Courtesy of our elite law schools, Shearman & Sterling, and a liberal Supreme Court majority, some news agency reports that federal judges are busy right now turning captured jihadis loose.

Complying with a Supreme Court ruling last year, 15 federal judges in the U.S. courthouse (In Washington, D.C.) are giving detainees their day in court after years behind bars half a world away from their homelands.

The judges have found the government’s evidence against 30 detainees wanting and ordered their release. That number could rise significantly because the judges are on track to hear challenges from dozens more prisoners. ...

Bush administration Defense Secretary Donald Rumsfeld once promised Guantanamo held “the worst of the worst.” The judges here have rejected pleas for release from eight detainees, but they have concluded the government doesn’t even have enough evidence to keep 30 other detainees behind bars.

“There is absolutely no reason for this court to presume that the facts contained in the government’s exhibits are accurate,” District Judge Gladys Kessler wrote in ordering the release of Alla Ali Bin Ali Ahmed. He was repatriated to Yemen after a seven-year stay at Guantanamo, where he was brought as a teenager.

“Much of the factual material contained in those exhibits is hotly contested for a host of different reasons ranging from the fact that it contains second- and third-hand hearsay to allegations that it was obtained by torture to the fact that no statement purports to be a verbatim account of what was said,” Kessler said. She ruled the government failed to prove the detainee was part of or substantially supported Taliban or al-Qaida forces.

Sonia Sotomayor: Wrong Again

Sonia Sotomayor’s dismal record of Supreme Court reversals is worse by one more. It now stands 6 out of 7, with the Court, however, unanimously rejecting her argument in the single ruling that was upheld. Sotomayor’s reasoning in that case, however, was not merely rejected. It was scathingly described as “fl(ying) in the face of the statutory language.”

Stuart Taylor Jr. explains that on rejecting Sotomayor’s ruling this time the decision was not even close.

The Supreme Court’s predictable 5-4 vote to reverse the decision by Judge Sonia Sotomayor and two federal appeals court colleagues against 17 white (and one Hispanic) plaintiffs in the now-famous New Haven, Conn., firefighters decision does not by itself prove that the Sotomayor position was unreasonable.

After all, it was hardly to be expected that the five more conservative justices—who held that the city had violated the 1964 Civil Rights Act by refusing to promote the firefighters with the highest scores on a job-related promotional exam because none were black—would endorse an Obama nominee’s ruling to the contrary.

What’s more striking is that the court was unanimous in rejecting the Sotomayor panel’s specific holding. Her holding was that New Haven’s decision to spurn the test results must be upheld based solely on the fact that highly disproportionate numbers of blacks had done badly on the exam and might file a “disparate-impact” lawsuit—regardless of whether the exam was valid or the lawsuit could succeed.

This position is so hard to defend, in my view, that I hazarded a prediction in my June 13 column: “Whichever way the Supreme Court rules in the case later this month, I will be surprised if a single justice explicitly approves the specific, quota-friendly logic of the Sotomayor-endorsed… opinion” by U.S. District Judge Janet Arterton.

Unlike some of my predictions, this one proved out. In fact, even Justice Ruth Bader Ginsburg’s 39-page dissent for the four more liberal justices quietly but unmistakably rejected the Sotomayor-endorsed position that disparate racial results alone justified New Haven’s decision to dump the promotional exam without even inquiring into whether it was fair and job-related.

It really ought to be a serious factor in the evaluation of a nominee for the Supreme Court that the person has compiled so consistent a record of decisions requiring reversal.

Ricci v. DeStefano

Kenneth Vogel, at the Politico, notes that Sonia Sotomayor is burdened by a prominent record of hostility toward First Amendment campaign speech rights.

Sonia Sotomayor may not have a long paper trail on hot button social issues, but in one area of the law—campaign finance—she has staked a position that could have far-reaching political consequences.

The clarity of her support for limits on campaign fundraising and her background as a pioneering campaign regulator is raising eyebrows among election law experts who say her record is more substantial and explicit than that of any Supreme Court nominee since the dawn of the modern, post-Watergate campaign finance regime.

“There hasn’t been one with as vigorously expressed policy views on campaign finance as this one that I am aware of, and I’ve been pretty aware for a number of years,” said James Bopp, a leading conservative attorney who has won four Supreme Court cases challenging campaign finance regulations.

“I can’t think of anybody who has had such a track record,” said Bob Stern, president of the Center for Governmental Studies and a follower of battles on the issue since the early 1970s. “There are clearly going to be cases coming before the court that will be challenges to the law, and there will be some very important cases.”

Sotomayor brings hands-on experience to the issue from her four years of experience on the New York City Campaign Finance Board, an independent, nonpartisan city agency created in 1988. One of the first members appointed to the board by then-Mayor Ed Koch, Sotomayor helped implement—enthusiastically, according to her cohorts—one of the most comprehensive campaign finance laws in the country.

In a rare and little-noticed law review article, she forcefully defended the policy motivations behind such restrictions, questioning the line between campaign contributions and “bribes,” calling on Congress to overhaul campaign finance laws – including suggesting public financing of its own elections – and blasting the Federal Election Commission for not enforcing existing laws.

“The continued failure to do this has greatly damaged public trust in officials and exacerbated the public’s sense that no higher morality is in place by which public officials measure their conduct,” she wrote in a law review article based on a speech she gave to Suffolk University Law School in 1996, when she was a federal district court judge.

On the only occasion when she was confronted with the issue as a jurist, Sotomayor joined a decision that effectively gave a pass to a Vermont law that severely limited campaign contributions and capped campaign spending – a law that the Supreme Court later overturned as a First Amendment violation.

In 1996, the Suffolk University Law Review published Returning Majesty to the Law and Politics: A Modern Approach, by Supreme Court nominee Sonia Sotomayor. This article touches on her legal philosophy in general, as well as her understanding of the First Amendment in particular. The views expressed in this article are troubling, and should give all Americans pause.

Judge Sotomayor writes, “The law … is uncertain and responds to changing circumstances.” It is true that some development in the law takes place as new circumstances arise. For instance, courts today are working out the contours of ‘cyber-law’—a concept that was unheard of a mere thirty years ago. With the proliferation of personal computers and the Internet, however, cyber-law is now a rapidly developing body of law. Some of the old rules regarding the formation of contracts have had to be re-considered to take into account e-transactions. And laws regulating what can, and cannot, be posted on the Internet have had to be evaluated in light of First Amendment protections.

To say that the law develops as new situations arise, however, is far different than what Sotomayor is saying. She calls it a “public myth” that law can be stable, or provide predictable results. Instead, she suggests that the law is in such a constant state of flux that one can never be sure what the law is, or what one’s rights or obligations under it are. What we have, she writes, is an “unpredictable system of justice.” And she believes this “continually evolving legal structure” which leads to what she calls “the uncertainty of law” is a good thing for society.

This is a wrong understanding of the role and function of law in our society. Law is not to be uncertain and arbitrary. Rather, it is to provide rules that all must live by, and guidance whereby we can structure our lives. Sotomayor’s position, though, is that such certainty is a bad thing, and uncertainty in the law is the desired result.

This philosophy opens the door for Sotomayor, and judges who believe similarly, to avoid following what the law actually says. It allows them to place “empathy” above impartiality. After all, if the law is uncertain and constantly changing, why shouldn’t a judge rule in favor of the party that she likes best or agrees with most? Sotomayor’s philosophy facilitates the type of judicial activism and legislation from the bench that decides cases according to what the judges personally believe should be the correct result, instead of what the law actually says should be the correct result. It also destroys any confidence Americans might have in the law’s fairness, if judges are free to make rulings which go against what the law says in order to benefit parties they like or agree with.

Perhaps nowhere is Judge Sotomayor’s problematic philosophy better illustrated than in her approach to campaign finance law. In Returning Majesty to Law and Politics, she compares restrictions on the fundamental First Amendment right of citizens to engage in political speech and association by making contributions to candidates, with restrictions on gift-giving to politicians. Because gift-giving can be restricted, she seems to say, contributions should be restricted, too. She suggests that both gifts and contributions can function as bribes, and seems to be open to the elimination of what she terms “private money” from politics.

The problem with that reasoning, of course, is that there is a difference of constitutional magnitude between buying lunch for a bureaucrat and making of a political contribution to a candidate. The Founders thought that the right of Americans to engage in political speech and association was so important that they enshrined it in the First Amendment to the Constitution and the First Amendment protect campaign contributions.

