Published in Courts

And the problem of good intentions.  From a review of a new biography of Louis Brandeis. In the Lochner decision:

As Justice Rufus Peckham wrote for the majority, while New York certainly possessed the power to enact health and safety regulations (as all good progressives wanted), the maximum hours provision of the Bakeshop Act "is not, within any fair meaning of the term, a health law." Not only was the baking trade "not dangerous in any degree to morals, or in any real and substantial degree to the health of the employee," but the limit on working hours involved "neither the safety, the morals, nor the welfare, of the public."

So what was the purpose of the law? As George Mason University legal historian David Bernstein has shown, the origins of the Bakeshop Act lie in an economic conflict between unionized New York bakers, who labored in large shops and lobbied for the law, and their nonunionized, mostly immigrant competitors, who tended to work longer hours in small, old-fashioned bakeries. As Bernstein observed, "a ten-hour day law would not only aid those unionized workers who had not successfully demanded that their hours be reduced, but would also help reduce competition from nonunionized workers." So Lochner not only protected a fundamental economic right, it thwarted an act of economic protectionism as well.

Something similar happened in Adkins v. Children's Hospital, where the Court struck down the District of Columbia's minimum wage law for women as a violation of liberty of contract. This was the case where Urofsky claimed Sutherland exhibited "a complete disregard for the real world." Well, here are some facts about that world. One of the figures in the case was an elevator operator named Willie Lyons, who had earned $35 per month from the Congress Hotel. Under the new minimum wage law, the hotel would have had to pay her $71.50 per month. So they fired Lyons and replaced her with a man willing to work at her old wage. That's why she sued. As the legal scholar Hadley Arkes memorably put it, "the law, in its liberal tenderness, in its concern to protect women, had brought about a situation in which women were being replaced, in their jobs, by men."

The often astute Jeff Rosen eggs on Obama's confrontation with the Supreme Court, outlining a Court-bashing strategy Obama can use to his advantage.  (Given Axelrod's interest in Lincoln's political savvy, I'm sure something similar has occurred to him and has put it in play.)  The trouble is, Obama's manner of unleashing his attack, at the SOTU, made him look like a schoolyard bully, not a TR with the bully pulpit. 

If the Dems use the Slaughter House Rules to get Obamacare through, this Court-confronting strategy might help delegitimize an opinion declaring the desperate tactic unconstitutional.  Hence the short as well as long-term importance of the current wave of Mrs. Clarence (Virginia) Thomas-bashing.  But the left needs to silence more than her for the proposed Rosen strategy to work.

UPDATE:  See Matt Franck's demolition of Rosen.

AG Holder has been given his just deserts, but State Department legal adviser Harold Koh may deserve even sterner rebuke.  In a lengthy (and fascinating) article in the Weekly Standard (see part 2), NYU law professor Kenneth Anderson notes Koh's unwillingness to offer defense of the legallity of the highly effective Predator drone strikes on terrorist leaders. 

Even as the Obama administration increasingly relies on Predator strikes for its counterterrorism strategy, the international legal basis of drone warfare (more precisely, its perceived international legal legitimacy) is eroding from under the administration's feet--largely through the U.S. government's inattention and unwillingness to defend its legal grounds, and require its own senior lawyers to step up and defend it as a matter of law, legal policy, and legal diplomacy.

I previously noted the likely DOJ reversal which would clear Bush administration lawyers of politically-driven disciplinary action for providing legal opinions on interrogation techniques. The 5-year witch-hunt has now concluded as expected, though leaks confirm the partisan malice which motivated the unjust investigation. Andrew McCarthy uncovered a letter from DOJ leadership which "shredded OPR's initial Draft Report and the process by which OPR's preliminary conclusions about ethical misconduct were reached." McCarthy highlights the letter's criticism of basic factual and legal errors in the Draft, exposing the extreme liberal bias of the investigation (Paul Mirengoff dissects the issue here and here).

I mentioned that the curbing of this tyrannous legal assault on free-thought would not sit well with the fanatical Left. On cue, the NY Times runs an op-ed lamenting that the lawyers were not punished for their legal opinions and pleading for disciplinary action against doctors associated with the program. In a summersault of logic, the authors regard the constant and documented medical monitoring and consultation involved in interrogations as evidence of a crime. They admit that both the military medical teams and independent CIA-DOJ teams later charged to investigate the interrogations concluded the methods did not constitute torture.

Of course, that is the very element of their crime. The Left does not seek to punish negligence, recklessness or even behaviour under the criminal statutes of the law. They want to punish thought with the power of the government. It is precisely because these doctors followed the law that they ought to be punished - their dutiful upholding of the law suggests that they willfully consented to those laws, and the policies and beliefs which led to their enactment. And such people - let's call them conservatives - need to be punished when they succeed in passing or obeying laws which are disagreeable to the Left. The NY Times article is a call for political thugery reminiscent of communist Russia - the authors and Times should be ashamed of their hypocrisy, touting tyranny of the mind as the path to liberty.

