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Since I’ve been preparing for my first year at the University of Virginia School of Law, I have vacated my seat as pseduo-pol pundit number one. This is evident by my lack of blogging. However, I have been neck-deep and more in legal research (aside from thesis research on blogging, surprisingly enough). Here is a gem I came across today:

Scalia Scuttles Federalism

The transcript of John Eastman’s interview with Hugh Hewitt about the SCOTUS decision in the Oregon assisted suicide case is quite enlightening. In Wickard v. Filburn, 317 U.S. 111 (1942),the Supreme Court basically gave the constitutional green light to the modern national regulatory state by holding that the commerce clause of the Constitution authorized the federal government to regulate a farmer’s raising of wheat he had grown on his own land for personal consumption. As Wikipedia explains, “Filburn’s wheat competed with wheat sold in interstate commerce, because, had he not used his home-grown wheat, he would have had to buy wheat on the open market. The Court held that Congress could regulate wholly intrastate, non-commercial activity if such activity, viewed in the aggregate, would have a substantial effect on interstate commerce.”

This expansive view of the scope of the power granted Congress under the commerce clause is why I have often referred to the continuing validity of Wickard as the most consequential issue of modern constitutional jurisprudence. It is an article of faith for those of who take federalism seriously that Wickard must go. Unfortunately, as Eastman explained to Hewitt, it appears that Scalia has now wholly surrendered to Wickard and, worse yet, has gotten new Chief Justice John Roberts to accept that view:

HH: Now I want to read the last paragraph of Justice Scalia’s dissent, and then I want you to explain it to people, John, because it’s very interesting. I mean, it’s very, very interesting. Justice Scalia writes, “The Court’s decision today is perhaps driven by a feeling that the subject of assisted suicide is none of the federal government’s business. It is easy to sympathize with that position. The prohibition or the deterrence of assisted suicide is certainly not among the enumerated powers conferred on the United States by the Constitution. And it is within the realm of public morality, bonos mores, traditionally addressed by the so-called police power of the states. But then, neither is prohibiting the recreational use of druge, or discouraging drug addiction among the enumerated powers. From an early time in our national history, the federal government has used its enumerated powers, such as the power to regulate interstate commerce, for the purpose of protecting public morality. For example, by banning the intersate shipment of lottery tickets, or the interstate transport of women or immoral purposes. Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissable. The question before us in not whether Congress can do this, or even whether Congress should do this, but simply whether Congress has done this in the C.S.A., Controlled Substances Act. I think there’s no doubt that it has. If the term legitimate medical purpose has any meaning, it surely excludes the prescription of drugs to produce death. Unpack that, John Eastman. It’s very dense.

JE: Well, it’s very dense, and it’s the reason Justice Thomas wrote separately in dissent as well. Look, Justice Scalia is saying that this is clearly not commerce, it’s not interstate. The power to regulate the health, safety, welfare and morals of the people is a state power, as originally understood. But we’re 70 years past that fight having been fought and lost. The federal government routinely today regulates police power type things that are properly for the states, and Justice Scalia is saying we’re at least going to be consistent. We’re either going to follow our jurisprudence, and let the federal government regulate basically anything, or we’re going to repudiate 70 years of jurisprudence. Now until last year, in the medical marijuana case, Justice Scalia was on the side of let’s repudiate this stuff. …

HH: And now, the new Chief joined with Scalia, not with Thomas, and interpret that for us.

JE: Well, you know, I actually think that’s a pretty profound signal, looking at the tea leaves. And I’m disappointed in the new Chief for it. The fight between Thomas and Scalia, and the difference slice they put in their respective dissents, is one about whether we’re going to have an administrative state, or whether we’re not going to have an administrative state. And Justice Scalia is much more willing to be deferential to the administrative state here than Justice Thomas has been.