Our Constitution, including the First Amendment, should not be regarded as evolving. Rather, it should be understood as a constant guarantee: It is a contract between the previous generation of Americans and this one, and between this generation of Americans and the next one. It assures us, and each succeeding generation of Americans, of the nature of the Republic and our rights within it. And so, our freedom to engage in political speech and association guaranteed by the First Amendment—including our right to make contributions to the candidates whose message we agree with—should be absolute. It should not be subject to the whim of a judge who believes that the law is uncertain and constantly evolving.

Judge Sotomayor, however, appears to disagree. While her thoughts regarding campaign contributions are difficult to discern from her law review article, they are more clear in a decision she signed onto in 2005. This case, known as Randall v. Sorrell when it was before the Second Circuit Court of Appeals, involved a challenge to Vermont’s contribution and expenditure limits. A three-judge panel of the Second Circuit upheld the district court’s decision that the contribution limits were constitutional, but determined that the case should be remanded to the district court for reconsideration of the expenditure limits. The plaintiffs in that case asked for the full Second Circuit to rehear the case, and the Second Circuit denied that rehearing. (The plaintiffs would eventually win in 2006 at the Supreme Court when, in Randall v. Sorrell, the Court held that both the contribution and expenditure limits were unconstitutional).

Judge Sotomayor signed onto an opinion written by two other judges which concurred in the decision to deny rehearing. This opinion which she signed began by noting that the question before the Court involving whether the plaintiffs’ First Amendment rights were being trampled was not important enough to justify rehearing the case. Instead, the judges noted that disputes which are highly political or partisan should not be addressed by the courts.

There’s just one little problem with that: If the Court will not vindicate our First Amendment rights, who will? Judge Sotomayor is correct when she observes that campaign finance is partisan and politicized. Incumbents frequently enact campaign finance laws in order to protect themselves, and if they can do so in a way that benefits their political party, so much the better. Far from providing that the courts be reluctant to involve themselves in such matters, the Founders envisioned a vigorous role for the courts in upholding First Amendment freedoms.

A judge who sees the law as constantly changing and evolving, however, feels more free to refuse to vindicate Americans’ rights when she personally does not think that Americans should have them. So, since Sotomayor is of the opinion that severe restrictions (or, even the elimination) on private money in politics is acceptable, she did not feel the need to consider the plaintiffs’ First Amendment rights in Randall.

Such a judicial philosophy is troubling. It places all Americans’ rights at risk. Judge Sotomayor should be questioned on this extensively, and should not be confirmed if this is really her view.

The US Supreme Court has reviewed six cases decided by Sonia Sotomayor. Her decisions were reversed five times, and in the only case in which her decision was upheld, her reasoning was unanimously rejected by the Court because it “flies in the face of the statutory language.”

Meanwhile she has a pretty decent chance of receiving a further reversal in Ricci v. DeStefano, an affirmative action case from New Haven, Connecticut involving white firemen being denied promotion because no minority applicants scored satisfactorily on the promotion exam. Sotomayor was part of a three judge panel which supported the city against the firemen, and voted against the full appeals court reviewing the case.

The New Republic’s Legal Affairs editor Jeffrey Rosen is today urging Sonia Sotomayor’s confirmation, and claims that “conservatives are misreading” him on Sotomayor, but back on May 4 Rosen wrote the following paragraphs as part of an article titled “The Case Against Sotomayor.”

[D]espite the praise from some of her former clerks, and warm words from some of her Second Circuit colleagues, there are also many reservations about Sotomayor. Over the past few weeks, I’ve been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.

The most consistent concern was that Sotomayor, although an able lawyer, was “not that smart and kind of a bully on the bench,” as one former Second Circuit clerk for another judge put it. “She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren’t penetrating and don’t get to the heart of the issue.” (During one argument, an elderly judicial colleague is said to have leaned over and said, “Will you please stop talking and let them talk?”) Second Circuit judge Jose Cabranes, who would later become her colleague, put this point more charitably in a 1995 interview with The New York Times: “She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media.”

Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It’s customary, for example, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn’t distinguish between substantive and trivial points, with petty editing suggestions—fixing typos and the like—rather than focusing on the core analytical issues.

Some former clerks and prosecutors expressed concerns about her command of technical legal details: In 2001, for example, a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor might have inadvertently misstated the law in a way that misled litigants. The most controversial case in which Sotomayor participated is Ricci v. DeStefano, the explosive case involving affirmative action in the New Haven fire department, which is now being reviewed by the Supreme Court. A panel including Sotomayor ruled against the firefighters in a perfunctory unpublished opinion. This provoked Judge Cabranes, a fellow Clinton appointee, to object to the panel’s opinion that contained “no reference whatsoever to the constitutional issues at the core of this case.” (The extent of Sotomayor’s involvement in the opinion itself is not publicly known.)

Not all the former clerks for other judges I talked to were skeptical about Sotomayor. “I know the word on the street is that she’s not the brainiest of people, but I didn’t have that experience,” said one former clerk for another judge. “She’s an incredibly impressive person, she’s not shy or apologetic about who she is, and that’s great.” This supporter praised Sotomayor for not being a wilting violet. “She commands attention, she’s clearly in charge, she speaks her mind, she’s funny, she’s voluble, and she has ownership over the role in a very positive way,” she said. “She’s a fine Second Circuit judge—maybe not the smartest ever, but how often are Supreme Court nominees the smartest ever?

By May 8, Rosen was regretting his earlier title, and trying to qualify his own position. But he still took the occasion to publish excerpts from Sotomayor’s entry in the Almanac of the Federal Judiciary, which includes rating of judges based on reviews of attorneys appearing before them.

Usually lawyers provide fairly positive comments. That’s what makes the discussion of Sotomayor’s temperament so striking. Here it is:

Sotomayor can be tough on lawyers, according to those interviewed. “She is a terror on the bench.” “She is very outspoken.” “She can be difficult.” “She is temperamental and excitable. She seems angry.” “She is overly aggressive—not very judicial. She does not have a very good temperament.” “She abuses lawyers.” “She really lacks judicial temperament. She behaves in an out of control manner. She makes inappropriate outbursts.” “She is nasty to lawyers. She doesn’t understand their role in the system—as adversaries who have to argue one side or the other. She will attack lawyers for making an argument she does not like.”

Not all of Sotomayor’s lawyers’ evaluations in other areas were this negative. As the Almanac puts it “most of lawyers interviewed said Sotomayor has good legal ability,” and “lawyers said Sotomayor is very active and well-prepared at oral argument.”

You can get an idea of what Sonia Sotomayor is like from this 2:10 video excerpt from what seems to be a panel discussion of legal career options at Duke University Law School in 2005. We will be seeing her in the clip, indicating with derision her contempt for the notion of judicial restraint, a good deal in the near future.

David Hackett Souter

R. Emmett Tyrrell offers a column on the retirement of Justice David H. Souter, observing that while we conservatives are not unhappy to see him go, neither is he particularly admired or respected by the liberals. Such, I suppose, are the inevitable unappetizing fruits of Souter’s arid and sterile Brahmanic legal positivism.

Is it possible that Justice David H. Souter has sensed what I have sensed in reading the liberals’ dutiful adieus to him, their judicial Benedict Arnold? They all are snickering behind their hands. Sure, he pleased them enormously with his 19 years of tergiversations against conservative jurisprudence, after being President George H.W. Bush’s “conservative” Supreme Court nominee. But through all Souter’s years here in Washington, he revealed himself to be a stupendously self-absorbed oddball and not much else. He fell far short of the liberals’ conception of a progressive Supreme Court dissenter, to wit: a charismatic, outspoken, slightly outre intellectual on the model of William O. Douglas.

Souter has been, as The Washington Post puts it, notable for his “quirky independence in spurning the right.” The operative word here is “quirky.” It is not meant as a compliment. Our liberals admire eccentricity but not the eccentricity of a misanthropic loner. Thus, in every supposedly friendly retrospective that I have read of him since he informed the Democratic president that he, a Republican’s Supreme Court nominee, is retiring, the liberals have stressed his weirdness: the misfit, the loner, the guy whose luncheon consists of yogurt and an apple, which he eats “core and all.” That was The New York Times speaking. ....

These are the details that the liberals have been relating as they recapitulate his career as a Republican-turned-progressive. As I say, they are snickering.

They have very little to say about Souter’s work on the court other than that he sided routinely with the liberal minority. I can understand their reticence. After conferring with scholars who follow the court, I can report that they recall not one opinion of his that was memorable for anything other than smugness. As one told me, Justice Stephen Breyer’s dissents have been “thought-provoking,” Justice John Paul Stevens’ “intelligent.” Souter, in his dissents, has been simply a liberal tag-along. There is something about him that is not quite adult. He asks questions persistently, the liberals say with a wink. Well, so does a lost child. ..

