Constitutional Law

I don't know when I'll have a chance

Posted on June 12, 2008
I don't know when I'll have a chance to write something at length on Boumedienne, but:1. It seems we are now the only country in the world that grants habeas corpus to prisoners of war, wherever or under whatever circumstances taken (is Guantanamo today different in any legally relevant sense from Germany during the Bulge?)...

Chuck Dunn on presidential Preacher

Posted on June 03, 2008
Chuck Dunn on presidential Preacher Features: bad for candidates, bad for preachers. Amen.

As many headlines put it, Jim Gilmore

Posted on June 02, 2008
As many headlines put it, Jim Gilmore "ekes out" a win over Bob Marshall in the race for the Va. Republican Senate nomination.That must by why the Gilmore people were running around during the vote going "Eek! Eek! Eek!"Yes, it was much closer than anyone would have expected when pro-life, pro-marriage maverick Marshall announced in January that he was going up against the state GOP establishment with a shoe-string campaign against erstwhile annointee Gilmore...

"The first question is, is there

Posted on May 23, 2008
"The first question is, is there standing?" Not much, by the time I get through with these exams.

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Interesting things about Dept.

Posted on May 19, 2008
Interesting things about Dept. of Revenue of Ky. v. Davis:* My friends in the libertarian litigating community took it on the chin: only two Justices -- Kennedy and Alito -- bought into their claim that the Dormant Commerce Clause doctrine is a fountainhead (as it were) of judicial enforcement power for the free market...

It is very bizarre, I must tell

Posted on May 19, 2008
It is very bizarre, I must tell you, to "write" a Scalia opinion while reading it for the first time. Just now, I was reading his opinion for the Court in U.S. v. Williams; I got to the page break at the end of page two:After our decision in Free Speech Coalition, Congressand the voice in my head said "went back to the drawing board...

At oral argument in Ressam, Justice

Posted on May 19, 2008
At oral argument in Ressam, Justice Scalia seemed concerned about the inherent unfairness of criminalizing the mere "carrying" of an explosive while commiting another felony, even one unrelated to the explosives. But in the Ressam decision issued today, he joined Justice Thomas's concurrence, agreeing with the Court that such is the meaning of 18 U...

Gay marriage has been decreed for

Posted on May 15, 2008
Gay marriage has been decreed for California by its Supreme Court; the decision is here. Highlights I've had time to take in so far:* Sexual orientation is a suspect classification for Equal Protection purposes in California.* Equal benefits are not enough: the word "marriage" has to be thrown in too, otherwise same-sex couples' feelings will be hurt (the technical term for this, "dignity and respect," is borrowed from Dworkin), and this is an unconstitutional injury...

I'm going on a weekend-long retreat

Posted on May 15, 2008
I'm going on a weekend-long retreat this afternoon, so I can't promise to comment on the California same-sex marriage decision until long after everyone else in Blogistan has done so. Try to live with that disappointment. Besides, the first five or so moves in the argument, either way, are by now familiar...

The California Supreme Court will

Posted on May 14, 2008
The California Supreme Court will announce its ruling tomorrow, at 1 pm eastern time, on whether the California Constitution implies a right to same-sex marriage.The recent trend in state courts has been toward recognizing that such a seismic change should be made, if at all, by the people's representatives in the legislatures...

This is, ida know, a crapton of

Posted on May 14, 2008
This is, ida know, a crapton of months overdue, but I'm finally linking to the blog of the learned dean of our university's School of Government, Charles W. Dunn: the Chuck Dunn Report.

Why you can't support Kant. (Hat-tip:

Posted on May 13, 2008
Why you can't support Kant. (Hat-tip: MDSS)

BLT, the Blog of Legal Times, is

Posted on May 12, 2008
BLT, the Blog of Legal Times, is snarking that Scalia and Garner, by giving a CLE course based on their book, are turning it into "performance art"; BLT's post links to Garner's web site, Law Prose.To which I say: I didn't know Bryan Garner had a web site! Well, now I link to it!

Scalia's C-SPAN interview with

Posted on May 07, 2008
Scalia's C-SPAN interview with Brian LambOn smart young people choosing the legal profession rather than science or the humanities:[I]t is the fact that we devote, in my view, too many of our best and brightest minds to the law. I wouldn?t like to do anything else...