Some will condemn Scalia for abandoning originalism in this line of cases. Yet, I think these cases actually reveal something more interesting about Scalia, which is that he is not purely an originalist. Instead, Scalia’s jurisprudence has elements of originalism and textualism, but also of traditionalism. The latter looks at how the Constitution has been interpreted over time, such that well-established traditions become entrenched. The real problem with Scalia is that he doesn’t seem to have a hierarchy for choosing between the three. As David Zlotnick observes:

Heterarchy, not hierarchy, could be the battle cry of those critics who focus on the interplay of Scalia’s methods rather than on the individual components. Led by Jeffrey Rosen, this group alleges that, even if Scalia’s methodology is hierarchical in theory, his opinions reflect a more opportunistic picking and choosing of the method that leads to his preferred result. Rosen’s contention is that “in case after case, Scalia chooses among mutually inconsistent interpretive principles - textualism, originalism, traditionalism - in order to reach results that he finds politically congenial.” For example, Rosen challenges Scalia’s claim that the Due Process Clause of the Fourteenth Amendment should be read to refer only to procedural rights. He argues that a historical understanding reveals a “substantial overlap … between notions of due process of law and notions of equal protection of the law,” as well as a “view [of] the due process clause as a mandate that judges should protect certain fundamental economic rights.”

A number of scholars have come to similar conclusions in other areas. In his examination of Scalia’s takings jurisprudence, William Fisher found that in Lucas v. South Carolina Coastal Council, Scalia devised a precedent-based clear rule for takings without first exploring the Framers’ understanding of the Takings Clause. If he had, Fisher contends, he would have discovered that the original understanding of this clause “proscribed only formal expropriations of private property,” not the effects of regulations on property value that Scalia’s rule encompassed. …

Normally, Scalia evades these contradictions by resorting to overly confident textualist assertions or by abdicating his commitment to conduct historical research. Once in a while, however, Scalia comes close to admitting that he does not always follow a strictly hierarchical approach beginning with text and proceeding to history and clear rules. For example, in Waters v. Churchill, he acceded to a judicially created First Amendment doctrine (a clear rule) but admitted that he had not “inquired into the historical justification” of that rule.

Rather than that of a systemic ideologue with a hierarchy of methods, Scalia’s constitutional practice better resembles that of a practical handyman who reaches into his workbox to select the tool best suited to accomplish a particular job. The question that remains, however, is how often his political values influence his methodological choices.

There is much to be admired about Scalia. It no longer seems possible, however, to believe that he is developing a coherent conservative jurisprudence. Nor, insofar as results are concerned, that he can be expected to bring back the Constitution from the exile to which Wickard assigned it.

This is one of the first cases I’ve ever disagreed with Scalia on. And what’s worse, he pulled newly-minted Chief Justice Roberts along for the ride! I hope this doesn’t mean Scalia is becoming a Bush Admin tool. The majority opinion by Stevens makes it pretty clear that AG Ashcroft went out of bounds with this Interpretive Rule.

claudio

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Plus, part of the proceeds go to the troops. Drop that Ben N’ Jerry’s hippie!

Claudio

Slow news day –> Open Thread. What is your dream ticket for the 2008 Presidential Election?

Give me Condi Rice-Jeb Bush ‘08!

Claudio

Here is a more concise version of the below post that I just sent to the New York Times Editorial page.

To the Editor:

Re: “Two Prosecutors Faulted Trials for Detainees” (news article, Aug. 1):

As a conservative Republican college student, I tend to be more zealous in my support of the war on terror than my peers.

However, I recently spent a week in Liberty, Missouri for the 2005 Truman Scholars Leadership Week. This week is held every year for winners of the Harry S. Truman Scholarship. Annually at TSLW there is a cohort of Senior Scholars: Truman Scholars from previous years who attend to support the new scholars. One of this year’s senior scholars was Major John Carr.

I had an opportunity to speak with Major Carr about his passion and commitment to justice. My impressions from my discussions with him were clear — Major Carr is a very humble, brilliant, inspirational and passionate defender of justice. If he says that something is wrong with our military tribunals, then I believe him.

This issue concerns the very core of our nation’s character. John Adams once called his legal defense of the British soldiers accused of murdering Americans in the Boston Massacre, “one of the most gallant, generous, manly, and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country.”

Major Carr’s actions are such actions. I would like to personally thank Major Carr for his service to this country.

C. Claudio Simpkins, 2005 Harry S. Truman Scholar, The City College of New York. (646) 296-6523.

Claudio

Today I get an email bringing my attention to a recent NYT article on some shady business going on with the military tribunals being held for suspected terrorists. Okay, we’ve all heard this story before: detainees are being tortured, and military tribunals don’t give a fair trial, right? I’ve never been one to give much gravity to these allegations because of the propensity of actual terrorists to cry “torture!” whenever they are caught by infidels. However, this particular case, highlighted by NYT and first reported by the WSJ is of particular interest to me.

