By judicial fiat.

In other news, Rome continues to burn.

I’m having a Gollum-like internal struggle over the polygamy raid in Texas.  On the one hand, I’m a firm believer in the rule of law and protecting the innocent, so I can get behind the idea of saving all the children from general religious craziness.  I’m also not overly religious, so I have no sympathy in their “moral” defense.  And yet . . . isn’t there something inherently disturbing about law enforcement and child protective services storming the bigamist beaches, as it were, ripping dozens of children from the breasts of their mothers and fathers on nothing more that the fact that they all live in a town where a couple of people have been accused of rape?

I believe in statutory laws, to some extent (I have problems with the application more than anything else).  I understand that polygamy is, at least, a statutory no-no.  But this one is not passing the smell test for me.  I don’t want 13-year olds forced into marriage with 50-year olds.  I don’t want children brainwashed into some sort of mindless, communal servitude.  But I also think that parents should, within bounds, be able to raise their children as they wish.  And I certainly don’t think that the police should be able to take my kids away solely based on the fact that one of my neighbors raped a girl and we just happen to go to the same church. 

If the authorities had arrested just the specific alleged offenders and taken them to jail, I’d be all for it.  But to sweep through an entire town on the accusations of a few people is a bit much for my conservative anti-authoritarian streak. 

So, what say you, dear reader?  Is this just a visceral response to polygamy?  Do you think the State acted appropriately here, and, if so, do you really think the children, as a group, are better off now?

“What gross deception and fatal delusion! Although very considerable benefit might be derived from strengthening the hands of Congress, so as to enable them to regulate commerce, and counteract the adverse restrictions of other nations, which would meet with the concurrence of all persons; yet this benefit, is accompanied in the new constitution with the scourge of despotic power, that will render the citizens of America tenants at will of every species of property, of every enjoyment, and make them the mere drudges of government. The gilded bait conceals corrosives that will eat up their whole substance.”

 I’m sure we’re going to be the best of friends.

Oh, Publius, what am I going to do with you?

For a general rebuttal of Publius’s “originalism is a fraud” rhetoric, please see here, here, here, here, and here,

The Federalist Society has an excellent podcast up concerning the Supreme Court case of Riley v. Kennedy, featuring future Supreme Court justice (and, more importantly, fraternity brother of the fedster), Kevin Newsom.

Check it out. It is always a treat listening to Kevin discuss complex legal issues. In my mind, he is, hands down, the most brilliant lawyer of my generation, and I expect that “President” McCain will be appointing him to the federal bench in the near future.

Sigh.

My buddy, Joseph M. Knippenberg, has an excellent post on this topic over at First Things “On the Square” blog.

WTH?

For reaction, see Ed Whelan and Andrew Hyman.

This article, “From Public Square to Market Square: Theoretical Foundations of First and Fourteenth Amendment Protection of Corporate Religious Speech,” by Julie Marie Baworowsky, addresses the question of whether “corporate religious expression [should] receive protection under the Fourteenth Amendment’s Due Process Clause and under the First Amendment’s Speech Clause.”

It looks to be a fascinating read. Check it out.

From the San Francisco Chronicle:

More than two years after it nullified nearly 4,000 weddings of gay and lesbian couples performed at San Francisco City Hall, the court voted unanimously Wednesday to decide whether state law, which defines marriage as the union of a man and a woman, violates a constitutional right to marry the partner of one’s choice.

The justices granted a hearing on appeals by same-sex couples and the city of San Francisco after a state appellate court voted 2-1 on Oct. 5 to uphold the state law, which the Legislature passed in 1977 and voters reaffirmed in 2000.

Sorry, Publius, I gotta agree with Ike.

Freedoms and liberties gained outside the rule of law always end up causing more harm than good in the long run. Therefore, while I certainly appreciate and embrace many of the results from the Warren Era of the Supreme Court, the fact remains that Warren was an awful Chief Justice, who penned and cobbled together some of the most pathetically-reasoned opinions in the Court’s history. Indeed, as some constitutional scholars have demonstrated, some of the Warren Court’s decisions can be justified on different grounds vis-a-vis the text, structure, and history of the Constitution. 

Thus, while Publius and I are in agreement that rogue Southern officials deserved to be smacked down with impunity by the feds for their outrageous, illegal, and immoral resistence to recognizing the natural/civil rights of African Americans, this governmental rebuke should have come from Congress and not the Supremes. We have three branches of government and separation of powers for a reason, folks, and if our elected legislators aren’t doing their jobs, then they need to be voted out of office by “we the people.”

The rule of law is not simply “abstract logic and interpretative theory.” It is (or should be) much more than that. As Cicero once remarked, “We are in bondage to the law so that we might be free.” And this “bondage” requires that we work to eradicate injustices, wherever we find them, through the system designed by the founders/framers, rather than by creating law out of wholecloth.

When Lithwick is good, she’s very good.

Hey Publius, when are you going to disclose your identity? You and I need to do the poor-man version of the Scalia-Breyer debate to feddie and ACS law-student chapters throughout the country.