Souter’s bland years on the court should remind us how important it is for our leaders to have experience. President Bush and his advisers might have thought it was clever of them to nominate a judge with almost no paper trail. After serving on the New Hampshire Supreme Court for seven years, Souter served just two months on the 1st U.S. Circuit Court of Appeals before his nomination. But for almost two decades, it has been clear that he is out of his depth. The troubling thought is that the president who is about to nominate Souter’s replacement is out of his depth, too.

I began this column with a question. Does the departing justice realize that the liberals, whom he benefited, are snickering? The answer is no. As with much else, he is oblivious.

William A. Jacobsen and Mike Dorf explain the irony.

[I]ronically, Specter’s defection may give Republicans the ability to filibuster judicial nominees at the Judiciary Committee level, so the nominees never get out of committee.

Huh, you say. Here’s the explanation, from Professor Michael Dorf of Cornell Law School at his excellent blog, Dorf on Law, written two days ago before Souter’s retirement was in play:

Does Arlen Specter’s defection from R to D strengthen the President’s hand in Congress? Perhaps overall but not on judicial appointments because breaking (the equivalent of) a filibuster in the Senate Judiciary Committee requires the consent of at least one member of the minority. Before today, Specter was likely to be that one Republican. Now what?

The link in Dorf’s post is to Congress Matters, which has the Senate Judiciary Committee rule:

IV. BRINGING A MATTER TO A VOTE
The Chairman shall entertain a non-debatable motion to bring a matter before the Committee to a vote. If there is objection to bring the matter to a vote without further debate, a roll call vote of the Committee shall be taken, and debate shall be terminated if the motion to bring the matter to a vote without further debate passes with ten votes in the affirmative, one of which must be cast by the minority.

Now this is interesting. Specter could allow a nominee out of committee if Specter was a member of the Republican minority, but as part of the majority, he’s just another vote. Here are the other Republicans: Orrin Hatch, Chuck Grassley, Jon Kyl, Jeff Sessions, Lindsey Graham, John Cornyn, and Tom Coburn.

The weak link is Lindsey Graham, who was a member of the Gang of 14. If Graham says the course, the Republicans may not be able to stop runaway spending, military retrenchment, and an interrogation witch hunt. But Specter may have handed Republicans a gift.

And how fitting that Joe Biden arranged it all by convincing Specter to switch. Thanks, Joe. I’m sure your boss will appreciate your service as he ponders who he will nominate for the Supreme Court.

George Will makes an excellent argument. Let’s hope the Supreme Court intervenes.

[T]he Emergency Economic Stabilization Act of 2008 (EESA) is unconstitutional.

By enacting it, Congress did not in any meaningful sense make a law. Rather, it made executive branch officials into legislators. Congress said to the executive branch, in effect: “Here is $700 billion. You say you will use some of it to buy up banks’ ‘troubled assets.’ But if you prefer to do anything else with the money—even, say, subsidize automobile companies—well, whatever.”

FreedomWorks, a Washington-based libertarian advocacy organization, argues that EESA violates “the nondelegation doctrine.” Although the text does not spell it out, the Constitution’s logic and structure—particularly the separation of powers—imply limits on the size and kind of discretion that Congress may confer on the executive branch.

The Vesting Clause of Article I says, “All legislative powers herein granted shall be vested in” Congress. All. Therefore, none shall be vested elsewhere. Gary Lawson of Boston University’s School of Law suggests a thought experiment:

Suppose Congress passes the Goodness and Niceness Act. Section 1 outlaws all transactions involving, no matter how tangentially, interstate commerce that do not promote goodness and niceness. Section 2 says the president shall define the statute’s meaning with regulations that define and promote goodness and niceness and specify penalties for violations.

Surely this would be incompatible with the Vesting Clause. Where would the Goodness and Niceness Act really be written? In Congress? No, in the executive branch. Lawson says that nothing in the Constitution’s enumeration of powers authorizes Congress to enact such a statute. The only power conferred on Congress by the Commerce Clause is to regulate. The Goodness and Niceness Act does not itself regulate, it just identifies a regulator.

The Constitution empowers Congress to make laws “necessary and proper” for carrying into execution federal purposes. But if gargantuan grants of discretion are necessary, are the purposes proper? Indeed, such designs should be considered presumptively improper. What, then, about the Goodness and Niceness Act, which, as Lawson says, delegates all practical decision-making power to the president? What about EESA? ...

As government grows, legislative power, and with it accountability, must shrink. The nation has had 535 national legislators for almost half a century. During that time the federal government’s business—or, more precisely, its busy-ness—has probably grown at least twenty-fold. Vast grants of discretion to the executive branch by Congress, such as EESA, may be necessary—if America is going to have constant governmental hyperkinesis. If Washington is going to do the sort of things that EESA enables—erasing the distinction between public and private sectors; licensing uncircumscribed executive branch conscription of, and experimentation with, the nation’s resources.

Since the New Deal era, few laws have been invalidated on the ground that they improperly delegated legislative powers. And Chief Justice John Marshall did say that the “precise boundary” of the power to “make” or the power to “execute” the law “is a subject of delicate and difficult inquiry.” Still, surely sometimes the judiciary must adjudicate such boundary disputes.

The Supreme Court has said: “That Congress cannot delegate legislative power to the president is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.” And the court has said that properly delegated discretion must come with “an intelligible principle” and must “clearly delineate” a policy that limits the discretion. EESA flunks that test.

Washington Times:

On the same day the Supreme Court declined to hear one appeal challenging Barack Obama’s right to become president because of questions about his citizenship, Justice Antonin Scalia distributed another appeal on the same issue for the court to consider.

The new case, Cort Wrotnowski v. Susan Bysiewicz, Connecticut Secretary of State, is scheduled to be discussed by the justices at their Dec. 12 private conference. They plan to decide whether to give the case a hearing – again on whether the British citizenship of Mr. Obama’s father makes the president-elect ineligible to assume the office. ...

The Supreme Court on Monday turned down the previous appeal filed by New Jersey attorney Leo C. Donofrio.

Unlike Mr. Donofrio’s appeal, Mr. Wrotnowski’s case “includes a more solid brief and a less treacherous lower court procedural history.”

Law blog

A number of prominent conservatives have recently been labeling anyone who thinks there is any possible legitimate issue here as a “kook.”

Well, personally, I think it costs real money to fight lawsuits in eight states, and multiple appeals for Supreme Court certiorari. Why would anyone bother when he could simply release the long form of his Hawaiian birth certificate?

Chicago Tribune:

The U.S. Supreme Court will consider Friday whether to take up a lawsuit challenging President-elect Barack Obama’s U.S. citizenship, a continuation of a New Jersey case embraced by some opponents of Obama’s election.

The meeting of justices will coincide with a vigil by the filer’s supporters in Washington on the steps of the nation’s highest court.

The suit originally sought to stay the election, and was filed on behalf of Leo Donofrio against New Jersey Secretary of State Nina Mitchell Wells.

Legal experts say the appeal has little chance of succeeding, despite appearing on the court’s schedule. Legal records show it is only the tip of an iceberg of nationwide efforts seeking to derail Obama’s election over accusations that he either wasn’t born a U.S. citizen or that he later renounced his citizenship in Indonesia.

The Obama campaign has maintained that he was born in Hawaii, has an authentic birth certificate, and is a “natural-born” U.S. citizen. Hawaiian officials agree.

If Obama really was born in Hawaii, and actually has that legitimate birth certificate, why does he have a problem with producing and displaying it?

This 1:02 video has an inflammatory and partisan tone, but does summarize the questions about Obama’s citizenship succinctly.

Duck!

If I were to follow the examples of Joseph Smith, L. Ron Hubbard, or Barack Obama, and invent my own religion, could I demand that the nearest municipality boasting a Ten Commandments monument allow me to erect another monument listing my own teachings on the courthouse lawn? Should the city fathers fail to oblige would a federal circuit court of appeals (that isn’t the 9th Circuit) rule in my favor? Is it possible to imagine that the United States Supreme Court could wind up ruling on my petition?

The Wall Street Journal reports that it has all worked out just that way for Corky Ra.

A couple of decades after a visit from “beings Extraterrestrial” inspired him to found the Church of Summum in 1975, Summum Bonum Amen Ra, born Claude Nowell and known as Corky, had another epochal encounter. He saw a monolith depicting the Ten Commandments on the courthouse grounds in Salt Lake City, says Su Menu, the Summum religion’s current leader, and “felt it would be nice to have the Seven Aphorisms next to them.” The monument would be inscribed with the principles that, according to Summum doctrine, Moses initially intended to deliver to the Hebrews before deciding they weren’t ready to understand them.

