The Eleventh Circuit recently heard oral arguments in the case, and SA patron saint, Judge William H. Pryor Jr., gave an ACLU lawyer the business:

ACLU lawyer Daniel Mach had barely started into his arguments when Judge Bill Pryor interrupted him, asking how courts can know when a prayer is sectarian or nonsectarian.

“What about King of Kings?” Pryor asked. “Is that sectarian?”

Stammering, Mach answered that phrase could “arguably be a reference to one God.” Mach later agreed that, in some instances, it is hard to draw a bright line of distinction.

“What about Lord of Lords?” Pryor asked again. “The God of Abraham?”

“That’s a tougher call,” Mach said, responding to the second question. “Several faiths believe in the God of Abraham.”

Pryor, a former Alabama attorney general, pressed on.

“What about the God of Abraham, Moses, Jesus and Muhammad?” he asked. “Or Heavenly Father?” he continued, noting that could refer to the Divine Trinity.

Heh. Elections matter, folks.

Here’s a report of Professor Kmiec’s thoughts on the Warren Forum:

Douglas Kmiec, a conservative lawyer who is pro-life but has endorsed Mr. Obama, called the Democrat’s answer “much too glib for something this serious.”

He added, however, that Mr. Obama’s entire response was more “thoughtful” than Mr. McCain’s.

I suppose in Kmiec’s newly-formed world view, this is what passes for “thoughtful”:

(see transcript and additional commentary below the fold)

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Howard Bashman reports that a three-judge panel of the Seventh Circuit–with my judge (Manion) and Judge Sykes in the majority and Judge Rovner in dissent–issued an opinion today holding that under the Supreme Court’s decision in Georgia v. Randolph a husband’s objection to the search of his premises did not preclude a valid search, conducted solely on the wife’s consent, once the husband had been validly arrested and removed from the dwelling.

Captive Miranda, Lord knows I have not given a thought to the paperwork you sent me.

Let me tell you, Captive, that our release is not in the hands of the lawyers or the hands of America. Our release is in the hands of He who created us.

The poem, “To My Captive Lawyer, Miranda,” was written by Abdullah Saleh Al-Ajmi while he was a detainee at Guantanamo Bay, Cuba. No doubt, it would have given the former detainee, who was released in 2005, immense satisfaction to know that his last earthly deed was referenced in Justice Antonin Scalia’s dissenting opinion in Boumediene v. Bush. That’s the recent Supreme Court decision that gave Guantanamo detainees the constitutional right to challenge, in habeas corpus proceedings, whether they were properly classified by the military as enemy combatants. Abdullah Saleh Al-Ajmi, on the left [above], in a martyrdom video posted on an al Qaeda Web site. Al-Ajmi, a 29-year-old Kuwaiti, blew himself up in one of several coordinated suicide attacks on Iraqi security forces in Mosul this year.

That’s how Debra Burlingame’s op-ed piece in today’s Wall Street Journal begins. Read the whole thing here.

(cross-posted)

My buddy Milbarge has the latest.

Professor Franck nails it:

This highlights what is perhaps the most salient difference between conservatives and liberals today regarding constitutional interpretation—for conservatives most certainly do have a theory, and a wholly satisfactory one, namely originalism.  It is not a flawless theory, or at least not a wind-up machine of utmost simplicity: it is not self-executing, and its practitioners have sometimes markedly different conclusions about the Constitution’s meaning.  But it has at least three advantages.  First, it supplies interpreters with a common vocabulary and a set of common premises for the beginnings of constitutional reasoning.  Second, it is the only interpretive method that supplies even potential safeguards against the judicial abuse of the Constitution and the rule of law.  And third, its principles, honestly applied, force the interpreter to set his politics aside as irrelevant to the interpretive task.

Blackadder answers this question in the affirmative in this thoughtful and compelling post.

“You Can Go Home Again” by Quin Hillyer.

“Individual Liberty and the Constitution” by Robert Bork, and the responses by Roger Pilon, Steve Calabresi, and Barry Friedman.

“Talking About Everything But What Matters” by Robert Samuelson.

“What onions teach us about oil prices” by Jon Birger.

Courtesy of Professor Jonathan Adler:

The whole point of a written Constitution is to place limits on the ability of popular majorities to enact their will. The issue is not whether the Supreme Court invalidates popular policies but when the Court does so.