The Times recently reported,

WASHINGTON, July 31 - As the Pentagon was making its final preparations to begin war crimes trials against four detainees at Guantánamo Bay, Cuba, two senior prosecutors complained in confidential messages last year that the trial system had been secretly arranged to improve the chance of conviction and to deprive defendants of material that could prove their innocence.

[…]

Among the striking statements in the prosecutors’ messages was an assertion by one that the chief prosecutor had told his subordinates that the members of the military commission that would try the first four defendants would be “handpicked” to ensure that all would be convicted.

The same officer, Capt. John Carr of the Air Force, also said in his message that he had been told that any exculpatory evidence - information that could help the detainees mount a defense in their cases - would probably exist only in the 10 percent of documents being withheld by the Central Intelligence Agency for security reasons.

Okay, like I said, we’ve been here before. But in this case, I actually believe the allegations. Why, you say? Because I’ve met, talked to, and spent a week with (now) Major John Carr and I believe that he is a man of utmost integrity and honesty.

A month or two back I spent a week in Liberty, Missouri with 74 of the brightest young people I’ve ever met. We were all there for the 2005 Truman Scholars Leadership Week. This week is held every year for the year’s 75 recipients of the nationally-prestigious Harry S. Truman Scholarship (yes, I got lucky). Annually at TSLW there is a cohort of “senior scholars.” These admirable scholars are Truman Scholars from previous years who have come to share their wisdom and experience with the new scholars, helping us all find our ways to public service.

One of this year’s senior scholars was Major John Carr.

I had an opportunity to sit down and speak with him about his job, his education, his politics, and his passion and commitment to justice. A graduate of both the Harvard Law School and the Kennedy School of Government, Major Carr has been with the Air Force JAG Corps for a while now, working on sensitive issues such as terrorism and national security in the Office of Military Commissions.

My impressions from sitting down and talking to him — the guy is a very humble, brilliant, and passionate defender of justice and other American ideals, and if he says that something is awry, then I believe him.

As an American — even more to the point — as a New Yorker who looked out of the window of the fourth floor of my high school on September 11, 2001 and saw the Twin Towers (where my father had worked for years) in flames, part of me wants to say, “Whatever. If they don’t get a fair trial, tough beans. The 3,000+ Americans killed that day had no trials.”

But then there is the aspiring lawyer in me and the conscientious American in me that is forced to note that if these allegations are true, then we are a long way from where we need to be as a beacon of all those virtues that make us different from the ignorantly primal Islamofascists who would kill us all. Certainly justice trumps random retribution. We should not allow our anger, zeal, or even hatred (yes, I hate terrorist murderers with all my being) to blind us to who we are.

This isn’t a Republican or Democrat thing; this goes beyond politics. IT’S ABOUT DOING THE RIGHT THING. One of the greatest — if not the greatest — conservative minds America ever produced was that of the second President of the United States of America, John Adams. John Adams was a man of principle, as all conservatives should be. He, at times, is my model of a man.

Here is a story to remind us all that the best way to defeat terrorists is to maintain a truly American America:

John Adams, in his old age, called his defense of British soldiers in 1770 “one of the most gallant, generous, manly, and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country.” That’s quite a statement, coming as it does from perhaps the most underappreciated great man in American history.

The day after British soldiers mortally wounded five Americans on a cobbled square in Boston, thirty-four-year-old Adams was visted in his office near the stairs of the Town Office by a Boston merchant , James Forest. “With tears streaming from his eyes” (according to the recollection of Adams), Forest asked Adams to defend the soldiers and their captain, Thomas Preston. Adams understood that taking the case would not only subject him to criticism, but might jeopardize his legal practice or even risk the safety of himself and his family. But Adams believed deeply that every person deserved a defense, and he took on the case without hesitation. For his efforts, he would receive the modest sum of eighteen guineas.

The Preston case came to trial in the Queen Street courthouse in October. Adams, and his young assistant, Josiah Quincy, defended Preston against a prosecution team comprised of Josiah’s brother Samuel and Robert Paine. Adams succeeded in casting grave doubt as to whether Preston ever gave orders to shoot, and the Boston jury acquitted the captain.

