Constitutional Law

Supremes: Mojave Desert Cross Can Stay

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In a tribute to common sense, the U.S. Supreme Court has ruled that a Cross raised in 1934 as a tribute to U.S. soldiers who died in World War I may stay at the Mojave National Preserve.  The depressing part of this news was that the vote was 5-4.  Stevens, who is retiring, voted with the four justices who viewed the Cross as a threat to our constitutional order.

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An Exercise in Raw Judicial Power

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As we observe the sad thirty-seventh anniversary of Roe v. Wade, the Supreme Court decision that overturned all state laws banning abortions and effectively served as a judicial death warrant for tens of millions of innocents, I think it is appropriate to pay tribute to the two dissenting Justices, Byron White, a Democrat, and William Rehnquist, a Republican.  Here are the texts of their dissents:

MR. JUSTICE WHITE, with whom MR. JUSTICE REHNQUIST joins, dissenting.

At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons — convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical adviser willing to undertake the procedure.

The Court, for the most part, sustains this position: during the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.

With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers [410 U.S. 222] and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally dissentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.

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Supreme Court Justices and Religion

To ask some questions is to answer them, and via Commonweal, I see that UCLA history professor emeritus Joyce Appleby has penned a lovely exercise in anti-Catholicism entitled, Should Catholic Justices Recuse Selves On Certain Cases?. Here is an excerpt:

But because of the Catholic Church’s active opposition to abortion, same-sex marriage and capital punishment, it raises serious questions about the freedom of Catholic justices to judge these issues. Perhaps the time has come to ask them to recuse themselves when cases come before their court on which their church has taken positions binding on its communicants…

…Recusal sounds like a radical measure, but we require judges to withdraw from deliberations whenever a personal interest is involved. Surely ingrained convictions exert more power on judgment than mere financial gain. Many will counter that views on abortion, same-sex marriage, and the death penalty are profound moral commitments, not political opinions. Yet who will argue that religious beliefs and the authority of the Catholic Church will have no bearing on the justices when presented with cases touching these powerful concerns?

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'The Federalist Papers' and Contemporary Political Challenges

American Political Theory and Constitutional Law Series, Pt. I

The American people have a history of distrust and suspicion of centralized authority. The original framework for the primitive independent-America outlined in the Articles of Confederation was not weak by accident. Even despite the clear insufficiency of the-then government under the Articles, the framers of the Constitution still found their vision of government to be a hard sell. It is fair to say their success was in finding an effective mix between the Athenian assembly and Roman Senate combined with ‘checks and balance’ with two other branches of government—a republic instead of a direct democracy.

In many ways, this debate has lived on. It is remarkable, particularly in recent decades, how many constitutional amendments have been given real and serious consideration by the U.S. Congress, from balanced budgets, to flag desecration, to super-majorities for taxes,  to line-item veto just begin the list in attempts to reshape the constitutional order.

For some time I have had mixed and often conflicting beliefs about this whole debate. The usual “left” versus “right” spin is, as usual, tiring. Though, I have re-engaged the matter due largely to a new found interest in the project development of Catholic legal theory. Such an undertaking on the part of Catholic law professors and legal professionals have been enormously helpful in the process of asking serious questions and finding an authentic Catholic answer to crucial questions about American government, constitutional law, and jurisprudence. This couldn’t be more true than with my quarrels with the “living Constitution theory” as well as “originalism.” Though it is probably still the case, to some degree, that I am troubled about answers to these questions. I have become more convinced by those who make the case (in regard to one matter) that America needs a much needed reminder: constitutional amendments should be rare and limited to issues of historic significance. The U.S. Constitution must be preserved from short-term and sudden passions. The starting point, I think, is to reiterate, as the Founding Fathers did, the merits of representation, deliberation, and conciliation.

American voters in great number say they favor change, but there is no consensus or clarity about neither the amount nor direction such change should take. Not so surprisingly, contemporary political debates do very little to educate the public about essential constitutional issues. Serious discussion is not only past due, but is vital. What is a greater threat to constitutional government than a lack of substantive public debate and public awareness? An uninformed, ignorant public is perilous to the common good and constitutional order.

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Scalia on Stare Decisis and Roe

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Hattip to the ever eagle eyed Jay Anderson at Pro Ecclesia.   Justice Antonin Scalia on stare decisis and Roe.  By the way, Scalia’s low estimate of Roe as a legal opinion is pretty nearly universal in the legal world.  Liberal attorneys and judges, even though they support abortion on demand, will frequently agree in private, and sometimes in public, that Roe was a shoddy piece of legal work, and that Harry Blackmun, the author of Roe, was a poor excuse for a jurist.  This of course does not prevent them from supporting Roe since they approve of the result, but it does mean that all of the many cases following Roe are based on an intellectually, and of course constitutionally, rotten foundation.  We can see this in the opinions that strain to make sense of Roe, which, as Judge Bork famously noted, is completely devoid of legal argument.

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Is the Bankrupt the Nation Act Unconstitutional?

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Ronald Rotunda, is currently a Professor of Law at George Mason University.  Twenty-seven years ago he had the onerous task of attempting to beat legal ethics ( and I can almost hear most of you shouting “Oxymoron!”) into the heads of second year law students at the University of Illinois.  I was one of his pupils.  I came away from his class no more ethical than when I went in, but with a thorough knowledge of the rules regarding legal ethics in the state of Illinois.  I also came away with a keen appreciation for both Professor Rotunda’s dry wit, and his strong intellect.  Here  is his web-site.  He is the one wearing a bow tie and not the Vulcan.  As you can see from his site, Professor Rotunda, unlike most law professors and most lawyers, does not take himself very seriously.

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Victory in Connecticut

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Lawlor and McDonald, the two anti-Catholic bigots behind a bill to tell the Catholic Church how to operate in Connecticut, have tucked their tails between their legs, cancelled the hearing on their bill, and their hate note to the Catholic Church, disguised as a bill, is dead for this legislative session.  Massive publicitity worked the trick, and endless outraged calls, e-mails and faxes to the legislators.  Kudos to State Senator John McKinney (Republican, Fairfield) who called 24 hours ago for the hearing on this bill to be cancelled and announced that every Republican in the state senate was against this bill, and that the bill was blatantly unconstitutional.  I am sure the bigots will be back, but so will those of us who oppose them.  A good day in Connecticut.

Update: Hmmm.  The bigots were apparently in alliance with members of Voice of the Faithless.  Surprise!

They Came For The Catholics

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Anti-Catholic bigots are busily at work in the Connecticut state legislature.   Raised Bill 1098 would effectively place any corporation connected with the Roman Catholic Church in Connecticut under lay control.  The sponsors of the bill, Representative Mike Lawlor, ironically a law professor, and State Senator Andrew J. McDonald, a lawyer, generously allow the local bishop or archbishop to serve on such a board of directors but without a vote.

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