Mildred Loving, RIP. I adopt as

Posted on May 07, 2008
Mildred Loving, RIP. I adopt as "for the editors" the statement of the Family Research Council:America lost a true pioneer for civil rights yesterday as Mildred Loving, a black woman famous for her successful challenge of a state interracial marriage ban, died at the age of 68...

The Scalia-Garner book on app.

Posted on April 29, 2008
The Scalia-Garner book on app. ad. is out!

In southeastern Virginia today,

Posted on April 29, 2008
In southeastern Virginia today, we're not in Kansas anymore -- yet. One more tornado and we might be. Here at Regent, our prayers go out to the injured, the displaced, the families of the dead -- and, um, yeah, to the dead, though I guess that's more controversial...

Prescribing what shall be orthodoxThe

Posted on April 18, 2008
Prescribing what shall be orthodoxThe judge in the Texas polygamist "sect" case has found in favor of continued state custody for the children, at least so far.One remarkable fact is that the finding is based on no proven abuse, but only on the asserted strangeness of the sect's beliefs...

Posted on April 16, 2008

Historical portions of Everson

Posted on April 12, 2008
Historical portions of Everson and Engel = American History in 30 Seconds with Bunnies

From Slate: Scalia on brief-wr

Posted on April 07, 2008
From Slate: Scalia on brief-writing

A post by Jason Wojciechowski about

Posted on April 02, 2008
A post by Jason Wojciechowski about Erie that I might want to come back to later, so I'm posting it here

Here's the passage from the U.S.

Posted on March 28, 2008
Here's the passage from the U.S. v. Ressam oral argument that I was referring to:JUSTICE SCALIA: General, could Congress pass a law that said if you wear a wristwatch during the commission of any crime, you get another 10 years?GENERAL MUKASEY: A statute like that would be entirely unreasonable...

Scalia Criticizes News Media, the

Posted on March 27, 2008
Scalia Criticizes News Media, the news media are reporting (guess who's going to win this round).At a conference of attorneys in Washington, Scalia said news organizations often fail to focus on the text of the laws the court interprets, citing accounts of last month's 8-1 decision that made it harder for consumers to sue makers of federally approved medical devices...

From the Chief's opinion for the

Posted on March 25, 2008
From the Chief's opinion for the Court in Medellin:A non-self-executing treaty, by definition, is one that was ratified with the understanding that it is not to have domestic effect of its own force. That understanding precludes the assertion that Congress has implicitly authorized the President?acting on his own?to achieve precisely the same result...

Reading over Medellin right now.

Posted on March 25, 2008
Reading over Medellin right now. Looks like the right outcome: even for us Curtiss-Wrightists, the presidential claims here went far indeed. But because the domestic application of international public law was also at stake, the role-reversal within the Court is pretty much complete, with the liberal wing supporting presidentialism as long as it's twinned with womping Texas with a treaty...

Not the D.C. v. Heller Oral Argument.

Posted on March 20, 2008
Not the D.C. v. Heller Oral Argument. (Hat-tip: TKB)

The Founders and their agents.

Posted on March 16, 2008
The Founders and their agents. From NRO/rotflmao.

Va. S. Ct. decision striking down

Posted on February 29, 2008
Va. S. Ct. decision striking down regional transportation authorities (Marshall v. NVTA): it's all about --* non-delegation* careful monitoring of the power to tax* democratic accountability, esp. where taxing is concernedGot to L-O-O-O-O-V-E IT!(The other part of the decision -- finding no constitutional flaw re the "single subject rule" -- was also correct and well reasoned: classic Hamiltonian/Marshallian "let the ends be legitimate" kind of thing...

William F. Buckley, Jr., 1925-2008.

Posted on February 28, 2008
William F. Buckley, Jr., 1925-2008. Oh, to be sure, one can complain (one did, in fact) that in his later years he seemed spent more time schmoozing the New York glitterati than manning the conservative barricades. No matter. For three or four generations, he was proof that conservatives could not rightfully be denied a place among those glitterati, if they happened to desire one; that Lionel Trilling (see the linked WSJ editorial) was just dead wrong and behind the times...

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