More detailed records exist for the Soldiers’ trial, which commenced on
December 3. Adams presented evidence that blame for the tragedy lay both with the “mob” that gathered that March night and with England’s highly unpopular policy of quartering troops in a city. Adams told the jury: “Soldiers quartered in a populous town will always occasion two mobs where they prevent one.” He argued that the soldier who fired first acted only as one might expect anyone to act in such confused and potentially life-threatening conditions. “Do you expect that he should act like a stoic philosopher, lost in apathy?”, Adams asked the jury. “Facts are stubborn things,” he concluded, “and whatever may be our inclinations, or the dictums of our passions, they cannot alter the state of facts and evidence.”

The jury acquitted six of the eight soldiers, while two (Montgomery and Killroy) were convicted of manslaughter and branded on their thumbs.

Initial reaction to Adams role in the case was hostile. His law practice dropped by over half. In the long run, however, the courageous actions of Adams only enhanced his growing reputation.

Adams would, of course, go on to lead a long and exemplary life that is chronicled in David McCullough’s sympathetic new biography, John Adams. He would play a pivotal role in the Revolution, serve as George Washington’s vice-president, and then become the nation’s second president. As president, Adams appointed the great John Marshall as Chief Justice of the Supreme Court. He also most likely saved the Union, through his careful steering of a neutral course as war broke out between England and France. In the end, however, historian Sean Wilentz is probably accurate in his description of Adams as “a courageous and good man who fell out of touch with the country that he loved and that he served so diligently and often so well.” Adams saw the goal of government as a counterbalancing of classes and never really seemed to understand that the Revolution had replaced his ancient notion with a new one based on popular sovereignty.

Adams died in Quincy, Massachusetts on the fiftieth anniversary of American independence, July 4, 1826.

Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence. — John Adams, in defense of British soldiers.

Claudio

Well, close enough:

I understand that my views on laws governing abortion set me in the minority in our Commonwealth. I am prolife. I believe that abortion is the wrong choice except in cases of incest, rape, and to save the life of the mother. I wish the people of America agreed, and that the laws of our nation could reflect that view. But while the nation remains so divided over abortion, I believe that the states, through the democratic process, should determine their own abortion laws and not have them dictated by judicial mandate.

I don’t know what I think about Gov. Romney yet. If the only other Republican potential nominees are Sen. Allen, Sen. Frist, Sen. McCain, Giuliani, Pataki, and Rep. Tancredo, then I might have to give Gov. Romney a much closer look.

Claudio

This was what Democratic Mayor Mike Bloomberg had to say about petty petition challenges back in the day (2004):

It’s become a whole cottage industry of you don’t have to beat the other guy based on positions or your ability to serve; all you’ve got to do is beat him because you got a better lawyer who can get him thrown off the ballot. I think it’s time to end this ‘gotcha’ kind of technique where lawyers comb petitions to find some technical violation. [Emphasis mine.]

Right. Now fast-forward to 2005. Same Mayor Mike, but now with a real Republican potentially challenging him in a primary:

The Bloomberg campaign plans today to try to prevent a Republican primary for mayor by challenging the nominating petitions of Thomas V. Ognibene, the former city councilman who is seeking to run on the Republican line.

Bloomberg campaign aides said they had found problems with Mr. Ognibene’s petitions, including signatures of people ineligible to vote or not enrolled as Republicans, signatures that did not match those on voter registration cards, and incomplete forms. The flaws, they said, will most likely drop the number from the 8,116 signatures submitted to well below the 7,500 needed to qualify for the ballot.

By trying to halt a primary challenge by Mr. Ognibene, a conservative, the Bloomberg campaign is seeking to avoid not only a distracting primary battle, but also a confrontation with elements of the Republican Party who think Mr. Bloomberg is too liberal.

Hmmmm. Dare I say “flip-flop”? Ognibene’s response is priceless:

It seems that the only thing that Bloomberg isn’t willing to spend money on is a fair fight. Why participate in the democratic process when you can simply write a check, and buy it?

Indeed. Oh, and couple that with the fact that Democratic Mike is getting endorsements from NARAL and potentially not supporting President Bush’s Supreme Court nominee, Judge John G. Roberts (even Hilary is supporting the man for goodness’ sake!):

Mayor Mike will be endorsed by the New York chapter of the National Abortion Rights Action League at a 12:30 press conference at Brooklyn’s Kings County hospital, sources say.