Several Utah municipalities Mr. Ra approached declined the opportunity to display the Seven Aphorisms, provoking a legal battle that arrived at the Supreme Court Wednesday.

Daniel Henniger editorializes:

In 2007, the federal appeals court for the Tenth Circuit ruled in favor of Summum, giving the religion permission to put up its Seven Aphorisms monument in Pioneer Park. The Supreme Court will decide whether the Summums of America deserve their own patch of the public green.

Laughable though it looks, Pleasant Grove City v. Summum is a textbook example of tensions that have pulled our courts between noble readings of the Constitution—in this case, the First Amendment’s speech protections—and what the average person might call the common-sense requirements of running a civil society.

Henniger is perfectly correct. Modern liberalism’s abject inability to resist any appeal couched in idealistic rhetoric gives it a terminable case of philosophic round heels.

The Washington Post tells us that liberals are suffering from SCOTUS envy.

It could be seen as the sincerest form of flattery: Ask some activists on the left the kind of Supreme Court justice they would like to see a President Obama appoint, and the name you hear most is the same justice they most often denounce.

They want their own Antonin Scalia. Or rather, an anti-Scalia, an individual who can easily articulate a liberal interpretation of the Constitution, offer a quick sound bite and be prepared to mix it up with conservative activists beyond the marble and red velvet of the Supreme Court. ...

as the Supreme Court takes its traditional spot in the background of the presidential campaign, there is a longing on the left for a justice who would energize not only the court’s liberal wing, but also the debate over interpreting the Constitution.

“Someone with vision,” said Doug Kendall, who recently helped found a new liberal think tank called the Constitutional Accountability Center. “Someone who looks hard at the text and history of the Constitution, as Justice Scalia does, and articulates a very clear idea of how that text points to liberal and progressive outcomes.”

“It is a court with no true liberal on it, the most conservative court in 75 years,” said Geoffrey Stone, a law professor at the University of Chicago, where Obama once taught constitutional law. “What we call liberals on this court are moderates, or moderate liberals, if you want to get refined about it.”

Stephen Breyer, Ruth Bader Ginsburg, and David Souter aren’t liberals?

Heck, liberals don’t even need to win presidential elections to get liberal Supreme Court Justices appointed. Conservative Republican presidents will appoint some for them.

Speaking more seriously, though, I think our friends on the left are missing the point. They are on the defensive on the Court, not really because of a paucity of kindred spirits, but because they have, for decades, been losing the battle of ideas in jurisprudence and Constitutional Law at the law schools and in the law journals.

Face it, what liberals really want is a return to an uncritical era of legal intuitions, emanations, and emotional sloganeering. They want the William O. Douglas and Earl Warren kind of “no brainer” liberal court decisions which merely use a few orotund generalities to raise the consensus of the liberal elite to the status of law of the land.

Uncle Cthulhu Wants You!

On Supreme Court Appointments:

Great Cthulhu is well accustomed to the adoration of priests wearing black robes and he is willing to accept the due homage of the Nine and raise them to his priesthood. Since there will no doubt be many vacancies on the court as their minds break one after another in the mad ecstacy of his fearful presence, Great Cthulhu pledges to appoint only strict Constitutional constructionists to the bench under the assumption that the basic sanity of their approach should allow them to serve at least a term year or two before they are reduced to gloriously gibbering cannibals. Because Great Cthulhu spent many years himself neither living nor breathing, he sees no reason that the Constitution must either.

—————————————————-

Hat tip to Will Wilson.

Randy Barnett, in today’s Wall Street Journal, relishes the results of Heller, and praises Justice Scalia’s work. I love his editorial’s title, which constitutes all by itself an absolutely devastating rejoinder to the jurisprudence of people like Justices Stevens and Breyer.

Justice Scalia’s opinion is the finest example of what is now called “original public meaning” jurisprudence ever adopted by the Supreme Court. This approach stands in sharp contrast to Justice John Paul Stevens’s dissenting opinion that largely focused on “original intent” – the method that many historians employ to explain away the text of the Second Amendment by placing its words in what they call a “larger context.” Although original-intent jurisprudence was discredited years ago among constitutional law professors, that has not stopped nonoriginalists from using “original intent” – or the original principles “underlying” the text – to negate its original public meaning.

Of course, the originalism of both Justices Scalia’s and Stevens’s opinions are in stark contrast with Justice Breyer’s dissenting opinion, in which he advocates balancing an enumerated constitutional right against what some consider a pressing need to prohibit its exercise. Guess which wins out in the balancing? As Justice Scalia notes, this is not how we normally protect individual rights, and was certainly not how Justice Breyer protected the individual right of habeas corpus in the military tribunals case decided just two weeks ago.

So what larger lessons does Heller teach? First, the differing methods of interpretation employed by the majority and the dissent demonstrate why appointments to the Supreme Court are so important. In the future, we should be vetting Supreme Court nominees to see if they understand how Justice Scalia reasoned in Heller and if they are committed to doing the same.

We should also seek to get a majority of the Supreme Court to reconsider its previous decisions or “precedents” that are inconsistent with the original public meaning of the text. This shows why elections matter – especially presidential elections – and why we should vet our politicians to see if they appreciate how the Constitution ought to be interpreted.

Good legal scholarship was absolutely crucial to this outcome. No justice is capable of producing the historical research and analysis upon which Justice Scalia relied. Brilliant as it was in its execution, his opinion rested on the work of many scholars of the Second Amendment, as I am sure he would be the first to acknowledge.

Ilya Somin, at Volokh Conspiracy, advises Gun rights supporters not to rejoice too soon.

For many years, gun rights advocates have fought to persuade the Supreme Court that the Second Amendment guarantees an individual right to bear arms. That battle has now been won in Heller. Indeed, all nine justices (including the four dissenters) seem to agree that there is some individual right to bear arms that goes beyond a “collective right” protection for state militias.

However, the experience of the struggle for judicial protection of constitutional property rights suggests that recognition of the mere existence of a right isn’t enough. If the scope of the right is defined narrowly by courts, recognition won’t mean much in practice.

Read the whole thing.

As predicted, Justice Scalia wrote the majority opinion in District of Columbia v. Heller, which was naturally decided by Justice Anthony Kennedy in his capacity as decisive swing vote.

On first glance, I would say that the Court’s ruling primarily represents a strong rebuke to intellectually farcical sophistry and the kinds of whimsical and creative legal analysis which divorce themselves from the Constitution’s historical background, the expressed views and intentions of the framers, commentaries on the Constitution, and the entirety of history before 1932.

Justice Scalia writes at length, and with ill-concealed contempt, for efforts to eliminate the individual right to keep and bear arms by facile manipulation of the prefatory “well-regulated militia” clause, happily following the jurisprudential practice of recent decades of including a thorough and comprehensive survey of the relevant history.

And he concludes:

There seems to us no doubt, on the basis of both the text and history, that the Second Amendment conferred an individual right to keep and bear arms.

But, no sooner does Justice Scalia arrive at his bold conclusion than he begins retreating from its implications and striving actively to limit its practical consequences.

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. ...

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of smallarms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

In the end, the ruling merely affirms the existence of the individual right to keep and bears arms, and strikes down the District of Columbia’s ban on handgun possession in the home and its requirement that lawful firearms kept in a home be inoperable. It specifically declines to address licensing requirements (which Heller failed to challenge). Insofar as the Court affirms a right of self defense, it has done so only with respect to one’s home.

The moderation of Scalia’s opinion is likely to make its power as a decision stronger rather than weaker though, and District of Columbia v. Heller signals a major reversal in the direction of Constitutional Law at the Supreme Court level.

While we’re waiting for the Supreme Court decision in Heller, Larrey Anderson, at American Thinker, has a bit of fun applying ordinary language philosophy to the oh-so-inscrutable meaning of the Second Amendment.

It is depressing to imagine how a Court which finds execution by lethal injection for child rape violative of the cruel and unusual punishments clause of the 8th Amendment is capable of reading the Second Amendment.

Tom Goldstein at the SCOTUS blog:

There is very little information that can be gleaned with confidence about the authorship of the remaining opinions from the Term.

It does look exceptionally likely that Justice Scalia is writing the principal opinion for the Court in Heller – the D.C. guns case. That is the only opinion remaining from the sitting and he is the only member of the Court not to have written a majority opinion from the sitting. ... So, that’s a good sign for advocates of a strong individual rights conception of the Second Amendment and a bad sign for D.C.

It would certainly be nice if he’s right.

