Published in Courts

Many contemporary friends of limited government adopt erroneous theories ("states' rights," secession) that actually increase the possibility of tyrannical government, as American history bears out.

Often the case for secession as a device of limited government resorts to the Kentucky and Virginia Resolutions. But Villanova University professor (and MAHG instructor) Colleen Sheehan argues that James Madison, author of the Virginia Resolutions, had a much profounder view of not only federalism but the nature of popular government than his friend Thomas Jefferson, who authored the Kentucky Resolutions.

Whereas Jefferson sought to implement modes outside of the ordinary processes of law, in the form of constitutional conventions or negations of contractual/compact agreements, Madison sought to establish a political practice in which, whenever possible, the settled decisions of the people would control and direct government. Madison's cure was not to pit the extraordinary authority of the people against the ordinary deliberative processes of majority decision-making, but to hold the government dependent on and answerable to the deliberate, sovereign public.

Her essay appears in a series on the provocative Library of Law and Liberty website of the Liberty Fund.

The Heritage Foundation has put on-line its Guide to the Constitution, co-edited by David Forte and Matthew Spalding. This is a line-by-line commentary with major essays by significant legal scholars. Heritage does terrific work with its instant digests on contemporary policy issues, but this is something different, yet relevant to policy debates.

Take this analysis of the first line of Article II of the Constitution, on the nature and scope of executive power, "the vesting clause." There's even a teacher's companion guide, besides the essay by UVA law professor Sai Prakash and a brief (and diverse) bibliography of legal scholarship.

Or consider co-editor Forte's thoughts on the commerce clause, now at the heart of the Obamacare case, to be decided by the Court this term. Are you clear on the meaning of "to ... regulate commerce ... among the several states"? And so it goes, line by line, through the whole Constitution.

The achievement deserves favorable comparison with the best encyclopaedias of legal thought, such as the grand project of the late Leonard Levy. And besides Heritage's is on-line, will be constantly updated (not a living Constitution, but a lively commentary) and free.

In light of the Left's conniption fit about the possibility that Obamacare might be ruled unconstitutional by the court, I thought it might be worth reposting this pearl of wisdom form Professor Tribe:

Whenever I suggest in these essays, for want of space or of humility, that one or another decision seems to me "plainly right" or "plainly wrong," or that some proposal or position is "clearly" consistent (or inconsistent) with the constitution, I hope my words will be understood as shorthand not for a conclusion I offer as indisputably "correct" but solely for a conviction I put forward as powerfully held.

Richard Epstein's latest post gives strength to my post the other day, which argued that Progressives view the constitution the way a passenger on a plane sees the country from 30,000 feet--everything is homogenized into one, unified landscape.  Moreover, he notes that that is the only way to justify the modern view of the commerce clause.

Epstein points to Charles Fried as a case in point. (Fried may have served in the Reagan administration, but, as Epstein notes, he has bought the Progressive re-writing of the constitution. Fried also supported Obama for President.)  Fried insists that there is no practical limit to the federal government's power under the commerce clause.  As Epstein points out, Fried claims  "that the scope of the commerce power was settled as early as 1824 in Gibbons v. Ogden, which he does not refer to by name. Of Gibbons, Fried explains, "If something is within the power of Congress, Congress may exercise that power to its fullest extent." 

On the contrary, Epstein notes, notes that Progressives like to cite Chief Marshall's opinion in Gibbons v. Ogden to justify a very expansive reading of the commerce clause, "in Gibbons, Chief Justice Marshall wrote without embarrassment that "the completely interior traffic of a State" was beyond the power of commerce to regulate. A fortiori, the regulation of manufacture, agriculture, mining, or health care was far outside the scope of Congressional regulation." 

Epstein goes on to note that Chief Justice Marshall very clearly indicated that the federal government has no authority, at least under the commerce clause, to regulate intra-state commerce--of which there was a good deal: "in Gibbons, Chief Justice Marshall wrote without embarrassment that "the completely interior traffic of a State" was beyond the power of commerce to regulate. A fortiori, the regulation of manufacture, agriculture, mining, or health care was far outside the scope of Congressional regulation."

In the founding era, the argument was between loose construction (which the Federalist Party supported) and strict construction (which the Republican Party supported). Both sides agreed that there were real limits to the federal government's power.  They disagreed about whether there were implied powers at all.  Nowadays, the argument not about whether there are implied powers, but, rather, about whether there is anything that cannot be turned into an implied power.  If one may discover some implied powers, may one be justified in discovering any conceivable implied power?  Progressives seem to think that the answer is yes--so long as History or Progress demands it.

In other words, the argument today is between loose construction and deconstruction, not between strict and loose construction of the Constitution.