Where’s Andrew Sullivan when you need him?

Hey Andy, here’s a real Christianist for you.*

*For an excellent rejoinder to MM’s screed, please see this post by Jeff Martin over at What’s Wrong with the World. Dale Price and Cranky Con are also on the case.

For those of you who don’t have the time or inclination to read Heller, here is a summary of Justice Scalia’s majority opinion (with much of the specific rejoinders to the dissenters omitted):

-”The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose.”

-”Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose.” (more…)

I am still working my way through the majority opinion (I like reading footnotes), but I can already tell y’all this much: Scalia’s majority opinion is one of the worst judicial a*s whippings I have ever had the pleasure of reading. Nino smacks Stevens around like a red-headed stepchild. I almost feel sorry for the poor soul.*

Almost.  

In short, Scalia’s majority opinion in Heller is originalism at its finest.

(Cue weeping and gnashing of teeth by Publius and Morning’s Minion-who doesn’t even pretend to care about the Court correctly interpreting the Constitution)

I’ll have more soon.

*Scalia gets in a few digs at Breyer as well, but Stevens bears the brunt of Nino’s scorn in this opinion.

Update: O.k., I’ve finished reading Heller. There are a few weak spots in Scalia’s majority opinion, which I will discuss in due course. But all in all, Nino did an outstanding job of explaining and defending the original meaning of the Second Amendment. And fwiw, my guess is these weak spots have Justice Kennedy’s penumbra-stained finger prints all over them.

Now, I need to go and bill some hours for my employer. I’ll try to post more detailed thoughts/analysis on Heller this evening.

I thought my papist hommies would get a kick out of this passage from Scalia’s majority opinion in Heller:

The phrase “keep arms” was not prevalent in the written documents of the founding period that we have found, but there are a few examples, all of which favor viewing the right to “keep Arms” as an individual right unconnected with militia service. William Blackstone, for example, wrote that Catholics convicted of not attending service in the Church of England suffered certain penalties, one of which was that they were not permitted to “keep arms in their houses.” 4 Commentaries on the Laws of England 55 (1769) (hereinafter Blackstone); see also 1 W. & M., c. 15, §4, in 3 Eng. Stat. at Large 422 (1689) (“[N]o Papist . . . shall or may have or keep in his House . . . any Arms . . . ”); 1 Hawkins, Treatise on the Pleas of the Crown 26 (1771) (similar).

Yes, the same Doug Kmiec who has endorsed Barack Obama for President went on the talk-show, op-ed circuit in October 2005 to support President Bush’s nominee to the U.S. Supreme Court, Harriet Miers. This is what Professor Kmiec wrote in a 2005 Washington Post piece:

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I think he is reading way too much into the SCOTUS’s recent retaliation rulings, but his effusive praise of these decisions demonstrates in spades why the justices should pay no mind to the doctrine of stare decisis outside the common-law context.

I’ve said it on countless occasions, and I will take this opportunity to do so again: Stare decisis is fo’ suckas!

It’s not enough for a woman to have the right to murder her unborn child. Some proaborts apparently believe that they are also entitled to censor anyone who disagrees with them on the abortion issue.

Professor Kerr nails it:

Let me paint with a very broad brush and offer my best explanation. The primary reason, I think, is the nature of the Supreme Court’s docket in the last fifty years. During that period, most high profile Supreme Court constitutional law decisions have considered whether to ban practices embraced by conservatives rather than whether to ban practices embraced by liberals. For conservatives — especially social conservatives, and especially religious conservatives — the question has been whether the courts will allow their views, not whether the courts will mandate them. (more…)

In case any of y’all are still looking for a reason to support McCain over the likes of Obama:

McCain plans to continue, and perhaps even accelerate, George W. Bush’s conservative counter-revolution at the Supreme Court . . . . The question, as always with McCain these days, is whether he means it. Might he really be a “maverick” when it comes to the Supreme Court? The answer, almost certainly, is no. The Senator has long touted his opposition to Roe, and has voted for every one of Bush’s judicial appointments; the rhetoric of his speech shows that he is getting his advice on the Court from the most extreme elements of the conservative movement.

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.