Presentations

I thought Kim and Marco did great jobs yesterday. Interesting issues, and very good presentations.

I want to apologize to Marco for the abrupt end of class. I know many of you have evening plans, but I think from now on we should budget, say, an extra 15 or 20 minutes to give everyone an opportunity to finish their presentaions.

Hopefully, the computer problems we had yesterday won't reoccur, so we should be able to finish on time. But if we need an extra 15-20 minutes to allow a student to finish his or her presentation, then so be it. If you have to leave at 6:30 on the dot, that's ok. But the rest of us should plan on staying til the last out in the 9th inning.

Have a great weekend. Rick Duncan

Nino on Foreign Law in American Opinions

Hot off the press!

Here is a link to a speech Justice Scalia gave earlier this week.

Proposed Nebraska Constitutional Amendment

LR 254CA, recently inroduced by Sen. Landis, would send to the voters of Nebraska the following proposed amendment to the Nebraska Constitution:

"This state shall not make or enforce any law which infringes upon or interferes with the privacy of the person, family, home, property, documents, correspondence, or information of any person unless the rights of others are directly infringed or unless public safety can be ensured by no lesser means."

Would this law create a nearly absolute abortion liberty under the Nebraska Constitution? Would it create a right to physician-assisted suicide? A right to possess marijuana in one's home? Car? A right to possess automatic weapons in one's home or car or on one's person? A right to same-sex marriage? To polygamous marriage? Would parents have a right to educate their children as they see fit? To school choice and equal funding for various educational choices? Does privacy in property rights mean that Lochner is now part of the state constitution?

If you answered either yes or no to the above, score yourself 100 per cent. Anything or everything or nothing is possible under the proposed constitutional amendment. It is whatever the state courts want it to be, an open invitation to rule from the bench.

Does this have any chance of getting out of committee? I have no idea, but Prof. Gradwohl says no way it gets out of committee.

Hat Tip: Jim Cunningham of the Nebrsaka Catholic Conference

The Essence of American Liberty

"My job is not to bring people together," Lindsay said. "My job is to teach history. History is not pleasant in many cases, and I made it very clear in class that this is America and you all have the right to offend but you do not have the right to not be offended."

This quote comes from Prof. James Lindsay of CSU, who was commenting on his decision to show copies of the Mohammed cartoons to his Islamic history class.

The right to offend, but not the right to not be offended.

I like that. It sums up the essence of our exceptional notion of free speech.

hat tip: Volokh Conspiracy

Marriage and Demographics

This just in from Maggie Gallagher's marriage think tank:

Ron Lesthaeghe, the dean of European demographers, is in the U.S. this year, turning his formidable intellectual gaze to the American scene. What he has discovered is very interesting (see his paper on American demographic trends here). In general, he finds that America's political divisions are mirrored in dramatic demographic divisions. The Blue States--principally the Northeast, the West Coast, and the upper Midwest--typically have high rates of cohabitation, high average ages at first marriage, low fertility rates, and high abortion rates. The Red States--the lower Midwest and the South--typically have low rates of cohabitation, low average ages at first marriage, high fertility rates, and low abortion rates.

Blue States like Massachusetts look a lot like European countries such as the Netherlands in their tendency to postpone childbearing. Indeed, Blue States resemble Northern Europe in many demographic respects. Bottom line: marriage has ceased to anchor the adult lifecourse in Blue States. Perhaps it's no accident that Blue Staters and Europeans see eye to eye on so many issues.

Red States like Kansas and Alabama, by contrast, have comparatively high levels of fertility, low rates of cohabitation, early ages at first marriage, and so on. These states also tend to be more religious. They most decidedly do not look like Europe. Southern Red States also have high rates of divorce. I think there is something about nominally-religious Scotch-Irish Southerners that makes them more divorce prone (beyond the concentration of poverty in many Southern states). Theories anyone?

Lesthaege also looks at the link between demographics and voting in 2004. He finds an EXCEEDINGLY STRONG LINK BETWEEN DEMOGRAPHICS AND VOTING IN THE 2004 PRESIDENTIAL ELECTION. Money quote:

"On occasion demographers have been quite successful in predicting election results...the very strong negative correlation of -.88 found here between the Second Demographic Transition [his indicator of the deinstitutionalization of marriage]...and the percentage votes for G.W. Bush in the 2004 elections is to our knowledge one of the highest spatial correlations between demographic and voting behavior on record."

This correlation holds up remarkably well after controlling for all the usual suspects: education, income, percent urban, race, ethnicity, and even religion. So there is something about being married with children--above and beyond religious factors-- that makes people vote Republican.

