law
stcynic | February 21, 2004Larry Solum of the Legal Theory Blog has written the 9th amendment post to end all 9th amendment posts (okay, that's not really true - you know we'll all be blathering on about this forever anyway). Larry is a neoformalist on matters of constitutional interpretation and he does a masterful job of breaking down the text here. He doesn't get around to describing all the limits of the 9th amendment that he would advocate, since that might take a whole book. But I think he convincingly shows that the Bork/Scalia version of the 9th amendment is totally unsupportable:
What is the forbidden…
stcynic | February 20, 2004Tim Sandefur has responded to my brief mention of his blog earlier. He thanks me for the mention, and I likewise thank him for his. I think he may have misunderstood something I said though. He quoted my statement in response to Rusty that if the government could show a legitimate state interest for banning sneakers, then such a law might pass constitutional muster, then says,
This would be true only if we define what a legitimate government interest is...When the Court tried to avoid it, it simply assumes the answer: whatever the people want. But the Ninth Amendment indicates to us that that…
stcynic | February 20, 2004Bill Wallo of Walloworld has joined my ongoing conversation with Rusty (see posts here and here) about the 9th amendment. Mr. Wallo is an attorney and a writer. Welcome to the fray, Bill. He begins:
From the tenor of the discussion, Ed reminds me of me - way back in undergraduate school, after I'd taken a couple of constitutional law classes and everything seemed like a constitutional issue.
For the record, I've never taken a constitutional law class and never been to law school. I did take one class on constitutional history as an undergrad back in the middle devonian period. He quotes my…
stcynic | February 20, 2004Trivial Pursuit has a brilliant post on tyranny of the majority and the preference for judicial restraint the excesses of democracy. I agree with him almost entirely and can hardly think of a thing to add to what he said:
I'm far more comfortable relying on courts than legislatures, especially given that the entire and proper role of the former is to act as the last line of defense against majoritarian abuses.
Here, here.
stcynic | February 20, 2004I had to chuckle as I read Tim Sandefur's take on how conservatives view the judiciary:
Joe: I would like to do X, which is something that doesnt harm anyone else.
Richard: Yeah, but I dont like you doing X. It just bothers me. Therefore Im going to force you to stop.
Judge Bill: Um, Richard, Im sorry, you dont have the right to interfere with Joe if he wants to do X.
Richard: Aaargh! Unelected judges taking away my freedom! Help! Help! Im being repressed!
Come and see the violence inherent in the system! Hilarious, and for the most part accurate. Too often, it seems to me, conservatives…
stcynic | February 19, 2004Jack Balkin of the Yale Law School keeps a terrific blog that I link to and read often. On his blog today, he includes a reposting of a message he sent to a constitutional law listserv concerning Supreme Court Justice Antonin Scalia and his concept of originalism. The listserv thread concerned an article that was written by Steve Henderson comparing Scalia's dissent in Lawrence v Texas (last year's case striking down the Texas anti-sodomy law) to Justice Taney's decision in the infamous Dred Scott case, which returned a slave to the slaveowner and struck down the Missouri compromise, as well…
stcynic | February 19, 2004Rusty at New Covenant has posted a reply to me concerning the 9th amendment. He begins with this statement:
I think part of Ed's issue is that he really doesn't understand what I'm saying, or that I'm not communicating it clearly enough... or a little of both. He seems to think that I'm advocating that we have no other rights other than those enumerated in the Constitution.
He's right, that is what I thought. When he said, "The examples listed of rights we enjoy, but which have not been enumerated in the Constitution, do not reveal valid rights inasmuch as they reveal the rulings of judges",…
stcynic | February 18, 2004Paul Starr, editor of The American Prospect, has an interesting opinion article about the gay marriage controversy. He is asking the political (as opposed to legal) question of whether the Massachusetts Supreme Court's ruling may have made it less likely, not more, that there will be equal rights any time soon. His answer to that question is yes - and he may well be right. He contrasts what happened in Massachusetts with a neighboring state:
Meanwhile, New Jersey enacted a law allowing same-sex (and other) couples to enter into "domestic partnerships" that carry most of the rights and…
stcynic | February 18, 2004Jacob Levy of the University of Chicago has weighed in on the question of whether the Federal Marriage Amendment (FMA) in the New Republic. He agrees entirely with the argument I made in my fisking of William Kristol and in my post on Bork and the bizarre framing process of the FMA. That argument is that, contrary to the repeated claims of FMA advocates, the wording does prohibit states from passing any sort of civil union legislation. Levy is in complete agreement on both the fact of this and the inference of hypocrisy:
As written, though, the FMA would make it impossible to create the type…
stcynic | February 18, 2004Rusty Lopez has written yet another response to something I've written, but this time on a different subject. This time it's in response to a post I made on gay marriage and the notion of judicial activism. In particular, he is objecting to my arguments concerning the 9th amendment and unenumerated rights. He quotes a long passage from my essay on the subject, and quotes a long passage from Kyle Still's essay on the 9th amendment that I referenced, then raises his objections. He begins:
There are at least two things that should be addressed here: 1) The inherent difference between enumerated…
stcynic | February 17, 2004The more I read from conservatives and their arguments against gay marriage, the more I'm convinced that there simply isn't any there there. The latest is from William Kristol, who, along with Joseph Bottum, writes this article in the upcoming issue of the Weekly Standard. The article is almost purely rhetorical, with virtually nothing of substance offered in terms of legal arguments. It begins:
In an act of astonishing self-righteousness and self-congratulation, the Massachusetts Supreme Judicial Court has forced the question of marriage upon the entire United States.