President Obama is probably just trying to work the refs in his comments suggesting he is  "confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."

Since Progressives have long praised the Court for taking away from the people the right to make law on may subjects, the comment might seem striking.  But I actually think it is entirely consistent with the Progressive understanding of the "living constitution." Whatever furthers the Progressive agenda is good, and whatever blocks it is bad.  Living is only supposed to be in the direction of "progress."  If the Court strikes down laws Progressives like, they will decide that judicial review is passe.

But what if the country is divided about what is "forward" in history? And what if some (many, I suspect) Americans are not living in an Hegelian world in which History has direction?

More evidence that a living constitution is impossible absent a consensus about what's next.

P.S. Obama's criticism of Paul Ryan for "thinly veiled Social Darwinism" draws out a related point. Uncle Barry's moral ideas are from fifty years ago. His Progressivism is trapped in the past. His living constitution is the prisoner of 20th century Progressivism.

Jeffrey Rosen has a nice bit of sophistry in The New Republic.  He suggests, perhaps correctly, that Justices Kennedy and Roberts, were asking the government to point to a limiting principle--something which would allow Obamacare, but would nonetheless not allow the federal government legal authority to do whatever it wanted.  Unfortunately, he says:

[Soliciter Genera] Verrilli's error was substantive: He failed squarely to answer Roberts and Kennedy's repeated questions about what limits he envisioned to Congress's power to regulate interstate commerce. Verrilli's evasions weren't only unhelpful--they were also unnecessary.

Rosen suggests that there is an obvious limiting principle, one that can be discovered in the founding.  "In previous cases denying Congress the power to regulate local activities such as guns in schools or violence against women," he notes, "the Court has drawn a distinction between activity that is truly local and activity that is truly national."

More generally, he quotes a new book by Neil S. Siegel suggesting that the federal government was designed to address any problem that was not local in nature:

"The Commerce Clause is best understood in light of the collective action problems that the nation faced under the Articles of Confederation, when Congress lacked the power to regulate interstate commerce." Siegel argues that "to over-come failures to participate in collective action whose effects spill across state borders, the clauses of Article I, Section 8 authorize Congress to require various kinds of private action."

Balderdash!  If that was the meaning of the commerce clause, it would not say: "The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

Rosen's argumen views the Constitution from 30,000 feet. Its particular details fade into nothingness and it becomes a plenary grant to address any issue that Rosen thinks is a national one. 

Consider some constitutional arguments of the founding era. In that era, we should note, it was an open question whether the federal government had the authority to build roads, canals, and other such projects. President Madison thought it might be, but in the end, he decided that such projects required an amendment, which he supported.  Whigs disagreed with that. But if internal improvements were constitutionally controversial, it is hard to claim that there would have been any discussion of whether the federal goverment may regulate my visit to my doctor. 

In his Opinion on the Constitutionality of the Bank, Hamilton said that Congress may create a corporation to fulfil the powers listed in Article 1, section 8.  Among those he listed was the commerce clause.  After all, creating and managing a national circulating medium is a national act, by definition.  The key question between Hamilton and Jefferson turned on whether Hamilton was correct to infer a power to create a corporation in the service of the enumerated powers.  It was self-evident that the object was national in scope.

But Hamilton noted that there were very real limits:

The only question must be in this, as in every other case, whether the mean to be employed or in this instance, the corporation to be erected, has a natural relation to any of the acknowledged objects or lawful ends of the government. Thus a corporation may not be erected by Congress for superintending the police of the city of Philadelphia, because they are not authorized to regulate the police of that city

The federal government, even Hamilton, the man with the most expansive understanding of federal power at the time, argued, did not have a general police power.  And what is the police power, classically speaking, the power to regulate health, safety, and morals and other such things.  But Rosen wants to say that, under modern conditions, my visit to my doctor is a national concern. Ha!  To be sure, my doctor may buy products that are shipped interstate. And if the federal government allowed it, it might be possible to buy heath insurance across state lines (that would be nice).  In those cases there would be interstate commerce.   By my visit to my doctor is hardly interstate commerce--unless we allow, as Rosen implies, that there is no such thing as intra-state commerce.

And that brings us to another celebrated case--Gibbons v. Ogden.  That case involved the grant, by the State of New York, of a monopoly of shipping on the Hudson river.  The Court ruled, not unreasonably, that the Hudson is not an intra-state waterway. ItJus has borders on New York and New Jersey, and it ends at the Atlantic Ocean.  Hence such a monopoly grant was illegal.