Photoshop commentary by TerrellAfterMath.

The head of the Brady Campaign told ABC News he expects to see the Supreme Court throw out DC’s handgun ban.

The nation’s leading gun control group filed a “friend of the court” brief back in January defending the gun ban in Washington, D.C. But with the Supreme Court poised to hand down a potentially landmark decision in the case, the Brady Campaign to Prevent Gun Violence fully expects to lose.

“We’ve lost the battle on what the Second Amendment means,” campaign president Paul Helmke told ABC News. “Seventy-five percent of the public thinks it’s an individual right. Why are we arguing a theory anymore? We are concerned about what we can do practically.”

While the Brady Campaign is waving the white flag in the long-running debate on whether the Second Amendment protects an individual’s right to bear arms or merely a state’s right to assemble a militia, it is hoping that losing the “legal battle” will eventually lead to gun control advocates winning the “political war.”

“We’re expecting D.C. to lose the case,” Helmke said. “But this could be good from the standpoint of the political-legislative side.”

Hilzoy thinks she can, but her arguments amount only to extravagant assertions that everyone, everywhere, and at all times, in peace and in war, tra la! has the same judicial rights and the same access to US courts as a US civilian accused of a domestic crime in peacetime residing in the United States.

who has habeas rights? And where do they extend? The court’s answer to the first question (who?) is, basically: everyone has them. (Meaning: if you are detained by the US government, in circumstances in which habeas rights would normally obtain, your lack of citizenship is no obstacle.)

Shooting at US forces in Afghanistan or conspiring in Karachi to arrange attacks on the civilian populations of US cities are the kinds of circumstances in which people normally enjoy the protections of US citizenship and the protection of US courts? Apparently that’s what Hilzoy, a graduate of Princeton, thinks.

Hilzoy:

if we accept the government’s argument, we would concede that it can legally do what it has tried to do in fact: to create a legal black hole in which it can act outside the law and the Constitution. We cannot do that.

This is, to my mind, the most important holding in the opinion. It defends the separation of powers against an attempt by the Executive to free itself from the constraint of law. That is immensely important.

From Hilzoy’s perspective, there is no legal distinction whatsoever between the United States and foreign soil, no issues of distance, remoteness, or lack of US sovereignty matter. There is no difference between US citizens and aliens, and there is no difference between peace and war.

One expects Hilzoy (and perhaps Justice Kennedy, too) to leap in front of the muzzle of some frontline marine’s rifle, crying out: “Don’t you shoot that chap in the turban (the one firing the AK47)! He’s entitled to counsel, a fair trial, and a full course of appeals before he can be punished. Don’t you go violating his rights, you brute.

In JOHNSON v. EISENTRAGER, 339 U.S. 763 (1950), the Supreme Court ruled:

1. A nonresident enemy alien has no access to our courts in wartime.

2. nonresident enemy aliens, captured and imprisoned abroad, have no right to a writ of habeas corpus in a court of the United States.

3. The Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States.

observing:

We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.

We have pointed out that the privilege of litigation has been extended to aliens, whether friendly or enemy, only because permitting their presence in the country implied [339 U.S. 763, 778] protection. No such basis can be invoked here, for these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States. ...

To grant the [339 U.S. 763, 779] writ to these prisoners might mean that our army must transport them across the seas for hearing. This would require allocation of shipping space, guarding personnel, billeting and rations. It might also require transportation for whatever witnesses the prisoners desired to call as well as transportation for those necessary to defend legality of the sentence. The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.

Moreover, we could expect no reciprocity for placing the litigation weapon in unrestrained enemy hands. The right of judicial refuge from military action, which it is proposed to bestow on the enemy, can purchase no equivalent for benefit of our citizen soldiers.

So how does Justice Kennedy arrive at a different conclusion?

at least three factors are relevant in determining the Suspension Clause’s reach: (1) the detainees’ citizenship and status and the adequacy of the process through which that status was determined; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ. Application of this framework reveals, first, that petitioners’ status is in dispute: They are not American citizens, but deny they are enemy combatants; and although they have been afforded some process in CSRT proceedings, there has been no Eisentrager–style trial by military commission for violations of the laws of war. Second, while the sites of petitioners’ apprehension and detention weigh against finding they have Suspension Clause rights, there are critical differences between Eisentrager’s German prison, circa 1950, and the Guantanamo Naval Station in 2008, given the Government’s absolute and indefinite control over the naval station. Third, although the Court is sensitive to the financial and administrative costs of holding the Suspension Clause applicable in a case of military detention abroad, these factors are not dispositive because the Government
presents no credible arguments that the military mission at Guantanamo would be compromised if habeas courts had jurisdiction. The situation in Eisentrager was far different, given the historical context and nature of the military’s mission in post-War Germany.

The only readily comprehensible distinctions Justice Kennedy makes are Bush has shilly-shallied around too long. There should have been more timely military trials and the Guantanamo Naval Station is somehow more under “the absolute and definite control” of the US Government than a prison operated by the US Army in Germany in 1950 was, while WWII involved a different historical context and mission, i.e. was the “Good War.”

(1) perhaps has some merit. (2) simply amounts to a rationalization.

Justice Kennedy’s arguments are weak, and they are clearly self-interested. What this is really all about, as in Rasul, is plain Judicial Branch imperialism and overreaching, the refusal to accept limits to jurisdiction or the supremacy of the Executive in time of war.

Justice Kennedy has produced a very irresponsible opinion, which will surely result in the release of some dangerous and fanatical enemies of the United States, very probably leading to further loss of American lives. Members of today’s American intelligentsia, even those sitting on the Supreme Court, are commonly incapable of seeing what was obvious even to the Ancient Romans, who closed the Temple of Janus in time of war to symbolize the fact that inter arma enim silent leges.

Justice Anthony Kennedy opined, awarding Habeas corpus protection to illegal combatant non-citizens captured overseas bearing arms against the United States in violation of the laws and customs of war.

Justice Kennedy’s ruling will undoubtedly open a Pandora’s box of legal argument and judicial obfuscation which will effectively paralyze the Bush Administration’s hesitant and overly scrupulous efforts to bring mass murderers operating entirely outside the law to justice.

Five of eight members of the Supreme Court have demonstrated themselves to be self-important nincompoops determined to assert judiciary authority over the executive and to strike poses, while demonstrating a truly horrifying obliviousness to legal and historical precedent and common sense.

All this is, of course, the fault of the Bush Administration, which carelessly also overlooked all precedent, and then tried to invent new forms of military justice conformable to the whims, notions, and fantastical scruples invented by its opponents in the establishment media. President Bush and the rest of the civilian administration should simply have avoided injecting themselves into the matter, and thereby allowing entry to lawyers and courts, at all. The administration should have relinquished all authority connected with prisoners captured overseas to the military authorities.

Those military authorities should have authorized local commanders quickly and on the spot by drumhead courtmartial to establish the status of these kinds of prisoners as illegal combatants required to be condemned to death by military custom and law, and those local commanders should have been instructed upon such determination to hang them.

Andrew C. McCarthy identifies the key flaw in the most popular Pro-McCain argument.

I have not supported Sen. McCain. I admire his perseverance and love of country. Still, I don’t think he is a committed conservative, and his penchant for demonizing all opposition is, to me, extremely off-putting. Protestations to the contrary notwithstanding, there’s nothing delusional about that.

In fact, as between the two of us, it’s McCain’s supporters who are deluding themselves. I take them at their word, for example, that a hallmark of the senator’s politics is his tenacity on matters of principle. Consequently, I am skeptical of his assurances that he would appoint conservative judges who will apply rather than create law. Why? Because he has a recent, determined history of beseeching federal courts to disregard the First Amendment in furtherance of a dubious campaign-finance scheme in which he believes passionately. Conservative judges would (and have) rejected this scheme, just as they would (and have) rejected another signature McCain position: the extension of Geneva Convention protections for jihadists.

Now, the appointment of conservative judges is a crucial issue — one McCain posits as central to why we should prefer him to Obama and Clinton. Thus supporters breezily wave off such concerns, maintaining that McCain both promises there will be no issue-based litmus tests for judicial nominees and has conservatives of impeccable legal credentials advising him.

But for me to conclude McCain would surely appoint conservative judges, I also have to believe campaign-finance and the Geneva Convention weren’t all that big a deal to him after all — a possibility that runs counter to everything McCain’s fans tell us about his fidelity to principle.

Read the whole thing.

McCarthy is perfectly right.