Okay....were they wrong…
stcynic | February 15, 2004The Washington Post is reporting on the framing of the Federal Marriage Amendment, which has been proposed in Congress to ban gay marriages nationwide, that it is so poorly written that even its proponents don't know what it would prevent and what it would allow. The article begins:
In the spring and summer of 2001, a group of conservative legal scholars including former Supreme Court nominee Robert H. Bork hammered out the proposed text of a constitutional amendment banning same-sex marriage.
Participants say it was an informal, somewhat "messy" process conducted by e-mail and telephone so…
stcynic | February 14, 2004My thanks to Ed Darrell for pointing me to an article by Peter Gomes in the Boston Globe. Gomes is the Plummer Professor of Christian Morals and minister of the Memorial Church at Harvard. Of the recent court cases involving gay marriage, he writes:
We have seen this before. When the courts eventually invalidated long-established laws sanctioned by church and society that forbade interracial marriage, the so-called "miscegenation" laws that obtained in many parts of this country within living memory, the courts that did this were invariably maligned as interventionist, arbitrary, and…
stcynic | February 13, 2004Robert Bork has joined the faculty of the law school at the University of Richmond. According to the press release announcing his appointment,
"Judge Bork is one of the most prominent and controversial American legal intellectuals of modern times," Smolla said in announcing the appointment. "He is widely regarded as one of the most influential conservative constitutional law thinkers in America."
So far, so good. Hard to argue with that, Bork is both controversial and influential. But here's where we hit a roadblock:
Bork developed his theories of constitutional law while professor at Yale…
stcynic | February 13, 2004Russell Husted also left a couple of comments in response to my fisking of Mitt Romney's Wall Street Journal op-ed piece about gay marriage. Russell wrote:
Ed, you say "he's right on the general point that marriage predates our constitution and our nation, but he is wrong to imply that there has been anything like a consistent conception of marriage over those millenia and across cultural lines. The definition and limitations of marriage have varied dramatically over the centuries, both within and between different cultures."
That's true, of course, just as what is considered proper food to…
stcynic | February 12, 2004Just another note on the whole French ban on religious clothing or symbols. For all of France's screaming about following international norms and international law in the debate over war in Iraq, have they given no thought to the Universal Declartion on Human Rights, which they signed in 1948? Article 18 of that document states:
"Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching,…
stcynic | February 11, 2004The warning I gave in my post yesterday is echoed on CNN today. Is there really any doubt that banning the wearing of headscarves is only going to further radicalize the Muslim community in France? Not to French Muslim leaders:
"The majority of Muslims want to practice their religion in peace and in total respect of the laws," said Lhaj-Thami Breze, president of the Union of Islamic Organizations of France, the country's biggest fundamentalist grouping.
But "when you persecute, when you make fun of, when you refuse, when you don't respect beliefs, what is the consequence?" he said in a…
stcynic | February 10, 2004The lower house of France's parliament has voted to outlaw "signs and dress that conspicuously show the religious affiliation" of students in French public schools. The AP reports:
The measure, which would outlaw conspicuous religious clothing and symbols in classrooms, was approved 494-36. It goes to the Senate, where little opposition was expected, in early March.
I've been watching this story build from afar in total astonishment. I don't know anything about the French constitution (assuming they have one)...have they no provision for religious freedom at all? What on earth makes them…
stcynic | February 9, 2004Kudos to Steve Sanders for this article, entitled Federalists Do It Too: The False Debate Over "Activist" Judges. Sanders says what I've been saying for many years, that whenever you hear conservatives complain about judges "making law" as opposed to "interpreting the constitution", you're being fed a load of crap. Conservative judges are just as likely to be "activist" as liberal judges, and the complaints of judicial activism, on display so vividly during Bush's recent State of the Union address, are nothing more than political sloganeering, not serious statements about legal theory or…
stcynic | February 5, 2004Massachusetts Governor Mitt Romney has an op-ed piece in today's Wall Street Journal entitled "One Man, One Woman: A citizen's guide to protecting marriage." It's a perfect example of the wild leaps of logic inherent in arguments against gay marriage. He starts out with a statement that he appears to think is uncontroversial:
No matter how you feel about gay marriage, we should be able to agree that the citizens and their elected representatives must not be excluded from a decision as fundamental to society as the definition of marriage.
This is a serious misrepresentation of the issue at…