Of course, as others have noted, it is not entirely clear that the Republican Party has done all that much for marriage lately. Perhaps some smart, centrist Democrats will take a look at these electoral trends and realize that they can make inroads in Red America by eliminating the marriage penalties in our tax and transfer systems, promoting community marriage policies, reforming divorce laws, and making the child tax credit more generous. Or perhaps Republicans will see these trends and realize they need to do more to help their base.

Ron. J. Lesthaeghe and Lisa Neidert, "The Second Demographic Transition in the U.S: Spatial Patterns and Correlates,"

Reciprocal Beneficiaries

Colorado may have the answer to the issue of benefits for unmarried persons--not same sex civil unions but reciprocal beneficiary benefits. Ramesh Ponnuru has an interesting article here. And here is an excerpt:

The debate over gays and marriage in Colorado has recently taken a different turn from the national debate. Until a few weeks ago, the debate looked familiar. Gay-rights advocates were trying to get the legislature to enact a bill recognizing civil unions (or “domestic partnerships”) for same-sex couples. Social conservatives were trying to get voters to adopt a constitutional amendment banning same-sex marriage. Now conservative state senator Shawn Mitchell has changed the script by introducing legislation that grants some benefits to same-sex couples — with the support of James Dobson and Focus on the Family.

His legislation results from an asymmetry in the debate. One of the reasons many people support civil unions or same-sex marriage is to get certain practical advantages for gay couples. The main reason other people oppose these policies is that they do not want the government to recognize homosexual relationships as marital, or even as akin to marriage.

Mitchell’s idea is to make certain benefits available to gay couples — and to many other pairs of people. His legislation would make it easier, for example, for gay men to arrange to give each other a say in their medical care by becoming “reciprocal beneficiaries.” But two brothers, or a brother and sister, or two male friends, could enter the same arrangement. Thus there would be no recognition of homosexual relationships as such. (Hence Dobson’s support.)

No benefit would be contingent on any assumption by the government that the beneficiaries were involved in a sexual relationship outside traditional marriage. In extending the benefit, the state would be blind to the precise nature of the relationship between the beneficiaries.

Is this a reasonable compromise, one that provides marriage for married couples and reciprocal benefits for everyone else? Do you think gay rights advocates will accept this compromise?

In effect, this scheme recognizes that there is one unique and ideal kind of sexual/romantic relationship--traditional marriage--and many other perfectly good kinds of friendships, relationships, and attachments, which receive reciprocal benefits.

I like this bill.

More States To Vote on Marriage Amendments

Link.

Here is an excerpt:

Idaho's Senate Feb. 15 sent a state constitutional marriage amendment to voters, making it the fifth state to place such an amendment on the ballot for 2006.Idaho joins Alabama, South Carolina, South Dakota and Tennessee -- all of which are scheduled to vote on state marriage amendments this year. That list is expected to grow. Virginians almost certainly will get to vote on a marriage amendment. Other states, including Arizona, Colorado, Wisconsin and West Virginia, may join the list.

The language of the Idaho amendment, although short, covers both the marriage and civil union issue:

"A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state."

Of course, like the Nebraska DOMA currently before the 8th Circuit, these amendments will likely be challenged in federal court once parties with standing come forward.

This is another good topic for a paper.

Scalia Tees Off on "Idiots"

Who disagree with him (link):

People who believe the Constitution would break if it didn't change with society are "idiots," U.S. Supreme Court Justice Antonin Scalia says.

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 100 politicians and lawyers from this U.S. island territory.

According to his judicial philosophy, he said, there can be no room for personal, political or religious beliefs.

Scalia criticized those who believe in what he called the "living Constitution."

"That's the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break."

"But you would have to be an idiot to believe that," Scalia said. "The Constitution is not a living organism, it is a legal document. It says something and doesn't say other things."

Proponents of the living constitution want matters to be decided "not by the people, but by the justices of the Supreme Court."

I think Nino is wrong. Of course, the Constitution is a living organism. I just had a game of catch with the Constitution yesterday. It was such a nice day, and it had been ages since the Constitution and I had some exercise together. So we said, "what the heck; let's toss the ball a little." LOL

Nebraska Defense of Marriage Case

Over at How Appealing there are a bunch of links to reports on today's 8th Circuit argument. And you can access the oral argument in the case by clicking here (RealPlayer required.

And the following is an eyewitness account from a lawyer who attended the argument and knows the case well:

I'll send everyone a complete rundown tomorrow, but in short, things could not have gone better for us today.

Two of the three judges openly stated that they didn't think Romer was applicable to Section 29.