Throughout his Senate career, John McCain has demonstrated an eagerness for the good opinion of the media representatives of the establishment elect. He has been steadfastly acritical of simple-minded policies nostrums and violently hostile to theory. Why would anyone suppose that John McCain would suddenly break with the New York Times’ editorial page and start appointing controversial judges likely to roll back what the Times considers progress, including some of his own landmark legislation?

Glenn Reynolds offers, in the New York Post, his view of the Supreme Court’s options in the DC Gun Ban case.

It can find that the Second Amendment doesn’t really do anything – that it’s merely a relic of an older era. But that’s a rather dangerous approach: What other parts of the Constitution might be considered relics? And can a judicial approach that leaves a tenth of the Bill of Rights meaningless possibly be sound?

It can find that the Second Amendment doesn’t grant individual rights, but only protects the right of states to arm their militias (or “state armies,” as some gun-control advocates put it). This would make the DC case go away, but at some cost: If states have a constitutional right, as against the federal government, to arm their militias as they see fit, then states that don’t like federal gun-control laws could just enroll every law-abiding citizen in the state militia and authorize those citizens to possess machine guns, tanks and other military gear.

Other consequences of “state armies” seem even more drastic. As Tom Lehrer put it:

We’ll try to stay serene and calm /

When Alabama gets the bomb.

Finally, the court can find – in accordance with the views of law professors as diverse as Harvard’s Laurence Tribe and, well, me – that the Second Amendment supports an individual right on the part of law-abiding citizens to possess firearms of the sort that are in ordinary use. As with other rights, such as freedom of speech, this is subject to reasonable regulation that stops well short of a ban.

This last would be the least radical approach, as it’s consistent with public opinion (most Americans think the Second Amendment gives them a right to own a gun) and with the 40-plus states whose own constitutions already provide for a right to arms. It would probably be the easiest to implement, too, as federal courts could (to a degree at least) look to state law for some guidance on how to implement it.

Finding otherwise would be ticklish for the court in another way. In recent decades, the Supreme Court has found many rights that aren’t specifically spelled out in the Constitution – rights to things like abortion, contraception or sodomy. If the court now follows up by denying a right that does seem to be spelled out, it would put its own legitimacy in the public eye at grave risk.

Houston Chronicle:

WASHINGTON — The Supreme Court will discuss gun control today in a private conference that soon could explode publicly.

Behind closed doors, the nine justices will consider taking a case that challenges the District of Columbia’s stringent handgun ban. Their ultimate decision will shape how far other cities and states can go with their own gun restrictions.

“If the court decides to take this up, it’s very likely it will end up being the most important Second Amendment case in history,” said Dennis Henigan, the legal director for the Brady Campaign to Prevent Gun Violence.

Henigan predicted “it’s more likely than not” that the necessary four justices will vote to consider the case. The court will announce its decision Tuesday, and oral arguments could be heard next year.

Lawyers are swarming.

Texas, Florida and 11 other states weighed in on behalf of gun owners who are challenging D.C.’s strict gun laws. New York and three other states want the gun restrictions upheld. Pediatricians filed a brief supporting the ban. A Northern California gun dealer, Russell Nordyke, filed a brief opposing it. ..

The Second Amendment says, “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.”

Gun-control advocates say this means that the government can limit firearms ownership as part of its power to regulate the militia. Gun ownership is cast as a collective right, with the government organizing armed citizens to protect homeland security.

“The Second Amendment permits reasonable regulation of firearms to protect public safety and does not guarantee individuals the absolute right to own the weapons of their choice,” New York and the three other states declared in an amicus brief.

Gun-control critics contend that the well-regulated militia is beside the point, and say the Constitution protects an individual’s right to possess guns.

Last March, a divided appellate court panel sided with the individual-rights interpretation and threw out the D.C. ban.

The ruling clashed with other appellate courts, creating the kind of appellate-circuit split that the Supreme Court likes to resolve. The ruling obviously stung D.C. officials, but it perplexed gun-control advocates.

If D.C. officials tried to salvage their gun-control law by appealing to the Supreme Court — as they then did — they could give the court’s conservative majority a chance to undermine gun-control laws nationwide.

On the one hand, the movement of legal scholarship in recent decades towards acknowledgment of the real meaning of the Second Amendment based on the historical content of the political theory of the period and numerous statements by the framers argues that Supreme Court consideration would necessarily recall the Second Amendment fully from exile, and produce nationwide enforcement of an individual right to keep and bear arms.

But, on the other hand, realism notes that the consequence of overturning every form of state and local gun prohibition, and very possibly the National Firearms Act of 1934 which effectively prohibited private possession of fully-automatic weapons are bound to seem highly unpalatable to most justices. Moreover, these days, intensely combative, ideologically charged decisions have a strong tendency to result in 5-4 decisions, turning upon the (commonly European-informed) private moral intuitions of Justice Anthony Kennedy.

On the whole, given the opportunity of having the fate of an important but widely disputed, Constitutional right decided, potentially for many decades, effectively by Justice Kennedy alone, I’d rather wait for a different Court.

“At first people thought he had just fallen over from leaning too far to the right.”
—Jay Leno on Chief Justice John Roberts’ seizure.

Nice compliment.

via Anne Schoeder.

Charles Schumer promises the democrat base that Bush will get no more Supreme Court nominees through the Senate confirmation process, and apologizes for democrats supposedly being somehow deceived by Judges Roberts and Alito. And here I thought they just didn’t have the votes to block those nominees’ confirmations.

New York Sen. Charles E. Schumer, a powerful member of the Democratic leadership, said Friday the Senate should not confirm another U.S. Supreme Court nominee under President Bush “except in extraordinary circumstances.”

“We should reverse the presumption of confirmation,” Schumer told the American Constitution Society convention in Washington. “The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito.”

Schumer’s assertion comes as Democrats and liberal advocacy groups are increasingly complaining that the Supreme Court with Bush’s nominees – Chief Justice John Roberts and Associate Justice Samuel A. Alito – has moved quicker than expected to overturn legal precedents.

Senators were too quick to accept the nominees’ word that they would respect legal precedents, and “too easily impressed with the charm of Roberts and the erudition of Alito,” Schumer said.

“There is no doubt that we were hoodwinked,” said Schumer, who sits on the Senate Judiciary Committee and heads the Democratic Senatorial Campaign Committee.

A White House spokeswoman, Dana Perino, said Schumer’s comments show “a tremendous disrespect for the Constitution” by suggesting that the Senate not confirm nominees.

“This is the kind of blind obstruction that people have come to expect from Sen. Schumer,” Perino said. “He has an alarming habit of attacking people whose character and position make them unwilling or unable to respond. That is the sign of a bully. If the past is any indication, I would bet that we would see a Democratic senatorial fundraising appeal in the next few days.”

Schumer voted against confirming Roberts and Alito. In Friday’s speech, he said his “greatest regret” in the last Congress was not doing more to scuttle Alito.

“Alito shouldn’t have been confirmed,” Schumer said. “I should have done a better job. My colleagues said we didn’t have the votes, but I think we should have twisted more arms and done more.”

Gary Shapiro, in the New York Sun, discusses Barack Obama’s collaboration with Harvard Law School’s ultra-liberal Constitutional Law Professor Larry Tribe in the production of a 1989 Law Review article employing scientific metaphors to justify bizarre and over-reaching interpretations of the Constitution.

You thought liberal Supreme Court justices’ interpretations of the Constitution were bad enough now? Just imagine new Obama-appointed justices following Larry Tribe’s suggestion of applying a little Heisenberg to Constitutional jurisprudence.

Is Barack Obama a space cadet? The man who would become senator of Illinois and a top Democratic presidential contender was credited for editorial or research assistance in a page-one footnote of what may be the zaniest-titled article ever published by the Harvard Law Review: “The Curvature of Constitutional Space: What Lawyers Can Learn From Modern Physics,” authored by noted legal scholar Laurence Tribe.

The 39-page densely argued treatise — think “The Paper Chase” meets “Star Trek” — argues that constitutional jurisprudence should be updated in a similar way that Einstein’s theory of relativity replaced Newtonian mechanics, a view that would release judges from the original intent of the Founders of America. Published in 1989, with help of the much younger and politically greener Mr. Obama (a few others are also thanked in that footnote), the article is sprawling with references to cultural anthropologist Clifford Geertz and physicists Stephen Hawking and Werner Heisenberg.

In 1990 Mr. Obama became the first black president of the Harvard Law Review. The long-ago article could indicate his views on the Constitution, which, if he is elected, could come into play in such matters as his choice of nominees to the Supreme Court. ...

Mr. Tribe employs this analogy to argue for a more expansive view of what constitutes governmental action. He examines legal cases involving child abuse, suburban white flight from suburbs, and abortion, asking what the state’s role was in shaping the legal environment.

