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Wednesday, November 30, 2005

Conservatives, Let's Stop Whining

For those who were not involved in the protest this evening and/or didn't receive the obnoxious emails, John Ashcroft spoke at Columbia tonight. The event was organized by the undergraduates--the Columbia College Conservative Club--and the Federalist Society was only ancillarily involved. Ashcroft has an interesting relationship with the Federalist Society; there are probably just as many Federalists that hate him as there are that love him. The Fed Soc chapter president noted during the introduction to the event that in Ashcroft v. Raich, the oral arguments both for the government (Clement) and for the medicinal marijuana users (Barnett) were by Fed Soc members.

Ashcroft did a great job, beginning with talk about the prosecution of gun crimes, sex crimes, and drug crimes during his tenure. He went on to discuss his cracking down on corporate crime, and the need that our capital markets have for executives with integrity. He did spend most of his time talking about the war on terror, and the PATRIOT Act, but even that was pretty tame. He made a great case for his policies, though I'm sure there is plenty critical to be said of his rather "campaign speech" platitudes.

The problem with what was otherwise a great and uplifting evening was not the intermittent booing and hissing from the gallery, but the repeated emphasis on "woe is the conservative" at Columbia. I of course agree (and doubt it can really be disputed) that views held by many if not most Americans are not given their relative time in debates at, at least, the law school. But come on folks. Do we really think that whining and complaining that we have to be at this school where we don't get to hear what we want is going to change anything?

At the risk of unduly tooting our own horn, I think the Federalist Society has gained much legitimacy at the law school during the last couple years. Our events are always well attended, and there is never an inappropriate outburst from students who obviously don't agree with everything being said. Although we don't have as many conservative faculty members as we would hope, we are having the very debate we claim to deserve. Our views and our arguments are being heard by the law school, and although they will have no bearing on any election, and have probably not convinced very many of the things we think most important to our Constitution and legal system, the arguments are at least, I think, being respected.

What will never be respected is whining about the bias against conservative professors and that our entitlement to professors who share our views is being denied us without due process. That is to say, injecting ourselves into the great debate is not a matter of complaining that we are being excluded, but by just including ourselves. Organizing the event tonight was apparently a lot of work, but that need not be repeatedly harped upon. The views expressed tonight in Lerner Hall are views rarely given credence in Columbia classes or events, but no one really doubts that or needs that brought to their attention.

The biggest problem with both movements--liberal and conservative--is not their core tenets, but the numbskulls that advance them. Consider this line from the the Spectator:
"We all agreed that it was best not to . . . try to keep people from seeing the speech," said Emily Crow, CC '07, a representative from Students for Choice. "It's important for even us to hear what he has to say."
Should this be novel? This was the conclusion after suggestions such as human barriers to Lerner Hall, stuff in his drink, and the like. The liberal movement does itself only harm when it seeks to silence conservative speakers--even those whose views are most anathema.
Conservatives whining and complaining about having to go to these schools does this same harm. We need to neither continually tout our open-mindedness nor remind everyone how oppressed we are. Our arguments are sensible, and very smart and decent people ascribe to them. The only help they need from us is time on the stage.

Continue Reading "Conservatives, Let's Stop Whining" . . .

Wednesday, November 23, 2005

2006 Student Symposium Registration

Judge Randolph on Judge Friendly's pre-Roe Abortion Opinion

For those who missed Judge Randolph's lecture at the lawyer's convention in DC, Fed Soc has posted the transcript that I highly recommend. Judge Randolph's lecture was a fantastic story of how during his clerkship with Judge Friendly they heard the first substantive due process challenge to an abortion restriction in Federal Court. The case was heard in 1970, 3 years before Roe, and Judge Friendly's opinion is a fantastic, even prophetic, argument about the problems with a Roe-like substantive due process extension of Griswold. The opinion was never published because prior to the decision the New York legislature amended the abortion statute, making the case moot. Fantastic read.

UPDATE: George Will discusses here.

Continue Reading "Judge Randolph on Judge Friendly's pre-Roe Abortion Opinion" . . .

