No one could've missed the Supreme Court's release of the ten commandment cases, Van Orden [PDF] and McCreary [PDF], the blogosphere is buzzing with commentary. Here's an example: SCOTUS Discussion. I promise to write something on these two decisions, keeping with the style and length of my previous posts on this year's cases, but not now.
Suffice it to say, however, that for all his invective, I thought particularly compelling Justice Scalia's opinion in McCreary. Justice Souter's opinion in that case should be deemed void for vagueness. The Court, via Justice Souter, has once again refused to establish any criteria for Establishment Clause cases. It was even reluctant to discuss the inadequate, but longstanding, Lemon test. If I may extend the principle of legality to the law generally, please allow me this analogy. The principle of legality, as defined by Black's Law Dictionary is, "[t]he principle that a person may not be prosecuted under a criminal law that has not been previously published." This principle is grounded in the idea that in our constitutional democracy, we should know the laws to which we are required to conform. While I understand that the principle of legality speaks of criminal offenses, I do not believe extending this principle to include the realm of civil law is out of bounds. What I suggest is that the laws to which we are expected to conform, civil and criminal, should be clear, consistent, and verifiable, fulfilling the "published" requirement of the principle of legality.
The extent to which the Supreme Court employs vagueness and evades erecting guideposts, or in their simple refusal to approach Constitutional interpretation methodologically, each of us are subjected to their whims. So, why is clarity, consistency, and verifiability to be encouraged after all? I believe T. from Ex Post answers this nicely in his response to Professor Leiter's criticisms of originalism. T. says:
The principle is inherent, though, in writing laws down in the first place--it is the principle that the law (not any given human being, such as a judge or a chancellor or a prince or a Guardian) is the rule. Originalism is all about the rule of law. And it is simply not intelligible to speak of the law ruling when (a) the law is written but (b) the meaning of what was written bears no necessary relationship to its future application. One need not have naive optimism, again, about the ease of interpretation to be committed to the simple notion that in attending to a written text one should attend to what the meanings of the words were when the text was written, in order to understand the thing. And the burden should be on Leiter to explain WHY one would have any commitment to a written Constitution but NOT a commitment to fixed "meanings."
Unfortunately my blogging hasn't been regular, as some of you may have noticed. Of course, this isn't entirely helpful after I've been featured on SCOTUS (via DeNovo) and added to the Maverick Philosopher's blogroll.
The blog's daily hit average, while still modest, is growing. So, to my visitors (the few of you) please keep coming back. But also, please do leave comments to my posts, e-mail me suggestions, and if you have a blog of your own, feel free to trackback to my posts.
The Maverick Philosopher was kind enough to add me to his blogroll. I thank him for that and hope that many of his frequent visitors will take him up on his suggestion of my site.
As I had asserted in my De Novo post on originalism, I believe the debate over originalism/textualism will continue, but with added vigor and persuasiveness to the originalist side. T. at Ex Post has just posted a nicely written post on some shortcomings of Professor Leiter's recent criticism of the originalist project.
Professor Leiter "repeats his demand for a "principled" case for being bound by the original meaning." T. responds:
The principle is inherent, though, in writing laws down in the first place--it is the principle that the law (not any given human being, such as a judge or a chancellor or a prince or a Guardian) is the rule. Originalism is all about the rule of law. And it is simply not intelligible to speak of the law ruling when (a) the law is written but (b) the meaning of what was written bears no necessary relationship to its future application.
Another blog devoted to judicial nominations is "Students for the Judiciary." According to the site description, the blog is part of "a non-partisan student-led campaign to provide objective information on judges under consideration for lifetime appointments to the federal judiciary. We are committed to the ideal of an independent judiciary and believe that judicial nominees should be able to divorce their personal political opinions from their ability to interpret the Constitution. As such, qualified nominees should be able to secure a broad base of political support."
There's reason to be skeptical about this group's neutrality, however, as it grew out of the "Filibuster for Democracy" campaign that sponsored FilibusterFrist.com.
The Maverick Philosopher has come through again, this time with a post on iterrogation and torture. It begins:
A correspondent of mine is retired from the U. S. Army. He was trained as an interrogator. I asked him what he could tell me about interrogation, torture, and the difference between the two. I also solicited his opinion on the events at Guantanamo Bay and elsewhere.
With all the commentary on the recent Kelo opinion, its hard to enter the fray with something yet unsaid, but at the same time novel enough about which to comment. While Kelo has been recently occupying the majority of space at many blawgs--it's recently become the only topic of discussion at SCOTUS's discussion blog--the issue of originalism has made a reappearance in the blawgosphere too. Through some posts here [authored by me, and me], the Legal Theory blog, RightCoast blog, Balkinization, and even Leiter Reports, the debate over originalism has gained recent steam. Now, with the Supreme Court's release of the Kelo opinion, I predict that Justice Thomas's separate dissent will reinvigorate the debate on originalism, and specifically textualism. Justice Thomas points out that the majority's extending "public use" to mean/include "public purpose" is easily avoided with an originalist/textualist approach.