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Dissent in the wild: originalism, original intent and the 28th amendmentOriginalism v. Original intent. My rough draft of a 28th amendment in response to the Roberts hearings. Chief Justice Roberts.And the seventh angel poured his bowl into the air, and a voice cried out from heaven, saying: "It is done." Scalia on judicial freedom, and a comment on judicial activismAnn Althouse recounts a luncheon with Justice Scalia: I asked him whether it isn’t better to be a law professor [than a Judge], because there is so much more room for self expression; judges seem to be so constrained in what they can say when they come to speak. I also said that he seemed to be more expressive than most judges. Justice Scalia said he had no problem being expressive as a judge because of his theory of originalism. The others, he implied, cannot stick their neck out because they lack a coherent theory; he’s so sure of what he believes in, that frees him to speak expansively.Speaking of Althouse, I had some comments here which expanded on my recurring theme about what judicial activism is and isn't. I might have to incorporate that into a revision of the essay I posted the other day (Less nebulous than you'd think) in the next couple of weeks. Along with the term "excelsior ratchet", which I think is rather neat. GOP spendingOver at GOPbloggers, Jon notes an article by Brendan Miniter at Opinion Journal criticizing the GOP's incontrollable spending urge since the departure of Newt Gingrich. A commenter attacks Jon and Brendan for stating the patently obvious, (viz., that "[w]e can futilely try to be apologists for Republican spending, which will lead inevitably to electoral defeat, or we can nip it in the bud to preserve our control of Washington"), observing by inference that "28 billion in [highways bill] pork in a 2.4 trillion dollar budget" really isn't that much, and asking "[w]hy the hell should you spend your time attacking Democrats...[when] you've got Republicans to slay here at GOPbloggers!" "A decade ago, 120 Republicans co-sponsored a bill to abolish the Department of Education...Under President Bush, spending on the Department of Education has risen by 39.8%, and Federal intrusion into education has been expanded. This is not the stuff that shrinking government until one might drown it in the bathtub is made of. " The Bush administration has increased non-defense discretionary spending by 18.12% from $331bn in 2001 to $391bn. See OMB, FY06 Budget priorities at Table S-2. During the same period, real GDP increased from $9,910bn to $10,999bn, a rise of slightly under 11%. See Bureau of Economic Analysis, Annual Revision of the National Income and Product Accounts August 2005 at Table 1. This, growth, incidentally, highlights the fundamental correctitude of the President's tax cuts. Our spending is outpacing our means, even when our ideology demands otherwise. A decade ago, 120 Republicans co-sponsored a bill to abolish the Department of Education. See H.R. 1883, 104th Congress. Under President Bush, spending on the Department of Education has risen by 39.8%, to 56.6bn (see OMB, supra, at Table S-3), and Federal intrusion into education has been expanded. See H.R. 1, 107th Congress. Between 2001 and 2005, not a single agency has REDUCED its budget. See OMB, supra. This is not the stuff that shrinking government until one might drown it in the bathtub is made of. The entire requested 2006 budget for the Department of Homeland Security is $29.3bn (up from $14.0bn in 2001) (ibid.), so when the fellow criticizing Jon and Brendan post starts suggesting how triffling GOP profligacy is, because that porcine monstrosity of a highways bill contained "only" $28bn in pork, one can see that he's not actually READ the budget to place that nummber into context. We have become a party of big government and big spending. Jonathan - and, by extension, Brendan - are absolutely right. The proposal urged by the commenter of how we might be a good friend to our party - to turn a blind eye and focusing on attacking the other party - is the solution of one who averts his eyes while the alcoholic friend procures another bottle of moonshine; it is the difference between what Newt Gingrich has characterized as "[o]pposition [Conservatism] or [g]overning Conservatism". I prefer the latter. Those of us who support the GOP may turn a blind eye, but our opponents will not, and neither will the public. The American people are not stupid; asking them to buy that the Federal budget is in the state that it is in because of the other party is absurd and asinine. Another politics test...I don't know that this is entirely accurate, but what test ever can be? Still fun.
