Burning the Flag, Trump and our Black Robed Masters

Tuesday, November 29, AD 2016



Trump is catching flack for tweeting that flag burning should be against the law and that those who do should suffer a penalty, for example a year in jail or loss of citizenship.  Of course the idea that those who burn the flag should be subject to severe criminal penalties would have been non-controversial throughout the vast majority of the history of the Republic.  It was not until Texas v. Johnson (1989), in a 5-4 decision that crossed ideological lines, that the Supreme Court found unconstitutional all anti-flag desecration laws.  The decision was a particularly silly example of a trend in the Court of confusing conduct and speech, and thus finding an action worthy of first amendment protection.  The lunacy of this, is that almost all conduct carries a speech component.  The Court picks and chooses the conduct it wishes to enshroud in constitutional protection.  Walking nude in public for example can be a form of protest.  Indeed, a group of Quaker women in colonial Boston engaged in a naked promenade to protest Puritan persecution of the Society of Friends.  Yet, the Supreme Court has declined to strike down laws that ban public nudity.  The Court thus designates itself the arbiter of what conduct should have legal protection.  I prefer that such a role be granted to legislatures.  Legislators can be voted out.  Supreme Court justices are frequently with us for generations as they grow old handing down the law to we lesser breeds.  Besides, it is easy to change the law, and hard to amend the Constitution, unless one happens to be one of our nine Platonic Guardians.  The Supreme Court, in effect, swiftly amends the Constitution each year by majority vote of the Court and the rest of us are left to deal with freedoms often infringed as a result, especially our most important freedom:  the right to rule ourselves.








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11 Responses to Burning the Flag, Trump and our Black Robed Masters

  • Justice Scalia sided with the majority. So it wasn’t just the liberals who were nuts in this case.

  • Correct. He and Justice Stevens, who wrote a powerful dissent, seem to have switched bodies for that case.

  • “The Supreme Court swiftly amends the Constitution each year and the rest of us are left to deal with freedoms often infringed as a result, especially our most important freedom: the right to rule ourselves.”

    Great insight Donald. Trump should start Tweeting: Lawless Supreme Court amends Constitution whenever it wants. Not good.

  • “It was not until Texas v. Johnson (1989), in a 5-4 decision that crossed ideological lines, that the Supreme Court found unconstitutional all anti-flag desecration laws. The decision was a particularly silly example of a trend in the Court of confusing conduct and speech, and thus finding an action worthy of first amendment protection.”
    But I bet that the non-action of a Christian baker not baking a wedding cake for sodomites will be an unprotected non-action. Now that’s true lunacy.

  • Justice Roy Moore.
    A possible black robed master that could help straighten the crooked road in the Supreme Court. Alabama law makers would come apart at the seams if Moore made it in.

  • Thing is Michael, Trump has no problem with the concept of the lawlessness of the Supreme Court when it comes to same sex marriage. This latest tweet from DaDonald about flag burning is just him pandering to conservatives.

  • Greg. One step at a time. Repeal Roe vs. Wade first.

  • Of course, if you simply prosecuted flag burning as environmental pollution you might get some liberals on board. Mother Earth uber alles.

  • The American Flag is a symbol that belongs to each and every American in joint and common tenancy, like all the free lands and waterways, like the public domain where only the truth, the whole truth and nothing but the truth has freedom, where addiction to sodomy, lies about human sexuality and perjury about same sex marriage must be forbidden and must be exorcised. A sovereign people may not be subjected to the anger and destruction of someone’s dissent. Let them petition the government for redress in a timely and courteous manner. It is part of our First Amendment: “to petition the government for redress.” “We the people” are not to be subjected to tyranny by the few inciting to riot to gain the affirmation of the unjust.

  • “We hold these truths to be self-evident that all men are created equal” not born equal but created equal. The newly begotten sovereign person, baby Roe in Roe v. Wade became a ward of the Supreme Court the instant consent was given to have baby Roe aborted. The Supreme Court has a supreme and sovereign duty to guard baby Roe’s civil rights. Baby Roe’s innate will to survive is baby Roe’s civil right to Life.
    Scientific DNA is evidence of the newly begotten sovereign person in the womb.
    Dred Scott became a ward of the Supreme Court when his sovereign personhood was denied and Scott’s civil rights were denied. Terry Schindler Schiavo, too became a ward of the court when Michael Schiavo sought to have her life terminated. The court had the power and legitimate authority to make Terry Schindler Sciavo a ward of her parents. Terry Schindler Schiavo’s innate will to survive was overturned by the court, her civil right to life was terminated because Terry Schindler Schiavo’s sovereign personhood was not acknowledged by the Court. The Court, the government must represent all of American citizens. The sovereign personhood of American citizens institutes the courts and the government. “We, the people” are all constituents of the one nation under God, so help me God.
    When the court violates our Founding Principles, the court miscarries Justice. The Court is convened to dispense equal Justice. Any person is free to leave and any person is free to get three quarters of the states to ratify his opinion as the Law of the Land. The rest is perjury and treason.

  • yes we have freedom of speech, but we have lately denied that we have freedom to hate speech… look and listen to some of the hateful vile speech and behavior as the Israeli flag and the American flags are burned. It isn’t people just expressing their opinion, but an aggression fomenting aggression. Some actions really really disturb the peace! and should be stopped/controlled by law enforcement.

Supreme Silliness

Tuesday, July 12, AD 2016




Christopher Johnson at Midwest Conservative Journal makes the best argument I have seen yet on behalf of Donald Trump:  to see the look on Justice Ginsburg’s face as President Trump nominates her successor:


Elderly, senile woman publicly humiliates herself:

Unless they have a book to sell, Supreme Court justices rarely give interviews. Even then, they diligently avoid political topics. Justice Ruth Bader Ginsburg takes a different approach.

These days, she is making no secret of what she thinks of a certain presidential candidate.

“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president,” she said. “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”

It reminded her of something her husband, Martin D. Ginsburg, a prominent tax lawyer who died in 2010, would have said.

“‘Now it’s time for us to move to New Zealand,’” Justice Ginsburg said, smiling ruefully.

Even some of Ginsburg’s friends can’t believe that anyone would be that stupid.

I find it baffling actually that she says these things,” said Arthur Hellman, a law professor at the University of Pittsburgh. “She must know that she shouldn’t be. However tempted she might be, she shouldn’t be doing it.”

Similarly, Howard Wolfson, a former top aide to Hillary Clinton and former New York City mayor Michael Bloomberg, said Ginsburg shouldn’t have said it.

And that’s really a key reason justices don’t talk like Ginsburg did. Sometimes they have to hear cases involving political issues and people. Having offered their unprompted opinions about such things can lead to questions about prejudice and potential recusal from future cases.

As [Jeff] Greenfield notes, Ginsburg was a part of the court that decided who the president was when the 2000 election was thrown to the Supreme Court, so this isn’t uncharted territory. Had she said something similar about either Bush or Al Gore, would she have been able to hear the case?

Louis Virelli is a Stetson University law professor who just wrote a book on Supreme Court recusals, titled “Disqualifying the High Court.” He said that “public comments like the ones that Justice Ginsburg made could be seen as grounds for her to recuse herself from cases involving a future Trump administration. I don’t necessarily think she would be required to do that, and I certainly don’t believe that she would in every instance, but it could invite challenges to her impartiality based on her public comments.”

Hellman said Ginsburg’s comments could muddy the waters when it comes to decisions not just involving Trump but also his policies — something that could come up regularly should he win the presidency.

“It would cast doubt on her impartiality in those decisions,” Hellman said. “If she has expressed herself as opposing the election of Donald Trump, her vote to strike down a Trump policy would be under a cloud.”

And did I happen to mention that the loopy old broad is a eugenics fan?

“Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of.”

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21 Responses to Supreme Silliness

  • In their heart, leftists are always narcissists. Of course she’s a eugenics fan. How could she not be? After all, she’s already been born.

  • Please don’t let Don the Kiwi see this post!

    It could ruin his day.

    If she DID move there….well it would be a boost for Liberty in America. GoFundMe campaign starting up to get her there…now!
    Sorry Kiwi Don.

  • From the Oliver Wendell Holmes “three generations of imbeciles are enough” school of legal theory.

  • British judges scrupulously avoid commenting on political matters, or current affairs in general.
    However, as a good number of them have been Members of Parliament and former Law Officers (Lord advocate or Solicitor-General in Scotland or Attorney-General of Solicitor-General in England & Wales), their political views are not difficult to guess.
    Perhaps for that reason, the only ground of disqualification is patrimonial interest on the part of the judge or a close relative. Judges have not infrequently had to rule on legislation they supported or opposed in the House of Commons.

  • She says out loud what so many other judges in this country think. I wonder if judges didn’t make a practice of concealing their controversial views if those three Iowa judges who brought gay “marriage” to Iowa or the ones in California would have gained office

  • A telling quote from Ginsburg in that meme above. It confirrms everything I have always known about liberal progressive Democrats – intolerate elitist racists and insanely genocidal to the core. Fathom that a nation which defeated Nazism has a Nazi like Ginsburg as a Justice on SCOTUS!

  • I wonder if her good friend Justice Scalia were still alive, if she would have said these outrageous statements in public.
    Another liberal Democrat woman channelling Margaret Sanger.

  • Eugenics has a long history in this nation. It went underground after WWII, but Sanger and her cohorts skillfully disguised their motives, with the help of the media, academia and entertainment.

    Ginsburg is a jackass. She hasn’t the brains of a woodchuck. She was promoted and moved up because he is a woman. Politics is the theater of the ugly-ugly ideas and ugly people, ugly for what they believe and ugly for what they want enacted.

  • Philip on Tuesday, July 12, A.D. 2016 at 5:53am
    “Please don’t let Don the Kiwi see this post!
    It could ruin his day”

    Haha. 😆

    Actually, this was the subject of a post yesterday on own own http://www.kiwiblog.co.nz.

    My comment there was that the USA would applaud her move. I’m sure you guys would be happy to get rid of an aging Lefty Liberal Progressive and transport her to the fringes of civilisation. Not that we need her here – we have too many homegrown lefties of our own. But the up side is, that she would have to migrate here with a minimum of $10 mil. dollars to invest and have adequate resources to support herself – no bludging on our national Superannuation.
    But it’s a bit cold at the moment – unless she like the cold and the big outdoors – we could shunt her down to the spectacular central Otago in the South Island. Alternative ly if she preferred the warmth, she could go up to the winterless north – Northalnd – where the beaches are fantastic, sparsely populated, by a large proprtion of our Maori people. Her liberal views would probably suit them – about 20% of the Northalnd economy is blackmarket green culture – if you get my drift.
    “Take another toke, Bro – cooool ” 🙂

  • In France, I do not suppose one person in a thousand could name a single member of the country’s supreme tribunals. Even among lawyers, they are virtually unknown.

    The fact that French courts deliver a single arrêt with no concurring or dissenting opinions and the baldest statement of the grounds (motifs) means that even the judges’ views on the cases they decide are known only to their colleagues. As a result, in their opinions and arguments, advocates rely far more on the views of jurists (la doctrine) than on decided cases (la jurisprudence). The teaching of the four great commentators on the Code Civil, Demolombe (1804–1887), Guillouard (1845-1925). Gaudemet (1908-2001) and Carbonnier (1908–2003) enjoys the same sort of authority that a Supreme Court decision does in the US.

    This taste for anonymity characterises the French bureaucracy as a whole and this impersonal character of the administration is widely seen as a guarantee of impartiality and consistency. In fact, fonctionnaires or, as they are usually referred to, « La fonction publique » are generally respected, unlike politicians, who are held in great contempt.

  • Both Justices Ginsburg and Kagan should have recused themselves from the Obergefell gay marriage case since they had both presided over gay weddings at least a year before the case was heard. It rankles me that NO ONE mentioned this at the time. They didn’t judge the case; they merely voted. They’d made their minds up prior to the case being heard.

    Recall that Justice Thomas was hounded to recall himself from the Obama Care case because of his WIFE’S political activities.

  • Dennis DiMuzio.

    Great points.
    I forgot about the hounding of Thomas…your right on point.

    The left believe that they are untouchable.
    They will continue to plunders as long as the right continues to trip over their limp…(whatever).

  • Dennis DiMuzio wrote, “Both Justices Ginsburg and Kagan should have recused themselves from the Obergefell gay marriage case since they had both presided over gay weddings at least a year before the case was heard”

    I don’t see the logic of that at all. Presumably, the marriages were lawful in the jurisdictions in which they were performed and no one was arguing in Obergefell that states could not allow SSM, if they chose.

    A judge who is an elder in a church that espouses the Voluntary Principle and opposes church establishments, may, quite properly, sit in the Teind Court. It would be a different matter, if he were himself a Titular of teinds, for that is a patrimonial interest.

  • “don’t see the logic of that at all.”

    It doesn’t seem to you as if it were an indication that they had already made up their mind on the issue? Which of course they had, all pretense aside. Our Supreme Court is supposed to be a Court, but it functions increasingly as a non-stop Constitutional Convention, constantly amending the Constitution to fit the intellectual prejudices fashionable among the majority of the Court. In Obergerfell these prejudices mandated that the Court manufacture an amendment of the Constitution preventing the States from restricting marriage to only mixed sexes, something that humanity has followed until the present generation. This is a complete betrayal of what the Founding Fathers bequeathed to us, Hamilton’s “least dangerous branch” has become poison to our most precious civil right: the right to rule ourselves.

  • Donald R McClarey wrote, “It doesn’t seem to you as if it were an indication that they had already made up their mind on the issue?”

    A strong indication, certainly, but consistent with the position that marriage is a matter for the states.

    Be that as it may, many judges, especially those who have been text-book writers or who have held high political office, are well known to hold strong views on a whole range of legal and political issues. The line has to be drawn somewhere and, traditionally, that has been patrimonial interest or kinship (iudex qui litem suam fecit as the Classical Jurists call it)

  • “Be that as it may, many judges, especially those who have been text-book writers or who have held high political office, are well known to hold strong views on a whole range of legal and political issues.”

    Traditionally we could expect a judge to not attempt to write his political preferences into law under the pretext of construing the law. When a legal decision is clearly not a legal decision but an attempt to legislate from the bench, the judge is no longer acting as a judge but rather engaging in an illegitimate power grab. A decision from such a judge or group of judges lacks any moral authority and merely enjoys the authority of the might behind it, and only that transient authority.

  • @Don the Kiwi

    “Ginsberg picks NZ over Trump.”

    I just priused your blog.
    I truly enjoyed the comments.
    Funny folks.

    Otago in the South island…hummm.
    I’m certain that you have a cozy damp cave for someone of her …. non-biased…. stature.

  • Seems the women of prominence from the left have great difficulty in being professional.
    Incompetents seems to be their trademark.
    Poor weasels.

  • Donald R McClarey wrote, “Traditionally we could expect a judge to not attempt to write his political preferences into law under the pretext of construing the law.”

    I agree with that.

Fortnight For Freedom: Abraham Lincoln on the Supreme Court

Tuesday, June 28, AD 2016






fortnight for freedom 2016


(This is a repeat from last year.  In light of the Supreme Court’s decision yesterday, go here to read about it, in Whole Woman’s Health v. Hellerstedt striking down two key sections in the Texas abortion law, it seemed more relevant than ever.  The Supreme Court is growing ever more high handed in its rulings, and what it is engaged in when it comes to favored made up court created rights like “abortion” and “gay marriage” has nothing to do with the law or the constitution.  In his blistering dissent in Hellerstedt, Justice Clarence Thomas nailed it:


Some quotes from Abraham Lincoln in how to react to illegitimate Supreme Court decisions.  An illegitimate decision is one in which the Court arrogates to itself the power of a legislature under the mendacious guise of merely interpreting the Constitution:

1.  I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit; as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the government.

2.  Judicial decisions have two uses-first, to absolutely determine the case decided, and secondly, to indicate to the public how other similar cases will be decided when they arise. For the latter use, they are called “precedents” and “authorities.”

3.  We think its (the Supreme Court) decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution.

4.  At the same time, the candid citizen must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.

5.  Judicial decisions are of greater or less authority as precedents, according to circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession.

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I Will Not be Cowed into Voting for Trump this November

Thursday, February 25, AD 2016

Roughly eight percent of the Republican delegates have been doled out thus far, but evidently it’s all over but the shouting. We might as well make piece with GOP nominee Donald Trump, we’re told. Whether or not one is ready to so readily concede, I’ve already seen the message pivot on various social media platforms. Despite the fact that a majority of Republican voters do not like or simply loathe the man, the quadrennial ritual is about to take place. Yes folks, it’s time for another lovely round of “Vote Republican in November or else.”

Oh I’m just as guilty as anyone as playing this game before. I almost made it through 2012 myself before regretfully folding and pulling the imaginary lever for Mitt Romney (more on that later), and I did the same for McCain in 2008. I’ve made the same arguments now being put forth by Team Vote GOP or Die, so I understand them. I personally find it rather amusing that the same people who have kvetched the most about this strategy in the past are now the ones wielding it, but so be it.

There are two core arguments being put forward as to why we need to get in line for Trump: the courts, and “OMG! Hillary!” (Yeah, Bernie too, but establishment Democrats are ironically better at putting their thumbs on the scale to thwart grassroots sentiment than the not quite so Machiavellian GOPe, so forget him for the time being).

Normally I’d fall in line with this way of thinking, but not this time. Let’s address the courts first.

Antonin Scalia’s death has made the Supreme Court, and the corresponding presidential appointment power, even more pressing of an issue than it normally is. Assuming Senate Republicans actually hold the line – and to their credit, I think they will – then the next president will not only choose his replacement, he or she might get to fill two other vacancies, if not more. Do we want Hillary to make those appointments? Donald Trump may not be counted on to make suitable choices, but at least with him we have a fighting chance. Sure he hasn’t demonstrated any familiarity with constitutional law, or a deep understanding of originalism, and on several high profile cases (such as Kelo) he took the anti-Constitutional side. But he will surely have the best men and women advising him, and we can trust that he will pick good people to pick good people.

