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Balkinization
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Wednesday, July 02, 2008
Does the Constitution protect a substantive right to hunt?
Sandy Levinson
I am inspired by some of the responses to Jack Balkin's last post on Heller; I agree completely with Jack's argument, and I'm curious about the implications of some of the respondents' arguments. Is Heller an Original Meaning Decision?
JB
Many commentators, including my good friends Randy Barnett and Larry Solum, have praised Justice Scalia’s opinion in Heller v. District of Columbia as a sparkling example of original meaning originalism. After having read the opinion closely a number of times, I am not so sure. Made in China: What We Have Become
Marty Lederman
The SERE techniques that we used on prisoners at Guantanamo, as a matter of official state policy, approved at the highest levels of the Justice and Defense Departments, came directly from a document that described the techniques that the Communist Chinese used during the Korean War to obtain confessions, many of them false, from American Air Force POWs. For Thurgood Marshall's Centennial
Mary L. Dudziak
One hundred years ago today, Thurgood Marshall was born. In our own vastly different legal environment, it is hard to imagine what a milestone it was when Marshall became the nation’s first African American Supreme Court Justice in 1967, when he first argued before the Court as the first African American Solicitor General in 1965, when the man known as "Mr. Civil Rights" was confirmed by the Senate for a seat on the Second Circuit Court of Appeals after a year-long confirmation stalemate in 1962, or when his most important case as a civil rights lawyer, Brown v. Board of Education, was decided by the Court in 1954. Tuesday, July 01, 2008
Roe's Survival and Bush I's Souter pick
Priscilla J. Smith
Jack, the one thing you are missing I think, is the relative importance of abortion to the different Presidents, personally and for votes and the importance of Roe to a majority of the American people. This is implicit in David's posts. Best New Blawg
Marty Lederman
Without much fanfare, Bernie Meyler has entered the blogosphere. With characteristically wise and provocative thoughts, not only about Heller and Boumediene and the recent Carl Schmitt craze, but also Macbeth and Faith Akin. Monday, June 30, 2008
Through the Looking Glass: Indefinite Detention and the Parhat Case
Marty Lederman
Can the President indefinitely detain someone who has no connection to Al Qaeda and who has not engaged in any belligerent acts against the United States? Should people be denounced for telling the truth?
Sandy Levinson
The U.S. News and World Report has asked, with regard to Charles Black's comment that John McCain would benefit from a terrorist attack, whether it was "a flub or the quiet truth." He was certainly quickly denounced for stating what almost everyone, I am confident, believes to be a truth, quiet or not. (Does anyone believe that it would help Obama or even be a wash in terms of impact on the election?) Are Campaign-Finance Laws Inherently Incumbent Protecting? Are All Election Laws?
Rick Pildes
Over at the Volokh Conspiracy blog, Ilya Somin has an interesting response to my posts here on the Supreme Court’s decision last week holding unconstitutional the so-called “Millionaire’s Amendment” to the nation’s campaign-finance laws. I argued that despite the noble-sounding egalitarian justification for this provision, many close observers recognized this provision to be, in purpose and effect, designed to protect incumbents against serious competition. That included Sen. McCain, who supported the provision, and Sen. Dodd, who opposed it, along with many academic experts in the campaign-finance laws. Sunday, June 29, 2008
Reviewed: Holland on Mugabe and Akpan's African Stories
Mary L. Dudziak
Labels: Africa Money talks, but is it speech?
Guest Blogger
Deborah Hellman So will Tom Friedman ever connect the dots?
Sandy Levinson
[In his New York Times column, Tom Friedman writes as follows: Saturday, June 28, 2008
Originalism and Guns Redux
Mark Graber
The constitutionality of gun control regulations raises two questions about the original understanding or meaning of the Second Amendment. The first, amply surveyed in this blog and elsewhere, is whether the Second Amendment in 1791 protected an individual right independent of the right to be a member of the local militia (Saul Cornell’s wonderful book points out that the Second Amendment might both protect an individual right and be tied to militia service). The second, less discussed, is the standard of review. Justice Scalia, without surveying history all that much, jumped from the conclusion that the Second Amendment protected an individual right to the conclusion that gun control regulations would have to scrutinized carefully to pass constitutional muster. The history is more complicated. Roe and Partisan Entrenchment
JB
David, far be it from me to suggest that elections don't matter a great deal for constitutional development. That they do is the central claim of Sandy Levinson's and my theory of partisan entrenchment. It's nice to know we have a fan. But there is still the question of why Roe v. Wade survived in the face of a series of Republican Supreme Court appointments, a question that, at first glance, the partisan entrenchment theory would seem not to answer very well. Since I'm one of the advocates of the theory, it has fallen to me to deal with the problem. Friday, June 27, 2008
Thoughts on Heller from a "Real Historian"
Guest Blogger
Jack Rakove A Note on Heller and Party Politics
JB
David Barron raises the interesting question of whether conservative Justices "mak[e] decisions in ways that create political debates sure to help Republicans." (And whether liberal Justices similarly decide cases in ways that are likely to mobilize Democrats.) If so, then the five person conservative majority missed a chance in Heller: deciding for D.C. would probably have motivated the conservative base, while deciding for Heller probably fails to mobilize them very much. David doubts that such considerations actually motivate the Justices. Similarly, David asks whether the smart move by Republican-appointed Justices really is to hollow out Roe and Casey instead of overturning them. |