This case matters because people on the Left often cite Justice Marshall's opinion to justfy an expansive reading of federal power.  Justice Sotomayor quoted it from the bench this week. But we need to keep in mind that the case involved shipping on a waterway that borders on more than one state, and that ends at the ocean. We should also read more closely what Marshall actually said:

Comprehensive as the word "among" is, it may very properly be restricted to that commerce which concerns more States than one. The phrase is not one which would probably have been selected to indicate the completely interior traffic of a State, because it is not an apt phrase for that purpose, and the enumeration of the particular classes of commerce to which the power was to be extended would not have been made had the intention been to extend the power to every description.

A clause that grants the federal government power regarding commerce among the states necessarily implies that there is such a thing as commerce that is local--the very thing that Rosen says does not exist. To be sure, he points to "previous cases denying Congress the power to regulate local activities such as guns in schools or violence against women."  But close observers will note that those are not commercial activities at all.  If my visit to my doctor is interstate commerce, then there is no commerce that is not interstate. 

If that is what the people want, there is a simple remedy, one consistent with the constitution. Amendment. But somehow the amendment clause falls by the wayside in pursuit of the public good.

Rosen's argument is that under current circumstances the health care market is national.  H quotes a Representative from Massachusetts:

A national mandate would free Massachusettes[sic] from being "forced to subsidize through higher premiums and higher Medicare and Medicaid costs the uncompensated care of people in other states who do not have health insurance."

But others might reply that Rosen is attacking the notion that the states in our federal system are laboratories of democracy.  They will have diverse laws, and many different approaches to health care policy. He suggests that a state that passes a policy may not suffer from competition with other states. In other words, he presumes what he is concluding--that health care is naturally a national market.

And that brings us to a point that Walter Russell Mead makes eloquently.  America's health care system is simply too large and complex to be regulated by a bureaucracy in Washington that creates a uniform set of rules for a country as large and diverse as the United States.  Even by his own living constitution model, therefore, Rosen's argument fails.

Three days of oral argument over the constitutionality of Obamacare begin Monday. C-SPAN will replay the oral argument later in the afternoons. It should be kept in mind that the reason we are even talking about the possibility of the Court overturning the law is one justice: Clarence Thomas (no relation to me, incidentally). The New Yorker gave this explanation of Thomas's key role in changing the Court last year.

Toobin writes several silly sentences but note the core of his argument, a warning to the left of his dangerous powers:

In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court. Since the arrival of Chief Justice John G. Roberts, Jr., in 2005, and Justice Samuel A. Alito, Jr., in 2006, the Court has moved to the right when it comes to the free-speech rights of corporations, the rights of gun owners, and, potentially, the powers of the federal government; in each of these areas, the majority has followed where Thomas has been leading for a decade or more. Rarely has a Supreme Court Justice enjoyed such broad or significant vindication.

Conservatives should keep in mind that Thomas was nominated by a president not particularly beloved among conservatives--yet a man who stood by him when he came under vicious attack.

Jonah Goldberg proposes federalism as means of peaceful coexistence betweeen the left and right. Trouble is, it has been tried before: Stephen Douglas. The other guy eventually won. Let's stick by Abe's "tough nut to crack."

In California, among other states, the left has long been at work on "independent state grounds" laws. In this regard, opponents of abortion are misguided in their focus on Roe v. Wade, which certainly should be overturned. Overthrowing Roe would permit state legislatures to restrict abortion, but it would leave other, liberal states with abortion rights protected. For more on "independent state grounds" see this book on democracy in California and this article by Edward Erler.

The Sage of Mt. Airy has more theoretical speculations on the meanings of federalism for the right and for the left.

The unethical investigation (and subsequent 2008 conviction) of the late Senator Ted Stevens (R-Alaska) for alleged ethics violations reveals a crisis in democratic government: When Department of Justice investigators influence elections--in this case, one that gave Senate Democrats a veto-proof majority--they are showing themselves to be the rulers they have in fact become.

In many reapportionment schemes, the legislators pick their constitutents. In the Stevens investigation, where the judge held government lawyers in contempt after the trial, the bureaucrats in effect knocked off a Republican incumbent, who lost by fewer than 4,000 votes a week after the trial. The court-appointed counsel concluded that the prosecution withheld potentially exonerating evidence from the defense. Even Eric Holder had to discipline the lawyers, with one committing suicide. (It should be noted that a Republican Administration might not have been able to control their own staff.)

Dharun Ravi had spied on and filmed his Rutgers College roommate, Tyler Clementi, who later jumped off the George Washington Bridge. A jury convicted Ravi of "bias intimidation."

Ann Althouse urges an appeal. 