To which I reply: The infinitesimal chance that Donald Trump will astutely nominate jurists whose philosophies echo Antonin Scalia, Samuel Alito, or – dare a girl dream – Clarence Thomas, does not counter all of the other negatives associated with Donald Trump. When speaking of constitutional issues Trump seems barely more coherent than a high school kid who has not done his social studies homework. It’s easy to make too much of his comment that his radically pro-abortion sister would make a “phenomenal” Supreme Court justice, but it underlines his fundamental lack of seriousness on the courts and constitutional issues. He may mouth platitudes about appointing “pro life, conservative” justices, but even when he’s trying to say things he knows his supporters want to hear, he still betrays his complete lack of understanding of what the courts are about. I don’t want “pro life, conservative” justices, I want constitutionalists who will adhere to the document as written and originally understood by its framers. Such justices would naturally decide in a manner that would overturn the social justice engineering wrought by the courts, but would also consistently vote so as to keep the courts out of other areas that are not their concern.

It’s also folly to count on Trump picking excellent advisers to assist him with these picks. We’re left hoping that he picks the right person to pick the right people. Hey, I have an idea – let’s cut out the middleman. Maybe instead of Trump we could have a president who, say, has argued (and consistently won) before the Supreme Court and thus might actually know a little but about constitutional law. Oh, I know, that’s crazy talk. Better to roll the dice, cross our fingers and pray that Trump picks the right person to pick the right person.

Even assuming Trump hits the jackpot and chooses a suitable replacement for Scalia, guess what – he’s likely gonna have to repeat that process multiple times. I would be surprised if Clarence Thomas and Anthony Kennedy don’t resign during the next Republican administration. Ruth Bader Ginsburg might try to hang on for another four years in case Trump wins, but even she might walk away. So not only are we relying on Trump getting it right to simply hold the line, we might need him to make the right call when it comes to appointing someone who could switch the court’s basic composition.

Wait. There’s more. While we focus obsessively on the Supreme Court we forget to scores of lower court appointments that will be made. As Danel Horowtiz details, less than one percent of cases make it to the Supreme Court, meaning that most cases are decided on the appellate level. And as Horowitz shows, President Obama has completely remade the lower courts.

While most people focus exclusively on the Supreme Court and how that institution has reached rock bottom with some of the decisions of the past term, the situation in the lower courts is even worse.  And remember, only 1% of this country’s cases ever make it to the land’s highest court.  Obama has now appointed 54 active appeals court judges, which represents 30% of the appeals court benches.

As of 2016, nine of the 13 circuits are comprised of majorities of Democrat-appointees.  In totality, there are 92 Democrat circuit judges, 77 GOP judges, and 10 vacant seats.  The all-important D.C. Court of Appeals—the second most important court in the land on constitutional issues—is now 7-4 majority Democrat-appointees, with four judges appointed by Obama alone.

On the district level, Obama has now appointed 260 judges, 39% of the federal district bench.

Even if we trusted to Trump to somehow have a better batting average of appointing constitutionalists to the bench than Ronald Reagan and the Bushes, it probably won’t matter. The courts are so fundamentally broken that even appointing the right people – which we can’t even trust Trump will do – won’t solve anything.

Which brings us to the final point. The judiciary has usurped the legislature’s role in deciding social issues. It has become a super legislature, far beyond anything imagined by the framers of the Constitution. Even if the courts decided rightly on these major social issues, we should question why they are even deciding so many of these issues in the first place. Major judicial reform is necessary, including such ideas as jurisdiction stripping. While I wouldn’t expect even a President Cruz to succeed in this arena, at least not as thoroughly as one would hope, there is no chance in Hades than a President Trump will get behind any initiatives to reform the judiciary. In the end, the courts are simply too far gone to think that electing Donald Trump can make any difference whatsoever.

Which brings us to the “but Hillary” argument. Yes, Hillary Clinton is a sociopathic, charisma vacuum who would almost literally (maybe not almost) kill someone who stood in her way of obtaining office. She has no scruples, would say anything to get elected, lies as easily as any of us breathe, and is a doctrinaire leftist.

But I also kind of just described Donald Trump (except for the charisma thing – I’ll give him that).

Phillip Klein laid out a pretty exhaustive list of Trump’s political failings. It’s hard to see in this list precisely where he’s markedly better than Hillary Clinton. In fact both are political chameleons who seem to thirst after power, and will do and say anything to attain that power. In the end, President Clinton or President Trump will do nothing to repeal Obamacare, and both seem to be fine with ideas to further socialize health care. Neither is going to reign in the judiciary, nor are they going to halt the expansion of executive powers. And on and on.

As mentioned above I held out for much of 2012 before finally succumbing to the “he’s better than Obama” argument as applied to Mitt Romney. The thing is, Mitt Romney is Edmund Burke, Barry Goldwater, and Ronald Reagan rolled into one compared to Donald Trump, not to mention his clearly superior moral character. Mitt Romney, for all his faults, truly was a superior alternative to Barack Obama. I cannot say the same about Donald Trump as compared to Hillary Clinton.

So that is why no amount of pleading will ever get me to vote for Donald Trump. If it makes you feel better I live in a state that has zero chance of going Republican in a general election, so it also won’t matter. As I said in my previous post, Donald Trump actually could and maybe even likely will defeat Hillary Clinton. God help our nation that this is our choice.

NB: If Tuesday goes as poorly as I fear it might, this will be my final post on presidential politics until election day in November. I don’t think I can stomach eight months of coverage of these two fundamentally loathsome human beings.

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42 Responses to I Will Not be Cowed into Voting for Trump this November

  • My guess is that an Art. V convention is our last, best hope.

  • “Vote GOP or Die”, eh?
    Well work hard for a decent candidate, Paul Zummo, else you’ll have no GOP candidate to vote for this fall. Trump isn’t Republican, he’s Fauxpublican–not even enough of a Republican to be RINO. Work very hard because your time is running out.
    P.S. I’m glad Paul Zummo repented of his Romney’s Not Good Enough For Me attitude. But now he gets to experience a weakened Republican Party as his penance.

  • An Article V convention is a horrible idea. Once called the Convention could not be limited to a single topic, everything, including the Bill of Rights would be up for grabs.

  • There are so many issues that it can be heard to see where to begin. Our Republic looks to me like a town flattened by a tornado.

    If one were serious about restoring the Republic, one would begin with the Separation of Powers… No one but Rand really talked about that. (Cruz test floated that issue but America yawned.)

    Everything else is irrelevant in comparison.

    Trump wants a facade as fake as Rock Ridge’s in Blazing Saddles. Clinton wants to rebuild a mansion for her to live in and look down on the huddled masses. Bernie wants to give up and borrow tents forever.

    Not one of the candidates is interested in the Constitution or, if they are, have the courage to say so.

    Long ago, we gave up education to the Left. They stripped it of Civics and we are now an ignorant people… Regular Eloi.

  • That great social conservative W. Bush declared during his presidency
    abortion is settled law and part of the U.S. Constitution. The social conservative
    phonies control the Republican Party. They will never overturn Roe vs Wade.
    Not long ago 7 of the 9 justices on the Supreme Court were appointed
    by Republicans. Most of them were appointed by the liberal pro-abort
    Bush family. And still the Republican Supreme Court refused to overturn
    Roe vs Wade. American conservatives are the most manipulated group of
    human beings on the planet, which explains their rage and support for Trump.

  • Good post, Paul. I hope you are wrong. I fear you are right. 🙁

  • I’ve worried about opening that pandora’s box myself, Thomas, but as I was reminded when I expressed those concerns, 3/4 of the states would have to ratify any amendments or wholesale changes. If three-quarters of the states are willing to scrap the Bill of Rights, well, we’re in trouble regardless. That’s not to say I’ve fully signed onto the Article V convention quite yet, but it’s becoming more palatable idea.

  • “That great social conservative W. Bush declared during his presidency
    abortion is settled law and part of the U.S. Constitution.”


    Bush senior appointed Clarence Thomas, perhaps the most ardently pro-life member of the Court. Earlier in his career he had not been pro-life, but as President he was quite pro-life.

    Where Republicans control state legislatures a steady stream of pro-life legislation has emerged. In regard to the Supreme Court, blame Ted Kennedy. He began the Democrat Jihad against Republican Supreme Court nominees, beginning with Judge Bork. If Bork had been confirmed, Roe v. Wade would now be an ugly footnote. To get nominees through the Senate Republican presidents, when the Democrats control the Senate, have resorted to stealth nominees like Kennedy and Souter who have been immense disappointments. All the foes of abortion on the Supreme Court have been Republican nominees, with the exception of Whizzer White who was appointed by JFK.

  • W. Bush and phony social conservatives like him believe abortion
    is part of the U.S. Constitution. So when these slick phonies declare
    their support for the constitution they also mean abortion. Thomas is
    a great pro-life justice of the Supreme Court and so would have Bork were
    he confirmed.

    However, that does not deny the fact that not long ago 7 of the 9 justices
    on the Supreme Court were appointed by Republicans and Roe vs Wade
    is still the law of the land.

  • Franco, you merely repeated your first comment. Exactly when did George W. Bush declare that abortion is part of the Constitution? Citation please,

  • “But we must remember that Cabinet officers, including the U.S. Attorney General,
    serve at the will of the President of the United States. In this instance, George W.
    Bush has never said that he would, or even wanted to, overturn Roe. To the contrary,
    he has said he thinks the American people aren’t ready for that yet. He certainly
    made it clear that respect for the sanctity of human life is not a requirement for his
    nominees to the federal bench and the Supreme Court.” Republican National Coalition
    For Life – January 19, 2001

    Also, that other great social conservative H W Bush recently attended a gay marriage.

  • “Bush senior appointed Clarence Thomas, perhaps the most ardently pro-life member of the Court.”

    And probably the most originalist member of the Court.

  • “But we must remember that Cabinet officers”

    Still waiting for that citation Franco where George H. W. Bush declared during his presidency that abortion is settled law and part of the constitution. Since you have been unable to support that claim with a citation I will assume that your statement was a false assertion by you.

  • Paul Z.:
    Play it as it lays. Make the best of it. Be part of the game. It’s not over till it’s over.
    All the cliches oppose folding your tent and going home.

    Considered in it’s best light, Trump, despite his loathsomeness, is doing a great service for the country by inaugurating what amounts to a new Independent Party that will encourage more folks to participate in a presumably less corrupt political process which Trump is attempting to blow up. The subversiveness of it all is what appeals to me along with the hope for an eventual better government where the will of the tax paying public is acted upon.

    Heady days are ahead Paul. Go for it. We need your contribution.

  • I can not vote for a pro abortion politician like Donald Trump.

  • My “Mortal Sin Vote Democrat” creed does not translate to “Therefore vote for a GOP candidate.” The creed applies to the entire Devil’s Brigade, all the members of the Party Of Death; each and every candidate and office holder of The Party Of Intrinsic Evil in simple terms – ALL DEMOCRATS; but also to some individual independents and some republicans. Sadly, you can always not vote; and you can always write in someone. Bill-comment above-what you say applies to ALL DEMOCRATS even those hypocrites “personally opposed.” This Party of Death and of Evil is the Satanic Choir of Abortion. No stronger message to follow. Guy McClung, San Antonio TX USA

  • but Guy, not voting IS a vote for Billary Hussein – and this issue of POTUS is much larger than Trump himself- it is the complete removal of the immoral incompetent circle of black wrong doers … Rice, Holder,Jynch, Jeh[sic] Johnson, black wannabee’s Mcdonough,dreese, murray, Sunstein,stern, holdren,axlerod and of course Queen Jarrett- imagine all this wasted human flesh replaced with competent leadership in their own fields…. Energy being focused to heal and bind the nation and her people rather than divide as these folks do?

    appointments to the Supreme Court is a crap shoot regardless – I and many of you have been amazed at how ‘ learned judges ‘ can become so obtuse and unable to resist embracing judicial legislation ….. but the current vacancy AND at least 3 more, not with standing any decision by the Supreme Being to bring more of these people to Justice , will be crucial to any significant period of religious revival and a return of this wayward people to the One True God. I still await any listing of particular in this blog as to what’s wrong with Trump- adulterer ? yes, crude and direct? yes ? a baby killer who calls on Gods Blessing for Planned Parenthood? no – objects to the amount of debt we carry -yes? – believes in strong borders- yes- 2nd and 4th amendment – yes- where is the objectionable part that would force you to not vote at all and thereby vote for any Democrat ? all purveyors of death?
    as Guy so accurately points out

  • I’m with you, Paul. If Trump wins the GOP nomination, I will find a third party to support or not vote in the Presidential contest. I absolutely will never vote for him, and a GOP that nominates him deserves to lose.

  • Paul Z. You did the right thing in ’08 and ’12. In a previous comment on your previous post about Rubio I said I did the same think.
    You’re feeling disenfranchised…like you have no real choice. Well, you do. You can do what millions of voters did in ’08 and ’12 and contribute to a 3rd term of continued socialism boarding on communism, or vote for someone that might do the right thing. We all know what Hillary will do.
    Please do stop posting on politics if your goal is to dissuade your fellow Catholics.

  • stop posting on politics if your goal is to dissuade your fellow Catholics.

    You don’t make the rules here, I do. Toodles.

  • I’ve been praying that God influence the election outcomes, and I choose to trust that He is bigger and more powerful than either candidate, and can certainly use them and circumstances according to His plan. That said, I don’t have the stomach for the circus either.

  • “You can do what millions of voters did in ’08 and ’12 and contribute to a 3rd term of continued socialism boarding on communism…”
    A vote for Bernie Sanders is an outright vote communism (otherwise called socialist democracy) wherein one is equal in poverty and misery except for the elitists in government and academia.
    A vote for Hillary Clinton is a vote feminist socialism that masculines females and emasculates males – androgyny on steroids.
    A vote for Donald Trump is a vote for corporate socialism that enriches politicians and corporate executives while impoverishing those who work to earn.
    Question: What exactly is the substantive difference?
    Answer: In how fast you the lobster want to be boiled while alive.

  • 2 comments here- Donald – your shot on Kennedy and his assault on Bork was a bullseye – the Chapaquiddick kid had no shame as he assaulted a man so far above him in talent, morals and intelligence – i recall Kennedy berating while questioning Bork for why he left the bench to go into private practice for a short time and then returned to public service- Bork for the first time, revealed that his wife at the time was dying of cancer and the Judge had to go earn money to pay her medical bills- yet the disgusting likes of theodore Kennedy, the abortionist and adulterer who abandoned his wife joan when she needed help the most, gets a pontificall send off from the church upon his death , with the good cardinal in attendance……
    2- ahhh… Lucius, “there you go again”… to quote that certain actor.

    ‘A vote for Donald Trump is a vote for corporate socialism that enriches politicians and corporate executives while impoverishing those who work to earn.’

    He won 46% of the Latino vote in union strangled Nevada/ clark county! That speaks volumes of the down troddens’ view of being pillaged by that Socialist –
    – i fear less the robber baron than i do those who are committed to killing the weakest , the youngest and oldest in my community. I can deal with the captains of industry’ i think. – i cannot stop people in power who find rights in our Constitution where there are none.and make them ‘ laws of the land ‘ – “decided law” my God, have mercy on us….

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  • Christie is like a hired hit man for Trump. What an ugly attitude.
    Many, maybe most, Democrats don’t like their front runner, and many, maybe most, Republicans don’t like theirs. Both parties are broken really.
    The Democratic party is already split – democrats /socialists. The Republican electorate has to decide not to split – in other words Not To Choose Trump.
    A few months ago people were worried about Trump forming a third party– but he and his supporters may actually force a third party if things keep going his way.
    I know regular rank and file Democrats and Republicans who are sick about their apparent (so far) nominees. Unless Republicans coalesce around Rubio- the one who really can unite the party as well as bring in disaffected democrats who love America, Trump may be the nominee. What an embarrassment.
    There are some voters who love the idea of “sticking it to” their respective party leaders more than they love their country…they will go for Trump.

  • Don,

    You may view my statement about W. Bush’s comment as false. But I did hear him
    state that abortion is settled law and part of the constitution. This happened about
    12 years ago. I believe W made this statement during an interview on CNN or Fox News.
    W. Bush gave me the impression that he considered pro-life advocates as single
    issue voters, whom he dismissed as eccentric.

    To me there is very little difference between the Democrats and the Republicans,
    except the Democrats will tell you their evil intentions if elected while the Republicans
    engage in deception.

  • If he had made such a statement Franco it would be all over the internet and easy for you to find. That you can’t find it indicates that your memory is faulty. I disagree with you profoundly regarding the Republican party. There are certainly elements within it that actively oppose a conservative agenda, but there are many more people within it who support that agenda, unlike the Democrat party which is simply beyond hope from the point of view of conservatism.

  • Pray without ceasing. Trump threatens to kill the Republican Party by dismemberment and Hillary threatens to kill the country by suffocation.

  • Don and Paul

    I found the citation. The following quote is from the “Presidential Campaigns, Slogans,
    Issues and Platforms,The Complete Encyclopedia, Volume I”, copyright 2012, by Robert
    North Roberts, Scott John Hammond and Valerie A. Sulfaro

    “In the campaign of 2000, the Democratic Party and their nominee, Al Gore, spent
    millions of dollars to highlight Gore’s strong pro-choice position. The success of
    this effort helped Gore to win a popular-vote majority. (Republican nominee, George W.
    Bush, on the other hand sought to avoid discussions of abortion, referring to Roe v. Wade
    as “settled law”).”

  • You still haven’t found the citation Franco. You need to link to the actual speech where Bush allegedly said it, not link to where a third hand source claimed that he said it.

  • Don,

    I was up until 3 AM last night looking for the quote. I knew I heard W. declare
    abortion settled law. And there it was in some obscure political encyclopedia.
    I doubt that W. made this statement in a speech. However, he did use the
    terms “settled law” and “part of the constitution” when discussing abortion
    during an interview on either CNN or Fox News.

    At least my memory is not faulty.

  • People like Franco disgust me. George W Bush was a GOOD President and Barack Hussein Obama is a traitor. EOM.

  • I deleted your cut and paste wall of text Franco since it did not contain a link to a speech where President Bush said what you have claimed.