To the Times and extremist Left: You have met the enemy, and it is you. 

This NY Times Sunday Magazine article strains to get it right but doesn't quite get there.  Using the Texas textbook adoption controversy as a hook, author Russell Shorto reports on the Christian Right's attempt to link the Declaration of Indendence (with its multiple references to God, in various forms) and the Constitution.  Shorto (and probably many of the activists he interviewed) could have noted the pairing of American time and Christian time at the end of the original Constitution.  It is retained even today in presidential proclamations, as in this latest one, for American Heart Month:  "done in the year of our Lord 2010."  If one protests that this expression was merely a convention of the time, that actually strengthens rather than weakens the Founding as Christian argument:  Conventions such as that have weight in our original understanding of the text.

One should consider the constitutional commands ("shall") that public officials shall take oaths to support the Constitution but that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."   This summarizes the issue well:  There was a public expectation of reverence or piety (the oath requirement) but without demanding a sectarian commitment.  

Contemporary secularists have grotesquely expanded the private sphere to shove religion out of the public sphere.  As religion fights its way back, its adherents need to consider all of the language and argument of the Declaration of Independence and thus unite spirit and reason. 

Concluding a threat which was somewhat close to my heart, the Dept. of Justice has cleared Bush administration attorneys targeted for memos they authored on interrogation techniques. In an act of unprecedented malice and intimidation, Obama initiated a witch-hunt on Bush officials who enforced policies with which he disagreed. Specifically, he directed the DOJ to investigate attorneys who had provided legal opinions confirming water-boarding and other enhanced interrogation measures were consistent with Geneva Convention requirements.

The President brought the power of the Department of Justice against attorneys of the former administration for providing a legal opinion with which he happened to disagree. I can imagine few examples of a more tyrannous and unprincipled assault on free-speech and democracy. Obama, through Attorney-General Holder, sought to punish civil servants for thinking differently than him (and the thinking was very plausibly correct on the substance).

DOJ originally concluded that the lawyers violated professional rules of conduct and sought disbarment (though the left demanded imprisonment). However, a final reviewer seems to have softened the conclusion to a mere reprimand. DOJ didn't explain the reversal, but noted the reviewer was "a highly respected career lawyer who acted without input from Holder." I'm certain the latter statement was meant to protect Holder from the reckless wrath of the bloodthirsty left, though it only serves to prove his truancy from the actual administration of justice.

Justice Alito's disagreement with President Obama's interpretation of the Citizens United case is drawing much comment.  The consensus is that Alito is correct.  Even a Lefty like Linda Greenhouse thinks so.  I'm not so sure, however.  The question is whether the case, by overturning the restrictions on independent expenditures by corporations and unions, also overturns the prohibitions on like expenditures by foreign corporations.  My question is this: for several years now, the Court has been collapsing the distinction between U.S. citizen and foreigner, (and, to a lesser degree, between U.S. law and foreign law).  By what logic can U.S. law discriminate between U.S. corporations and foreign corporations in elections, when it can't discriminate between the two in so many other ways?

When neither party defends the reasoning of a precedent, the principle of adhering to that precedent through stare decisis is diminished. Austin abandoned First Amendment principles, furthermore, by relying on language in some of our precedents that traces back to the Automobile Workers Court's flawed historical account of campaign finance laws, see Brief for Campaign Finance Scholars as Amici Curiae; Hayward, 45 Harv. J. Legis. 421.  (Emphasis added.)

Remember the Amirault case in Massachusetts, about the family who allegedly sexually assaulted young kids in their care, in spectacular fashion?  Dorothy Rabinowitz details Martha Coakley's role in the sordid prosecution.  This is the world inhabited by liberals.

If the current attorney general of Massachusetts [Coakely] actually believes, as no serious citizen does, the preposterous charges that caused the Amiraults to be thrown into prison--the butcher knife rape with no blood, the public tree-tying episode, the mutilated squirrel and the rest--that is powerful testimony to the mind and capacities of this aspirant to a Senate seat. It is little short of wonderful to hear now of Ms. Coakley's concern for the rights of terror suspects at Guantanamo--her urgent call for the protection of the right to the presumption of innocence.

First, they shouldn't be calling it an "attempted" act of terrorism.  By affecting our behavior for the worse the mere attempt to down an airliner is an act of terrorism.   Our current feckless leadership is exemplified not only by DHS Secretary (and prospective Supreme Court nominee) Napolitano but also by Attorney General Holder's boilerplate statement in his press release on the episode (with my comments in brackets):

"This alleged attack [alleged only if you think the real attack might have been gastritis] on a U.S. airplane on Christmas Day shows that we must remain vigilant in the fight against terrorism at all times," Attorney General Eric Holder said. "Had this alleged plot to destroy an airplane been successful, scores of innocent people would have been killed or injured. We will continue to investigate this matter vigorously, and we will use all measures available to our government to ensure that anyone responsible for this attempted attack is brought to justice [and given an opportunity to denounce America in a U.S. court, should his attack fail]."