Friday, November 18, 2005

The Hope for a More Conservative Roberts Court

. . . lies, I believe, in the preemption jurisprudence of Chief Justice Roberts and soon-to-be-Justice Alito. The focus on the impact of the two Justices has focused largely on cases like Lopez, Grutter, Casey, and the religion cases. Assuming these two are as, or more, conservative than O'Connor and Rehnquist, the Court will likely uphold the Lopez line, the state sovereign immunity cases, and the rest of the federalism cases; perhaps overrule Grutter and make some headway in the religious freedom cases; and although they won't have the votes to overturn Lawrence and Roe, they will at least be able to halt their expansion to the extent they can convince Justice Kennedy.

What I have not seen treated in the commentary is another aspect of federalism that the federalist Five have not done well, namely the preemption of state regulation. The hopeless Four have been far more willing to allow room for state law when Congress doesn't explicitly preempt it. Justice Breyer, for example, noted in a preemption dissent (in which Justice Thomas wrote the majority opinion preempting state marriage law, and Justice Scalia concurred):
[T]the Court has recognized the practical importance of preserving local independence, at retail, i.e., by applying pre-emption analysis with care, statute by statute, line by line, in order to determine how best to reconcile a federal statute's language and purpose with federalism's need to preserve state autonomy. Indeed, in today's world, filled with legal complexity, the true test of federalist principle may lie, not in the occasional constitutional effort to trim Congress' commerce power at its edges, United States v. Morrison, 529 U.S. 598 (2000), or to protect a State's treasury from a private damages action, Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. ___ (2001), but rather in those many statutory cases where courts interpret the mass of technical detail that is the ordinary diet of the law, AT&T Corp. v. Iowa Utilities Bd., 525 U.S. 366, 427 (1999) (Breyer, J., concurring in part and dissenting in part).
So while the federalist Five have done a great job limiting the reach of some enumerated powers, their preemption cases have let through a lot of federal regulation that they could otherwise have stopped. The preemption creates the structural problem of limiting the influence of the states on their citizens--the very influence that is vital to the political safeguards system of protecting federalism that we have. Madison's writings in the Federalist Papers argue for such a process, rather than substance, based approach to the states (like the political safeguards and Garcia), but he relies on a premise that state citizens will be more loyal to, and more concerned with, the regulation by the states, not the federal government. Such a premise requires that there are at least some, let alone the most important, areas left to the states to regulate. (See Ernest Young, Two Cheers for Process Federalism, 46 Vill. L. Rev. 1349) Garcia precludes the Court from enumerating those areas, but a more strict burden on Congress to preempt would have the practical effect of leaving more to the states.

So the hope, in my mind, is that Chief Justice Roberts and Justice Alito will be as conservative as the outgoing Justices in the ways we think the federalism revival as addressing, but that they will side with the hopeless Four (who are not, it appears, so hopeless) against Scalia, Thomas, and Kennedy (who in this area as any other is a floater (see Medtronic)) in the preemption cases. With any luck (well, a lot of luck), Alito would be on the Court to participate in Gonzalez v. Oregon and we would see how this is going to play out.

Continue Reading "The Hope for a More Conservative Roberts Court" . . .

Thursday, November 03, 2005

Bork's Stare Decisis

From a NROnline Piece:
[O]verturning Roe v. Wade should be the sine qua non of a respectable jurisprudence. Chief Justice Roberts and Justice Alito will hear a lot about stability in the law, the virtues of stare decisis, and the reliance many women have placed on that decision. The obtrusive fact is that constitutional law has never been stable. Precedent counts for less in constitutional law than elsewhere for the very good reason that the legislature can correct the Court's mistake in interpreting a statute, but the Court is final when it invokes the Constitution and only the Court can correct its own mistakes. For that reason, many justices have made the point that what controls is the Constitution itself, not what the Court has said about it in the past. Cases like Roe, that some will claim must not be disturbed, were themselves repudiations of prior understandings of the Constitution.
The piece is fantastic, very convincing.

Continue Reading "Bork's Stare Decisis" . . .