less legal? Does their love somehow compromise the love I feel for my wife, or she for me? Is the direct consequence of their marriage…
stcynic | February 25, 2004The Supreme Court issued a ruling today that caught me very much by surprise. The case is Locke v Davey, and it involved a Washington state program that gives scholarships to students based on academic excellence. Joshua Davey was awarded a Promise Scholarship, but when the state found out he was planning to attend divinity school they cancelled it, under a state law that prevents public money from being spent on religious education. 36 other states have similar laws. In a 7-2 ruling today, the SCOTUS upheld that Washington law and ruled that it did not violate Davey's rights.
The most…
stcynic | February 24, 2004Bill Wallo has replied to my post on the 9th amendment. In the process, he dubs me "Ed the Culture War Guy". Rusty has previously dubbed me "Ed the Evolutionist". I'm beginning to sound like a comic book character here, but I shall persevere nonetheless. :)
My position on the 9th amendment, you may recall, is that it sets the burden of proof on the government to show that where a claim of unenumerated rights is concerned there is a legitimate and compelling state interest in violating the individual's presumption of self-determination. This follows closely Randy Barnett's notion of a "…
stcynic | February 24, 2004If there is one thing our Congress does better than any other deliberative body, it is their unmatched ability to come up with names for bills that cause one to spit their coffee out and drop their jaw in amazement upon hearing them. On the heels of the USA PATRIOT (Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism) Act comes the astonishingly named Constitution Restoration Act of 2004, sponsored by Sen. Richard Shelby and Rep. Robert Aderholt of Alabama. Jack Balkin of Yale Law School has an essay analyzing the act section by…
stcynic | February 23, 2004The more I read of Bill Federer's work, the more he appears to be a poor man's David Barton. Everything is so utterly simplistic it's unreal. Consider the conclusion of this article published, naturally, in Worldnetdaily:
America's founders had a "deity-based" belief system. Why? Because:
1. Your rights cannot be taken away by the government if they come from a power "higher" than the government, i.e., God;
2. There are no second-class citizens if each person is equal because each is made in the image of God
Well let's think about this. If the founding fathers believed that your rights…
stcynic | February 21, 2004Tim Sandefur wrote a brief reply to me last evening. I think he's right, we don't really disagree, we're just using two different terms. I tend to say that where there is a legitimate governmental interest in a given area, it's a restriction on that right. He tends to say that if there's a legitimate governmental interest, then no right was there to be restricted in the first place. But we both reach the same result, which is hardly surprising since we both tend to take a libertarian perspective on legal issues in the first place. Anyway, read his reply and the rest of his blog too. It's good…