law
stcynic | March 11, 2006In Long Beach, California, the city is trying to invoke eminent domain to seize a Baptist church to make way for a condo project (yes, this is a Worldnutdaily article but the facts are accurate). It's being defended by John Eastman, who I believe was one of Sandefur's law school professors. He's not a guy I would agree on all that much on, but on this one I'm firmly on his side. I very much want another eminent domain case to make its way to the Supreme Court to try and overturn Kelo. There are 8 other cases around the country where cities are trying to seize churches. The legal issues are a…
stcynic | March 10, 2006The California Supreme Court ruled unanimously yesterday that the city of Berkeley could refuse to give a rent subsidy to a Boy Scouts project because they discriminate against gays and atheists. Berkeley had a policy of giving space at the city marina rent-free to non-profit groups, but they required that they agree not to discriminate; the Sea Scouts, associated with the Boy Scouts of America, would not agree to that condition so the city said they would have to pay for their slip. The group sued, claiming that the policy violated their right of free speech and association.
The ruling…
stcynic | March 8, 2006Three suspects have been arrested for burning down 9 churches in Alabama. All three were college students. One of them says that the fires were "a joke" that "got out of hand". Uh, yeah. Hilarious joke. If they're convicted, lock them up and throw away the key for a long, long time.
stcynic | March 7, 2006The Supreme Court yesterday upheld the Solomon Amendment, a law requiring universities to allow military recruiters to recruit on campus as they would any other potential employer (see ruling here). It was yet another 8-0 decision (Alito did not participate) in a relatively controversial case, which at least so far seems to be the story of the Roberts court. The decision is the correct one, I think. Obviously I am all for condemning the military for its anti-gay policies and have done so many times. But that doesn't mean you can prevent them from recruiting on campuses.
The arguments of FAIR…
stcynic | March 6, 2006I have been meaning to write more about Tom Monaghan's new Florida town, Ave Maria, for a while now. Monaghan, founder of Domino's Pizza, is building an entire town near Naples, Florida, and according to numerous news reports, he plans to make it into, essentially, his own little theocracy. No business would be allowed to open unless it agrees to follow his rules, among which are that no business may offer things which he deems to be immoral according to his conservative Catholic beliefs.
That means no medical clinics that perform abortions. Heck, it means no distribution of birth control,…
stcynic | March 1, 2006The Supreme Court ruled 8-0 that the RICO statute, a law intended to stop organized crime's use of extortion, could not be used against abortion clinic protestors. This is actually the second time the court has ruled this way, once in 2003 and once now. See the full ruling here. The court is absolutely right on this one and I've said that for years. Nice to see a unanimous decision put the issue to rest.
And given how often I defend the ACLU against ridiculous criticisms, here's one where I think they have earned some criticism. When the RICO act was being written and voted on, the ACLU…
stcynic | February 23, 2006I found this story via Radley Balko. An unmarried couple in Missouri, who have been together for 13 years and have two children together (and one additional child), are being evicted from their home because they don't meet the city's definition of a family:
Shelltrack and Fondray Loving, her boyfriend of 13 years, were denied an occupancy permit because of an ordinance forbidding three or more individuals from living together if they are not related by "blood, marriage or adoption." The couple have three children, ages 8, 10 and 15, although Loving is not the biological father of the oldest…
stcynic | February 21, 2006Those who are interested in eminent domain and takings law will be interested in this. The Oregon Supreme Court has reversed a lower court and upheld Measure 37, a law passed in that state by referendum that required the government to compensate property owners not only for the seizure of property but also for the reduced value of their property that might result from regulatory law. Last year, a state judge had struck down the measure in what was surely one of the strangest decisions I've ever read.
Measure 37 said the following:
(1) If a public entity enacts or enforces a new land use…
stcynic | February 21, 2006Here's an interesting blog with very valuable information about the highly dubious nature of breathalyzer tests and why, frankly, they should be inadmissable in court (and this from a guy who rarely drinks and never drinks and drives). Breathalyzer tests do not measure the presence of alcohol, they measure the presence of methyl compounds. They then multiply the concentration of such compounds in your breath by 2100, which is a calculation of how much alcohol would be in an average person's bloodstream if it is found in such concentrations in one's breath.
It's not difficult to see the…
stcynic | February 16, 2006Jim Babka, host of the radio show on which I was a frequent guest, is also the co-founder and president of the DownsizeDC Foundation (along with Perry Willis, a frequent commenter here, and Harry Browne, former libertarian candidate for President). DownsizeDC is currently working to pass a law called the Read The Bills Act, which would require legislators to have read every page of every bill before a vote is taken in the House and Senate. I think this is a great idea.