A Yale-trained lawyer who earned his Ph.D. in mathematics at New York University, Elisha Kobre, said Mr. Tribe is “making a reasonable — but debatable — legal point that courts should intervene not only when government directly infringes individual rights but also when people are adversely affected by existing social structures that he asserts have been created or perpetuated by the government.” Mr. Kobre added that while Mr. Tribe’s physics analogy did not particularly add to or enlighten a point that others have made before, it was nice to see a lawyer managing to incorporate ideas of science into legal theory. ...

If Mr. Obama captures the White House, he might not curve space but may settle for setting aside a high-altitude seat on the Supreme Court for his former teacher, Mr. Tribe, who is the Carl M. Loeb University Professor at Harvard.

Whether James Madison and the other Founders would have had such a benign view of Mr. Tribe’s theory is another matter, though.

Read the whole thing.

The Financial Times reports

the White House on Tuesday confirmed that Gordon England, deputy defence secretary, sent a memorandum to senior defence officials and military officers last week, telling them that Common article III of the Geneva Convention — which prohibits inhumane treatment of prisoners and requires certain basic legal rights at trial — would apply to all detainees held in US military custody.

The Administration is knuckling under to the Supreme Court’s preposterous application of Geneva Convention status in Hamdan.

The sanctimonious do-gooder element is burbling with joy. Dave Hoffman aptly compared Hamdan with Brown, and he’s perfectly correct.

As in Brown, the Hamdan decision takes a leap of faith in the legitimacy of particular justices’ self-righteous moral intuitions as a basis for overruling objective law, counting on the sentimentality of the general public to affirm politically over time the Court’s decision.

There is a difference, though. The Brown decision was made at a time when state segregation represented a strange anachronism, when the laws under scrutiny were nearly universally despised, when the legal fruit was already overripe and ready to drop off the vine of its own accord.

The principle of reciprocity in the laws and usages of war has considerably greater vitality and reason behind it than Jim Crow ever did. The entire point of the Geneva Convention is to encourage humane treatment of prisoners of war on the basis of reciprocity. Signing the Convention is a promise that, if you do not abuse our soldiers who fall into your hands, we will also spare yours.

Justice Stevens’ generosity in the awarding of honorable status, rights, and protections to illegal combatants really represents a fraudulent check written at the expense of American fighting men.

When Justice Stevens effeminately promises that illegal combatants, terrorists, murderers, and brigands will all be treated as honorable adversaries, attempting to preclude the American fighting man, exposed to the hazard of falling alive into the hands of a merciless and barbarous enemy, from punishing violations of the customs and usages of war, he goes far beyond his own legitimate perogative. The decision to spare this enemy’s life, or that, belongs to the man who bested him, not to some theorist and scribbler sitting in a marble building in the District of Columbia.

In WWII, my father served in the USMC on Guadalcanal. He told me that the Japanese had people able to speak English, and in the long tropical nights, the Japanese forces would amuse themselves by imitating the pleas for assistance of a wounded American lying helpless between the fighting lines. Naive young Marines often had to be restrained physically from climbing out their foxholes and dashing off into the night to the rescue of their miserable and suffering fellow Marine. Every now and then, an individual hero would break free, and go out there. They always found him the next day, crucified with Japanese bayonets to a palm tree, his reproductive organs cut off and stuffed insultingly in his mouth. The Marines on Guadalcanal consequently took no Japanese prisoners, except for the purpose of short and forcible interrogation.

In today’s absurd world, bourgeois lawyers, safe in the United States and far from the fighting (who know nothing of war) would interpose their own opinions and emotions between the just revenge of American fighting men and a cowardly and dishonorable enemy.

The answer to Justice Stevens is simple. US forces will need to be certain to take no illegal combatants alive.

Mark Steyn heaps plenty of well-deserved ridicule on Justice Stevens’ Hamdan ruling.

There are several ways to fight a war. On the one hand, you can put on a uniform, climb into a tank, rumble across a field and fire on the other fellows’ tank. On the other, you can find a 12-year-old girl, persuade her to try on your new suicide-bomber belt and send her waddling off into the nearest pizza parlor.

The Geneva Conventions were designed to encourage the former and discourage the latter. The thinking behind them was that, if one had to have wars, it’s best if they’re fought by soldiers and armies. In return for having a rank and serial number and dressing the part, you’ll be treated as a lawful combatant should you fall into the hands of the other side. There’ll always be a bit of skulking around in street garb among civilian populations, but the idea was to ensure that it would not be rewarded—that there would, in fact, be a downside for going that route.

The U.S. Supreme Court has now blown a hole in the animating principle behind the Geneva Conventions by choosing to elevate an enemy that disdains the laws of war in order to facilitate the bombing of civilian targets and the beheading of individuals. The argument made by Justice John Paul Stevens is an Alice-In-Jihadland ruling that stands the Conventions on their head in order to give words the precise opposite of their plain meaning and intent. The same kind of inspired jurisprudence conjuring trick that detected in the emanations of the penumbra how the Framers of the U..S Constitution cannily anticipated a need for partial-birth abortion and gay marriage has now effectively found a right to jihad—or, if you’re a female suicide bomber about to board an Israeli bus, a woman’s right to Jews.

Cicero in response to Hamdan v. Rumsfeld:

IV. atqui, si tempus est ullum iure hominis necandi, quae multa sunt, certe illud est non modo iustum verum etiam necessarium, cum vi vis inlata defenditur… insidiatori vero et latroni quae potest inferri iniusta nex?

quid comitatus nostri, quid gladii volunt? quos habere certe non liceret, si uti illis nullo pacto liceret. est igitur haec, iudices, non scripta, sed nata lex, quam non didicimus, accepimus, legimus, verum ex natura ipsa adripuimus, hausimus, expressimus, ad quam non docti sed facti, non instituti sed imbuti sumus, ut, si vita nostra in aliquas insidias, si in vim et in tela aut latronum aut inimicorum incidisset, omnis honesta ratio esset expediendae salutis. silent enim leges inter arma nec se exspectari iubent, cum ei qui exspectare velit ante iniusta poena luenda sit quam iusta repetenda.

etsi persapienter et quodam modo tacite dat ipsa lex potestatem defendendi, quae non hominem occidi, sed esse cum telo hominis occidendi causa vetat, ut, cum causa, non telum quaereretur, qui sui defendendi causa telo esset usus, non hominis occidendi causa habuisse telum iudicaretur. quapropter hoc maneat in causa, iudices; non enim dubito quin probaturus sim vobis defensionem meam, si id memineritis quod oblivisci non potestis insidiatorem interfici iure posse.

(Translation, JDZ:)

IV. But if there is any occasion on which it is proper to slay a man, and there are many, surely that occasion is not only just, but even necessary, when violence is offered, and must be repelled by violence… And what death can be unjust when inflicted on a secret plotter and outlaw?

Why do we have an army, why do we own swords? Surely it would not be justifiable for us to have them at all, if it were never justifiable to use them. There is, therefore, a law, O judges, not written, but born with us, which we have not learnt, nor received by tradition, nor read, but which we have taken in and imbibed from Nature herself; a law which we were never taught, but for which we were made, which we were never trained in, but which is ingrained in ourselves: namely, that if our life is in danger from plots, or from open violence, or from the weapons of brigands or enemies, every means of securing our safety is honorable. For the laws are silent in the midst of the clash of arms, and do not expect themselves to be waited upon, when he who waited would be obliged to bear an unjust injury rather than exact a just punishment.

The law very wisely, and tacitly, gives a man the right to defend himself, and it does not merely prohibit homicide, but forbids anyone carrying a weapon for the purpose of murder. It is the intended purpose, not the carrying of the weapon, which constitutes the offense. The man who used a weapon to defend himself would not be deemed to have armed himself with the intention of committing murder. Let this principle then be remembered by you in this trial, O judges; for I do not doubt that I shall make good my defense before you, if you only remember, that which it is impossible to forget: that a plotter against oneself may be lawfully slain.

-Marcus Tullius Cicero, PRO T. ANNIO MILONE ORATIO, [In Defense of Titus Annius Milo], X:IV.

Members of the Trans-Atlantic intelligentsia today live unprecedently comfortable and domesticated lives, and enjoy such affluence and personal security that instead of worrying about the basics of survival (like people in the past) they are apt to seek the perfection of their selves. They take care to obtain the finest educations, they select and pursue the most prestigious and gratifying careers, they exercise and jog, and they contemplate with great care all questions of ethics. Even ordinary and banal matters, like cooking lobsters, to them commonly rise to levels of grave and serious concern.