    Oh, and the doofus organization you quoted from is so extreme that they regarded Antonin Scalia as a pro-abort, indicating that they completely misunderstand the Constitution and have no clue why Roe was an unconstitutional usurpation of power by the Court:


    They also regard National Right to Life as being pro-abort:


    Such CloudKuKoo nuts do nothing to help the pro-life cause.

  • Lucius, you’re in the penalty box and way out of bounds. I’m declaring a personal foul and assessing a 15 yd penalty. Franco – I applaud your tenacity and share your sense. I’ve often thought the republican congress and executive could have ended abortion- how else do you read article III sec 8 of the constitution- In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, ” with such Exceptions, and under such Regulations as the Congress shall make””.

  • Paul Coffey, I do not give a hoot about your fracking boxes.

  • “how else do you read article III sec 8 of the constitution- In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, ” with such Exceptions, and under such Regulations as the Congress shall make””.”

    Actually no one knows. There has been no definitive court cases on the issue. Of course taking away abortion from the Supreme Court would have no impact unless Congress took abortion away from the entire Federal judiciary. Then the state courts would still have to be contended with. In any case it isn’t going to happen until the Republicans have control of Congress and at least 60 votes in the Senate to break a filibuster. Since Roe a Republican Congress and a Republican President have existed for a whole 4.6 years. In the .6 year portion the Republicans had a majority due to Vice President Cheney until Jeffords went over to the Democrats and established a Democrat majority by one vote. From 2002-2004 the Republicans had a two seat majority, and from 2004-2006 a ten seat majority, in neither case close to enough votes to break a filibuster by the Democrats.

    A handful of bills including jurisdiction limitations have become laws, while hundreds have been proposed and languished in Congress.

  • Anyone who would not vote for an R against Killary is a complete waste of time.

  • Well my conscience is clear since Donald Trump is not, in fact, a Republican.

Massachusetts Abortion Clinic Bubble Zone Law Struck Down

Thursday, June 26, AD 2014



Today a unanimous Supreme Court, in MCCULLEN ET AL. v. COAKLEY, ATTORNEY GENERAL OF MASSACHUSETTS, struck down the Massachusetts “Bubble Zone” law, keeping pro-life protestors  35 feet away from abortion clinics, as a violation of the First Amendment.  That is a good thing.  The bad thing is that it was authored by Chief Justice John Roberts, and I will let Justice Scalia explain what a limited victory for the pro-life cause this is, and what a disappointment it is that the Chief Justice wrote it.


JUSTICE SCALIA, with whom JUSTICE KENNEDY and JUSTICE THOMAS join, concurring in the judgment.

Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion. See, e.g., Hill v. Colorado, 530 U.S. 703 (2000); Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994).

The second half of the Court’s analysis today, invalidating the law at issue because of inadequate “tailoring,” is certainly attractive to those of us who oppose an abortion-speech edition of the First Amendment . But think again. This is an opinion that has Something for Everyone, and the more significant portion continues the onward march of abortion-speech-only jurisprudence. That is the first half of the Court’s analysis, which concludes that a statute of this sort is not content based and hence not subject to so-called strict scrutiny. The Court reaches out to decide that question unnecessarily-or at least unnecessarily insofar as legal analysis is concerned.

I disagree with the Court’s dicta (Part III) and hence see no reason to opine on its holding (Part IV).

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13 Responses to Massachusetts Abortion Clinic Bubble Zone Law Struck Down

  • Only truth has free speech.

  • “Public streets and sidewalks are traditional forums for speech on matters of public concern.”
    Is that really the law in the US? Ours is quite different. In McAra v. Magistrates of Edinburgh [(1913) S.C. 1059], the Lord President (Dunedin) said, “As regards the common law, I wish most distinctly to state it as my opinion that the primary and overruling object for which the streets exist is passage. The streets are public, but they are public for passage, and there is no such thing as a right in the public to hold meetings as such in the streets.”
    As for the right of free speech, he said that it undoubtedly exists but that: “the right of free speech is a perfectly separate thing from the question of the place where that right is to be exercised.”
    Hence, the common request by police officers to “Move along, there” and why demonstrations usually take the form of marches.

  • “Is that really the law in the US?”

    Yep. Parade permits normally have to be obtained if one wishes to march in the streets. Sidewalk protests in the US, completely unlicensed, are not uncommon. I walked through an anti-war one on public sidewalks, ironically aimed against Obama by far Leftists, after my family and I had lunch at a pub in downtown Urbana on the Saturday before Memorial Day. This group has been holding similar weekend protests in Urbana since 2003.


  • “Only truth has free speech.”

    No, since people differ on truth and many disagreements do not involve truth per se, or involve clashing truths: i.e. state’s rights v. freedom in the Civil War. Most tyrants throughout History, as they throttled the free speech of those who opposed them, would piously proclaim that they were only defending truth.

  • Agree, Donald. Man is not God, and by virtue of his fallen nature will always have a weak grasp of Truth. Hence we grope for it clumsily and with limited success, but it is important and we struggle and argue over it necessarily. Free speech is a key means by which we can make progress. It leads to Truth, however haltingly and imperfectly.

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  • “I wish most distinctly to state it as my opinion that the primary and overruling object for which the streets exist is passage”
    MPS, sidewalks in the U.S. are for passage also. However, we recognize that the right of the pedestrian for passage is usually not hindered by people who are exercising their free speech rights. Perhaps the sidewalks are just smaller in Scotland?
    We have recently had a spat of demonstrations by groups called ‘Occupy Wall Street’ or OWS. These groups did block sidewalks, to the consternation of many. All U.S. venues have laws that prohibit this, but the police often were reluctant to enforce them due to media sympathies for OWS and the knowledge that certain judges will go too far and agree with the OWS claim that their blockage is itself an exercise of free speech. The police would only act in the most outrageous situations.

    You may ask yourself, how did these judges get this idea? It all goes back to the civil rights movement of the 1960’s, with the protests against legal segregation. The civil rights protestors maintained their blockage of sidewalks and entrances to segregated establishments was the only effective way they could protest and thus was an act of speech. What people forget is that those protestors never saw their actions as an act of free speech: they were not challenging public order laws in general, and fully expected to be arrested. In fact they were a bit apologetic about it, even as they maintained the necessity to do so. Today’s protestors claim their mantle but also claim their public disorder to be free speech. It’s a much different world, and in this regard not a better one.

  • The English law on the subject was stated by Lopes LJ in in Harrison v. Duke of Rutland ([1893] 1 Q.B. 142) Harrison was on a road running across the Duke’ land and was interrupting a shoot by scaring game away from the butts.
    At p. 154 he said: “The conclusion which I draw from the authorities is that, if a person uses the soil of the highway for any purpose other than that in respect of which the dedication was made and the easement acquired, he is a trespasser. The easement acquired by the public is a right to pass and repass at their pleasure for the purpose of legitimate travel, and the use of the soil for any other purpose, whether lawful or unlawful, is an infringement of the rights of the owner of the soil, who has, subject to this easement, precisely the same estate in the soil as he had previously to any easement being acquired by the public.”
    In Hickman v. Maisey ([1900] 1 Q.B. 752) it was held to be a trespass for someone (a racing tout) to use the road as a vantage point for observing and timing the performance of racehorses undergoing trial for an hour and a half. The same would, no doubt, apply to paparazzi on a stake-out, if the owner of the soil took exception.
    The law of Scotland is the same.

  • “Roe v. Wade has exerted a poisonous influence on the courts as laws, and traditional judicial modes of interpreting laws and the Constitution have been twisted and warped to protect the sacred [rite, ahem] right of women to slay their offspring.”
    Of course, it isn’t just Roe v, Wade, but the continuing love of abortion and the need to justify it that is poisonous.

    ” Imagine the damage that the Dred Scott decision would have done to American jurisprudence if it had not been overruled by the Civil War…”
    I have never seen this thought expressed, but it is so true. The Dred Scott decision would have infested the courts and generated more and more evil fruit with each case that relied on it as precedent. Arguably the timing of the Civil War and the postwar amendments to the Constitution saved this country from many legal monstrosities; a Civil War delayed to 1890 or 1900 would have allowed for a half century of bad precedent that even a Union victory could never repeal. Up for a novel, Don?

  • Every time Piers Morgan talks, I lose a brain cell.

  • Pontius Pilate asked of Jesus Christ, his prisoner: “What is truth?”
    Truth is the absolute and perfect absence of evil. Pilate no longer recognized his own pure innocence and his soul created in perfect innocence. Jesus’ presence testified to Pilate’s guilt in not willing to stay pure and innocent, morally and legally innocent. It was incumbent upon Pilate, as governor of Judea, to defend truth and innocence, as it was Pilate’s function to deliver Justice and determine guilt; to judge the nation. Jesus stood as a witness against Pilate’s failure to be both a man and a leader.
    “The truth, the whole truth and nothing but the truth, so help me God.” ought to have been Pilate’s constant prayer.
    The obvious answer to “Who is truth?” is the three persons of the Blessed Trinity, Jesus Christ, true God and true man, and the Blessed Virgin Mary, who, filled with the Holy Spirit from creation, willed to be in perfect conformity to the will of God. To Mary, God gave the special privilege of the Immaculate Conception, the grace to have her pure and innocent desire fulfilled by God and to remain a virgin for all time. The next answer to: “Who is truth?”: is the newly begotten sovereign person, who is created in perfect and absolute innocence, moral and legal innocence, for God does not create sin or evil, and who must be visited by the sin of Adam, and who must desire to remain an innocent virgin as God created him and avoid the sin of Adam.
    Truth is the absolute absence of evil and in this, truth is absolute. If it is not true, then it is a lie. Unalienable human rights must be endowed by an infinite God of absolute truth. Finite human rights endowed by a finite state, that is, a state constituted by men, with a beginning and, therefore, an end, cannot endow unalienable human rights because it is, of itself, alienable. “it is the right of the people to alter or to abolish it, and to institute new government,” The Declaration of Independence. The finite state cannot endow unalienable human rights. The finite state can only endorse the human rights endowed by “our Creator”.
    Pornography is a lie about the human being, his creation in perfect innocence and virginity and impacts our constitutional posterity by setting an evil precedent of ignoring the innocence and virginity required to establish Justice “to secure the Blessing of Liberty to ourselves and our posterity.” From the Preamble to our Constitution.
    Pornography profits from catering to the sin of Adam and therefore is not free or absent of evil. Abuse of the human being, body and soul, inheres in pornography. Pornography may be described as soul murder. That pornography was given freedom by the Court, while it is addictive and imprisons the soul, is a miscarriage of Justice.
    Abortion destroys our constitutional posterity. Justice cannot be established by destroying the most innocent among us. Innocence, the absence of evil, is the compelling interest of the state and the indispensible reality for establishing and preserving Justice. “establish Justice” from The Preamble. Abortion violates the Preamble, the unchangeable purpose of the Constitution.
    Sodomy denies the soul of the human being. Denying the human being composed of body and rational immortal human soul is a great lie.
    Like prohibition with alcohol, abortion and pornography and sodomy might never become outlawed, but abortion, pornography and sodomy must be identified by the state as the evil they perpetrate. These evils must never be allowed. These evils must be outlawed, as for the common good and general welfare of the nation, and most certainly must not be supported by the laws levying taxation upon the innocent souls in our nation. Forcing innocent souls to support evil through public allowance of evil and levied taxation is taxation without representation.
    If Hobby Lobby is not represented by our nation, or Hobby Lobby’s constituency is used against it, Hobby Lobby cannot be forced by its citizenship or constituency, which have been denied to it, to support a nation which refuses to acknowledge his citizenship and constituency. If Hobby Lobby does not win this judgment, Hobby Lobby will have been again denied his citizenship, his constituency overruled, and again refused to be represented and acknowledged.
    Justice is of God.
    All the state endows is citizenship and a tax bill at birth of an innocent soul. Taxing that innocent soul without representation is unconstitutional. Taxing that innocent soul without acknowledgement of his soul is unconstitutional and irresponsible.
    The truth will set us free.

  • If same sex couples can come into bakeries to harass and sue for access to the bakery’s time and talent, and people out dining may come into the kitchen of restaurants at will to check on cleanliness, then, surely abortion clinics, which are places of commerce and are not non-profits cannot deny any person the freedom to come onto their premises to inspect, inform themselves, or to pray the rosary.
    There is an excellent example in Obamacare coming into Hobby Lobby, a place of commerce, and not a non-profit, and making demands under penalty of law, that the corporation give to their workers a benefit to which the owners in good will, object. The government has no business, at the business, telling the owners and workers how the business will be run.
    Supreme Court Justice Antonin Scalia has brought to the fore the question of changing the Constitution without three quarters of the states ratifying this, or any change. The change from “due process of law” to “substantive due process of law” gives the court the freedom to write law and rewrite the Constitution, a power reserved to the people. “substantive due process of law” may decide who is given due process of law and who is denied due process of law, as in the case of the newly begotten sovereign person’s being accused of murdering, or causing the death of his mother. In the case of abortion to save the life of the mother, death must be imminent. In “substantive due process of law”, the court has usurped legitimate authority to serve its bias against human life, and human beings’ right to life, and our founding principles that all men are created, not born, equal.
    The Fifth Amendment, in the takings clause, has also been changed in collusion, from private property being taken “for public use” to private property being taken for public purposes” giving government and local officials total power over all private property under their control, and without the change being ratified by the states and without the people being notified of the change and without the change being put to the taxpayers’ vote. It is the government official who decides what is “public purposes”, without ratification or the peoples’ consent.
    When an ordinary person serving in the capacity as government can overrule the will of the people, we are no longer the land of the free, we are subjects to the whim of an imperfect individual.
    Donald your interpretation of Antonin Scalia is superb.
    Michael Paterson-Seymour: ““As regards the common law, I wish most distinctly to state it as my opinion that the primary and overruling object for which the streets exist is passage. The streets are public, but they are public for passage, and there is no such thing as a right in the public to hold meetings as such in the streets.””
    If people, persons, were monuments of stone in the passage way this law is true, but people deserving of respect and courtesy may be petitioned to give way or allow passage at will, barring assault and battery. The people at abortion mills are the most humble, peaceable, and generous.
    All public lands and waterways belong to the people in joint and common tenancy. We own it all and I own it all, and therefore, the sidewalk cannot be reserved to serve the bias of the courts.

  • Clay: “Every time Piers Morgan talks, I lose a brain cell.”
    I loved the way Scalia held his own and gave no ground to the bully.

Defending the Indefensible

Wednesday, January 22, AD 2014


Harry Blackmun



My old legal ethics (Yeah, I know, attorneys are taught ethics?) professor, Ron Rotunda, has a fascinating opinion piece in the Chicago Tribune recalling a time in 1994 when he was in a small group that heard the late Justice Harry Blackmun defend his decision in Roe v. Wade:



Blackmun said Justice Byron White wrote a bitter dissent, referring to “raw judicial power.”  With a strong emphasis in his voice, Blackmun quipped: “I made Byron eat those words later in other cases.”  When White announced his dissent, “White was emotional.”  Blackmun asked rhetorically: “Why was White so strong against my view?  His upbringing in modest circumstances?  Or his wife’s influence?” 

It did not occur to Blackmun that White based his dissent on the court’s precedent.  Blackmun said, “We tried to decide the case on a constitutional basis, not a moral basis.”  Blackmun did not give that presumption to White.

Another Blackmun disclosure: “To date, I’ve gotten almost 70,000 letters on Roe. I have read almost all of them.” He said many letters are “abusive”  and he was amazed that many people objected to his decision. “Shortly after I spoke in Cedar Rapids, Iowa, I was picketed. I was surprised.”

He objected that “academic opinion was generally adverse” to Roe as not grounded in law and said that he thought it was unconstitutional for the government to fail to fund abortions for poor people.

The Constitution gives federal judges lifetime appointments, so that they don’t feel compelled to follow public opinion in deciding cases. Blackmun, however, apparently did follow it. He was pleased that a “New York Times editorial was in favor,” but noted that letters to the editor “were divided.”

Roe “protected the woman’s right, with the physician, to get an abortion.” Blackmun emphasized the italicized phrase with his voice.  He spoke of the case as a doctor’s rights case, not a woman’s right case.  In Roe, Blackmun said, for the first trimester, “the attending physician, in consultation with his patient, is free to determine, without regulation by the state, that, in his medical judgment, the patient’s pregnancy should be terminated.” Note that the right was the right of the physician, whom Blackmun assumed was male.

Blackmun explicitly rejected the argument that “one has an unlimited right to do with one’s body as one pleases.”  Instead, in Roe, Blackmun cited, with approval, Buck v. Bell, a 1927 case that approved of compulsory sterilization.

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20 Responses to Defending the Indefensible

  • A shallow man or a fraud. Who can tell?

  • There in a woefully insufficient supply of ammunition.

  • “White was emotional.”

    The word chutzpah immediately springs to mind, especially considering Blackmun’s partial concurrence in Casey, an opinion completely devoid of any legal reasoning but filled with overwrought panic about the devastation and destruction that would occur were his Roe opinion overturned.

  • Instead of punishing the rapist, Oliver Wendell Homes, in Buck v. Bell had the victim sterilized. In punishing the victim for the criminal’s act, Roe v. Wade and Buck v. Bell are the same.

  • The innocent suffer when the guilty are not punished.

  • You don’t get it Paul. When the Anointed want something it is ‘a matter of principle’. When the rest of us want something, it’s an ’emotional issue’. (h/t Thomas Sowell, of course).

  • Blackmun said, “We tried to decide the case on a constitutional basis, not a moral basis.” Pretty cute.

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  • With a strong emphasis in his voice, Blackmun quipped: “I made Byron eat those words later in other cases.”

    Yeah, whatever. A legend in his own mind. He’s lucky Whizzer didn’t dropkick his @$$.

  • Blackmun probably went over to the liberal side of the Court largely over vanity. The newspapers loved calling him and Burger the Minnesota Twins and assumed that he would be a puppet for Burger. A small, petty man’s wounded pride helped bring about the monstrosity of Roe.

  • “Or his wife’s influence?” I don’t know for sure what he meant by that. But I sure hate hearing some one slam an opponent by suggesting that he is controlled by his wife…really I guess impugning the guys manhood, ridiculing him and all women at the same time.