Less nebulous than you'd thinkI'm playing catchup. I started writing four essays during August, set them aside for a couple of weeks for a chance to revisit them fresh, and then got too busy to do much with them. CommentComments at Centerfield about substantive due process and the role of the courts. Links to comments foreign law. Some comments on abortion and a follow up regarding Balkin's horrible originalism essay. Comments at Althouse about the meaning of the tenth amendment and respectfull dissent in the wild at a random blog I found my way to about the lessons of Dred Scott. Kitten updateGrayson: We haven't forgotten you, AfghanistanKABUL, Afghanistan -- Afghans embraced democracy by the millions yesterday, with voters undaunted by weeks of violence and threats of terrorist attacks to cast ballots for the first elected parliament in decades. The vote went smoothly, with only a handful of incidents involving gunfire or militant attacks at the 6,200 polling stations...With more than 12 million voters registered, election officials said 80 percent to 85 percent cast ballots -- an unheard-of turnout in Western democracies.Story. This is really pleasing to see; if Afghanistan - a country with scant communications or transportation infrastructure, where an immense chunk of the population is illiterate and uneducated - can make this work, Iraq certainly can too. More commentsSome lengthy comments on the rights/ninth/tend issue and some comments about first principles. Also, comments on foreign laws and precedents. Detention of citizens in wartime (or, Hamdi, redux)In April, I wrote to disagree with the Supreme Court's ruling in Hamdi v. Rumsfeld, 542 U.S. 507 (2004). In that case, the Court was "called upon to consider the legality of the Government’s detention of a United States citizen on United States soil as an 'enemy combatant' and to address the process that is constitutionally owed to one who seeks to challenge his classification as such." Writing for the Court, Justice O'Connor "conclude[d] that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the 'necessary and appropriate force' Congress has authorized the President to use." Although the Court insisted that Hamdi was entitled to appeal, it did not hold that his detention was unlawfull. Justice Scalia, joined by Justice Stevens, wrote a dissent that I find pursuasive, for the reasons previously outlined in April. Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution’s Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive’s assertion of military exigency has not been thought sufficient to permit detention without charge. No one contends that the congressional Authorization for Use of Military Force, on which the Government relies to justify its actions here, is an implementation of the Suspension Clause.The Court's opinion today does not question that Padilla is a citizen: The exceedingly important question before us is whether the President of the United States possesses the authority to detain militarily a citizen of this country who is closely associated with al Qaeda, an entity with which the United States is at warIt not being contested that Padilla is a citizen, on what grounds is he unentitled to file a habeas petition? On what grounds is he denied the rights guaranteed to a U.S. citizen? On what basis can an act of Congress - in this case, the AUMF - supercede the requirements and strictures of the Constitution? The court does not say. I would affirm the ruling of the district court in this case, and by the same logic, I would overrule Hamdi in favor of the views expressed in Justice Scalia's dissent in that case. I respectfully dissent. Wagner on Nino for Chief; my concerns vis-a-vis RobertsProf. David Wagner of Regents Univ. School of Law sums up my thoughts on the non-appearence of "Chief Justice Scalia": A student asked me this morning whether I was disappointed that Our Hero didn't get the nod for Chief. No, and for the same reason I never thought he would be chosen. The job doesn't play to his strengths at all. It would pressure him to get "moderate," as it did to Rehnquist; and it comes with a bag of administrative responsibilities that would unacceptably divert him from his mission of explaining the Law and proclaiming the Truth.Wagner also notes the possibility of a Justice Edith Jones (¶5), and holds out the tantalizing hope of my preferred pick - Justice Alito. Stop with your infernal toying with our hopes, Professor! "Scalia and Thomas are originalists, textualists, and conservatives - at the best of times, in that order...[But] it is far from clear that Roberts, C.J., will be a friend to the originalist cause" For all the angry scolds of the left, it seems to me that those who should feel aggrieved about the Roberts nomination is not the left - who got far better than they could possibly have expected - but rather, those who voted for President Bush based on his promise to appoint Justices with views such as Scalia and Thomas. I evidently misunderstood Bush on this one. Scalia and Thomas are originalists, textualists, and conservatives - at the best of times, in that order. With the Roberts nomination, and John's unquestionably a conservative jurist, it seems to me that what Bush meant was, "I will appoint conservative justices, period". For me, the constitution comes before party line, but let's face it: the Bush administration and its supporters never saw a means they didn't like to an end they wanted, and it suddently seems depressingly clear that many of those who lionize Scalia know even less about his jurisprudence than those on the other side who demonize him. As Randy Barnett noted a few days back, it is far from clear that Roberts, C.J., will be a friend to the originalist cause; a conservative activist judge is not one whit better, in my view, than a liberal activist judge; as Robert Bork once put it, paraphrasing Lenin, "He who says Roe must say Lochner and Dred Scott". At best, he might be, as Rehnquist, C.J., generally was, a neutral. One step forward, but, I fear, how many steps back? ............. Post facto: Further discussion on this subject can be found here, here and here. Comment roundupSome recent comments:
"He was my friend long before he was my Chief. May he rest in peace."Fairwell to the Chief. SCOTUSblog is carrying reactions from the Associate Justices to the untimely death of Chief Justice Rehnquist. A fond farewell to the Chief by one of his former Law Clerks, today in Slate. |
    
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