Holder's boilerplate statement looks preposterous in light of his decision to try various Guantanamo detainees.  One reason the "panty bomber" (Mark Steyn) waited until landing to set off his device was to assault Americans on American soil.  He must also have been counting on a backup plan of addressing a U.S. court.  Should that turn out to be a motive, Holder should certainly offer his resignation.   

Victor Davis Hanson and his NRO colleagues have more.  Let gratitude be felt for the allegedly quick-acting passengers on the Detroit flight--though maybe, according to the jurisprudence of the day, they should be charged with assault instead.

Professor Bainbridge alerts us to the latest development in the Kelo case. Pfizer is abandoning the property that the City of New London, CT took from Suzette Kelo and others and gave it to develop.  Bainbriadge provides excellent analysis, including a surprise appearance by Russell Kirk.  Liberal jurisprudence in action.

Other facts about her: She is an army brat, attended Cornell and Emory law, with an LL.M from UVA, appointed by Zell Miller, and is married to a former Deputy Mayor of NY, under Ed Koch.

For pros and cons on other possibilities, note this Jan Crawford Greenburg co-authored piece. From all of this, Gov. Granholm looks more likely, at least on paper. Or is there no such thing as too many Chicagoans?

But denigrating, even implicitly, Jeffersonfs highest achievements (especially by contrast with a Saint) would further undermine Catholic self-understanding as well as patriotism. Preeminent among those achievements was the Declaration of Independence, with its radical statement of human equality, an assessment of the human condition that transformed the relationship of man to his government and the understanding of the relationship between man and the cosmos. Catholics, as well as those of other faiths and religious skeptics and scoffers, need the natural theology of the Declaration to ground our political and social conduct. They need the founding documentfs reason or natural law to establish their political principles. Philosophic reason paves the way for theology.

Justice Scaliafs remarks are not available, but Archbishop Burkefs powerful keynote address is here. Go, Notre Dame was not a leading theme.

Generally, Republicans and conservative activists do a poor job of advocating their sensible and constitutionally necessary position. Matt Franck does outline a coherent strategy designed to change public opinion.

Unfortunately, those on the right tend to argue like lawyers, while Obama had (probably justified) contempt for his law school education (see his autobiography)--hence his emphasis on "empathy" as a judicial credential, which has attracted the ire of conservatives. If the right took to heart the Constitution's basis in the Declaration of Independence, they would sing a different song and interrupt the leftist appeal to the passions.

The Supreme Court is too important to be left to the lawyers--something Bush probably realized in his unfortunate initial pick of Harriet Miers. But he didn't have the skill (or the proper weapon) to make his point. The language of "judicial restraint" has no political cache and in fact is a secondary point. We want jurists who are zealous in their defense of the Constitution, while realizing the moderation essential to their office.

Montana's staunchly pro-Second Amendment Governor, Democrat Brian Schweitzer, has signed Montana HB 246, the Montana Firearms Freedom Act. The bill declares that a firearm which is manufactured in Montana, and never leaves the State of Montana, "is not subject to federal law or federal regulation, including registration, under the authority of congress to regulate interstate commerce. It is declared by the legislature that those items have not traveled in interstate commerce."

The whole tawdry tale is one of litigation run amok, which I have previously discussed here and the ever-insightful Professor Rotunda had discussed more recently here. Recapping the case briefly, in an attempt to gain more than the millions in cash and gifts that she had received during his life, Anna Nicole challenged her billionaire husband's estate plan, claiming that he had made a verbal promise of half of his fortune. The jury in Texas didn't buy this story, so she shopped for a more receptive court in California, and she found one in a federal bankruptcy court. The Ninth Circuit dismissed the millions awarded by the court based upon a federal jurisdictional rule, but the Supreme Court in 2006 reversed, saying that the federal court could consider the merits of the case. Contrary to Stern's failed petition, which suggests that he is now entitled to the judgment, his case looks grim. For when the Ninth Circuit looks at the merits, they will be obliged to apply Texas law and to respect the final decision of the Texas probate court. That court was crystal clear:

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED by the Court that J. HOWARD MARSHALL II did not intend to give and did not give to VICKIE LYNN MARSHALL, A/K/A ANNA NICOLE SMITH, a gift or bequest from the Estate of J. HOWARD MARSHALL II or from the J. Howard Marshall, II, Living Trust either prior to or upon his death.

Cross Posted on The Foundry.