DownsizeDC points out that Congress often passes mammoth bills running thousands of pages when there isn't even a final…
stcynic | February 14, 2006Justice Scalia gave a speech in Puerto Rico yesterday in which he bashed the idea of a "living constitution" (and rightly so, I think, this idea is far too vague and insubstantial to be taken seriously) and proclaimed himself an originalist:
In a speech Monday sponsored by the conservative Federalist Society, Scalia defended his long-held belief in sticking to the plain text of the Constitution "as it was originally written and intended."
"Scalia does have a philosophy, it's called originalism," he said. "That's what prevents him from doing the things he would like to do," he told more than…
stcynic | February 13, 2006Following up on my post this morning about Randy Barnett's Taft lecture, Sandefur writes that he is a bit confused as well. That actually makes me feel better about it. It quells my nagging feeling that perhaps I'm just missing something (and perhaps I am, but if it's not obvious to Sandefur either I can be reasonably sure I'm not just being too dense to see it). At any rate, I agree with this statement completely:
Moreover, Barnett's laudable fascination with the Ninth Amendment strongly suggests that he, too, must be guided by liberal originalism. He complains that Scalia's version of…
stcynic | February 13, 2006I was going to write a post about this Jack Balkin essay commenting on Randy Barnett's Taft lecture concerning the various types of originalism. But then I realized, to my surprise, that I hadn't posted anything about Barnett's lecture in the first place. I had begun to do so, and saved it as a draft, but then somehow forgot about it. So I guess now I need to write up something about both the lecture and Balkin's comments on it.
The Taft lecture is an annual event where a leading legal scholar speaks on constitutional interpretation. It is of course named after William Howard Taft, who was…
stcynic | February 4, 2006I don't know if any of you saw last night's Dateline NBC show about sexual predators online. It was dragged out way too long and redundant, very poorly produced, but I think the project is very valuable. Working with the folks at Perverted Justice, a group that tracks and exposes folks who troll for sex with children online, NBC and the Sheriff's department in Riverside, California, set up a sting operation. Posing as 12 and 13 year old boys and girls in chat rooms, they would get messaged by men and set up dates with them. When the men arrived, they were confronted on camera and then…
stcynic | February 2, 2006Randy Barnett, one of my favorite legal scholars, has a new article available on SSRN called Scalia's Infidelity: A Critique of Faint-Hearted Originalism. In this article, he continues to distinguish "originalism, properly understood" from the brand of conservative originalism of which Justice Scalia is the most prominent advocate. In particular, it is based upon Barnett's William Howard Taft Lecture and is essentially a response to the Taft Lecture that Scalia gave in 1988, a very prominent speech in which he famously distinguished between an originalism that focused on the original framer's…
stcynic | February 1, 2006I have written extensively in the past about the 14th amendment and the doctrine of incorporation. I'm still baffled by those who take the position that the 14th amendment did not make the Bill of Rights enforceable against the states. The historical evidence against that position is very strong. I once debated Herb Titus on Jim Babka's radio show about that subject and he took the even stranger position that the 14th amendment only incorporated the first three amendments against the states.
In reading Akhil Amar's new book, I came across yet another piece of compelling evidence that the…
stcynic | January 30, 2006Sandefur has posted the first criticism of Amar's new book on the Constitution and does an excellent job of handling Amar's far too expansive view of the commerce clause. While all four Positive Liberty contributors are big fans of Amar's scholarship, this is one area of his book that really jumped out at all of us as being inaccurate. I'm reading the section on the reconstruction amendments currently and will probably write something about that issue soon.
stcynic | January 30, 2006While I'm on the subject of originalism and constitutional interpretation, I really should link to Timothy Sandefur's brilliant article in the Harvard Journal of Law and Public Policy entitled Liberal Originalism: A Past for The Future and to Randy Barnett's equally brilliant article, An Originalism for Non-Originalists. Both articles help flesh out the idea of liberal originalism, an originalism based upon the application of the founding principles found in the Declaration rather than on the letter of the law at the time of the founding.
stcynic | January 30, 2006James Ryan has a very interesting review of two books that critique originalism as a compelling theory of constitutional interpretation available at SSRN (it will be published in the Stanford Law Review soon). One of the books he reviews, Active Liberty, is written by none other than Supreme Court Justice Steven Breyer and it is aimed primarily at Justice Scalia's brand of originalism. Breyer and Scalia have appeared at forums together essentially debating this subject over the last few years, which I would pay good money to see as I think they are the two finest minds on the court. This book…
stcynic | January 27, 2006Thanks to spyder for pointing me to this really excellent essay by Michael Berube on academic freedom and the threats to it currently. It's very long but worth the trip.