Today my Con Law II class and I were honored with a class visit from Prof. Hugh Hewitt, Chapman University School of Law, and Blogger Extraordinaire. What a way to finish out (1) our discussion of modern substantive due process, and (2) the classroom part of the course!
Obamacare cert grantLyle Denniston's brief yet thorough summary is here. Of particular note, with comments as necessary:On what issues did the Court not grant cert? " It opted not to review the challenges to new health care coverage requirements for public and private employers. It left untouched petitions by a conservative advocacy group, the Thomas More Law Center, and three of its members,
Justice Stevens abhors a system in which “majorities or powerful interest groups always get their way,” post [Stevens dissent], at 56, but replaces it with a system in which unelected and lifetenured judges always get their way. That such usurpation is effected unabashedly, see post, at 53—with “the judge’s cards . . . laid on the table,” ibid.—makes it even worse. In a vibrant democracy,
NC Governor calls for suspending the Constitution -- you know, just a little bit-- or --Perdue se trouve perdueHer words, as reported on the blog of the Raleigh News-Observer:You have to have more ability from Congress, I think, to work together and to get over the partisan bickering and focus on fixing things. I think we ought to suspend, perhaps, elections for Congress for two years and just
Michael McConnell's "The Origins and Historical Understanding of Free Exercise of Religion" is a magnificently researched compendium of the early religious history of Anglo-America, and, as such, a valuable antidote to the silly oversimplifications often served up by the Court on the subject, usually in opinions by Justice Hugo Black.But as far as achieving its principle goal, however -- what do
Smith discussion, continued from classWhat follows is first and foremost for my current students in Con Law II, whose attention is being directed to it via Blackboard, but I post it here for the general public. Comments and questions may be sent to me by email; students may send comments and questions by email or on Blackboard.I. "Parade of horribles"In a Scalia-written opinion, when you edit out
Again, re Smith: Prof. McConnell wants to know why not go to historical evidence of the meaning of the Free Exercise Clause? Quite apart from the fact that his own major article disproves his understanding of that meaning, here's a hot quote from Reynolds v. U.S. about Founding-era thinking about the application of Free Exercise to polygamy, the particular action for which a Free Exercise conduct
This article describes some local Free Exercise violations that really are Free Exercise violations, even under Smith; that is, they have nothing to with claims to personal religious exemptions from otherwise-valid laws, but rather with flagrantly discriminatory laws, or else with laws that, while perhaps capable of neutral and general application (say, against congestive parking), are being
SCForum and Ron Paul's Constitutional Problems
Although Ron Paul probably thinks harder about the Constitution than any candidate, that's only good if you don't get the answers majorly screwed up. RP commits two major screw-ups: he seems to think only the anti-Federalists count as "Framers" (they actually opposed ratification of the Const. b/c it gave us, ahem, big govt); and he thinks the Const
Although Ron Paul probably thinks harder about the Constitution than any candidate, that's only good if you don't get the answers majorly screwed up. RP commits two major screw-ups: he seems to think only the anti-Federalists count as "Framers" (they actually opposed ratification of the Const. b/c it gave us, ahem, big govt); and he thinks the Const
Been looking at the 11th Circuit's decision striking down the individual mandate portion (not other portions) of Obamacare. It's a ponderous monster, the kind of decision that wants to double as a Harvard Law Review submission, perhaps swinging for inclusion in the next edition of the con law casebooks, the ones that will come out between now and whenever the Supreme Court renders a decision.
It
It
The McConnell PlanMitch, not Mike.On the policy and politics of it, I'm impressed by today's Wall St. Journal editorial. (On the debt limit as "hostage," look for the Phil Gramm reference nestled therein. If you don't think that, without a plan such as McConnell's, Republicans would run away squealing, preening, debt-limit-raising and tax-raising when midnight on August 1 rolls around, and then
Back at the observation postI've been in San Francisco for The Ring, but time now to start catching up on those exciting end-of-year decisions. This year the Court didn't up-end the constitutional world (the New York legislature may have done, but I'll discuss that separately if at all), but it did issue some interesting opinions, notably several with splits that defy convention "
Kentucky v. King: 4th Am same old same oldWe now return from the season of exam-grading, and of commencements and graduations (both Regent's annual one, and that of my son Joseph from Christendom College) and of college reunions (my wife's 30th from Yale, which comes on the heel of my own Yale 30th last year), and of certain opera events chronicled on the other blog, to see what damage (or not)
Stevens agrees with Alito on Snyder; Alito still right anywayAbove the law: Retired Justice Stevens says he would have joined Justice Alito's dissent in Snyder v. Phelps -- the Westboro Baptist/Marine funeral "picketing" case.Actually, I don't care much for the concept of "verbal assault." Almost all "verbal assaults" are, and should be, protected by the First Amendment. On the other hand, it was
Justice Scalia for the Court, today: 4 The dissent [by Roberts, CJ] compares VOPA’s lawsuit to such indignities as “cannibalism” and “patricide,” since it is a greater “affront to someone’s dignity to be sued by a brother than to be sued by a stranger.” Post, at 9. We think the dissent’s principle of familial affront less than universally applicable, even with respect to real