Key question: Will Bloomberg now take a harder stance against Bush administration Supreme Court nominee John Roberts in line with NARAL’s opposition to his nomination? (Yesterday, the mayor punted, saying he’d have to examine Roberts’ record more carefully).

Could I dislike this guy any more than I already do? Is it even possible? We’ll see in the days and weeks to come…but something tells me even now, that it is more than possible, it’s likely.

Claudio

PS - My brother Thomas will return to light-blogging here at The (vast) Right Wing Conspiracy soon. He has been interning at State Senator and Queens County Republican Chairman Serph Maltese’s office (the only county party head to endorse Ognibene) and has been able to meet with the Senator on an almost daily basis. We’ll ask him to share his thoughts and predictions regarding future clashes between Serph and Mike and the future of the Queens GOP.

…and I’m not being sarcastic here (I know, you can never tell with me), but Ann Coulter dislikes John Roberts (for SCOTUS, at least).

Finally, lets ponder the fact that Roberts has gone through 50 years on this planet without ever saying anything controversial. That’s just unnatural. By contrast, I held out for three months, tops, before dropping my first rhetorical bombshell, which I think was about Goldwater.

It’s especially unnatural for someone who is smart, and there’s no question but that Roberts is smart. If a smart and accomplished person goes this long without expressing an opinion, they’d better be pursuing the Miss America title.

Apparently, Roberts decided early on that he wanted to be on the Supreme Court and that the way to do that was not to express a personal opinion on anything to anybody ever. It’s as if he is from some space alien sleeper cell. Maybe the space aliens are trying to help us, but I wish we knew that.

If the Senate were in Democrat hands, Roberts would be perfect. But why on earth would Bush waste a nomination on a person who is a complete blank slate when we have a majority in the Senate! We also have a majority in the House, state legislatures, state governorships, and have won five of the last seven presidential elections – seven of the last ten!

We’re the Harlem Globetrotters now – why do we have to play the Washington Generals every week? Conservatism is sweeping the nation, we have a fully functioning alternative media, we’re ticked off and ready to avenge Robert Bork … and Bush nominates a Rorschach blot.

Ouch. Well, I do believe there is some merit to the relative lack of controversy surrounding Judge Roberts. But that’s just because I’m a drama queen (I think that line is gonna force the good folks over at Daily Kos to launch an “investigation” into whether I might possibly be gay).

Claudio

UPDATE: It would seem as if there are more than a few conservatives that aren’t exactly thrilled about Judge Roberts. For example, National Review’s Ramesh Ponnuru is not happy. Weekly Standard’s Fred Barnes isn’t ecstatic, either.

More rumors, but now I’m pretty sold on them: Edith “Joy” Clement will be President Bush’s nominee for the Supreme Court of the United States.

The Hill mentions it, as does Red State, and Bench Memos, and a few other smaller outlets.

I would guess the nomination will not be announced this week, but rather next week. The closer to October 3, 2005 Bush can stretch it, the better for the candidate.

Claudio

UPDATE!!:
Claudio is now never allowed to predict ANYTHING ever again.
–Pat
(j/k)

UPDATE: LOL. Hey, hey, most people argue that even Tradesports.com had it wrong. But yeah, I’ll admit, my SCOTUS-nominee-predicting abilities have fallen off from the the previous high of, well, mispredicting that CJ Rehnquist would resign a week ago.

UPDATE AGAIN: And while I’m on a roll, I am also predicting that either the Atlanta Braves, Washington Nationals, Florida Marlins, or Philadelphia Phillies will come in first place in the NL East this year. Oh, and a Democrat will win the presidential election in 2oo8. Let’s hope I stay true to my proven record as a seer here, dear!

Claudio

Claudio

Alright, good news coming from the Ognibene camp. It seems Tom has 7,800 petition signatures, 300 more than the 7,500 needed to secure a place on the ballot in the mayoral primary. Some are arguing that the signatures may not be valid as 1,000 or so of them were inherited from the now-defunct campaign of Steve Shaw (see Slantpoint comments for discussion).

I think Bloomberg’s people may try to challenge, but the petition will stand. Ognibene on the ballot means finally a chance to send a message to Bloomberg and the state GOP.

Claudio