Monday, June 30, 2008
Through the Looking Glass: Indefinite Detention and the Parhat Case
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?
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?
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
Money talks, but is it speech?
So will Tom Friedman ever connect the dots?
[In his New York Times column, Tom Friedman writes as follows:
Saturday, June 28, 2008
Originalism and Guns Redux
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
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"
A Note on Heller and Party Politics
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.
Parallel universes about what counts as "scholarly analysis"
David Bernstein notes his agreement, in a Volokh Conspiracy post entitled "The Scholarly Nature of Heller," with Jim Lindgren that "the opinions in Heller are very scholarly, especially with reference to historical sources." He goes on to say that this is a vast improvement over the use of historical materials by earlier courts, citing Justice Douglas's opinion in Gray v. Sanders (1963), where he
Self-defense, the Second Amendment, and the Ninth Amendment
One of the valuable points made in Saul Cornell's book on the Second Amendment is that self-defense was treated as a "common-law" right and not a "constitutional right" at the time of the Framing. So, as a matter of sheer historical accuracy, Scalia was probably wrong in suggesting that the Second Amendment had anything to do with safeguarding a right of self-defense. But, of course, there are other amendments to the Constitution, including the Ninth Amendment, which reminds us that there are rights beyond the ones enumerated in the first eight amendments. I strongly suspect that ordinary Americans in the late 18th century (and today) would believe that there is indeed a "natural right" to engage in self-defense, by any means necessary, against those who present threats to one's own life (to take the easiest case). It would never have occurred to them that a government founded on liberal principles (whether drawn from Hobbes or Locke) could limit this right.
More on Heller
I want to make two points about Heller. The first elaborates on a point Sandy Levinson made. Both Justice Scalia’s opinion for the Court and Justice Stevens’s dissent devote a great deal of attention to the original understanding – or, as it turns out, understandings – of the Second Amendment’s terms. Both opinions look as if they are interested in history. Both, though, demonstrate why lawyers and judges shouldn’t play historian. In their capacity as judges, the justices have to award a decision to one or the other side. They share the natural human tendency to exaggerate the case that can be made for the side they ultimately favor. So, both Justice Scalia and Justice Stevens assert – laughably to a real historian – that the Second Amendment had only one meaning at the framing, and that that meaning was for all practical purposes universally shared. Even more, Justice Scalia asserts that that meaning was preserved unchanged from 1791 through the late nineteenth century.
"This Decision Will Cost American Lives": A Note on Heller and the Living Constitution
In the Boumediene decision a few weeks back, Justice Scalia argued that the majority's decision giving Guantanamo detainees a right to a judicial hearing would cost American lives. One could probably say the same thing of Justice Scalia's majority opinion in Heller. After all, if you lift the ban on handguns in the District of Columbia, it's entirely possible that some additional people will be killed as a result.
Thursday, June 26, 2008
Some preliminary reflections on Heller
There are many things that one can say about today’s today’s decision in the Heller case from both “external” political perspectives or from a more “internal” legal one. No doubt I (and others) will have more to say about Heller in coming days. But I begin with the following.
The Worst Thing You Can Do to a Child Short of Murder
There are a number of puzzling aspects of the Supreme Court’s decision yesterday in Kennedy v. Louisiana invalidating the death penalty for child rape, not least that, as Eric Posner observes, it appears to bar states from innovating in this area. I’m not going to offer any opinion here about the soundness of the result that the Court reached. What puzzles me particularly is the view reflected in these statutes, that the most heinous thing one can do to a child short of murder – an act that uniquely deserves a punishment equivalent to that for murder - is to rape him or her. That is a very strange idea.
Who Thinks the Millionaire’s Amendment Was Incumbent Protecting? Those Who Voted For It.
When Do Campaign Finance Laws Become A Way to Protect Incumbents?
John Yoo Testimony
Here are John Yoo's prepared remarks for the hearing before the House Judiciary Committee this morning. (I don't believe David Addington is submitting a prepared statement.) CSPAN covering it live here.