I may be missing something, but it seems to me that Publius’s “ladder” critique of originalism is based on a false premise, i.e., that all constitutional questions are of equal difficulty and/or are to be approached using an identical analytical framework. But as any student of constitutional law knows, this is simply not the case. 

Some constitutional questions can be disposed of by way of a purely textualist approach. Others require the use of external sources (e.g., Elliot’s Debates, Tucker’s Blackstone) to help discern the parameters of a common law term of art or the commonly understood meaning of the provision at the time of ratification. And in the case of the sweeping language used in the Fourteenth Amendment, the meaning of the relevant text will often require considerations of the language’s history and operative effect in the context of all three Reconstruction Amendments (i.e., structural concerns). The common thread running through all of these originalist approaches is one of judicial restraint.

So, when Publius speaks of originalism’s “levels of abstraction,” I think he is conflating the nature of the Constitution’s text with the methodology used to interpret it. He apparently fails to appreciate the profound distinction between original intent/understanding and original meaning; but this is a common mistake made by his crowd, and one I don’t think they’re terribly interested in correcting any time soon. Indeed, the underlying purpose of Publius’s post is to convince his readers that the entire Constitution is abstract, and that there really aren’t any definite constitutional standards/answers, only aspirational guidelines to be fleshed out by our robed masters.

At least that’s my take. 

Raise a glass tonight to the Twenty-First Amendment (preferably Blanton’s).

(Thanks to Jeff H. for the heads up)

Professor Cass R. Sunstein has a new law-review article out, “Burkean Minimalism,” that many of SA’s readers may be interested in reading.

(Thanks to Andrew for the link) 

Ohio State history professor Saul Cornell is the author of the new book A Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in America (New York: Oxford University Press, 2006), and of the law review article “St. George Tucker and the Second Amendment: Original Understandings and Modern Misunderstandings,” 47 W. & M. L. Rev. 1123 (Feb. 2006). Cornell is a talented writer and researcher, but his treatment of some topics is extremely misleading. In a new draft article, “St. George Tucker’s Second Amendment: Deconstructing ‘The True Palladium of Liberty’,” Stephen P. Halbrook takes the reader step-by-step through Tucker’s monumentally influential annotated American Blackstone, the most important legal treatise of the Early Republic. Analyzing Tucker’s Blackstone, and other writings by Tucker, Halbrook shows that Tucker explicitly recognized the Second Amendment as an individual right, including the right to posses firearms for personal self-defense, unrelated to militia duty. As Halbrook proves, Cornell has built has argument through highly selective quotations and the omission of portions of the treatise which directly contradict Cornell’s thesis.

Steve, I don’t doubt the story you mention below is true.  Wouldn’t surprise me a bit.  If Bush had been serious about the idea, he could have kept guys like Jim Wallis on board.

On the other hand, we got something better than faith-based charities from this administration.

Their names are Roberts and Alito.

They tried that Miers crap on us and that would have been more faith-based charities sunshine up the rump, but we didn’t lay down for it and we got a real justice appointed.

In short, I think we came out ahead.

here.  Good call, editors!

Title notwithstanding, be sure to read Professors Richard W. Garnett and Michael Stokes Paulsen’s excellent piece over at the Weekly Standard, in which they argue that the Supremes should overrule the abomination that is Stenberg.

I especially liked this excerpt:

What about stare decisis, though? Don’t the editors at the Times have a point when they urge deference to precedent? Of course they do. It is eminently sensible for courts to stick with settled decisions, absent special and strong justification. But the doctrine of stare decisis, properly understood, is not an inexorable command of blind, unquestioning adherence to the most recently decided case. It is not, as Justice Frankfurter once put it, the “imprisonment of reason.” It is, instead, a principle of judicial policy, a flexible, practical idea that leaves plenty of room for discretion as to how it should be applied in any given set of circumstances.

That’s not quite “stare decisis is fo’ suckas”; but it will do.

Professor Kerr has the details on Hahvahd’s plans to do just that. Now, I am well aware that the Hahvahd folks could care less what some country lawyer thinks about this idea, but fwiw I am all for it.

I do, however, have a few minor suggestions that I would like to offer up for consideration. Why not break the first year of law school down in the following manner:

First Semester:

The Constitutional Debates: Examining the debates from the federal and state constitutional conventions.

Constitutional text, structure, and history

It’s not in there!: Imagined constitutional rights, penumbras, judicial activism, and the “Prego” Constitution. 

Statutory Interpretation & Textualism

Federalism & States’ Rights

Second Semester:

Originalism and the jurisprudence of Justice Clarence Thomas 

Ignoring legislative history, the common law, and stare decisis

Justice Kennedy: Worst supreme court justice ever?

The Bork nomination and the politicization of the judicial nomination process by the legal left

The Nondelegation doctrine

This post over at the Volokh Conspiracy may be of interest to SA’s many law-nerd readers.

You may want to check out the comments as well. I am currently engaged in a debate with a fellow named Simon that some of y’all might enjoy reading.

If any of y’all have ever wondered about Legal Fiction being in SA’s First Brigade, here’s a perfect example of why my buddy Publius makes the cut.  He may be wrong on a whole host of issues (and believe me he is), but he cannot abide by legal hackery, even when it produces a result with which he agrees.  And for that, I salute him.