  • “Roe “protected the woman’s right, with the physician, to get an abortion.” Blackmun emphasized the italicized phrase with his voice. He spoke of the case as a doctor’s rights case, not a woman’s right case. In Roe, Blackmun said, for the first trimester, “the attending physician, in consultation with his patient, is free to determine, without regulation by the state, that, in his medical judgment, the patient’s pregnancy should be terminated.”….”
    One wonders the outcome if medical doctors recognized that their duty of care was to mother and child and that the injunction “Primum non nocere”…First, Do No Harm…applied to both.
    Perhaps 58 million + aborted babies would be alive today.

  • I was at a American Public Health Association meeting where Blackmun was the guest of honor. He was fawned over and got a standing ovation from most attendees. He spoke of how he had spent hours in the Mayo Clinic library researching the issue of when life begins. Had fetal ultasound been available, all his sophistry would have crumbled.

  • Blackmun didn’t even understand the law, let alone fetal development. A good demonstration of just how bad Roe is as a judicial opinion purporting to construe the constitution is the late John Hart Ely’s The Wages of Crying Wolf: A comment on Roe v. Wade. Professor Ely, a supporter of legal abortion, is absolutely devastating in his analysis of the decision. The article is available online as a PDF. Ely summed it all up in one sentence: “Roe lacks even colorable support in the constitutional text, history, or any other appropriate source of constitutional doctrine.”

  • Blackmun didn’t even understand the law, let alone fetal development.

    Richard Nixon delegated the vetting of judicial appointments to John Mitchell, a municipal bond lawyer. Mitchell’s pratfalls in this function with regard to Supreme Court appointments were severe enough that the task was reassigned….to John Dean, erstwhile congressional committee counsel, protege of Richard Kleindienst, and the least distinguished person to occupy the position of ‘counsel to the president’ in the last four decades (Dean’s career in private practice had consisted of less then two years as an associate at a communications law firm, a post from which he was dismissed for misconduct). Between the two of them, Mitchell and Dean coughed up two candidates vulnerable on the question of race relations, one Florida judge whose mediocrity was well-known, two provincial trial lawyers with no experience on the bench, and an assistant attorney-general with no experience on the bench. They allowed a committee of the American Bar Association to veto one of their other candidates for ‘inexperience’; that particular candidate was a sitting federal judge in late middle age.

  • Roe disenfranchised every American male of his seed, a body part, that no Court or another person can claim to own, absolute tyranny over the human body.

  • And they brought the fight to us! We didn’t want to have to set aside our entire lives fighting to overturn this decision. It is the stupidest, most vile waste of time and the lives of 56 million babies and all of their generations to follow. There is no excuse for any of this. It was pre planned. PERIOD! I have spent thousands of hours and thousands of dollars over the last 40+ years. Every thing we have done in our lives since January 22, 1973 has been focused around meetings, rallies, conventions. I still to this day feel like this is a bad dream I can’t wake up from. Nothing makes sense to me. There was nary a word at our Masses concerning the Right To Life! Britt Hume did an excellent job with his commentary the other night, but the fact remains we have this scourge and we are sorely lacking the kind of leadership we needed not only to lead but to encourage. Who was it that felt that a court of people should rule when life begins? I feel like Charlie Brown, “blah, blah, blah, blah, blah.

  • “He was pleased that a “New York Times editorial was in favor,” …”

    Paging John Roberts.

  • “Who was it that felt that a court of people should rule when life begins?” If the baby were not alive, the baby would not grow and abortion would not be necessary if the child were not alive.

  • “Who was it that felt that a court of people should rule when life begins?”
    The one who claims he was not alive when his life began.

The Right to Kill Your Kid

Tuesday, May 10, AD 2011

Right you are Klavan on the Culture!  Abortion is a perfect example of the tranformation of a fairly low level debate state by state into a national issue that haunts the nation year after year.  As the Supreme Court succeeded so well in resolving the slavery question by the Dred Scott decision, so it has succeeded in resolving the abortion issue by the Roe v. Wade decsion.  Of course that is if “resolve” means “transform an issue into a nation wide fierce controversy that will never go away until it is resolved through other means than the courts”.

Justice Scalia put it well in his dissent in Planned Parenthood v. Casey (1992):

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4 Responses to The Right to Kill Your Kid

  • And that is what liberalism is all about – you’re liberated to do whatever you want without consequence and thus you enslave yourself to the whims of the State. In rejecting God and His Law, the liberal replaces Him with the nanny State that bequeaths on man the “right” to murder our offspring. This is the essence of the liberal mantra for global population control and enviro-wackism. But until abortion is stopped, no liberal scheme for peace and prosperity will work.

    The children of Israel and Judah sacrificed their children to Baal, Asteroth, Molech, and the other Canaanite gods. Today in Obama’s “Amerika” is no different. Nor will God’s response be any different. He is the same yesterday, today and forever.

  • A profound metaphor of the liberal “movement” was presented in “Slumdog Millionaire” where Salim’s brother would bring to adult gangsters (liberals, you liberals!) little boys whom they blinded to increase the “take” of rupees they could beg.

    Liberals’ unworkable, destructive solutions to exaggerated or fabricated crises create greater misery and more (in addition to 45,000,000 killed in abortions) misery and dependent, desperate poor people.

    Let’s go to the record . . . One-in-seven need food stamps; 18% (real) unemployment; unaffordable food/fuel prices; millions of foreclosures; dpressed housing prices; national bankruptcy; etc.

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  • Funny how in the same nearly 40 years we have had an increase in pornography (its mainstream now), sexual assault, child trafficking, recreational drug use, the enslavement of women (assuming you think man is most free in his or her own home and not in the workforce) and all sorts of other ills.

    Could it be that someone has an agenda to separate us from our Maker and make us into slaves? Well at least we have a post-racist, post-partisan president who can save the world (assuming you exclude being safe in your own mother’s womb of course), right?

6 Responses to Al Franken Takes a Nap During Elena Kagan Testimony

Elena Kagan Says It Is Fine If The Law Bans Books

Tuesday, June 29, AD 2010

SCOTUS nominee Elena Kagan has argued before the Supreme Court that it’s fine if the Law bans books.

Her rationale?

Because the government won’t really enforce it.

I’m no legal scholar but this sounds like a 3rd grade argument.

Aren’t our nominees suppose to have better reasoning skills and a solid grasp of the U.S. Constitution?  As well as a fundamental understanding  of such concepts like Freedom of Speech?

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14 Responses to Elena Kagan Says It Is Fine If The Law Bans Books

  • Bibles banned in China – is that what is coming here?

  • So is Elena Kagan willing to support banning pornography magazines and books?

  • Like all the other “brilliant” liberals, Kagan the pagan is incapable of right reason.

  • Scratch the thin veneer of liberal bu!!$#it and you slam into totalitarianism.

    Peace, justice and human dignity: the slaves will enjoy free health care, free lunch, and free fornication!!!

  • But don’t you know that if you don’t want free health care, free lunch and free fornication you are part of the “let them eat cake” coalition?

  • And what’s with the new symbol thingies?

  • Phillip and all the non-gravatar readers,

    I got tired of looking at the random abstract icons, so I switched the default to MonsterID’s in the faint hope that some of you guys will sign up for free gravatar accounts/icons.


  • And what’s with the new symbol thingies?

    Yeah, Tito. How are we supposed to upload a real picture? I tried registering at WordPress, but it won’t accept any reasonable facsimile of my real name as a user name. Can we upload a pic without registering at WordPress?

  • I kinda like my monster thingie. 🙂

  • I also had the same problem as j. Used multiple variations of my name and said they were all used. Must be a govt. program.

  • Phillip et al.,

    Just so everyone knows, MonsterID links that icon permanently to the email address you provide.

    So if you get tired of it, you have motivation to go over to http://en.gravatar.com/ and sign up for a free account!


  • To be fair I am rather doubtful that Kagen wantts to ban books. I am trying to recall the exact sequence of events here . I actually think what started this all this were the ealier comments of the Deputy Solicter that gave the SUp COurt Justices the heebee jeevees and thus Kagen here is trying somehow to recover.

    That being said the Supreme Court can make the most seasoned lawyers look like idiots and also (and this is the problem the GOP will have in her hearings) she is basically just working for the boss. So when these hypos come out that go to the most alarming degree well there is not exactly a easy answer.

  • jh

    Nail! Head!

    She’s going to rubber stamp Obama. She’s a nothing and will continue to do nothing except vote for whatever the boss wants.

    Phil, I’m paying for the free health and lunch. They’re on their own when it comes to fornicking. I’m of the “let them have the opportunity to pursue happiness” coalition.

    My grav seems appropriate!

Supreme Court Rules That Public Universities May Discriminate Against Christian Student Groups

Tuesday, June 29, AD 2010

Back in 1979 I was one of the founding members of the Christian Legal Society at the University of Illinois.  Yesterday, the Supreme Court ruled 5-4 that the Hastings College of Law at the University of California was within its rights to deny recognition to the Christian Legal Society because the group requires that members agree, among other principles, that sexual activity outside of marriage between a man and a woman is sinful, and that members must be Christians.  Hastings contended that these principles violated the open membership policy of the university, in that it would discriminate against prospective members on the grounds of religion and sexual orientation.  Go here to read the decision.

Justice Alito, joined by Chief Justice Roberts, Scalia and Thomas, wrote a thought provoking dissent.

The proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” United States v. Schwimmer, 279 U. S. 644, 654–655 (1929) (Holmes, J., dissenting). Today’s decision rests on a very different principle: no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.

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23 Responses to Supreme Court Rules That Public Universities May Discriminate Against Christian Student Groups

  • Kagan once said, it’s okay for the government to ban books because the gestapo would be ineffective at enforcing it.

    You have to scratch a liberal just a wee bit to get to the totalitarian essence under the uber-thin vineer of warm and fuzzy bu!!$hit.

    Isn’t there a right, somewhere in the US Constitution, to free association, in addition to the rights to abortion; gay privileges; being fed, clothed and housed by the taxpayer.

    The king denied the Colonists the right to meet. They met anyway – Committees of Correspondence. The king isn’t king of this country. We shall overcome.

  • The pairing of decisions yesterday reminds us that our constitutional rights are basically at the mercy of the whims of Justice Kennedy. It’s truly frightening. Though he seems to have re-discovered some measure of a backbone, on social issues he remains completely inept.

  • Has there ever been a less consequential decision? Gays aren’t going to get elected to leadership positions in CLS.

  • Question: If Hastings is a state institution, thus receiving government funds (from the tax payer), does that not mean it is essentially a politically-funded entity?

    And if so, should we not be surprised that what is politically correct weighs heavey on their policy choices?

  • Has there ever been a less consequential decision? Gays aren’t going to get elected to leadership positions in CLS.

    I think the issue is more that it makes it very difficult for CLS to assemble, hold activities, etc. on campus if theyr’e not recognized as a campus organization.

  • Darwin, CLS can, and probably will, amend its pledge banning gays and the club will continue with business as usual, i.e., without gays.

  • One of the things I find interesting is that the argument that a group should be allowed to keep out people they do not like is being argued by two different groups.

    First, CLS. They say they should be free to have a group which follows the principles they hold dear. Of course, if they were not on a campus, looking for funding and approval to use facilities on campus, I think no one would question such a right.

    However, the second group is the university itself. If CLS has a right to discriminate, why does a university not have that right? To argue in favor of CLS is to argue in favor of the university, as far as I see it. That, I think, is the paradox with this case.

    Can someone show me why CLS can discriminate and not the university? I am in favor of free associations, and I do think a university should encourage such free associations (the university’s policy is wrong), but I also do wonder how a university is not accorded such a right?

  • BTW, I would even agree the university is going against its claims of tolerance to discriminate in this way, however, the question is not whether or not the university is acting bad, but whether or not it is within their legal rights.

  • Eh, you might be right, RR. I guess as an old Boy Scout I figured the organization would stick to its guns and suffer the consequences. 🙂

  • I am not a huge Kennedy Basher but bioth the right and left are right at times he gets carried away with his verbiage. I am amazed that a Catholic Justice basically said that Creed like matters are like Loyalty Oaths

  • Has there ever been a less consequential decision?

    I disagree. Traditional morality is only tenuously tolerated. This further institutionalizes its banishment from the public sphere. It has very little to do with whether CLS admits gays or not; look beyond the legal ramifications to see the cultural narrative. A Christian group, along among others, is singled out for chastisement. This has everything to do with what metaphysical premises are acceptable in polite company.

    “Untenured” at WWWtW said it best (with respect to another story):

    Increasingly, we are seeing secularists posture as though their pet metaphysical and moral committments are some kind of reasonable “default” that everybody would naturally gravitate towards if only it weren’t for the malign influence of religious “indoctrination.” There is a very real movement to portray traditional morality as some kind of “pathology” that is okay to exercise coercion against. Witness, for example, the attempt to make moral objections against homosexuality appear as if they are *no different* from objections to interracial marriage. Even people with philosophical training who ought to know better, like to pretend that this line of reasoning is cogent out of some kind of weird “political solidarity” with “sexual minorities.” They don’t give a darn about intellectual honesty- they want to deny traditional moral beliefs a toehold in the space of reasons, and they will do so by any means necessary. I’ll bet dollars to donuts that we are soon going to see people arguing that there is *no difference* between a homeschooler being taught traditional morality and an underage bride at a Mormon polygamy compounds. Then some arguments, with the pretense of hand-wringing, about how reasonable people have no choice but to coerce these backwards homeschoolers out of existence. For the sake of the children, of course.

  • ” I would even agree the university is going against its claims of tolerance to discriminate in this way, however, the question is not whether or not the university is acting bad, but whether or not it is within their legal rights”

    Henry I think it is clear that the University cannot , as a general matter with exceptions of course) discriminate against viewpoint discrimination.

    Now I realize this is a complicated case and in hindsight I am willing to bet the Justices wised they never took up the case because they discovered it was such a procedural mess and the factual record was clouded.

    That being said while many are saying the Opinion is narrow ( focusing just on this odd unique all comers policy) I am not so sure if it that narrow at all. The comments by some of the Justices on how they got there are perhaps the most disturbing and I am hoping like Justice ALito this si an aberation

  • “Eh, you might be right, RR. I guess as an old Boy Scout I figured the organization would stick to its guns and suffer the consequences.”

    Well the case is not over. They still have a chance to prove that this “all comers” policy was a pretext for unlawful discrimination

  • “However, the second group is the university itself. If CLS has a right to discriminate, why does a university not have that right?”

    I would say that a private university should have that right, but a public university does not. Here we have a governmental institution, Hastings Law School, imposing membership criteria on a private entity, the Christian Legal Society. All Catholics, members of an organization that is looked upon with hatred by many of the elites in our society, should look with alarm at this decision. “The Catholics want to prevent women from being priests? Fine, we will pass a law dictating that no non-profit may have tax exemption unless they sign on to this non-discrimination policy.”

  • I would say that a private university should have that right, but a public university does not. Here we have a governmental institution, Hastings Law School, imposing membership criteria on a private entity, the Christian Legal Society.

    Actually, the problem is the university is saying that, as a public institution, it cannot accept a private society as a student body if it is going with such discrimination. In other words, their argument is if they support the society, they are supporting such discrimination as a public institution. They are not saying what CSL can or cannot do, just what they can or cannot do if they want to be a student group at Hastings. The court, of course, said something unusual, in that it said a university can engage in such rules, but does not have to. It’s really a messed up case, because on every level, there seems to be a kind of self-contradiction involved.

  • “Actually, the problem is the university is saying that, as a public institution, it cannot accept a private society as a student body if it is going with such discrimination.”

    That is a way of saying that the public entity will discriminate against a group based upon its membership policies, unless the private group has membership policies acceptable to the public entity. The implications for Newman Centers on public campuses are clear, along with any groups that are in official disfavor. The true absurdity of this policy of course is that almost all private groups, by definition, discriminate. A staunch Republican like me would not be wanted among College Democrats. If I join a Chess group on campus, I will be expected not to insist upon the group playing checkers. Why this absurd policy of no discrimination in admissions by private groups of course is being implemented on campuses is as a hammer to beat groups that do not sign on to the gay rights agenda. This is governmental action engaging in viewpoint discrimination in order to banish from campuses those groups engaging in heretical thoughts.

  • It’s really a messed up case, because on every level, there seems to be a kind of self-contradiction involved.

    I don’t think I agree or understand what you said before, but I agree with this sentence. Whenever one tries to enforce what SCOTUS said in this opinion is a “viewpoint-neutral” outlook, you run into problems once you have conflicting viewpoints. Instead of ditching the whole flawed approach, the majority here tried to argue “this form of discrimination isn’t really discrimination” by pointing out that CLS can exist off campus (which as a college student I can tell you is a waste of time; w/o events on campus and the funding to throw even small lunches, recruitment is difficult to impossible).

  • Says Kennedy, via the Washington Post: “A vibrant dialogue is not possible if students wall themselves off from opposing points of view.”

    Memo to Kennedy – as an American citizen, I have a right not to engage in dialogue. As an American citizen, I have the right to freely associate with whomever I choose. And the students on that campus, a public campus, have those rights as well.

    The right to associate and exclude on the basis of values may be the only thing that prevents radically different groups from going to war with each other. American governments and courts that think they can force everyone to “dialogue” are going to be in for a rude awakening. This isn’t Europe.

  • “A vibrant dialogue is not possible if students wall themselves off from opposing points of view.”

    Kennedy is always good for a bone-headed quote. This one is hilarious for two reasons.

    First, the clear intent of the Hastings Policy is to quash a point of view that the administration of the law school finds distateful by denying the Christian Legal Society recognition.

    Second, if there is any group more cloistered from opposing views than the federal judiciary, with lifetime appointments, I am unaware of it.

  • Henry Karlson wrote: “If CLS has a right to discriminate, why does a university not have that right? To argue in favor of CLS is to argue in favor of the university, as far as I see it. That, I think, is the paradox with this case.”