A forthcoming edition of the International Journal of Constitutional Law includes an article by Harvard professors Adam Shinar and Anna Su entitled, "Religious Law as Foreign Law in Constitutional Interpretation." The abstract is below

This article challenges the conventional understanding of the separation of church and state by arguing that there is no analytical or constitutional problem with using religious law for the purpose of constitutional interpretation. We situate our arguments within the context of the broader debate on the use of foreign law in constitutional interpretation, and the more recent controversy surrounding the proposed bans on the use of religious law in U.S. state courts. By examining the arguments for and against the use of foreign law, we show how they equally apply to the use of religious law. More importantly, we conclude that differences between foreign law and religious law are, at best, differences of degree rather than kind, and thus do not militate against the use of religious law in constitutional interpretation. The article demonstrates that religious law can be used, and in fact, has already been used by the Supreme Court for four limited purposes, none of which, we argue, offends the principles underlying the Establishment Clause.

The ultimate import of our claim is not that religious law should be used by courts, but that recognizing its potential as a source in constitutional interpretation should result in a deeper and more careful engagement with the possibilities it generates.

The U.S. Constitution is a common law document and the common law is founded upon ancient custom, natural law and right reason. As such, natural law would seem to be a logical and legitimate source by which to interpret the U.S. Constitution - and religious law would seem to be a promising guide by which to discover the natural law. However, entrusting judges with the authority to scrutinize religious law and decipher the natural law seems to be nothing more than conservative rhetoric for the adoption of a "living constitution."

Furthermore, the authors - who seem to favor the adoption of foreign law in U.S. courts - are not likely contemplating Catholic canon law or Jewish Halakha, but rather Islamic Sharia law. Those who might feel inclined to sympathy toward the use of religious law in U.S. courts should consider well which religious law will be employed and the likelihood that religious law would be subverted to bolster progressive ends which will prove anathema to those of faith. 

Insofar as religious law - and religion itself - historically cultivated American law, it is a relevant and proper guide to the interpretation of the original meaning of the constitution's text. But as a persuasive authority to which judges may turn for inspiration in updating an evolving constitution, religious law is no less dangerous than French law. 

H/t: Mirror of Justice.

WaPo reports:

The Supreme Court said Monday that it will consider whether American courts can hear lawsuits alleging human rights atrocities that were committed overseas without a direct U.S. connection.

During a case invoking the 1789 "Alien Tort Statute" - which laid dormant for two centuries until liberal human rights activists resurrected the arcane law in an attempt to punish corporations viewed as contributing to foreign atrocities - the Supreme Court surprisingly decided to expand the question before the court and entertain whether anyone at all, regardless of ties to the U.S., may be sued in an American court.

Conservatives are rightly skeptical of such broad powers.

"This case was filed by 12 Nigerian plaintiffs who alleged that respondents aided and abetted the human rights violations committed against them by the [Sani] Abacha dictatorship in Nigeria," Alito said, quoting from a brief from the Nigerians.

Alito then asked their attorney, Paul Hoffman: "What business does a case like that have in the courts of the United States? There's no connection to the United States whatsoever."

Similarly, Justice Anthony M. Kennedy quoted from a brief submitted by corporations supporting the defendants: "No other nation in the world permits its court to exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection."

Bear in mind that this same basic claim of "universal jurisdiction" was invoked by foreign liberals in an effort to have George W. Bush, the sitting president of the United States, among other conservative leaders, apprehended for war crimes and tried in foreign courts. Universal jurisdiction is the coveted prize of the liberal international community, which seeks to consolidate all power (including judicial power) within its enlightened hands.

President Obama, naturally, supports the theory. While liberals applaud the concept when applied to Bush and Co., I wonder if their excitement would persist if Obama were imprisoned by, say, Malta for crimes against humanity for his promotion of mass-murder through abortion funding. I think not. Luckily, oppression and harassment from the international elite is a one way street - and liberals are never at the receiving end. 

Not intentionally of course. But by inflating the test scores of its incoming students, Claremont McKenna College provides ammunition for critics of race and ethnic preferences in admissions.  How can we trust colleges to provide honest information? Won't they skew data about race to make the case for preferences? John Eastman's brief in an upcoming preferences case lays out this argument well.

In the meantime, a legal blogger has raised the possibility of law school deans serving jail time for falsifying student data and, biggest bonus of all, US News being charged with fraud for knowingly publishing false information.

U.S. News itself may have committed mail and wire fraud. It has republished, and sold for profit, data submitted by law schools without verifying the data's accuracy, despite being aware that at least some schools were submitting false and misleading data. U.S. News refused to correct incorrect data and rankings errors and continued to sell that information even after individual schools confessed that they had submitted false information. In addition, U.S. News marketed its surveys and rankings as valid although they were riddled with fundamental methodological errors.

