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.

Political footballs and constitutional law

That's the title of a very interesting LA Times article by Rosa Brooks. Here is an excerpt:

On Monday, my constitutional law class will meet for the first time this semester, and I don't have the slightest idea what to tell the students about the subject we'll be discussing for the next 13 weeks.

I've taught the class before, and by now I know most of the canonical cases as well as I know my own phone number. My problem is that I'm no longer sure there's really a subject to teach.

I don't seem to be the only one confronting this problem. As Harvard Law School professor Lawrence Tribe recently observed: "Conflict over basic constitutional premises is today at a fever pitch. Ascertaining the text's meaning; the proper role and likely impact of treaty, international and foreign law; the relationships among constitutional law, constitutional culture and constitutional politics; what to make of things about which the Constitution is silent — all these, and more, are passionately contested, with little common ground from which to build agreement."

As a result, Tribe says he will not attempt to publish a revised version of his much-read treatise on constitutional law. And if Tribe, no shrinking violet, can no longer figure out how to write a treatise on constitutional law, where does that leave those of us lesser mortals who just want to teach the topic in a way that is honest, useful and fair?

Judge Richard A. Posner of the U.S. 7th Circuit Court of Appeals in Chicago, who also lectures at the University of Chicago Law School, joined the fray last year, writing that most constitutional questions "can be decided only on the basis of a political judgment, and a political judgment cannot be called right or wrong by reference to legal norms…. It is rarely possible to say with a straight face of a Supreme Court constitutional decision that it was decided correctly or incorrectly."

What are your thoughts?

UC Case

Here is a link to the complaint in the University of California case.

2006 Seminar: Constitutional Amendments

For class next week (January 19), each of you should come prepared to discuss your own favorite new amendment to the U.S. Constitution. Please come up with a draft of your basic idea for a new amendment to the Constitution. In other words, if you could add one new provision, what would it be?

For example, if I were Platonic Guardian for a Day, I would amend the constitution to require a 7/9ths vote of the Court before declaring federal or state laws unconstitutional? The idea is that duly-enacted laws and the process of democratic self-government should have a presumption of constitutionality that can be overcome only by a strong consensus on the Court that the democratic branches of government have acted outside the Constitution. This allows the Court to exercise judicial review by consensus, but not by a bare majority vote. What do y'all think about my proposed amendment?

Another proposed amendment is that suggested by Professors Carrington and Crampton. Actually, they propose this change to be adopted by statute, but it might better be adopted as an Amendment to Article III. Their suggestion is basically to appoint Supreme Court justices to serve only for a term of 18 years. Here is a link to their proposal. Please come to class prepared to discuss it.

2006 Seminar: Citing Foreign Law in Constitutional Decisions

Here is a link to a recent debate between Justice Scalia and Justice Breyer on how foreign law should be utilized by American courts deciding cases under the U.S. Constitution.

Harvard Professor Mary Ann Glendon has this essay in the WSJ.

Posner.

Jackson.

Here is a link to a discussion of a very important case, decided by the Swedish Supreme Court, concerning a "hate speech" prosecution of Pastor Ake Green for preaching a sermon on sin and homosexuality. And here is a link to the English translation of that Court's opinion.

Alabama Sexual Devices Case

In connection with the long essay question on the recent exam, you may enjoy reading the following recent case out of the 11th Circuit: Williams v. Attorney General, 378 F. 3d 1232 (11th Cir. 2004).

Have a great break and a very merry Christmas (or other holiday of your choice).

Should Liberals Stop Defending Roe?

Sandy Levinson and Jack Balkin debate the politcs of Roe for the Democrats over at Legal Affairs debate club. Here is the link.

Judge Friendly's Unpublished Opinion

In the first abortion rights case ever filed in federal court. Judge Randolph of the D.C. Circuit discusses this interesting historical "what if" in the Barbara K. Olson Memorial Lecture. Here is a link.

EXAM INFO--IMPORTANT!!!

Since the exam is CLOSED BOOK, the essay portion of your exam must be typed on your laptop (or lab computer).

You will need to load the latest version of EXAM 4 which should be available about a week before exams begin.Check with Dean Pierce or Vicki Lill if you have any questions about Exam 4 software. If you need to use a lab computer, please see Vicki ASAP to reserve one for the day of the exam.

Remember, our next class will be Wed. Nov.30, when we will have a question/review session for those who wish to attend.

Terri Schiavo & Rights of Disabled

An interesting article, written by Nat Hentoff and published by the Council for Secular Humanism, noting that "twenty-nine national disability-rights organizations... filed legal briefs and lobbied Congress to demonstrate that Terri Schiavo's was a disability-rights case, not a right-to-die case. They included the National Spinal Cord Injury Association; the National Down Syndrome Congress; the World Association of Persons with Disabilities; and the largest American assembly of disability-rights activists, the American Association of People with Disabilities." If you are interested, the article can be found at this link.

Judge Alito: "Free Speech Libertarian"

Prof. Eugene Volokh has an article at WSJ online about Judge Alito's views of the First Amendment. Click here.

The New "Chief"

Linda Greenhouse has a great article in the New York Times about the impact of the new Chief Justice, John Roberts, on the culture of the Supreme Court.

Censoring Narnia

Con Law II preview!

Here is a press release about an interesting attempt by Americans United to censor the reading of The Lion, the Witch and the Wardrobe in public schools:

SCOTTSDALE, Ariz. - Attorneys with the Alliance Defense Fund say they will offer free legal representation to any Florida schools threatened with lawsuits for participating in the governor's reading contest involving The Lion, the Witch, and the Wardrobe by C.S. Lewis.

On Oct. 20, Americans United for Separation of Church and State issued a press release condemning Gov. Jeb Bush's "Just Read, Florida!" campaign, which this year encourages public school students to read the Lewis novel in conjunction with the release of the Disney movie based on the book Dec. 9. AUSCS claims this year's campaign is designed "to promote a religious story."

"The governor's campaign is clearly designed to promote reading in conjunction with a much-anticipated film; it is not designed to promote religion," said ADF Senior Counsel Gary McCaleb. "ADF will defend any school district in the nation that gets sued by AUSCS, the ACLU, or any other group for having students read The Lion, the Witch, and the Wardrobe, as long as the school allows students to opt out of reading it if they or their parents don't want to."

According to the 2001 executive order establishing the "Just Read, Florida!" program, the campaign is "a comprehensive, coordinated reading initiative aimed at helping every student become a successful, independent reader." Nonetheless, AUSCS called it "an offense to the First Amendment."

Abortion: Two Interesting Articles

1. Abortion and the Law What would a world without Roe look like?

2. Pro-Wife Extremism: Judge Alito was right on spousal notification

Good Alito Links

The University of Michigan Law Library has posted numerous links to information on Judge Alito and his record. Click here.