    This is exactly what my husband said when we discussed it. He’s pretty libertarian in outlook. His argument is that the university can make whatever rules it wants to for official clubs, that the students are still free to do what they want, but if they take the university’s money and free space, then they have to abide by the rules. He says it’s better for them to do so and believe what they want to.

    Things are coming to a head, and I’m afraid that anyone looking for tolerance anywhere is likely to be disappointed.

  • “His argument is that the university can make whatever rules it wants to for official clubs, that the students are still free to do what they want, but if they take the university’s money and free space, then they have to abide by the rules.”

    It should not be the role of any government entity to set the membership policies for private groups. It is of course especially ironic that this attempt to stifle a viewpoint is taking place at a university, a supposed citadel of intellectual liberty. Of course most universities in this country, as demonstrated by repeated attempts to impose speech codes on students, are as enamored of freedom of speech as they are of cutting their budgets to reduce the exorbitant tuition that they charge.

  • The libertarian outlook sees this case as yet another illustration of the need for separation of Schooling and State.

  • It’s really a messed up case, because on every level, there seems to be a kind of self-contradiction involved.-Henry Karlson

    Seems? (Hint: category error.)

Supreme Court Holds That the Second Amendment Applies to the States

Monday, June 28, AD 2010

In the case of McDonald v. the City of Chicago, the Supreme Court of the United States ruled that the Second Amendment applies to the states.  Read the decision here.  The decision was 5-4 which is absolutely stunning since I think that there was no intellectually respectable argument to be made that the Second Amendment does not apply to the states.

The bill of rights applies to the States due to the Fourteenth Amendment.   In the opinions written by the majority justices, emphasis is given to the importance that the drafters of the Amendment placed upon the rights of freed slaves after the Civil War to keep and bear arms for their defense.  A good day for the Constitution at the Supreme Court.

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16 Responses to Supreme Court Holds That the Second Amendment Applies to the States

  • Apropos of our discussion a few weeks ago regarding Justice Scalia’s view that “tradition” should inform the Court’s “substantive due process” jurisprudence, note that this was key to the Court’s decision. (See also Justice Scalia’s concurrence, in which he masterfully dissects Justice Stevens’ dissent.)

    I think Justice Thomas’ privileges or immunities clause analyisis is the better argument from both an originalist and textualist standpoint. But, given that that ship has already sailed, and given the need to limit the Court’s “substantive due process” jurisprudence to those rights that actually have some grounding in the text of the Constitution and the history and tradition of our nation, I can’t say that I blame the majority for relying on the due process clause rather than privileges or immunities, and using this case as a vehicle for defining the limits of “substantive due process”.

  • One gets the feeling that, should a case that hinges upon the question “Does the Constitution require that there be a House and Senate?” make its way to the SCOTUS, the vote would come down five votes to four. Sadly, no one seems able to predict whether the five would be for or against.

    Those of you who think “we are a nation of laws” will find yourselves confounded by the caprice of five untouchables in black robes.

  • I agree. The vote should have been 9 – 0.

    One, “the right of the people to bear arms shall not be infringed.” Can the four dissenting read?

    Two, I bet “dollars to donuts” that the four dissenting (plus Kagan) will affirmatively vote (hallucinating) that the constitution gives a woman the RIGHT to have taxpayers pay a medico to exterminate her unborn babies.

  • Incorporation through the 14th has been piecemeal. The court had never adopted a blanket doctrine of incorporation. But I agree that if we’re going to incorporate at all, the 2nd amendment has to be included.

  • I’m with restrainedradical. The incorporation doctrine is hardly an obvious feature of our constitution, but there is no coherent basis for excluding the 2d amendment from its ambit once it has been applied to the other enumerated rights.

  • T. Shaw, I think the four dissenters are right in insisting that the clause you quote–“the right of the people to bear…”–is qualified, and rendered more precise in its intent, by the prior clause, establishing the need for militias. On an originalist reading of this text, the right to bear arms for, eg. the purposes of hunting or personal protection, simply does not exist.

  • WJ,

    That issue was decided and rejected in the Heller case. They had already lost on that. And don’t pretend that your argument is originalist. Calling it such doesn’t make it so.

  • wj:

    I think the four dissenters do not believe we the people should be free people. I doubt they believe in individual liberty.

    You may read the commentaries, minutes, and statements of the “state” conventions, and all the drafters/founders. At no time was the right of US citizens to individually keep and bear arms questioned until around the time the federal government instituted the income tax (they needed to amend the Constitution) and Federal Reserve System.

    But, you’re right. Once the Obama regime packs the court. [I’m ‘chanelling’ Thomas Jefferson here] We’re likely to devolve into slaves to the state.

  • wj:
    Your is a common argument. The problem is that it does not withstand the scrutiny:


    Van Alstyne is one of the leading con law scholars of our time. Although a liberal to the core, he is ruthlessly principled in his constitutional reasoning. for instance he is pro choice as a policy matter, but believes Roe was a terrible decision.

  • I’m aware of van alstyne and heller etc and disagree with the findings of both. You can disagree with heller precisely on originalist grounds; which is not to say you must–just that you can as a matter of interpretation. Both heller and van alstyne perform any number of impressive exegetical contortions to escape what to my mind is the clear intent of the sentence in question. But maybe you’re right that the four dissenters are motivated less by interpretive scruple and more by policy preference.

  • Fair enough, Wj. For what it is worth I have no great interest in gun regulation as a policy matter, and really don’t care if guns are outlawed. But I find Van Alstyne’s exegesis if the 2d Amendment air tight. Moreover, I have known Bill for almost 30 years; he is immune to exegetical contortion. I have no opinion on the motivations of the four dissenters. I just don’t think there exists a reasonable argument for sparing the 2d Amendment from the incorporation doctrine.

  • Way too much education wasted here on a rather simple issue. Where in the Constitution is any branch of the federal government given authority to disarm either the states or the people? The ninth amendment applies. The critical issue here, and the reason many oppposed incorporation of “the Bill”, is that the amendment did not create the right, though it is now treated as if it had; it only acknowledges the right. No one ever would have written the second amendment as it was written to make sure that states allowed their militia to keep arms at their homes (the point of mobilization). To say they would have is simply dishonest. So it comes down to this; you are either for, or against the Constitution. There are no nuances here that merit consideration.

  • I’ve heard estimates that 90,000,000 Americans own firearms.

    “The beauty of the Second Amendment is that it will not be needed until they try to take it.” Thomas Jefferson

    “Laws that forbid the carrying of arms…disarm only those who are neither inclined nor determined to commit crimes…such laws make things worse for the assaulted; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.” Thomas Jefferson 1764

    “No free man shall ever be debarred the use of arms.” Thomas Jefferson proposed Virginia constitution 1776

    “The Constitution preserves ‘the advantage of being armed which Americans possess over the people of almost every other nation…(where) the governments are afraid to trust the people with arms.'” The Federalist #46

    “…arms discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property…Horrid mischief would ensue were the law-abiding deprived the use of them.” Thomas Paine Thoughts on Defensive War 1775 – proof positive in all the states that infringe the Second Amendment.

    “The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms.” Samuel Adams 1788: During Massachusetts’ Constitution ratification convention.

    “Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined.” Patrick Henry: during Virginia’s ratification convention (1788)

    “Arms in the hands of individual citizens may be used at individual discretion…in private self-defense.” John Adams 1788

    “A militia when properly formed are in fact the people themselves…and include all men capable of bearing arms…To preserve liberty it is essential that the whole body of the people possess arms.” Richard Henry Lee Additional Letters From The Federal Farmer 53 (1788)

    “I ask sir, what is the militia? It is the whole people…To disarm the people is the best and most effectual way to enslave them.” George Mason: Virginia’s US Constitution ratification convention (1788)

    “To secure the blessings of liberty to ourselves and our posterity.” US Constitution

    “Government is not reason; it is not eloquence; it is force; like fire, it is a dangerous servant and a fearful master.” George Washington, Farewell Address

  • That Washington quote has to be the best. Seems our Presidents went downhill from there.

  • Kevin, nobody reads the 9th Amendment as you do because it would be ridiculous to do so. The 9th was intended merely to clarify that the Bill of Rights shouldn’t be interpreted to prohibit all other rights. It doesn’t ensure any rights. It only ensures that absent a law prohibiting it, you have the right to do it.

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SCOTUS: 6 Catholics, 3 Jews, Law, Scholasticism and Tradition

Wednesday, May 12, AD 2010

I read a comment[1] a few weeks ago on GetReligion.org attempting to explain why John Paul Stevens was the last Protestant in the U.S. Supreme Court which simply said that Catholics and Jews have a tradition of being immersed in law (Canon Law and Halakha respectively for Catholics and Jews as an example).

This struck me as interesting because at first glance it kind of makes sense.

Of course there is much more to why the current make-up of the U.S. Supreme Court, 6 Catholics, 2 Jews, and an Episcopalian, is as it is.[2]

But I thought it was an interesting enough topic to dive into.

Lisa Wangsness of the Boston Globe chimes in with her two cents worth [emphases mine]:

Evangelical Protestants have been slow to embrace, or to feel welcomed by, the elite law schools like Harvard and Yale that have become a veritable requirement for Supreme Court nominees. One reason for this, some scholars say, is because of an anti-intellectual strain within evangelicalism.

As Ronald Reagan would say, there you go again, pushing the liberal theory that Christians are stupid (at least Evangelical Protestants).

Lets get beyond these stereotypes done by liberals to Christians.

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47 Responses to SCOTUS: 6 Catholics, 3 Jews, Law, Scholasticism and Tradition

  • The legalistic traditions would be the most obvious theory but I suspect that it’s too abstract to have this disparate an impact. Besides, sola scriptura is much closer to the originalism of the four conservative Catholic justices. The living Magisterium is more analogous to the living constitution that they reject.

    The anti-intellectual strain within evangelicalism makes sense. Part of it may also be that Catholics make more reliable conservative judges and are therefore more appealing Republican appointees but I bet Catholics are overrepresented in the general lawyer population as well.

    Maybe religion is actually hiding an ethnic cultural difference. The legal field was one of the few fields that was relatively tolerant of Jews which is at least partially why they are overrepresented. Maybe anti-Catholic or anti-immigrant sentiment drove the Irish, Italians, and now the Hispanics into law.

    Maybe religion is hiding a regional difference. Five of the justices are from New York, two from California, and one from New Jersey. New York and California are the two biggest lawyer markets. They also happen to have the largest Catholic and Jewish populations. I can’t speak for California, but every ambitious New Yorker wants to be either a lawyer or a banker (another field where Jews, and maybe Catholics, dominate).

    Maybe Catholics and Jews can’t be lumped together. Maybe Jews are overrepresented for historic reasons and Catholics for religious reasons.

    Protestants do have their colleges, seminaries, and Bible study groups, similar to those of Catholics.

    But their emphasis is very different. I’ve heard one Protestant accuse Catholics of being too mechanical in their religious studies.

    Ironic that people got all hot and bothered when the fourth and fifth nominees for the SCOTUS were Catholic’s thus over-representing Catholics in the Judicial branch. But somehow the secularists are excited that the current nominee, Elena Kagan, a Jew, would make SCOTUS 1/3 Jewish.

    They were hot and bothered because Roberts and Alito were conservative Catholics. They had no problem with Sotomayor.

  • Let’s get beyond liberals. Liberals only have insults and lies; and fabricated/imagined crises meant to “grease the skids” for their destructive policy “solutions.”

    If we don’t stop Obama and his horde of liberal idiots (I repeat myself) in congress, and soon the Judiciary, they will cause a degree of economic devastation from which the private sector may never recover.

    Then, they will have succeeeded in making us all serfs, which was their (the two or three that aren’t gays/lesbians/puppy-lovers/morons) plan all along.

  • I take issue with the notion that the conservative justices’ approach is similar to “sola scriptura” and that the “living Constitution” approach is analogous to the living Magisterium.

    Instead, I would say the two approaches to the Constitution are rather more like the difference between how a traditionalist Catholic and a Voice-of-the-Faithful Catholic view the Magisterium.

    Conservative jurisprudence does not reject development in the law; conservative jurisprudence recognizes that the world today is different from the world 200 years ago and that matters will arise that were completely outside the imagination of the Framers. However, conservative jurisprudence also recognizes that developments in the law (1) are better suited to be addressed by legislative bodies rather than courts, and (2) to the extent the courts must develop constitutional doctrine to meet modern challenges, the development must be (a) an organic extension of the rights and values traditionally held by society and (b) be bound to the text of the Constitution as originally enacted and intended by the Framers.

    Justice Scalia famously discussed this view in the Michael H. case, in which a putative father (from an extra-marital affair) sought to use the Court’s “substantive due process” jurisprudence (see, e.g., Griswold and Roe) to overturn a state’s codification of Mansfield’s Rule, which protects the children of a marriage from outside claims of paternity. Scalia, in his majority opinion, attempted to limit the extension of “substantive due process” to those instances where society had traditionally protected such rights:

    1. The § 621 presumption does not infringe upon the due process rights of a man wishing to establish his paternity of a child born to the wife of another man.


    (b) There is no merit to Michael’s substantive due process claim that he has a constitutionally protected “liberty” interest in the parental relationship he has established with Victoria, and that protection of Gerald’s and Carole’s marital union is an insufficient state interest to support termination of that relationship. Michael has failed to meet his burden of proving that his claimed “liberty” interest is one so deeply imbedded within society’s traditions as to be a fundamental right. Not only has he failed to demonstrate that the interest he seeks to vindicate has traditionally been accorded protection by society, but the common law presumption of legitimacy, and even modern statutory and decisional law, demonstrate that society has historically protected, and continues to protect, the marital family against the sort of claim Michael asserts.

    Scalia explains further:

    In an attempt to limit and guide interpretation of the Clause, we have insisted not merely that the interest denominated as a “liberty” be “fundamental” (a concept that, in isolation, is hard to objectify), but also that it be an interest traditionally protected by our society. [Footnote 2] As we have put it, the Due Process Clause affords only those protections “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Snyder v. Massachusetts, 291 U. S. 97, 291 U. S. 105 (1934) (Cardozo, J.). Our cases reflect “continual insistence upon respect for the teachings of history [and] solid recognition of the basic values that underlie our society. . . .” Griswold v. Connecticut, 381 U. S. 479, 381 U. S. 501 (1965) (Harlan, J., concurring in judgment).

    This insistence that the asserted liberty interest be rooted in history and tradition is evident, as elsewhere, in our cases according constitutional protection to certain parental rights. Michael reads the landmark case of Stanley v. Illinois, 405 U. S. 645 (1972), and the subsequent cases of Quilloin v. Walcott, 434 U. S. 246 (1978), Caban v. Mohammed, 441 U. S. 380 (1979), and Lehr v. Robertson, 463 U. S. 248 (1983), as establishing that a liberty interest is created by biological fatherhood plus an established parental relationship — factors that exist in the present case as well. We think that distorts the rationale of those cases. As we view them, they rest not upon such isolated factors but upon the historic respect — indeed, sanctity would not be too strong a term — traditionally accorded to the relationships that develop within the unitary family. [Footnote 3] See Stanley, supra, at 405 U. S. 651; Quilloin, supra, at 434 U. S. 254-255; Caban, supra, at 441 U. S. 389; Lehr, supra, at 463 U. S. 261. In Stanley, for example, we forbade the destruction of such a family when, upon the death of the mother, the State had sought to remove children from the custody of a father who had lived with and supported them and their mother for 18 years. As Justice Powell stated for the plurality in Moore v. East Cleveland, supra, at 431 U. S. 503:

    “Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.”

    Thus, the legal issue in the present case reduces to whether the relationship between persons in the situation of Michael and Victoria has been treated as a protected family unit under the historic practices of our society, or whether, on any other basis, it has been accorded special protection. We think it impossible to find that it has. In fact, quite to the contrary, our traditions have protected the marital family (Gerald, Carole, and the child they acknowledge to be theirs) against the sort of claim Michael asserts. [Footnote 4]…

    That’s hardly a “sola scriptura” approach to jurisprudence and, in fact, I would argue that Scalia was relying upon his own Catholic understanding of the Magisterium in formulating that approach.

  • Thanks, Jay, for beating me to it. I owe you.

  • Ditto what Mike said. I’ve written that comment before (although probably not as well).

  • Three comments:

    First, I would not dismiss the existence of an anti-intellectual strain within evangelical Protestantism as mere liberal rhetoric. Certainly there is some of that, but the anti-intellectualism in evangelical Protestantism is well documented, especially by scholars such as Mark Noll, who is himself an evangelical Protestant. It is a part of evangelical Protestantism that many adherents are putting aside, but its historical existence could be a factor.

    Second, we can’t ignore social trends. Mainline Protestantism has been declining in numbers and influence for some time. The lack of mainline Protestants that “percolate up” to the upper echelons of the law is a consequence of that. At the same time, Catholic numbers and influence increased during the same decades. Also, Catholics and Jews during the last century emphasized education, assimilation, and becoming part of the “establishment.” That too, had implications. I would expect the same to happen with evangelical Protestants in the decades to come.

    Third, both Jewish and Catholic teaching has not emphasized, as much as mainline Protestants, a radical separation of church/state and politics/religion. Mainline Protestants, some have argued, emphasized it so much that they made religion irrelevant in the public square.

  • It’s not a perfect fit but there are elements of originalism that more closely resemble sola scriptura. Sola scripturists would also agree that the world is different today. Jay, I don’t think anything you said is inconsistent with sola scriptura.

    It’s funny you mention Michael H. I was just rereading my notes on the case a few days ago. None of the justices objected to Scalia’s view to traditional rights. Brennan’s dissent also looks to traditional rights. But a majority didn’t join Scalia’s footnote 6 for a very different reason. I, along with most the justices, think he’s wrong in his application, if not his approach. Contrary to his assertion that broader classes are more susceptible to conflicting interpretations, Scalia’s approach allows judges to pick conflicting specific classes. Scalia puts Michael H. in the class of “cheating fathers.” One can also place him in the class of “biological fathers.”

  • No, Scalia does not place Michael H. in the class of “cheating fathers”; he places him in the class of those who society and the law don’t want breaking up intact families by challenging the paternity of the children within those families. He’s unwilling to create out of whole cloth a “fundamental right” to do something that society has not traditionally seen fit to give sanction.