The EPA faced tough questioning at SCOTUS.  Justice Alito to counsel for the government/EPA:  "If you related the facts of this case . . . to an ordinary homeowner, don't you think most ordinary homeowners would say this kind of thing can't happen in the United States?"  The case involved an alleged wetlands protection violation and whether the owners had a right to a judicial hearing.  Chief Justice Roberts to counsel for the government:  "What would you do, Mr. Stewart, if you received this compliance order? You don't think your property has wetlands on it and you get this compliance order from the EPA. What would you do?"  Counsel responded meekly about obeying the law. See pp. 36-37 of the transcript of the oral argument. See pp. 42-44 for the government's reasoning for not granting hearings to those being prosecuted by the EPA. This is not mere Tocquevillean soft despotism! Even the liberal justices expressed sympathy for the landowners.

The Pacific Legal Foundation argued for the plaintiff landowners, the Sacketts. It will put up the audio later in the week. Someone who attended the oral argument told me that Mrs.Sackett had to restrain her husband from doing fist pumps when they heard the hostile questioning from the justices. 

UPDATE:  I forgot to mention that the President paid a surprise visit to the EPA yesterday, bucking up the staff and cheering them on. "When we clean up our nation's waterways, we generate more tourists for our local communities."  In the Sacketts' backyard? Of course Obama allowed, in one of his typical throwaway lines, "we have an obligation every single day to think about how can we do our business a little bit better."

Gingrich went overboard on his attacks on overboard judges. Here's a far more sober account of what can be (and ought to be) done, by Ralph Rossum. Curt Levey and Carrie Severino add some thoughts on reining in a wacky judiciary without undermining judicial independence--both are essential for the rule of law.  Judicial independence is not a license for judiciary supremacy. 

An even better lesson can be found in early American political documents that list the independence of the judiciary and the separation of powers among the fundamental rights of a free people.  Consider for example the Massachusetts Constitution and the Essex Result,

Since the Supreme Court will be hearing arguments about the constitutionality of Obamacare, it might be worth looking back at Lawrence Tribe's claim that there is a "clear case for the law's constitutionality."  Moreover, he takes a smart rhetorical strategy, flatterig the Court's conservatives for being above politics. Hence, he claims:

There is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress and treat this constitutional challenge for what it is -- a political objection in legal garb.

But what can Professor Tribe mean that the case is "clear"?  To answer that question, we should turn to his other writings, particularly his Constitutional Choices, in which he writes:

Whenever I suggest in these essays, for want of space or of humility, that one or another decision seems to me "plainly right" or "plainly wrong," or that some proposal or position is "clearly" consistent (or inconsistent) with the constitution, I hope my words will be understood as shorthand not for a conclusion I offer as indisputably "correct" but solely for a conviction I put forward as powerfully held.

According to the good Professor, therefore, to assert that any constitutional case is clear, is to pound the table.

In fairness to Tribe, his claim may only be that the heath law is consistent with a chain of precedents that go back to the New Deal.  After all, Tribe believes in a "living constitution."  But, as we have noted before it might be time for Tribe to stop clinging to his horse and buggy constitution, and join the 21st century.

In 1984 George Orwell's O'Brien declared, "If you want a vision of the future, imagine a boot stomping on a human face--forever."  That's the way I felt when I heard the participants in the Anita Hill lovefest, "Sex, Power, and Speaking Truth."    His narrow confirmation to the Court allowed him to revive American constitutionalism.  We must ever keep in mind this victory in our cultural wars.

Meanwhile, further south in Manhattan, the OWS mobs continue to flourish.  Comparing them to the Tea Party misses the heart of these true descendants of the American Founding:  They stand for the restraints, protections, and procedures of constitutional government. 

I a review of Justice Stevens's new book, I stumbled over this bit:

Justice Stevens never offered broad theories of constitutional decision-making. Instead he styled himself as a minimalist, wary of (as he put it years ago) "the danger that the glittering generality will turn out to be an overstatement that fails to anticipate the contemporary garb in which a basic theme will appear in future cases."

Criticism of "glittering generalities" was centeral to the critique of the Declaration in antebellum America.  Although he seems not to have been the first to use the phrase Rufus Choate is generally credited with popularizing the term, and associating it with opposition to natural right.

Lawyers for Romney include Judge Bork, Mary Ann Glendon, Lee Casey, David Rivkin, Gary McDowell (actually not a J.D. lawyer), Wendy Long, Jeffrey Rosen--huh, Jeff Rosen!?--and many other legal luminaries beloved of Beltway conservatives. 

In a 2-1 opinion, the U.S. Court of Appeals for the Sixth Circuit struck down on Friday an amendment to the Michigan Constitution (Proposal 2, the "Michigan Civil Rights Initiative") which provided that the state may not "discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting." The amendment was passed by a successful ballot initiative following the Gratz and Grutter decisions which allowed racial preferences in law school admissions.

