September 15, 2008

"Should I Worry About Becoming a Slave Again?"

I know everyone's mad at Whoopi Goldberg for asking that question, but she was simply articulating a common fear that people have about strict constructionism, and it's a fear that right-wingers must address, particularly if we are going to assert that as a matter of law, it might be more appropriate if abortion were to be decided by the states, rather than by Federal overreach.

And it is a stickier issue than people like to admit.

What Whoopi is asking here:

is "how far do you want to turn back the hands of time?"

And whenever we talk about how we want the Constitution interpreted with the Founding Fathers' intentions factored in, we're going to get asked that question by the "living Constitution" crowd.

I think we should get asked that question by the "living Constitution" crowd.

Because the way I see is—as someone who has never set foot in a law school—the dirty little secret is that even strict constructionists wink at a certain kind of Federal "overreach," especially of the "Brown v. Board of Education" type. Because that same clique of crazy guys who wrote the original Constitution without spilling any of each other's blood managed to put together that "Declaration of Independence" thingie, which declared that "all men are created equal" [clearing the way for "all men and women are created equal," English being a Germanic language—and "man" being German for "one," the individual, gender aside: the "smallest minority"].

So strict constructionism has to do with intent, and we have a lot of supporting documentation on the Founding Fathers' intent—which was to create a new type of freedom for the individual, by limiting the power of the State. They had a vision, and it was a capitalist, individualistic vision.

The problem in comparing abortion "rights" with other types of rights is that in the particular case of abortion there are two individuals involved, and their rights/obligations have to be balanced against each other.

That is why abortion is problematic, and could well at some point be returned to the states to decide. It is also why gay marriage is inevitable, whether or not we go through a couple of decades of calling it "civil unions" or not. (Or, as I would prefer, call all legal unions "civil unions," and make them all legally equal. Then people could do the church part if they liked, and call 'em marriages if they liked. And no one would have to use the word "marriage" for anyone else's "civil union" if they didn't want to. And we could all stop arguing about that.)

Once one looks at the Constitution through the prism of the Declaration of Independence, it's easy to see that constructionism is not going to roll back civil rights (again—unless you see abortion as a civil right, which is all well and good, but you got there [and I am pro-choice] by rolling over the rights of the fetus).

This clip apparently upset a lot of people.* I thought it was fine; McCain came off very well, and in order to do that he didn't have to pretend not to be religious, or pretend that Constructionists didn't pose a danger to Roe v. Wade.

He just had to be himself, and he was funny. People always forget that McCain's funny, and it catches 'em off-guard.


* Including Allah, whose answer on abortion would be a Constitutional Amendment. Ouch. I'd much rather see that one determined by the states, if Roe v. Wade ever were ever to be overturned.

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July 20, 2008

I Like the Fact That the Justices Included Drawings.

That's some attention to detail.


Supreme Court Rules Death Penalty Is 'Totally Badass'

Nice to see a little rigor in the current court.


h/t: Rachel.

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May 25, 2008

Catalano

. . . on why we shouldn't take kids away from their families without good reason, and a little bit of case-by-case sorting.

Apparently we have a presumption of innocence thingie in this country, and that means law enforcement isn't supposed to have quite so many swashbuckling adventures in the realm of family law.

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March 22, 2008

Justice Thomas

Clarence Thomas got a nice little profile today in WSJ.

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January 09, 2008

Look, We Know What's at Stake . . .

WRT this voter ID issue: Americans hate to show their I.D.

And Americans hate to be fucked with when they are voting.

Personally, I find the idea that hotels ask for my I.D.—even when I'm paying with cash—to be rather oppressive. And the idea of living in, um, a country like Europe, wherein the cops could stop one on the street and ask for "papers," fills me with loathing.

But voting is a solemn thing; it's at the core of democracy. And voter fraud is intolerable. We've got to allow states to put safeguards in place. Yeah, yeah: Chicago will be especially hard hit if voter fraud goes out of fashion. But somehow I think the Windy City—and the rest of us—will soldier on.

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March 06, 2007

The Libby Conviction

I dunno: it sounds like there might be grounds for an appeal, but I haven't read the law bloggers on that yet, so what do I know?

Glenn has a mini-roundup, with a link to the big PJ Media roundup.

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January 18, 2007

Classical Values:

"The Eighteenth Amendment proves that the Constitution once meant what it said."

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January 03, 2007

There's an Interesting Discussion Going On

. . . over at Tammy Bruce's place regarding the morality of pay raises for public servants in general, and Federal judges in particular.

It reminds me of Catherine Beecher's campaign to get women into the teaching profession, especially on the western frontier. Her argument was precisely this: cash-strapped towns in the West could get a qualified female teacher for a quarter or a third of what a male teacher would cost.

And a lot of women got work in those "pink-collar" jobs for years: it became an easy and respectable way to get out of the house. But now the entire profession is underpaid because the tradition of underpaying was established. All this flows from the notion of work as something one does from civic-mindedness, a desire to give. I believe deeply in that, but it does lead to "brain drains" in any number of fields.

The reasons for which society is willing to pay for certain skills are often bizarre and arbitrary.