    And while one may also place Michael H. in the class of “biological fathers”, that says absolutely nothing regarding the “fundamentalness” of his “right” to have Mansfield’s Rule struck down as unconstitutional. And that’s what’s at stake. The liberal would throw out a centuries old common law rule over some imagined “fundamental right” to claim the child of an intact marriage as one’s own. That’s not akin to a “development of doctrine” – that’s changing the rules to suit one’s own personal view of how the law SHOULD be and fits more in line with how the VOTF crowd view the Magisterium.

  • Furthermore, the reason the “sola scriptura” analogy is inapt is because it an ahistorical reading of how originalists have actually behaved on the Court.

    Protestants whose approach to religion is based on “sola scriptura” reject authority and tradition as having any sway over how they apply their Faith to their lives. They reject developments in doctrine (even while unconsciously accepting such developments as the Trinity and the compilation of the Bible itself). The “sola scriptura” mindset – especially when it is of the fundamentalist variety – is a back-to-the-basics approach with only the Bible and the Holy Spirit as a guide.

    The originalist, in contrast, doesn’t reject authority or tradition or developments in the law that have occurred in the intervening years since the founding. The originalist doesn’t seek to “refound” the American republic as it existed in 1787. In fact, the originalist approach to jurisprudence is actually quite limited in scope by comparison to the Protestant Reformation and the approach of the “sola scriptura” practitioner.

  • Jay,

    Protestants whose approach to religion is based on “sola scriptura” reject authority and tradition as having any sway over how they apply their Faith to their lives. They reject developments in doctrine (even while unconsciously accepting such developments as the Trinity and the compilation of the Bible itself). The “sola scriptura” mindset – especially when it is of the fundamentalist variety – is a back-to-the-basics approach with only the Bible and the Holy Spirit as a guide.

    Thanks for fleshing out what I said in one sentence.

    I’m no law expert nor a lawyer, but I too could see that sola scriptura was an impediment towards doctrinal development for Protestants.

    And with that, originalsim and sola scriptura have no similarities with the respect to doctrinal development.

    Also appreciated your first comment as well…

  • Finally, let’s be honest about why those Catholics opposed to Constitutional originalism try to stigmatize it with the taint of “sola scriptura”: they know that most Catholics, especially conservative ones, take a dim view of “sola scriptura” in the context of theology, so they use the analogy to paint Catholic constitutional originalists as unthinking (in relying on the same intellectually inferior practice as protestant fundamentalists) and/or hypocritical (in doing to the Constitution what they criticize the protestants for doing to Christianity).

    The problem, as I’ve noted above, is that the analogy is inapt. But it is inapt not only because it fails to describe what originalists actually believe and how they actually behave, but because it is a comparison of two completely different institutions established for two completely different reasons and under two completely different sets of circumstances.

  • Evangelical Protestants who take their faith seriously go to any law school they can find that’s conducive to their faith. Catholics just go to the highest-ranked school that will take them – even if that school is not particularly religious. Of course, I am speaking in general terms.

  • Jay, I see that you are anticipating in advance the charge of being trapped in a Calvinist (and very Protestant) dualism by virtue of defending originalism. But you cannot escape; in order for the intellectually cramped Calvinist-Catholic dualistic system to work, any disagreement must be described as an outgrowth of individualism/Calvinism/liberalism.

  • Evangelical Protestants who take their faith seriously go to any law school they can find that’s conducive to their faith. Catholics just go to the highest-ranked school that will take them – even if that school is not particularly religious. Of course, I am speaking in general terms.

    I am not sure how true that is. I have friends and co-workers who are evangelicals that went to Harvard Law, and the Christian (not Catholic) law student group at my school (t-10 or so) was fairly sizable and active. But, of course, these anecdotes don’t really add up to data. You could be right about the general trend.

  • I’d consider myself a Catholic originalist. Sola scriptura (or some weak version of it) can be an perfectly defensible way to interpret the Constitution but not Scripture.

    Originalists reject any develop of new doctrines not grounded in the law as understood at the time of its enactment. They accept tradition only up to the point of enactment. They do not accept the idea that later traditions that could not reasonably be anticipated, can add to the law. On the other hand, Catholics accept that later traditions can add to existing “law” in ways that could not reasonably have been anticipated.

    Even the process of development differs. Originalists reject abstract unifying doctrines and prefer to judge new situations as fitting or not fitting into specific laws or enumerated rights. Catholics, I would argue, work in the opposite direction. Starting with abstract unifying doctrines (e.g., dignity of man), then judging whether the situation falls within an exception (e.g., double effect).

    As for the Michael H. sidetrack, Jay, you demonstrate exactly why Scalia’s methodology is wanting (I’d like to note that this is a different argument than the one over originalism). I described Scalia’s classification of Michael H. as a “cheating father.” You described it as “someone trying to break up a stable family.” Which one are we supposed to use? You also dismissed the implications of classifying Michael H. as simply a “biological father.” Traditionally, biological fathers have rights over their biological children. An appeal to tradition doesn’t work here because both sides can, and did, argue it. If Scalia’s methodology is correct, it’s incomplete, at the very least.

  • Centinel, you wrote:

    Evangelical Protestants who take their faith seriously go to any law school they can find that’s conducive to their faith. Catholics just go to the highest-ranked school that will take them – even if that school is not particularly religious. Of course, I am speaking in general terms.

    That goes beyond generalization, friend. Generalization, philosophically, means abstracting a feature true of each instance of a class, e.g., “Houses have roofs.” Generalization, popularly speaking, means abstracting a feature true of most or even many instances of a class, e.g., “The students at Catholic University are Catholics.”

    What you’ve managed to do is pluck out of a bag of prejudices and biases a dazzling example of complete ignorance EXCEPT of perhaps one or two cases that you know, and a few more that you know of.

    I am close friends with a woman who, as an Evangelical, went to Yale Law School because it was “the highest-ranking school that would take” her, to use your words. Not too shabby. Granted, it’s not the University of Barbados, but I suppose Yale Law will do for her sort. She’s a Catholic now, though. Did you know that there are numerous law schools at Catholic universities bursting at the seams with… all sorts of people?

    Do you think it possible that Catholics might be serious about their faith and go to a law school conducive to it?

    Do you think it possible that an Evangelical might be serious about his faith and yet go to an ungodly school bearing in mind that it is not the law school’s job to nurture his faith, and that he will continue to seek spiritual nourishment through the means he always has – prayer, reading the scriptures, attending a good church?

    C’mon. Your “observation” was entire facile.

  • “Traditionally, biological fathers have rights over their biological children.”

    Not biological fathers who aren’t married to the child’s mother. That’s a very recent development.

  • And I’m sure you’ll say that my last comment illustrates your point about classifications.

    But there will always be classifications when talking about defining rights under the Consitition. The key is to find the classification that does the least amount of damage to the constitutional order, and this is done by limiting the interference of the judiciary into the democratic process by defining the “fundamental right” narrowly enough as not to remove a broad category of activities from democratic oversight (not to mention creating out of whole cloth “rights” that have no basis in the text of the Constitution).

    Scalia’s appeal to tradition is to look at the behavior that society has traditionally valued and protected and determine whether the particular case before the Court meets – with specificity – the activity society has sought to protect.

    The liberal will look at “tradition” and try to broadly define the activity that is “fundamental” to ordered liberty so as to include as much activity as possible and remove it from the democratic process. Thus, Brennan et al looked at Michael H. as a “biological father”, and relying on some very recent precedent (and ignoring other recent precedent – i.e. that “biological fathers” have very few if any rights when abortion and birth control are at issue), tried to make the argument that he had a “fundamental right” to interfere in the inner workings and relationships of an intact family unit.

    What’s “traditional” about that? Nothing. Maintaining Mansfield’s Rule was based on tradition – the tradition of protecting the family, as society has sought to do for generations. The Court’s “fundamental rights” jurisprudence – of very recent vintage – regarding a biological father’s “reproductive rights”, not so much.

  • While not remotely an expert on law, the sociological/historical aspect interests me in regards to biological fathers’ right. It seems to me that the accurate characterization would be that in Western Culture, a biological father can assert paternity rights over illegitimate offspring by effectively “legitimizing” or recognizing them. This, however, assumes that the illegitimate offspring are otherwise simply “fatherless” and unacknowledged.

    The rights of the pater familias as a husband typically include having paternal rights over all children he chooses to acknowledge. So if his wife bears a child which is not, in fact, his, he can effectively make the child his by acknowledging the child as his regardless of actual paternity.

    The idea that a biological father could assert paternity rights over a child he fathered on a married women over the objections of her husband (who is willing to raise the child as his own) would be distinctly un-traditional.

  • Darwin,

    You’re right. It IS distinctly un-traditional. And for over 200 years, under Lord Mansfield’s Rule, such claims cannot be heard.

    Okay, I realize I’ve dominated this thread, so just one last thing on the classifications in Michael H. and how they relate to “tradition”:

    As Restrained Radical notes, both Scalia and Brennan appealed to “tradition” in reaching opposite conclusions in the case. However, a closer examination of the arguments and what respective “tradition” was being sought to be preserved by the opposing Justices, will reveal that one of the Justices was ACTUALLY concerned with remaining faithful to and preserving an established tradition, while the other Justice’s feigned appeal to “tradition” was a complete load of BS from one of the most successful bu11$h**tters who ever sat on the Supreme Court.

    Let’s start off with the fact that the rights of “biological fathers” – the “tradition” to which Justice Brennan appealed – are, as I noted above, a recent development in the law, and there is no long-standing “tradition” of “biological fathers” having legal rights over their offspring outside the context of the marital relationship. Even the parental rights of divorcing parents have always been based on the fact that the parents were married in the first place.

    So, let’s dispense with Brennan’s nonsensical claim that he was appealing to “tradition” and cut right to the chase. Were one to follow his constitutional jurisprudence to its logical conclusion, here’s Bill Brennan’s take on the “rights” of biological fathers:

    * A “biological father” has absolutely NO LEGAL RIGHTS to protect the life of his child should the mother choose to abort the child; HOWEVER …

    * A “biological father” has a “fundamental constitutional right” to interfere in an intact marital family relationship by asserting paternity over a child born inside that marriage should the mother choose to raise the child with her husband.

    * A “biological father” has a “fundamental constitutional right” that overrides an over-200-year-old common law rule – a common law rule known to and explicitly accepted by the drafters of the Constitution – meant to protect marriages from outside attack and children from bastardization.

    That’s Bill Brennan’s definition of “tradition”.

    On the other hand, under Justice Scalia’s approach, here is the state of the law:

    * an over-200-year-old common law rule that was on the books at the time of this Nation’s founding is preserved;

    * the sanctity of the marital family unit is preserved from outside interference by claims from a stanger to that marriage that he is, in fact, the father of a child born to that marriage;

    * the original intent and meaning of the text of the Constitution is preserved from the violence done to the constitutional order whenever a newly created “fundamental right” is used to strike down as “unconstitutional” a law that was fully known to and explicitly acctepted by those who drafted the Constitution.

    Now, which one of those approaches is TRULY concerned with tradition?

  • Personally, I always thought the tradition of offering sympathy to orphans should have helped the Menendez brothers


  • Jay, your putative domination of this thread has enriched it, and is greatly appreciated at least by me.

  • Agreed, I’ve enjoyed your explanation on this stuff, Jay.

  • I spend the day in Bankruptcy Court and Jay leaves me nothing to say in regard to Constitutional interpretation. Rats! Ah well, I will merely say ditto to what Jay wrote and what Scalia says below:

  • Donald,

    I liked his Chestertonian quote:

    “Some worth doing, is worth doing terribly.”

    Or something to that effect.

  • I should’ve stated this early but I don’t necessarily disagree with the outcome of Michael H. And I do think originalism is the proper method of analysis (while I still maintain this is closer to sola scriptura). I only take issue with Scalia’s method of abstraction outlined in footnote 6. He defines classes that need not be defined in that way.

    Jay & Darwin, it all depends on how you’re defining the tradition and the specific case. The children of a married woman have traditionally been presumed to be the biological children of the husband. Is Lord Mansfield’s Rule designed to protect the husband or the biological father? In the absence of DNA testing, it would seem that it protects the biological father (usually the husband) from spurious paternity claims. Therefore, it appears tradition protects the rights of the biological father. Modern technology has eliminated the need for blunt evidentiary rules.

    Again, I’m not saying that’s right. Only that the very existence of what I think is an alternative reasonable interpretation, undercuts Scalia’s approach.

  • Don, that was a great vid. It would be interesting to see a liberal originalist on the court. Lawrence Lessig, a liberal and a broad originalist, says Kagan thinks as he does. I doubt it but if true, not only would Kagan be the most influential justice, it would also alter the course of American jurisprudence. I’ve believed that the best kind of judicial nominee would be a liberal pro-lifer. Perhaps even more important than overturning Roe is changing the way liberals view abortion.

  • “Is Lord Mansfield’s Rule designed to protect the husband or the biological father? In the absence of DNA testing, it would seem that it protects the biological father (usually the husband) from spurious paternity claims. Therefore, it appears tradition protects the rights of the biological father. Modern technology has eliminated the need for blunt evidentiary rules.”

    I suppose it provides an alternative interpretation to Scalia’s, but it is one that I believe to be ahistorical.

    The historical record will bear out that Lord Mansfield was primarily concerned with the children of marriages not being made bastards, which is a matter wholly unconcerned with determining actual biological paternity. In fact, it was an objective that was often in direct conflict with determining such.

    Preserving intact marital family units from such challenges was not for the purpose of ensuring that the husband’s factual biological paternity was protected from spurious outside claims, but rather to ensure that children were not delegitimized. For that reason, the law created an irrebuttable presumption that the children of a married woman were the legitimate children of her husband.

  • I suppose, from a sociological point of view, a lot has to do with how you interpret the purpose of established cultural norms. It seems to me that the purpose would clearly be that a pater familias be able to determine who he wants to call his children. If he want to acknowledge children he had by a woman other than his wife, he can. If he want to refuse to acknowledge those children, he can. And when his wife bears children he can either acknowledge them, or repudiate his wife and deny them.

    All this sounds rather negative and “patriarchal”, but it also has the effect of making the direct and extended family strong against outside assaults. Good or bad, though, I think it’s hard to deny that it’s “traditional”.

  • “I doubt it but if true, not only would Kagan be the most influential justice, it would also alter the course of American jurisprudence. I’ve believed that the best kind of judicial nominee would be a liberal pro-lifer.”

    I doubt restrainedradical that Kagan will be anything but an orthodox political liberal on the bench. However, the fact that she has no judicial experience on the bench should give her backers pause. Felix Frankfurter, the great advocate of judicial restraint, was a fairly conventional political liberal before he was appointed to the Supreme Court by FDR without judicial experience. Things can look quite differently after one dons the black robe, especially with a life time appointment, and Kagan, perhaps, could end up surprising everyone.

  • I would be astonished if Kagan does not prove to be “anything but an orthodox political liberal” cleverly legislating from the bench whey “necessary.” But I’m prepared to be astonished, and certainly hope that I am.

    In any event. I hope the confirmation process is a smooth one. I’m all for hardball politics, but Kagan is qualified and that should be the end of it. The Dems viciously changed the rules with Bork, and I believe that the temperament within the Senate has never been the same. I’d like to see the Republicans avoid scoring political and polemical points and just plain do the right thing.

  • I agree Mike that the Kagan nomination is not the one for the Republicans to put up a fight on, but one of the main reasons why the Democrats routinely engage in scorched earth tactics in regard to Republican judicial nominees is because the Republicans routinely fail to do the same to Democrat nominees.

  • Fair enough, Don, but it is worth remembering that both Roberts and Alito got through without the Dems resorting to scorched earth practices, which is not to say that they behaved perfectly. I’d rather try to ratchet the practices back to how they are supposed to work. I acknowledge that it is a judgment call as to whether exhibiting good behavior or returning bad behavior is the most effective way to do that.

  • In regard to Alito Mike the Democrats tried but failed to filibuster his nomination. The final vote for his confirmation was 58-42 which is astounding if one of the chief criteria is supposed to be judicial comptence.

    Obama of course voted against confirmation for both Roberts and Alito, two of the best qualified jurists ever nominated to the Supreme Court.

  • Forgot that, Don, thanks. I’d still support Kagan’s nomination, but would also score points by emphasizing the contrast between her treatment and that of Alito, and get lots of digs against Obama for voting against Alito and Roberts.

  • Roberts was confirmed 78–22. He got far more Democratic votes than Sotomayor got Republican votes. Alito had the misfortune of being second. Kagan has the same problem.

  • Wow. Such deep arguments!

    Still, I think a lot of folks are overthinking this situation. A president seeking a pro-life perspective on the high court appoints a Catholic. Another president seeking some pro-life cover also appoints a Catholic. Presidents who seek a reliably pro-abortion leftist or wish to appease leftist elements of their party often appoint a Jew.

  • Restrained Radical,

    There’s no comparison, democrats are far more emotional and vindictive when it comes to voting against well-qualified judges that happen to seem conservative.

    Case in point, Robert Bork who lost the nomination 42-58.

  • The Bork confirmation process was unprecedented. It broke with longstanding Senate tradition, and frankly the Senate has not been the same since. The Dems broke the rules and lied shamelesslessly while doing it. Mutual rancor, payback, and distrust have been the order of the day since.

    While not unopinionated, I am not given to immoderate commentary. In fact I sign my real name as a matter of self-discipline. But let there be no misunderstanding or doubt: Joe Biden made his bones in the Bork hearings and behaved like a consummate dirtbag. I expected such dishonest behavior from the cowardly Senator from Massachusetts, but this was when Biden showed his true character colors.

    Finally, let’s be clear. When the Left decides to play hard ball, you can ususally count on the subtext being their sacrament of abortion. It started with Bork and Palin has been the most recent manifestation.