Perversely, the majority opinion relied upon the Equal Protection Clause to conclude that Michigan's law prohibiting unequal treatment based on race was unconstitutional. According to the court, "Proposal 2 reorders the political process in Michigan to place special burdens on minority interests." Apparently, taking away an unconstitutional advantage is a special burden which trumps the Constitution.

Michigan Attorney General Bill Schuette said he will appeal for a rehearing en banc. I expect the full court will overturn this decision. If they fail to do so, this would be a ripe issue for the Supreme Court.

Kirk Kolbo, who represented the plaintiffs in the Supreme Court's racial quota and preference cases, writes an essential article for Power Line criticizing Coalition to Defend Affirmative Action v. Regents of the University of Michigan.

The Washington Post has a good article on the divergence of "originalist" thought in Justices Scalia and Thomas' respective opinions in Brown v. Entertainment Merchants Association (the violent video game case). (Opinion, briefs and coverage at SCOTUSblog.)

Of course, one could deride WaPo for failing to have previously discovered that all originalists are not alike and that the philosophy of originalism is profound and diverse. But the article is clear and blessedly free from snark and derision, so I'm thankful for the attention to a critical debate in Supreme Court jurisprudence.

On the other hand, I can't resist sharing the articles parting words:

Originalism is still a relatively young theory of constitutional interpretation....

That is a shame.

Justice Clarence Thomas has authored one of the Court's most unusual and as usual most instructive court opinions, dissenting in the violent video case (look about 40% of the way down, after the majority opinion).  In voting to uphold California's restrictions on sales of violent video games to minors, Justice Thomas surveys the Founders' views of child rearing, noting among other items Jefferson's education instructions to his wife, the contrasting views of Locke and Rousseau, and children's reading of the time.  The upshot:

I previously wrote about the class-action sex-discrimination lawsuit against Wal-Mart. I sensed that it was another frivolous attack by leftist puppets, manipulated by union bosses, attempting to score political points thought judicial fiat. I was right.

The Supreme Court has ruled for Wal-Mart in its fight to block a massive sex discrimination lawsuit on behalf of women who work there.

The court ruled unanimously Monday that the lawsuit against Wal-Mart Stores Inc. cannot proceed as a class action, reversing a decision by the 9th U.S. Circuit Court of Appeals in San Francisco. The lawsuit could have involved up to 1.6 million women, with Wal-Mart facing potentially billions of dollars in damages. 

The full text of the ruling is here.

The liberal wing did dissent, in part - de facto arguing for a gender quota in order to ensure equal representation in management. Of course, the disparate proportion of male-to-female managers was not shown to be the result of discrimination of any sort. The infamous 9th Circuit and liberal judges on the Supreme Court simply want to create a world of their choosing through judicial coercion. This is an abuse of their public trust and a degradation of democracy. Wal-Mart scored a victory for American liberty today.

The descendants of the litigants in the great civil rights case of 1896 form a foundation.  Sweet idea, and I'm wondering whether serious tea party-style activists might follow suit by forming similar foundations devoted to ending irrational discrimination.  They might find inspiration in Jennifer Roback Morse's libertarian scholarship, which notes the City of New Orleans overriding the railway's preference for integrated seating.  (Clint Bolick has also performed great service along these lines.)  Here is another way to put natural rights-thinking to practical use.  Reading Charles Lofgren's classic work on Plessy is essential background.  The Claremont historian shows the direct ties between Plessy's arguments and the Declaration of Independence.

The Tea Party's most appealing argument is for the restoration of the principles of the Declaration of Independence in everyday life.  The fight for color-blind justice is an essential part of that argument.  Thanks to Mike in the comments.

Treppenwitz:  Here is one version of Edward Erler's argument on Plessy's persistence in our jurisprudence.

"The 'litmus test' for judicial appointments established by the Reagan Administration concentrated on a potential appointee's willingness to overrule Roe." (Morton Horowitz, Harvard Law Review, 1993) 

Really? Of the five justices sent to the Supreme Court by Reagan and George H.W. Bush, three voted to sustain Roe. Would any of the people put on the Court by Clinton or Obama vote to overturn it?  I have my doubts.  Who has a litmus test?

Obama's most radically leftist nominee to the federal bench has been defeated by GOP filibuster in the Senate. Goodwin embodies the more extremist notions of the living constitution. Powerline discussed Liu's radicalism on several occasions.

The GOP and the Gang of 14 drew a line in the sand on Liu, defining his views as the "extraordinary circumstances" which merit judicial filibusters (see Richard Adams below). Time will tell if this is a singular anomaly or the beginning of a trend of GOP assertiveness on judicial nominations.