In fact, they really didn't want to hear Matt's standing argument, and they directed him to discuss Romer.

I believe the court doesn't want to decide this case on standing because they want an opportunity to chastise the district court's opinion on the merits.

Loken and Bowman (particularly Loken) were very hard on Tamara Lange. She barely got through her first sentence before they peppered her with questions re: the court's Romer analysis. The onslaught didn't subside for at least 15 minutes.

I helped moot court Deputy Attorney General Matt McNair for this argument, and I am sure he did a wonderful job in defending the People's right to say what marriage is--and what it is not-- in Nebraska.

War of worldviews: Christian schools vs. University of California

Check out this article from the First Amendment Center on the subject of tomorrow's seminar.

Daily Kos Poll: Sad Story

Over at the liberal blog, The Daily Kos, they ran a poll asking readers to vote for which person--President Bush or Osama Bin Laden--the voters despised more. Although at one point Bush was winning by a vote of 70-30 percent, after the Blog begged readers to correct this result, they turned it around and Osama won by a vote of 58 to 42 percent. Here is the Blog's own explanation of the embarrassment this caused them:

Osama Poll

The people who saw the poll actually voted that they despise our President more than someone who is accused of killing 3000+ Americans in a terrorist attack.

This cannot stand. George Bush is wrong on almost every issue near and dear to my heart, but he has done it as our elected leader, whether you voted for him or not. Our anger needs to be unleashed at the polls and the elections. They have now deleted the poll from the site due to its embarrassing results.

The poll should have a third option, despise both, since the enemy of my enemy is not always my friend.

But PLEASE PLEASE fellow members of this site, change the results of this poll to the terrorist, and not our President.

Wow! The Daily Kos rightfully expressed its concern that the site was "being marginalized" by the way its loyal readers voted in the poll and expressed its relief that Osama pulled ahead in the end. As one wag put it, it's nice to see that in the end loyal Kos readers "displayed a sense of proportion."

What if "Piss Christ" Had Been About Mohammed?

Eugene Volokh has a great post about the liberal media and double standards concerning art that offends religion.

Any thoughts?

Why Not Eight Justices?

Here is an interesting student op-ed on the size of the Court from the Harvard Crimson.

Here is a money excerpt:

Many of the court’s most controversial rulings have come on 5-4 votes. It’s possible that these votes were so close because the issues at stake were so contentious. But it’s also possible that 5-4 votes lack the imprimatur of authority that wider margins carry. As the current chairman of the Senate Judiciary Committee, Arlen Specter, R-Pa, said after the court issued a 5-4 ruling in the 2000 case Bush v. Gore: “it naturally raises cynicism when you have so many 5-4 decisions.”

The history of the court in the 20th century is replete with instances of high-stakes cases decided by 5-4 margins. Perhaps the most infamous example is the 1905 case Lochner v. New York, in which a five-justice majority struck down a New York State law capping the number of hours that bakers could work. More than three decades later, when the Supreme Court nullified part of the New Deal legislation in the 1936 case of United States v. Butler, it did so on a 5-4 vote as well. Many of Rehnquist Court’s rulings that invalidated federal laws also passed by 5-4 margins, including the 1995 decision in United States v. Lopez that struck down the popular Gun-Free School Zones Act.

But if the court only had eight members, these razor-thin rulings would be a thing of the past. A 5-3 ruling might be more resounding—and potentially less divisive—than a single-vote margin. Alternately, a 4-4 tie would send the case back to lower courts—either to the states or the federal circuits.

Would those 4-4 ties cripple the judicial system? They might have the opposite effect. Different jurisdictions could experiment with their own approaches to complicated legal issues. They would be “laboratories of justice,” to borrow University of Wisconsin law professor Ann Althouse’s phrase—a phrase derived from Justice Louis Brandeis’ remark that decentralizing government could make the states into “laboratories of democracy.” And as these “laboratories” yield experimental results, their findings might help the Supreme Court justices formulate a more carefully-considered ruling if the once-tied cases ever returned to their docket.

In the current climate, 5-4 decisions establish binding precedents—precedents that may then be reversed if one swing justice leaves the bench. For example, Alito’s ascension to the spot formerly held by Justice Sandra Day O’Connor could conceivably lead to the reversal of 5-4 precedents on affirmative action, campaign finance laws, and partial birth abortion. With eight members, the court would need a two-vote margin to establish a new precedent or overrule an existing one.

What are your thoughts? Do you like this better than my proposal to require the Court to act by a vote of 7/9ths?

One advantage is it could be accomplished by a simple act of Congress.