  • Bork and Thomas are outliners. People like Bork with long controversial paper trails don’t get nominated anymore. And Thomas had to deal with Anita Hill. I don’t think either party has a monopoly on outrage. As I noted before, Roberts had an easier confirmation than Sotomayor who in turn will have had an easier confirmation than Kagan. I predict Kagan’s confirmation to be similar to Alito’s. Four Democrats voted for Alito. I predict 2 or 3 Republicans will vote for Kagan (Snowe, Collins, and maybe Brown).

  • It’s a straw man.

    Bork had the most difficult.

    You can continue to apologize for your democratic party, but facts are facts.

  • While, I do not disagree with the overall thesis expressed herein. I find the characterization of Reform and Hasidic Judaism to be off the mark. I contend that the divisions within Judaism that they represent a division with Judaism but that these division were the result not of dogmatic differences.

    Rather I view the divisions within Judaism as being similar to the differences that exist between religious orders with Catholicism.

    In the sense that each religious order agrees on the truth of the dogma espoused by universal church, their missions differ,and as a result there may exist minor differences within their devotions and practice.

  • Nathan Zimmermann,

    I would like to default to your position because I know very little about Judaism.

    But when I see “conservative” and “reform” Jews advocate for the death of the unborn in absolute violation of the Ten Commandments and then I see “orthodox” Jews express identical views with Catholics and stand up for the unborn, then your analogy does not seem to fit that of Catholic religious orders.

    Catholic religious orders differ in mission, but adhere completely to the teachings of the Church.

    I don’t believe your analogy falls into that category with all due respect.

  • Mr. Edwards,

    I based my analogy upon my experiences and interactions with the aforementioned communities within my native city where even the conservative and reform Jews tend to be more conservative and pro-life.

  • If the Republicans wish to Bork a nominee Solicitor General Kagan’s nomination may be the best opportunity. If President Obama had nominated Judge Merrick Garland, the ability of the Republicans to Bork the nominee would have proved less tenable because, Judge Garland’ nomination was openly advocated by Senator Hatch.

    As addendum to my two previous posts, and to throw a fox into a hen-house. While there is no doubt of the universal church on the subject of abortion and euthanasia, eugenics and Darwinism.

    It should be noted that there existed a split with the church on the subject of eugenics and Darwinism during the 1920s and 1930’s as is evident in the writings of Rev. Hermann Muckermann, the elder brother of Rev. Friederich Muckermann SJ.

  • Nathan:
    There has never been a split regarding either Darwinism or eugenics in Church teaching properly understood The fact that some Catholic priests and theologians have favored abortion rights, for instance (which of course is still the case) does not in any way impair the fact that the Magisterium has remained consistent, even as it develops.
    I have countless Jewish friends. Sadly I know none who consider themselves of the Reform stripe who favor laws forbidding abortions, even though I know many who claim they themselves would not abort a child.

Elena Kagan and the state of Democracy

Tuesday, May 11, AD 2010

I’m not sure I ever expected to wake up to read the New York Times coverage of a new nominee to the Supreme Court and find myself in agreement.

Of course, they think she’ll be a fine justice and I think she’s a pro-abort and could do without her. I also think she looks like Ursula from “A Little Mermaid,” which is less a comment on her than it is a comment on how many Disney movies I watch with my wife (curse you, Disney movie club!). That’s not what we agree on.

What we agree on is that she is a stealth candidate and that just by itself makes us uncomfortable. The official editorial reads:

President Obama may know that his new nominee to the Supreme Court, Elena Kagan, shares his thinking on the multitude of issues that face the court and the nation, but the public knows nothing of the kind. Whether by ambitious design or by habit of mind, Ms. Kagan has spent decades carefully husbanding her thoughts and shielding her philosophy from view. Her lack of a clear record on certain issues makes it hard to know whether Mr. Obama has nominated a full-throated counterweight to the court’s increasingly aggressive conservative wing.

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5 Responses to Elena Kagan and the state of Democracy

  • “(You can tell I went to law school with a sentence that long).”

    It’s not the length of the sentence but the fact that it is unintelligible upon a first reading that betrays your law school bona fides.


  • Posing in judicial robes for a high school picture truly creeps me out. I am always leery of people who have an overriding career ambition and who shape their entire life to reach it. Such individuals are the last people I would trust to wield power wisely.

  • Has anyone read anything she (or Obama for that matter) has had published?

    Hey! Her fellow traveler colleague defended her today in the WSJ. Seems she broke federal policy/law and refused access to military recruiters; but quickly complied (courage of her convictions) when they moved to take away my (taxpayer) money.

    Sounds like Supremo Corto material to mio!

    Only way I can explain this (and Sotomayor) is Obama doesn’t want anyone to show him up, or his wife would be jealous if he nominated a babe.

    Not that it matters. We are getting screwed “six ways from Sunday.” There will be nothing left by 2012.

  • I notice that Ms. Kagan put her opinions under wraps about the time her fellow political partisans calumnated Robert Bork.

  • Pingback: SCOTUS: 6 Catholics, 3 Jews, Law, Scholasticism and Tradition « The American Catholic

Supremes: Mojave Desert Cross Can Stay

Wednesday, April 28, AD 2010

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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2 Responses to Supremes: Mojave Desert Cross Can Stay

  • 4 voted that it was a threat to our constitutional order? I don’t feel threatened? I drove past a (huge) Mosque in Ohio (near Maume) and felt uncomfortable but not threatened. I drove past countless synagoges in New York – never felt threatened. There is family in my town in Michigan that has a Budda in their yard with the flags – I think it looks neat and you know what – I am not threatened…

    I pray the people making decisions are God Inspired not fear inspired. I pray the understand the people they represent without hold some kind predeermend intelectual superiority… God bless tham and our GREAT country…

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Christian Legal Society v. Martinez

Monday, April 19, AD 2010

As I’m a week and a half from law school exams, I don’t have the time to do this justice but there’s an important case involving a group I’m involved in at law school that was argued in front of the Supreme Court today. In sum, the school banned the CLS (Christian Legal Society) because it wanted the Christian Legal Society members to be…well, Christians. The school defends itself on the idea that allowing any discrimination is intolerable and would open a slippery slope to racist groups (no, seriously-read the article and the questions of Sotomayor & Stevens. Glad that Obama appointment is doing well for Christians).

So pray for a just result that will protect the rights of Christians to assemble.

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12 Responses to Christian Legal Society v. Martinez

  • Well, if the article you linked was right, no, it is not about whether or not they are to be Christian. You could allow gays to join and still be Christian. There are Christian gays (as TAC should know). If the point is no gay can join, I would argue such group was antithetical to Christianity.

  • Of course, I am sure you will say it is not about allowing gays to join — but yet, I know many “Christians” who say to celibate Christian gays they are “advocating a lifestyle” by pointing out their orientation.

  • While I’m certainly sympathetic with the CLS (and was an active member when I attended law school several decades ago), I’m not sure I agree with its legal theory in this case. What I want to know is whether or how its freedom to associate is actually impaired by failing to secure “official” status. Does a failure to secure school financing and benefits actually mean it is “banned”? If so, is its practical ability to meet encumbered?
    I can appreciate the state’s interest in being unwilling to accord its impramatur upon groups that discriminate based on religion, race, etc., even if the application of such a limitiation to a bona fide religious group does seem ridiculous, but laws/rules are always imperfectly drafted, either underinclusive, overinclusive, or both. This one appears overinclusive (and is probably both), but my reaction is that this imperfection does not render it constitutionally infirm without a showing of First Amendment harm. This stands in contrast to laws granting churches an exception from general religious discrimination prohibitions, which quite possibly are constitutionally required precisely because a law that would prevent a church from favoring its own adherents for various church positions would presumably encumber the church from freely exercising its religion. I’m just not sure that disqualifying the CLS from receiving school financing and benefits is quite the same thing.

    All that said, I certainly could be wrong and fully expect to be flamed with enthusiasm.

  • That was my first question as well, Mike.

  • Well I helped found the Christian Legal Society at the University of Illinois Law School back at the dawn of time when I was a law student. Without official recognition we wouldn’t have been able to hold our meetings in classrooms, put up notices of our meetings on law school bulletin boards or receive funding from the Student Organization Resource Fund. I think the lack of these would have constituted a penalty to the group. I think the best tactic however is to argue that the Christian Legal Society is being singled out for enforcement of these regulations.

    Here is a transcript of the oral argument:

  • One analysis of this case claimed that if the court found against the CLS, then by the same reasoning a state-supported school could not give official sanction to a gay-rights group that excluded people opposed to the gay-rights agenda. So if the CLS loses, maybe its members could sign up en masse for the gay-rights club, bringing their friends along with them. Discussion on college campuses would probably not become more civil, but it would be more varied and interesting.

  • The same thing is true today as it was for Don (however many years ago that was. I won’t inquire 😉 ) Other groups would have a significantly easier time having groups then would Christians. I think this is where Alito’s questioning in the argument was going-groups like for gay advocacy are not going to have a problem while Christian or other religious groups will not be permitted, allowing those other groups to have state-sponsored advantages over the Christian groups. That’s where I think that’s where the constitutional question comes in.

    I would love to make that argument stronger, but unfortunately I won’t be tested on CLS v. Martinez in the next two weeks.


    The article makes it perfectly clear that CLS was banning those who are practicing homosexuals, not homosexuals trying to live out a Christian life. There is no evidence that CLS discriminated against Christians with a homosexual orientation in this case or in general. While I’m sure some Christians have mistreated our brothers, I see no basis why you should accuse CLS of this behavior unless you have some evidence other than the fact that CLS tends to contain conservatives and therefore fall under your presumption of evil?


    That’s not a bad idea.

  • “One analysis of this case claimed that if the court found against the CLS, then by the same reasoning a state-supported school could not give official sanction to a gay-rights group that excluded people opposed to the gay-rights agenda. So if the CLS loses, maybe its members could sign up en masse for the gay-rights club, bringing their friends along with them. Discussion on college campuses would probably not become more civil, but it would be more varied and interesting.”

    Having read the legal briefings for this case, this is more or less what’s at stake. Pure and simple the administration of Hastings College (the school where this took place) is saying that this will indeed be the case – the only problem is, it seems to only be enforced in the case of the Christian group. We’ll see how this unfolds…

  • I know many “Christians” who say to celibate Christian gays they are “advocating a lifestyle” by pointing out their orientation.

    Why are they pointing it out, Henry?

  • “It is so weird to require the campus Republican Club to admit Democrats, not just to membership, but to officership,” Justice Antonin Scalia said.

    Funny that he mentions that. When I was in law school, the president of the Federalist Society was a Democrat. The president of CLS was suspected by everyone to be a closeted homosexual.

    Interesting case but I don’t know if it’ll make any practical difference. I didn’t join CLS because it was too Protestant for my comfort. I don’t see practicing homosexuals joining, much less get voted into leadership positions.

  • Michael Denton:

    See Art Deco.

  • HK:

    I have a feeling that the two of you are disagreeing on what is meant by “pointing” with Deco taking to pointing as something along the lines of “I’m gay and you need to accommodate that” (think of the “coming out” promotions which obviously connote acceptance of the homosexual lifestyle) as opposed to acknowledging a struggle with sin which you’re thinking of. I’ll let the two of you discuss that if you wish.

    Of course, this is a digression and has nothing to do with the idea that Colleges must force Christian groups to accept practicing homosexuals (i.e. non-celibate) in order to get official status.

Looking Back on Justice Stevens: Kelo

Friday, April 16, AD 2010

From a Catholic point of view, retiring Supreme Court Justice Stevens’ extreme commitment to supporting unlimited abortion in our country is clearly one of his worst legacies as a justice, and one most likely to be mirrored by whoever is chosen to replace him by President Obama.

There are other reasons to look back with a critical eye on Stevens’ tenure on the court, however, and blogger Lexington at The Economist highlights what he regards as the worst opinion that Stevens’ authored: the majority opinion in Kelo v New London, in which Stevens and the liberal majority of the court held that the constitutional powers of “eminent domain” can be used by local government not only to secure land for true “public use” such as building roads or public buildings, but to secure land for private development. In simply terms: Kelo means your city can force you to sell your home to make room for a new shopping center.

Kelo is certainly one of the worst decisions of recent years (giving far more real room for abuse of power by large corporations than the Citizens United decision, which Obama demagogued in his state of the union address) and underscores in an important way how the “progressives protect the little guy while conservative protect big business” narrative fundamentally misses the real and more complicated dynamics at play in our polity.

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6 Responses to Looking Back on Justice Stevens: Kelo

  • underscores in an important way how the “progressives protect the little guy while conservative protect big business” narrative fundamentally misses the real and more complicated dynamics at play in our polity.

    One of the things that struck me about the tea party rally I briefly attended yesterday, and which I forgot to mention in my blog post, was the very anti-corporation tone struck by a couple of the speakers that I heard. They were just as upset with CEOs and corporations as they were with President Obama and the federal government.

  • Kelo might be the worst decision by the Supreme Court that didn’t involve physical coercion/mistreatment or basic dehumanization of members of the human family.

    A more full-throated authorization of crony politics (albeit hidden behind anodyne prose) is hard to imagine.

  • My eco-socialist friend pointed me to a Democracy Now! episode on his retirement. Knowing of the Kelo decision, I couldn’t help laugh at the progressives praising Stevens for opposing big business.

  • Friends interviewing to clerk for judges after law school relayed that Kelo was the safest response to the “What Supreme Court decision do you disagree with the most and why?” question in an interview. Both right-leaning and left-leaning judges can appreciate criticism of Kelo, it seems.

  • The ending of Justice Thomas’ brilliant dissent in Kelo:

    “The consequences of today’s decision are not difficult to predict, and promise to be harmful. So-called “urban renewal” programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them from their homes. Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful. If ever there were justification for intrusive judicial review of constitutional provisions that protect “discrete and insular minorities,” United States v. Carolene Products Co., 304 U. S. 144, 152, n. 4 (1938), surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects. The deferential standard this Court has adopted for the Public Use Clause is therefore deeply perverse. It encourages “those citizens with dis-
    proportionate influence and power in the political pro-
    cess, including large corporations and development
    firms” to victimize the weak. Ante, at 11 (O’Connor, J., dissenting).

    Those incentives have made the legacy of this Court’s “public purpose” test an unhappy one. In the 1950’s, no doubt emboldened in part by the expansive understanding of “public use” this Court adopted in Berman, cities “rushed to draw plans” for downtown development. B. Frieden & L. Sagalayn, Downtown, Inc. How America Rebuilds Cities 17 (1989). “Of all the families displaced by urban renewal from 1949 through 1963, 63 percent of those whose race was known were nonwhite, and of these families, 56 percent of nonwhites and 38 percent of whites had incomes low enough to qualify for public housing, which, however, was seldom available to them.” Id., at 28. Public works projects in the 1950’s and 1960’s destroyed predominantly minority communities in St. Paul, Minnesota, and Baltimore, Maryland. Id., at 28-29. In 1981, urban planners in Detroit, Michigan, uprooted the largely “lower-income and elderly” Poletown neighborhood for the benefit of the General Motors Corporation. J. Wylie, Poletown: Community Betrayed 58 (1989). Urban renewal projects have long been associated with the displacement of blacks; “[i]n cities across the country, urban renewal came to be known as ‘Negro removal.’ ” Pritchett, The “Public Menace” of Blight: Urban Renewal and the Private Uses of Eminent Domain, 21 Yale L. & Pol’y Rev. 1, 47 (2003). Over 97 percent of the individuals forcibly removed from their homes by the “slum-clearance” project upheld by this Court in Berman were black. 348 U. S., at 30. Regrettably, the predictable consequence of the Court’s decision will be to exacerbate these effects.”

  • Here’s the Catholic News Service headline on Justice Stevens’ retirement:

    “Stevens’ retirement leaves court without strongest death penalty critic”


    But the ensuing news item devotes only one sentence to Stevens record on capital punishment (the lede), and includes one sentence about Stevens’ pro-abortion jurisprudence (tucked away at the very end of the piece). Interesting to note which one CNS decided to highlight in the headline and the opening sentence.

Stevens to Retire

Friday, April 9, AD 2010

Get ready for Obama appointment, Round 2.

Supreme Court Justice Stevens announces he will retire in the summer.

Not sure how the timing will work on this, especially as Obama and the Democrats try to avoid being too contentious right before the November elections. That might play in our favor as far as getting a more moderate nominee. It will also be interesting to see if the GOP can or will delay the nominee as they have the 41 votes to filibuster.

The names being thrown around are the same ones being thrown around before; we’ll see where he goes with this pick. Time to start praying again.

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39 Responses to Stevens to Retire

  • Jerry Ford’s gift to liberal Democrats everywhere finally decides to call it quits during a Democrat administation, which shocks me as much the sky being blue and water being wet.

  • I don’t foresee a filibuster. There are only 41 Republicans, and it will just take one R to break a filibuster, and in this case I highly doubt Snowe, or Collins, or even Brown would join in one.

    Anyway thus passes Gerald Ford’s great gift to the country.

  • Heh, Donald beat me to the punch by seconds on the gift remark.

  • Stevens being from Chicago Paul I was in a hurry to give him a proper “the Chicago Way” send-off. 🙂

  • I have to admit, going to 90 to make sure his replacement shares his views is pretty stout.

    I agree that the filibuster seems unlikely, but there is a chance and that might affect the choice of nominee.

  • Pray for what?

    I don’t say that to doubt the efficacy of prayer, or to discourage anyone from praying for the souls of the Supreme Court members. But the way this game is played, 100% of nominees from Democratic presidents are activist pro-choicers, and 50% of Republicans’ nominees are originalist pro-lifers.

    The only way loyal Catholics get someone palatable is if the paperwork gets mixed up in the mail, and Bishop Gomez gets on the Court and some liberal judge takes over the Diocese of LA.

  • Pinky:

    Well, one could always hope the Democrats make their first mistake.

    But if that’s not a hope, then I think we should pray that he picks someone more moderate on the issue rather than the absolute “abortion is a right and ought to be fully funded by the federal government” crowd. There are various shades of being pro-choice, and we can pray that we get a lighter shade than Stevens.

  • I for one am going to start praying that Scalia does not fall over with a Heart attack

  • I for one am going to start praying that Scalia does not fall over with a Heart attack

    Yeah. . . where will we find another judge as dependably pro-torture as he is!