It looks like Senate Republicans are going to filibuster Goodwin Liu to keep him off the Bench.  Turnabout is fair play, certainly.  And precedents matter.  But I wonder whether the filibuster is proper for nominees.

The key question is when the Senate is doing its "avise and consent" role, rather than working with the other branche(s) of the Legislature to make law, is it acting in Article I or Article II.  If giving its advice and consent is not a legislative task, and if the filibuster is a legislative action, then the answer is no.

Given the precedents that exist already, it's probably too late to do anything, but I thought the question worth raising, perhaps as a matter of historical interest.

One could argue that way back at the start of Washington's first term, when the Senate kicked the President and Secretary of War out of their chamber, rather than discussing instructions for negotiations with the Creeks that set the precedent for most of what followed in that area.

Cass Sunstein's After the Rights Revolution:  Reconceiving the Regulatory State is one of the most horrifying books I've ever read.  Now Administrator of the White House Office of Information and Regulatory Affairs (OMB), Sunstein has a hand in Obama's expansion and affirmation of the Administrative or Regulatory State.  He gives off the appearance of even-handedness but clearly stacks the deck in favor of willful bureaucracy and against "private rights" (that is, natural rights), for FDR and the Second Bill of Rights against the Founders' Constitution.  He advises how the bureaucracy can collude with the courts to block off protests of pesky congressmen.  Laws after all are not that specific, so the bureaucracy needs to be able to reinterpret such laws to keep up legislative intent with the times.The 1990 book is one of the greatest assaults on the rule of law in our time.

For some examples of such bureaucratic abuses, including abolition of legal rights by bureaucratic fiat, note Columbia law prof Philip Hamburger's essays on Obamacare waivers. His most recent essay is here.

See also Eric Claeys' congressional testimony (subtly pointed at Sunstein) on how regulators might be reined in, in Steve Hayward's post below.

And finally this, also from Steve, on the crony politics of the Administrative State.

Having won a presidential election by simply not being George W. Bush, its understandable that Obama sought to govern by the same principle. However, the realities of the job have often forced him to take the path formally trodden (i.e., warrantless domestic wire-tapping, military surges, rendition). Now, the WSJ reports:

The Obama administration on Monday lifted its freeze on new military trials at Guantanamo Bay and for the first time laid out its legal strategy to indefinitely detain prisoners who the government says can't be tried but are too dangerous to be freed.

So, Gitmo will not be shut down, those vilified trials will resume and some terrorists will be held indefinitely without trial. Watch for it - Obama is just around the corner from penning a memo allowing "enhanced interrogation techniques."

Of course, Obama's charisma was never going to prove sufficient to actually convince foreign countries to adopt our Gitmo clientele, and American states had long ago shown symptoms of NIMBY (Not In My Back Yard) Syndrome when asked to host trials in civilian courts. The result was indefinite detention. The solution, belatedly arrived upon, is ... the Bush doctrine!

Somewhere, two former presidents named George Bush are smiling.

The Supreme Court opinion in the Westboro Baptist Church case (the military funeral disrupters) illustrates why the First Amendment has become increasingly irrelevant to self-government.  Of course free speech is more important than ever, but the Court's majority opinion shows the divide between that fundamental constitutional principle and what has become mere First Amendment "freedom of expression."  As Justice Alito argues in his solo dissent, "Neither classic 'fighting words' nor defamatory statements are immunized when they occur in a public space, and there is no good reason to treat a verbal assault based on the conduct or character of a private figure like Matthew Snyder [the fallen Marine] any differently."  Of course, "funerals are unique events at which special protection against emotional assaults is in order."  The Justice is on his way to becoming the Justice for common decency and the friend of dogs--see his dissent in the animal cruelty case.  

The Court's appalling conclusion about free speech also reminds us of an important political issue for defenders of constitutional government.  First, Justice Alito is on the Court because conservative Republicans protested President Bush's nomination of an unqualified crony.  Second, note Justice Breyer's concurring opinion, which underlines the limits to the Court's free speech defense.  Breyer voted correctly against University of Michigan quotas in the undergraduate case, and he was the swing vote in the Texas state house Ten Commandments display case (he voted the wrong way against the Ten Commandments' posting in a court house).  For one, Clinton nominated Breyer because of the relative ease of confirmation.  Even the perception of political opposition can shape the Court and the lower courts.  Hence the need for robust, incisive argument against nominees who undermine constitutional self-government.   

Austria is the latest European nation to fall prostrate before Islamic claims of supremacy. After speaking at a political event on women's rights and jihad in the Middle East, Elisabeth Sabaditsch-Wolff reasoned that Mohammed was a "pedophile" for having sex with his 9 year old wife. An Austrian court decided today that making the connection between sex with a child and pedophilia is a criminal act and convicted Sabaditsch-Wolff.