So exquisite and precieux have become the souls of our contemporary elites that they simply cannot bear to contemplate the idea of themselves (or anyone else) inflicting suffering on human or animal, crustacean or terrorist.
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When I was a little boy, I once had a dog I loved very much, but who was unfortunately a very bad dog. You couldn’t walk him on a leash: he was strong, willful, and could pull even an adult off his feet.

My dog would obey no one. He terrorized the neighborhood, and frequently treed one neighbor’s cat. One day, he escaped from our backyard, and proceeded to the unimaginable atrocity of attacking a neighbor’s freshly washed sheets drying outdoors on a clothes-line. He tore most of them to shreds, and soiled the rest. My father had to face a female neighbor’s righteous wrath, and he had to make expensive restitution.

I woke up one morning shortly afterward to find my beloved dog missing.

I was heartbroken, but my parents explained that, though he was a wonderful dog, he had not really been happy living in a town (where he would get into trouble playing with people’s bed sheets). So they decided it would be best for him to go and live on a farm in the country, a place where dogs could run free.

The farm was a wonderful place, and a dog could have fun all day doing all the things he liked to do. The farmer was delighted to own such a wonderful dog, and this was the best possible arrangement for everyone. I missed my dog, of course, but I was happy to think of him happy, safe, and enjoying himself.

Many years later, when I was an adult, my father admitted to me that he took that dog up on the mountain, fired both barrels of his 12 gauge shotgun into him, and walked away.
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In a lot of ways, our intelligentsia today are like children. They have no first hand experience commonly of the harsh and difficult choices adults have to make. And, like children, they are naive and sentimental, and do not understand evil.

What the rest of us need to do for Justice Stevens, Andrew Sullivan, and the Trans-Atlantic chattering classes generally is just explain that those Islamic terrorists weren’t happy in Afghanistan, Iraq, or Guantanamo Bay. They were only getting into trouble. So we had to let them all go off and live on the farm, where they could run free, set off all the bombs they like, and do all those other fun Islamic things they like to do. The farmer had never seen such wonderful terrorists, he said. He used to raise terrorists, he said. He loved terrorists, and he was delighted to adopt these.

The Supreme Court ruled on Thursday that President Bush did not have authority to set up the war crimes tribunals at Guantanamo Bay, Cuba, and found the “military commissions” illegal under both military justice law and the Geneva convention.

Fox News & AP

Andrew McCarthy wrote an earlier post-mortem predicting the Court would rule wrongly, but it appears that the decision will be worse than expected.

If the Supreme Court of the United States really takes it upon itself to extend Geneva Convention Rights to terrorists and illegal combatants, George W. Bush ought to take Andrew Jackson’s position, and tell Justice Stevens to go enforce his own ruling.

The town of Weare, New Hampshire, voting at one of those traditional New England town meetings, rejected a bid to take Justice David Souter’s house by eminent domain. The proposal to seize Souter’s house to build a “Liberty Hotel” had been originated by a California libertarian jokester as a protest against Souter’s vote in the notorious Kelo v. New London decision, upholding a town’s taking of private property for transfer to a developer.

Professor Bainbridge thinks Weare should have taught Souter a lesson.

Ann Althouse endorses the prevailing viewpoint of Souter’s neighbors: He was just doing his job.

Personally, I think that job entails interpreting the Constitution faithfully and correctly, not sophistically bending its provisions to facilitate the empowerment of government at the expense of the rights of the people. Let’s hope that finding himself, even in jest, the potential victim of the involuntary loss of his home made Mr. Justice Souter, at least momentarily, revisit the issue with a keener appreciation of the rights of the individual.

Constitutional originalists shuddered when Justice Stevens exercised his intellectual ingenuity in Kelo v. City of New London to do to the Takings Clause of the 5th Amendment what veterinarians commonly do to tomcats. And Yolo County, California is currently in the process of providing further opportunity for judicial creativity.

New London succeeded in winning the right to take residents’ homes by eminent domain, in order to convey their properties to developers, whose residential and commercial projects would promote the city’s economic development. Yolo County wants to seize the 17,300 acre Conaway Ranch, and operate it itself, precisely in order to preclude economic development.

The county intends to get the money from the spectacularly civic-minded (and casino-owning) Rumsey Band of Wintun Indians. The noble red men might be looking for space for another bingo hall, what do you think?

But all this is taking place in America’s Dystopian Future, California, where nobody misses a trick. The beleagured ranchers have reorganized themselves into a rival preservation organization, the Conaway Preservation Group, complete with wildlife management plan.

1/17 LA Times — 2/5 SF Chronicle

Justice David Souter voted with the Supreme Court majority in the infamous case of Kelo v. New London, which upheld the right of city government to use eminent domain to take away a individual’s property for private development.

On the principle of “what’s sauce for the goose,” Silicon Valley Objectivist Logan Darrow Clements took advantage of the law in Souter’s home state of New Hampshire to file a petition for Mr. Justice Souter’s hometown of Weare to take his property for a development project consisting of the erection of a “Lost Liberty Hotel.”

Voters in Weare will decide the fate of Souter’s colonial house on March 14th.

When we commented yesterday negatively on the Supreme Court decision in Gonzales, et. al. v. Oregon, we must confess that we had not yet gotten around to reading the actual decision. Nor were we familiar with the specifics of the Oregon law. Its title, the Oregon Death With Dignity Act (ODWDA), had precisely the ring of liberal double-speak to it, and we had leapt (understandably, we would argue) to the conclusion that the act basically encompassed oldsters going to the doctor’s office to be treated in the manner of the veterinarian putting to sleep the family cat. The reality was clearly quite different.

(The Supreme Court decision states:)

The Oregon Death With Dignity Act (ODWDA) exempts from civil or criminal liability state-licensed physicians who, in compliance with ODWDA’s specific safeguards, dispense or prescribe a lethal dose of drugs upon the request of a terminally ill patient.

Since our own position is really that any rational adult ought to be able to buy, and use, any medication or consciousness-altering item he desires without a prescription, it is clear that we failed to recognize initially the curious occurrence of the court’s liberal majority arriving at a perfectly correct decision.

Justice Scalia seems to have suffered from the same knee-jerk reaction we did initially, which was joined by Justices Roberts and Thomas. But Clarence Thomas additionally wrote a separate dissent, commenting sarcastically:

I agree with limiting the applications of the CSA [Controlled Substances Act] in a manner consistent with the principles of federalism and our constitutional structure. Raich, supra, at _ (THOMAS, J., dissenting); cf. Whitman, supra, at 486—487 (THOMAS, J., concurring) (noting constitutional concerns with broad delegations of authority to administrative agencies). But that is now water over the dam. The relevance of such considerations was at its zenith in Raich, when we considered whether the CSA could be applied to the intrastate possession of a controlled substance consistent with the limited federal powers enumerated by the Constitution. Such considerations have little, if any, relevance where, as here, we are merely presented with a question of statutory interpretation, and not the extent of constitutionally permissible federal power. This is particularly true where, as here, we are interpreting broad, straightforward language within a statutory framework that a majority of this Court has concluded is so comprehensive that it necessarily nullifies the States’ “ ‘traditional . . . powers . . . to protect the health, safety, and welfare of their citizens.’ ? Raich, supra, at _, n. 38 (slip op., at 27, n. 38). The Court’s reliance upon the constitutional principles that it rejected in Raich—albeit under the guise of statutory interpretation—is perplexing to say the least. Accordingly, I respectfully dissent.

In other words, Thomas still thinks the Constitution ought to preclude such Federal intrusions, but the since the Court already decided otherwise in Raich, what can he do but dissent from the tortured reasoning used to achieve a different result this time?
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I was just telling my wife: I can remember being wrong once before. I think it was in 1954…

The US Supreme Court upheld Oregon’s Physician Assisted Suicide Law by a 6-3 vote.

In his recent novel No Country for Old Men, Cormac McCarthy has the old timey Texas Sheriff Bell reminisce:

Here a year or two back me and Loretta went to a conference in Corpus Christi and I got set next to this woman, she was the wife of somebody or other. And she kept talking about the right wing this and the right wing that… She kept on, kept on. Finally told me, said: I dont like the way this country is headed. I want my granddaughter to be able to have an abortion. And I said well mam I don’t think you got any worries about the way this country is headed. The way I see it goin I dont have much doubt but what she’ll be able to have an abortion. I’m goin to say that not only will she be able to have an abortion, she’ll be able to have you put to sleep. Which pretty much ended the conversation.

The negative opinion ofthe Supreme Court’s ruling implied by the use of the quotation has been retracted.