Well done, good sir.

(Pssst. Don’t tell Publius I said this, but methinks there is an originalist lurking beneath his internal penumbras just dying to burst out and scream, “I love you Nino! I really do! Alden v. Maine forever!”).

So, I’m hanging out with a lot of happy midwesterners at the Wilderness Resort in Wisconsin Dells.  Enjoying my Paul Bunyan breakfasts and waterparks galore.  Everything is just lovely until I page through the funnies and run into this gem from Non Sequitur by Wiley Miller:

“Everyone here is granted one wish?  That’s so cool!”

“Well, not always.  See that man over there?  He was a strict constitution originalist on the Supreme Court and wished to see all the amendments removed.”

“Clarence, be a good slave and fetch me some coffee.”

“Yessir!”

“And who’s that guy who owns him?”

“That’s Antonin Scalia.  He made the same wish.”

Now, let me tell you something.  There’s ugly and there’s stupid.  And there’s ugly and stupid.  This comic by Wiley Miller hits on both cylinders. 

First, a constitutional originalist has nothing against amendments to the constitution since they are provided for in the text itself.  Second, the hatefulness of presenting Clarence Thomas as a self-destructive slave wannabe and Scalia as a hopeful slave owner is simply disgusting.  I cannot imagine an attack of similar vehemence from a conservative writer passing without complete exile from polite company. 

See you in the not-so-funny papers.

Michael McConnell reviews Justice Breyer’s Active Liberty in the Harvard Law Review.

UPDATE: Having read through the review now, it seems to me that McConnell’s critiques help point up the main problem with Breyer’s “active liberty.”  Namely, they show how there’s an ambiguity between thinking that the Constitution means that judges should show deference to democratic decision-making and thinking that the Constitution means to empower individual citizens to participate in their own self-government.  What McConnel points out, though I don’t think he says it in so many words, is that Breyer’s judicial opinions (if not the arguments in the book) tend to range between these two.  For those who are more “democratic” in their political thinking, this has always been a conundrum, starting with Rousseau’s Social Contract.  There, he invokes the “General Will” and some superhuman Legislator as a way of solving the “problem” that, sometimes, what the “people” decide isn’t always actually what the “people” should want.  I don’t think there’s anyway to cross that chasm, mostly because I don’t have all that much faith in the “people”, but I think the best way to understand Breyer’s “active liberty” is another, fairly meager, attempt to do so.
(HT to Stuart Buck)

Justice Dillard, concurring in judgment only

I write separately to note my agreement with the majority that “violation of the ‘knock-and-announce’ rule does not require suppression of evidence found in a search.” Indeed, the notion that the “violation” of a judicially-created rule mandates the imposition of a judicially-created remedy under the Fourth Amendment is the height of follly. Neither the “knock-and-announce” rule or the exclusionary rule have any basis whatsoever in the original meaning of the Fourth Amendment, and as such both of these regrettable legal fictions should be jettisoned immediately by this Court with impunity.

Here is a law review article by SA reader (and president of the University of Minnesota law school’s feddie chapter), Jason Adkins, that may be of interest to those in the cabal (and perhaps even a few penumbra lovers). Enjoy.

Good.

(LvBlawgfather)

Stanley Kurtz has an excellent piece over at the Weekly Standard, which notes, inter alia:

More important, by training us to see marriage as a civil rights issue, gay marriage advocates have largely defanged all of these structural arguments. Redefining the family is increasingly seen as a fundamental right. And the courts are beginning to agree. In his prize-winning law review essay “Polygamist Eye for the Monogamist Guy,” Michael Myers argues that if the Supreme Court interprets Lawrence v. Texas the way the Massachusetts Supreme Court did in its decision legalizing same-sex marriage, the right to polygamy will logically follow.

The solution is to treat marriage as a social institution whose fundamental purpose is to encourage mothers and fathers to build stable families for the children they create. Same-sex marriage breaks this understanding, thus encouraging the sort of unstable parental cohabitation we see in Europe, where cohabiting parents break up at two to three times the rate of married parents

There’s the NRO perspective.  Then, there’s this logic-defying Opinion Journal perspective.

Is it just me, or does anyone else notice a disturbing trend among conservative politicians: relying on broad provisions of the Constitution in very specific cases without any jurisprudential basis. I am thinking specifically of the Bush Administration’s claim that “the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents” vis-a-vis his Commander-in-Chief power, and Speaker of the House Haster and former Speaker Gingrich’s contention that the FBI’s recent raid of Representative Jefferson’s congressional office violated the separation of powers doctrine. 

Now, it could very well be that a clever constitutional scholar can/will/has concoct(ed) a convincing argument in each of these cases that substantiates/justifies the foregoing positions. But even so, the message being sent by conservative politicians is loud and clear: We’re whores too.

Indeed, I believe the day is fast approaching when the majority of conservatives will succumb to (and even embrace) the temptation Judge Bork identified not so long ago: the complete politicization of the judicial branch (and the law).

How sad for the conservative movement. How sad for our constitutional republic.

I am with Justice Scalia: “I say a pox on both their houses!”