  • Through Obama.

  • “Yeah. . . where will we find another judge as dependably pro-torture as he is!”

    Why the entire liberal wing of the court unless you do not consider partial birth abortion to be torture, in addition to infanticide.

    From the Ginsburg dissent in Carhart, the Supreme Court decision upholding a law against partial birth abortion joined in by Stevens, Souter and Breyer.

    “Today, the Court blurs that line, maintaining that “[t]he Act [legitimately] appl[ies] both previability and postviability because … a fetus is a living organism while within the womb, whether or not it is viable outside the womb.” Ante, at 17. Instead of drawing the line at viability, the Court refers to Congress’ purpose to differentiate “abortion and infanticide” based not on whether a fetus can survive outside the womb, but on where a fetus is anatomically located when a particular medical procedure is performed. See ante, at 28 (quoting Congressional Findings (14)(G), in notes following 18 U. S. C. §1531 (2000 ed., Supp. IV), p. 769).

    One wonders how long a line that saves no fetus from destruction will hold in face of the Court’s “moral concerns.” See supra, at 15; cf. ante, at16 (noting that “[i]n this litigation” the Attorney General “does not dispute that the Act would impose an undue burden if it covered standard D&E”). The Court’s hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label “abortion doctor.” Ante, at 14, 24, 25, 31, 33. A fetus is described as an “unborn child,” and as a “baby,” ante, at 3, 8; second-trimester, previability abortions are referred to as “late-term,” ante, at 26; and the reasoned medical judgments of highly trained doctors are dismissed as “preferences”motivated by “mere convenience,” ante, at 3, 37. Instead of the heightened scrutiny we have previously applied, the Court determines that a “rational” ground is enough to uphold the Act, ante, at28, 37. And, most troubling, Casey’s principles, confirming the continuing vitality of “the essential holding of Roe,” are merely “assume[d]” for the moment, ante, at15, 31, rather than “retained” or “reaffirmed,” Casey, 505 U. S., at 846”


    Scalia’s dissent in the earlier Carhart decision which overturned a law banning partial birth abortion:

    “I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court’s jurisprudence beside Korematsu and Dred Scott. The method of killing a human child–one cannot even accurately say an entirely unborn human child–proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion. And the Court must know (as most state legislatures banning this procedure have concluded) that demanding a “health exception”–which requires the abortionist to assure himself that, in his expert medical judgment, this method is, in the case at hand, marginally safer than others (how can one prove the contrary beyond a reasonable doubt?)–is to give live-birth abortion free rein. The notion that the Constitution of the United States, designed, among other things, “to establish Justice, insure domestic Tranquility, . . . and secure the Blessings of Liberty to ourselves and our Posterity,” prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.

    Even so, I had not intended to write separately here until the focus of the other separate writings (including the one I have joined) gave me cause to fear that this case might be taken to stand for an error different from the one that it actually exemplifies. Because of the Court’s practice of publishing dissents in the order of the seniority of their authors, this writing will appear in the reports before those others, but the reader will not comprehend what follows unless he reads them first.

    * * *

    The two lengthy dissents in this case have, appropriately enough, set out to establish that today’s result does not follow from this Court’s most recent pronouncement on the matter of abortion, Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). It would be unfortunate, however, if those who disagree with the result were induced to regard it as merely a regrettable misapplication of Casey. It is not that, but is Casey’s logical and entirely predictable consequence. To be sure, the Court’s construction of this statute so as to make it include procedures other than live-birth abortion involves not only a disregard of fair meaning, but an abandonment of the principle that even ambiguous statutes should be interpreted in such fashion as to render them valid rather than void. Casey does not permit that jurisprudential novelty–which must be chalked up to the Court’s inclination to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue. It is of a piece, in other words, with Hill v. Colorado, ante, p. ___, also decided today.

    But the Court gives a second and independent reason for invalidating this humane (not to say anti-barbarian) law: That it fails to allow an exception for the situation in which the abortionist believes that this live-birth method of destroying the child might be safer for the woman. (As pointed out by Justice Thomas, and elaborated upon by Justice Kennedy, there is no good reason to believe this is ever the case, but–who knows?–it sometime might be.)

    I have joined Justice Thomas’s dissent because I agree that today’s decision is an “unprecedented expansio[n]” of our prior cases, post, at 35, “is not mandated” by Casey’s “undue burden” test, post, at 33, and can even be called (though this pushes me to the limit of my belief) “obviously irreconcilable with Casey’s explication of what its undue-burden standard requires,” post, at 4. But I never put much stock in Casey’s explication of the inexplicable. In the last analysis, my judgment that Casey does not support today’s tragic result can be traced to the fact that what I consider to be an “undue burden” is different from what the majority considers to be an “undue burden”–a conclusion that can not be demonstrated true or false by factual inquiry or legal reasoning. It is a value judgment, dependent upon how much one respects (or believes society ought to respect) the life of a partially delivered fetus, and how much one respects (or believes society ought to respect) the freedom of the woman who gave it life to kill it. Evidently, the five Justices in today’s majority value the former less, or the latter more, (or both), than the four of us in dissent. Case closed. There is no cause for anyone who believes in Casey to feel betrayed by this outcome. It has been arrived at by precisely the process Casey promised–a democratic vote by nine lawyers, not on the question whether the text of the Constitution has anything to say about this subject (it obviously does not); nor even on the question (also appropriate for lawyers) whether the legal traditions of the American people would have sustained such a limitation upon abortion (they obviously would); but upon the pure policy question whether this limitation upon abortion is “undue”–i.e., goes too far.

    In my dissent in Casey, I wrote that the “undue burden” test made law by the joint opinion created a standard that was “as doubtful in application as it is unprincipled in origin,” Casey, 505 U.S., at 985; “hopelessly unworkable in practice,” id., at 986; “ultimately standardless,” id., at 987. Today’s decision is the proof. As long as we are debating this issue of necessity for a health-of-the-mother exception on the basis of Casey, it is really quite impossible for us dissenters to contend that the majority is wrong on the law–any more than it could be said that one is wrong in law to support or oppose the death penalty, or to support or oppose mandatory minimum sentences. The most that we can honestly say is that we disagree with the majority on their policy-judgment-couched-as-law. And those who believe that a 5-to-4 vote on a policy matter by unelected lawyers should not overcome the judgment of 30 state legislatures have a problem, not with the application of Casey, but with its existence. Casey must be overruled.

    While I am in an I-told-you-so mood, I must recall my bemusement, in Casey, at the joint opinion’s expressed belief that Roe v. Wade had “call[ed] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution,” Casey, 505 U.S., at 867, and that the decision in Casey would ratify that happy truce. It seemed to me, quite to the contrary, that “Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since”; and that, “by keeping us in the abortion-umpiring business, it is the perpetuation of that disruption, rather than of any Pax Roeana, that the Court’s new majority decrees.” Id., at 995—996. Today’s decision, that the Constitution of the United States prevents the prohibition of a horrible mode of abortion, will be greeted by a firestorm of criticism–as well it should. I cannot understand why those who acknowledge that, in the opening words of Justice O’Connor’s concurrence, “[t]he issue of abortion is one of the most contentious and controversial in contemporary American society,” ante, at 1, persist in the belief that this Court, armed with neither constitutional text nor accepted tradition, can resolve that contention and controversy rather than be consumed by it. If only for the sake of its own preservation, the Court should return this matter to the people–where the Constitution, by its silence on the subject, left it–and let them decide, State by State, whether this practice should be allowed. Casey must be overruled.”


  • Why the entire liberal wing of the court unless you do not consider partial birth abortion to be torture, in addition to infanticide.

    Wel then, I am confused. . . after all, since torture isn’t wrong, then how can partial birth abortion be. . .

    Unless. . .

    Of course! It makes sense now: abortion means no children. No children means no children’s testicles. And if there are no children’s testicles to crush. . . the terrorists win!

    Ex Conservatatione Quod Libet

  • I am sure phosphorious that you will be able to cite a text where Scalia ever indicated that he was in favor of someone’s testicles being crushed. On the other hand I have just provided you with chapter and verse where the liberal wing of the court views as a constitutional right the ability of an abortionist to stick scissors into the base of an unborn infant’s skull. However, I suppose in your view that since it is abortion it cannot be torture. Res Ipsa Loquitur

  • Don,

    phosphorius is right. Obama prefers murder to torture.

  • Bush’s legal advisors has defended Bush’s right (I don’t know if a “lib” president is invested with a similar “right”) to crush a child’s testicles to extract information from his parent. Scalia is known to have defended Bush’s torture policies in toto.

    Bush ordered torture to be performed. Did Obama ever order an abortion to be performed, partial-birth or otherwise? A distinction a “conservative” should take seriously.

  • phosphorius is right. Obama prefers murder to torture.

    Whereas I can’t think of anything that conservatives prefer to torture. they defend it every chance they get.

  • Actually many conservatives oppose torture. Many liberals (such as Pelosi)supported the CIA interrogation techniques (though she lies about it.) Obama, given his penchant for murder would likely not oppose past interrogation techniques if the right situation arose. Did he order any murders? See discussion on assasinations below.

  • Phosphorious raises some very good points, and I would like to follow up with a post of my own. I would just ask phosporious if he could kindly supply some of the links or other supporting literature that shows that Bush’s legal advisors defended his right to crush a child’s testicles, where Bush so ordered such an action to be taken, and the opinions offered by Scalia demonstrating his approval of such. I look forward with great anticipation the roundup of this information.

  • Google “Yoo testicles” and you will see the defense. As for proof that Bush actually ordered the crushing of testicles, child’s or not, I assume that’s a matter of State security that only a traitor would pry too closely in. If the terrorists knew about it, they would train their children to withstand testicle crushing, after all.

    But Bush did order the torture of prisoners. And Scalia supports it. . . citing I believe “24” as proof that law enforcement needs “lattitude” in the fighting of terrorism.

    But gentlemen, we digress. The point is that abortion is the litmus test, and nothing else.

    On that, conservatives can agree, no?

  • “Did Obama ever order an abortion to be performed, partial-birth or otherwise? A distinction a “conservative” should take seriously.”

    Nah, he merely defends it as a constitutional right and raises campaign funds trumpeting his opposition to laws banning partial birth abortion, what the late pro-abort Senator from New York Daniel Patrick Moynihan referred to as “barely disguised infanticide”.


  • I assume that this interview on 60 minutes is what elicts phosphorious’ attempts to defend Obama on abortion by attacking Scalia on torture:

    Viewing Leslie Stahl attempting to question Scalia is rather like watching Bill Clinton attempting to teach a course on legal ethics. She didn’t have even the foggiest notion of what he was talking about.

  • “The point is that abortion is the litmus test, and nothing else.”

    The point is phosphorious almost a million dead unborn children a year and your desperate attempts on a Catholic blog to supply political cover to a President who is dedicated to this continuing forever.

  • Stevens’ retirement troubles me because, every time a justice retires many people speak in terms of litmus tests related to societal issues such as abortion and freedom religion. In discussing such tests for prospective nominees most individuals focus solely on the subject of abortion.

    The use of abortion as the sole litmus test that nominees must be subjected to is akin to tunnel vision because, most social conservatives fail to realize that the adoption of such a position is tantamount to heresy in many circles and no politician would risk their careers by taking such a position openly and publicly because, it would alienate an extremely large bloc of voters who see overturning Roe v Wade and it descendants as potentially causing even more harm than good because, attempting in their eyes restoring the status quo as it existed before 1973 could engender the return and resurgence of backroom abortionists who are not medically trained.

    I would advocate the development of additional tests. For example, how would the nominee defend the rights of the disabled, minorities and women?

  • “I would advocate the development of additional tests. For example, how would the nominee defend the rights of the disabled, minorities and women?”

    In other words, shut up about the right to life of the unborn. Additionally, what attempts are there on the scale of abortion in reference to unborn children to deny rights to minorities or women? Unborn disabled children are of course often targeted for abortion because of their disability.

  • I assume that this interview on 60 minutes is what elicts phosphorious’ attempts to defend Obama on abortion by attacking Scalia on torture

    I am attacking the smug, self-righteous Catholics who only object to the sins that political liberals commit.

    Which is every poster here, far as I can tell.

  • In other words, shut up about the right to life of the unborn.

    Because, of course, if abortion is not the only issue, then it is no issue at all.

    Heresy is not necessarily the abandoning of Church doctrine. Focusing on one bit of doctrine to the exclusion of all else will do quite nicely.

  • The point is phosphorious almost a million dead unborn children a year and your desperate attempts on a Catholic blog to supply political cover to a President who is dedicated to this continuing forever.

    Obama has dedicated his life. . . and beyond. . . the making sure that mothers kill their children?

    Wow. . . I had no idea. . .

  • What are the penalties for refusing to abort your child?

  • Phosphorious it would be much more concise if you simply said: “I’m a liberal and I don’t give a damn about abortion. Go Obama!” That is, after all, what your position boils down to.

  • The Cajun is right, how much damage does President Obama want to incur in order to nominate another pro-abortion advocate.

    I think he will, he seems to believe he is invincible and 2012 is far away enough to recuperate lost prestige.

    He apparently doesn’t really care about the Dems this election cycle, so why not write this election off. Besides, what’s the worse that can happen? The Democrats will have a small majority in the House and in the Senate he’ll have veto powers that can’t be overcome.

  • At no time did I argue that anyone needed to be silent about the rights or lack thereof accorded to the unborn. I merely assert that a multitude of sociopolitical issues must be considered in addition to when nominating a successor to Justice Stevens.

    As for my assertions regarding the nature of politicians and their desire to maintain their positions at the expense of their morals, such a school of thought has existed in some form or other since, the foundation of the Roman Empire. Indeed both Machiavelli and Gracian discussed this tendency at length.

  • Mr. McClarey, I know very well how many fetuses are subjected to abortion because of their disabilities. I myself am possessed of cerebral palsy characterized by ataxic presentation.

    I merely sought to point out that in my opinion if an individual chooses to focus on the issue of abortion alone, while failing to review the positions taken by a prospective nominee on other sociopolitical issues is possessed of a focus so narrow that it fails to meet the standard set by Saint Basil Saint Thomas Aquinas and Saint Bonaventure, and Saint Aloysius Gonzaga

  • Nathan, I rather think all of the Saints you name would be protesting outside of abortion clinics constantly if they were alive today. Abortion is the human rights issue of our day, and to sit on our hands because of opposition from pro-aborts is not an option.

    I think Cardinal Ratzinger put it well in a letter:

    “2. The Church teaches that abortion or euthanasia is a grave sin. The Encyclical Letter Evangelium vitae, with reference to judicial decisions or civil laws that authorize or promote abortion or euthanasia, states that there is a “grave and clear obligation to oppose them by conscientious objection. […] In the case of an intrinsically unjust law, such as a law permitting abortion or euthanasia, it is therefore never licit to obey it, or to ‘take part in a propaganda campaign in favour of such a law or vote for it’” (no. 73). Christians have a “grave obligation of conscience not to cooperate formally in practices which, even if permitted by civil legislation, are contrary to God’s law. Indeed, from the moral standpoint, it is never licit to cooperate formally in evil. […] This cooperation can never be justified either by invoking respect for the freedom of others or by appealing to the fact that civil law permits it or requires it” (no. 74).

    3. Not all moral issues have the same moral weight as abortion and euthanasia. For example, if a Catholic were to be at odds with the Holy Father on the application of capital punishment or on the decision to wage war, he would not for that reason be considered unworthy to present himself to receive Holy Communion. While the Church exhorts civil authorities to seek peace, not war, and to exercise discretion and mercy in imposing punishment on criminals, it may still be permissible to take up arms to repel an aggressor or to have recourse to capital punishment. There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia.”


    Catholics and all who cherish innocent human life must be untiring in their battle against the crime of abortion.

    In regard to your disability, my prayers. One of my sons is autistic. I have no doubt that if there were a test to determine autism in utero, many of his autistic peers would not be alive today, just as has occurred with 90% of Down Syndrome children where such a test does exist. This slaughter of the innocents must stop and I will never cease working against abortion until I take my final breath.

  • Phosphorious it would be much more concise if you simply said: “I’m a liberal and I don’t give a damn about abortion. Go Obama!” That is, after all, what your position boils down to.

    As opposed to saying that the mere mention of torture distracts from abortion, which is the only sin.

  • I agree they would be protesting, and they would be examining the positions held by candidates in regards to other issues as well so that could more fully ascertain the candidates in order to have a fuller understanding of their character, so that they could more effectively battle them.

  • Phosphorious your laborious dragging of red herrings through this thread merely demonstrates that my concise version of your position is totally accurate. Such tactics may work at Vox Nova, they are absolutely of no use on this blog.

  • I merely sought to point out that in my opinion if an individual chooses to focus on the issue of abortion alone, while failing to review the positions taken by a prospective nominee on other sociopolitical issues is possessed of a focus so narrow that it fails to meet the standard set by Saint Basil Saint Thomas Aquinas and Saint Bonaventure, and Saint Aloysius Gonzaga

    An aspirant for a seat on an appellate court of last resort who proposes to uphold Roe v. Wade and Doe v. Bolton is in doing so subscribing to a particular conception of judicial review favored by Laurence Tribe. A judge engaging in authentic judicial review declines to apply administrative rules which conflict with statutes and statutes which conflict with constitutions. A judge engaging in Tribean judicial review assumes plenary authority to annul any statute or administrative rule incongruent with the policy preferences of law professors, so long as his shallow and smart-assed clerks can gin up a salable excuse. An adherent to Tribean judicial review is unfit for any office or public trust, period.

    Judge Stevens was one of four members of the federal Supreme Court who contended (in a dissenting opinion issued in 1977) that the federal and state governments were required by constitutional provisions to appropriate public funds to provide abortions on demand. Congress should have stuck a fork in this bastard a long long time ago.

  • In this country, ‘sociopolitical issues’ are the business of legislators, not judges.

  • The reason it appears that Roe v. Wade is all that matters is because, in addition to being about the civil rights issue of our time, it also has become a proxy for two opposing views of constitutional jurisprudence. How a judge is likely to vote on Roe tells me almost all I need to know about that judge.