Europe has never honored or protected the freedom of speech as has America, but over the past years they've become shamefully delinquent. Were someone to similarly slander Christian leaders, no court in Europe would consider criminal prosecution. Europe's infection with the sort of multicultural pestilence recently criticized by David Cameron has corrupted their most basic principles of equality and justice under the rule of law.

Militant Islam's 1,000 year war to conquer Europe won another battle today.

As JFK noted in his Ich bin ein Berliner speech, "Two thousand years ago, the proudest boast was 'civis Romanus sum.'" [I am a Roman citizen.] A Roman enjoyed the rights and privileges of his citizenship wherever he traveled, cloaked in the mantle of Roman law and might even in distant lands.

Has citizenship fallen so far that a former American president can be hounded and exiled from the wider world by threats of imprisonment in foreign lands for actions taken while presiding in office? Is America so low in estimation to the respect once due to Rome?

It seems likely that George W. Bush was forced to cancel a visit to Switzerland for fear that he would be arrested and tried for war crimes in a foreign court. Such threats have been made against other Bush administration officials, CIA agents, Donald Rumsfeld and Henry Kissenger (who has actually fled threatened abduction and prosecution abroad).

That American citizens must fear to travel abroad, lest foreign powers exert control over their liberty and judge them for acts of political administration in the United States is so far from acceptable as to provoke open hostilities on the national stage. David Frum correctly chides Obama for not protesting such a threat upon his predecessor (which he would also have reason to fear for drone attacks in Pakistan, were he not the darling of the leftist rabble raising such threats). Switzerland ought also to answer for the threat, clearly extending it's welcome to American citizens and assuring them of safe passage.

"Universal jurisdiction" is an attack upon national sovereignty to which the United States has not succumbed. It is not rule of law, but rule of the defeated and discontent. The world must be made to know that the mantle of American law and might protects her citizens in every land known to man.

In "A Man for All Seasons," Thomas Cromwell exclaims of St. Thomas Moore, "His silence is deafening all Europe" So too is Justice Clarence Thomas' silence apparently deafening the NY Times, which notes that Tuesday will mark five years since Thomas has spoken at oral arguments. The Grey Lady is somewhat critical of this silence, implying that Thomas might be failing to perform his duties (expect this line of reasoning to crop up at the next Common Cause rally as a justification for impeachment - before they offer to "lynch him" again)

I've had several opportunities to meet Thomas, and he was open and sincere about his reluctance to speak at these events. For the most part, they are merely oral reiterations of written briefs formerly submitted to the court. Further, the questions are often not aimed at the lawyers, but the other judges. I expect Thomas would reply that he respects his fellows well enough that his disagreements with them can be sufficiently expressed in his written opinions - to which they are free to join should they be so moved.

Yet it's interesting to note the stark contrast between Thomas and Scalia. The latter of the originalist stalwarts talks more than anyone else on the bench. But Scalia is Italian. God bless him, he'd fit right in at my family get-togethers - you gotta talk loud if you wanna get heard, and Scalia's always got something to say. (His jocularity also provokes more laughter than any other member of the court.) I assume he talks principally just so as not to get board. If only they served pasta, ciabatta and a little wine during orals, he'd probably quiet down a bit. 

The Living constitution vs. the New Deal:

What Tribe forgets is that the constitution is a living document. The constitution's meaning is not fixed by the New Deal. The constitution evolves to meet the needs of the people in the here and now. Tribe's interpretation of the commerce clause, which may have been appropriate for the age of steel and iron, is not necessarily right for the age of genes and bytes. We are fortunate, the constitution lives.

It's time for Professor Tribe to stop clinging to his horse and buggy constitution, and get with the times.

A prime example of the Obama Administration's lawless behavior is its exemption of entities from the legislation Congress passed and he signed into law--waivers.  The sober Columbia University law professor Philip Hamburger (see his Separation of Church and State) has pointed out how the Obama Administration has undermined the rule of law and the separation of powers, and led us back into the Middle Ages with its practices:

The Department of Health and Human Services has granted 733 waivers from one of the statute's key requirements. The recipients of the waivers include insurers such as Oxford Health Insurance, labor organizations such as the Service Employees International Union, and employers such as PepsiCo. This is disturbing for many reasons. At the very least, it suggests the impracticability of the health-care law; HHS gave the waivers because it fears the law will cost many Americans their jobs and insurance.

More seriously, it raises questions about whether we live under a government of laws. Congress can pass statutes that apply to some businesses and not others, but once a law has passed -- and therefore is binding -- how can the executive branch relieve some Americans of their obligation to obey it? ....

As it happens, waivers have a history. In the Middle Ages, the pope granted waivers, known as dispensations, and English kings soon followed suit....