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April 03, 2006

Word Just Came In

. . . from SoCal LawBlog regarding the Bear Flag League's brief in the Apple case (O'Grady v. Apple):

As some of you may know, the BFL filed an amicus brief with the California Court of Appeal in the litigation between Apple and two bloggers. We weighed in on the issue of a blogger's entitlement to the same first amendment protections that traditional journalists received. We filed our brief about a year ago and the court has since been very quiet. Last week we received notice that the court will hold oral argument this month. I'll keep you updated on the status of the case.

Included in the e-mail is a link to the Electronic Frontier Foundation's website; the Foundation is following the case. (You'll note that the BFL amicus brief is the first one listed in the Foundation update linked above.)

For more on the Golden State bloggers behind the Bear Flag League, start here.

BTW, I'll grant that there are a lot of us, but keep in mind that the last time I checked, California was the most populous state in the country. (I said "populous," not "popular." Yeah, I know people love to hate us. Especially people who live here. I don't see 'em making plans to move, of course. As for me, you'll have to pry the palm fronds out of my cold, dead fingers.)

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January 31, 2006

The Way I Figure It,

Teddy Kennedy and Samuel Alito are having a passionate affair. It's really the only explanation that makes sense.


(h/t: Goldstein, who as I understand it does not endorse my theory)

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January 14, 2006

"The Most Important Issue of Our Day

. . . is being decided right now," he tells me. "And people are oblivious."

"What's the issue?" I ask.

"The limits of Executive Power. The relationship between Congress and the President. I care about that much more than I care about abortion."

This clarified things for me enormously, because I had thought the big issues of the day were things like:
1) whether/how Israel will survive;
2) whether parts of Asia or the Middle East were going to be annihilated in a nuclear war;
3) whether terrorists would succeed in taking out both the White House and the Capitol building at the same time, thereby effectively decapitating the government of the United States as the 9/11 terrorists attempted to do;
4) whether Europe would remain Western and liberal in its outlook, or whether it would instead be overtaken by the unenlightened segment of it growing Muslim populations, and
5) just how much bloodshed there would be in the growing conflict between Islamism and Western-style liberalism.

But, no. Apparently the issue is that Bush is packing the Supreme Court with justices who will give him a little bit of latitude in fighting this war, though he hasn't approached the liberties FDR took with the system—much less those Abraham Lincoln felt forced to take in keeping the Union together.

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Wow. Are They Doing It On Purpose?

From the New York Times:

Few Democrats or analysts said they thought that Judge Alito's nomination could ever be blocked. "It may be a mistake to think that their failure demonstrates that they necessarily did something wrong," said Richard H. Fallon, a professor of constitutional law at Harvard Law School. "As long as most of the pubic will settle for evasive or uninformative answers, maybe there was nothing that they could have done to get Alito to make a major error."

Amazing. Apparently, Ruth Bader Ginsberg just appeared on the Supreme Court one day, like Venus on the half-shell. Or Fallon had a dream in which she answered the sorts of questions Alito didn't.

Or, most likely: nominees appointed by Democrats should be rubber-stamped no matter how ideologically extreme they are, whereas Republicans' nominees must be grilled.

The "Ginsberg rule," in other words, only applies to nominees who are "within the judicial mainstream." And the mainstream is, of course, leftist.


Paging Alice in Wonderland . . .

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January 13, 2006

What a Fascinating Notion.

Goldstein's covering the confirmation hearings, and he's on more drugs than usual.

It's not like my uterus has ever done me any good, other than garner strange praise from OB-GYNs, who get oddly enthusiastic about my reproductive organs, despite the fact that I've never truly exploited their potential.

So the uterus-as-accessory idea might be the way to go.

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January 12, 2006

Robbo

. . . has some ideas for how to bring some depth and intelligence to the Alito confirmation hearings.

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January 11, 2006

Okay. I'm Officially Worried.

Volokh has weighed in on the "troll law."

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November 29, 2005

The Fair Construction Amendment

It's an interesting notion: requiring that the Constitution be "interpreted" as it was written, without finding things in it that aren't there. It would essentially make judicial activism unconstitutional. One wonders whether such an amendment would even be enforceable, but it's certainly intriguing.

Karl Spence is a proponent, and his latest book focuses on the crime wave of the 1990s, explaining how the Fair Construction Amendment would augment the rule of law. If nothing else, his title is gutsy: Yo, Liberals! You Call This Progress?

This book, other books, and some background on the Fair Construction idea are available here.

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November 03, 2005

It's an Alito Jamboree!

See the Truth Laid Bear topic page on SCOTUS Sam.

(Also, link my Alito posts; I'm only #186 on the list of bloggers covering this topic, and I deserve to be higher on the list because . . . because the novacaine is wearing off . . . or because I'm cute . . . or because I'm so freaking smart . . . or BECAUSE OF THE GOLDSTEINIAN HYPOCRISY/PATRIARCHY . . . or, something).

[h/t: Insty.]


Actually if you want to read the definitive analyses of Alito's positions, you need to go to Patterico's place every day, and keep scrolling. (Here: this gateway post will probably take you there faster.)

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My Advice to the Gay Community

Don't worry about facts: lock and load!

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October 31, 2005

On Second Thought

. . . I don't want to see SCOTUS turned into an episode of The Sopranos. Maybe we'd better find someone else; we're already heavy on the wops.


I wish you'd stop looking at me like that.

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More on Alito

Joyner calls him "a homerun pick."

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