Holiday (Second Amendment) Reading

The Supreme Court's grant of cert. in DC v. Heller reminded me of an entertaining article on the Supreme Court's last Second Amendment ruling in 1939. I recommend Brian Frye, The Peculiar Story of United States vs. Miller, NYU Journal of Law & Liberty, Vol. 2 (2007), for light (by law review standards) holiday reading. It's available for download here.

A Farewell, a Thank You, and an Invitation

This is my last post here. This blog is one of the things I'm the most proud of when I look back on my time at UW. We've had good, civil (most of the time) discussions, and in my mind, raised the level and diversity of the discourse at our school overall.

The Federalist Society is unique (and frankly, superior) among most advocacy groups, I believe, because mere presentation of ideas that may be underrepresented and unfairly maligned at such a liberal institution is not enough. Instead, the Society insists that the ideas be actively debated at every opportunity. If our principles are to thrive and ascend in the American legal culture, as most of us hope they will, they must be subject to rigorous, continuous, and public scrutiny - and they must withstand the assault. Cloistered clubs of like minds only numb our ability to critically think about things, and only ensure snarky factionalism instead of shared solutions.

Everyone who participated in that process - by attending our events and questioning our speakers, reading and commenting on the blog, and even arguing with us at the bar - has done a tremendous service to my own academic growth at the very least, and I think to the quality of our shared education in general. For that, I thank you all most sincerely. And I look forward to being a frequent reader of this blog in the future.

But as a wannabe pundit, it's time to move on post-graduation (UPDATE - and post bar passage, too - woo hoo!). I've started a new blog project called First Principles at www.orrinjohnson.com, where I seek to continue refining my ideas and political and legal philosophies in the forge of public scrutiny. I hope the people who have made this blog such a joy will join me there to further the conversation.

Thanks again, and good luck to you all.

Apparently 25 Feet Isn't Enough

In order to comply with I-901, the University has adopted a new smoking policy which is currently being implemented. The "designated smoking area" for the law school is located here, all the way over by the Burke museum. I am not an expert on smoker's rights laws, but under I-901, smoking is only prohibited 25 feet from entrances to public places such as the law school. Granted, the old smoker's congregation near the law school patio was less than 25 feet and thus violated I-901. However, the current location is several hundred feet from the main entrance to the law school. This policy does not sseem to be a reasonable interpretation of the new laws.

The law was passed to infringe on the liberty of smoker's in the name of protecting us non-smokers. But do I really need such protection? It makes me sad that my smoking classmates must hike through the rain today if they want to legally light up.

Overview of I-901 [Davis Wright Tremaine]

Affirmative Action and Conservatives

An interesting post by Harvard economist Greg Mankiw. Professor Mankiw had headlines earlier this year for his proposal to impose a tax on height. While I'm not a big fan of that plan, he does raise a good point in a post of his blog today. He notes that is the theory behind affirmative action is to promote diversity (this is an assumption that can be debated), then that principle would also support assisting underrepresented right-wing academics. Being a right-wing organization at a school with few right-wing students or professors, I thought this might be an interesting topic to discuss. Hat tip to Above the Law, a legal gossip site run by former Yale FedSoc Chapter President David Lat.

Affirmative Action for Federalist Society Members? [Above the Law]

Second Amendment Update

A new lawsuit filed in Oregon will challenge a teacher's right to bring a concealed weapon to school. [MSNBC] This will be an interesting case that could test the limits of the second amendment. In the wake of school shootings, judges will likely be hesitant to allow weapons on school grounds, but we'll see how this turns out.

FedSoc in History

CNN had an interesting article yesterday by their senior legal analyst Jeffrey Tobin. Tobin just published a book on the Supreme Court and the article is an excerpt from the book discussing the modern legal conservative movement. It also discusses the prominent role the Federalist Society has played in it. It is worth the read.

How conservatives won the court back [CNN]

Time for a second constitutional convention?

Larry Sabato is discussing his new book "A More Perfect Constitution" over at the Daily Kos. Sabato argues that the overall design of the constitution remains brilliant, and must be retained, but that several aspects of it are in dire need of overhaul.

Among his suggestions are an expanded senate, 15 year terms for the judiciary and a restoration of Congress' original co-equal role in waging war.

There is no doubt that a Constitution that was designed 220 years ago for 13 largely agrarian colonies on the eastern seaboard sometimes forces awkward solutions to the problems encountered by a continental nation at the beginning of the 21st century. If we were to have a second constitutional convention, what are the changes you would make?

This just in...

Court strikes down school integration plans

Here she comes...

The decision in Seattle School District should be coming down today. Keep an eye out for it. I'll post comments later in the day.

For consistency's sake

While this is old news, Washington passed a new law during this year's legislative session that will subject drivers talking on a cell phone to a fine of $101. Generally, I think that the government oversteps its bounds when it restricts the freedom of individuals. However, enacting such legislation is more than justified when it involves what may be an inherently dangerous activity that poses risks to other individuals. I'm not going to discuss the merits of the law and will assume that statistics concerning the safety concerns of cell phone usage are accurate. My general complaint about legislation is the arbitrariness and inconsistency of the law. While driving and talking on a cell phone will be against the law starting next summer, driving while using a hands free device will remain legal. This was an arbitrary decision.

Numerous studies have shown that, contrary to intuitive belief, using a hands free device provides little, if any, safety benefit. While a quick Google search has shown one study coming to the opposite conclusion, that study was also funded by GM, the owner of OnStar. This past winter I was in the Law and Legislative Process seminar in Olympia and know for a fact that the legislature was specifically confronted with testimony concerning these claims. They nevertheless decided to enact the bill. If they truly wanted to fix the problems and make our roads safer, they did not go about it properly. Instead they chose to remain inconsistent.

There are several tenants of the legislative process that should remain sacrosanct: promulgation, clarity, and consistency (feel free to add more as this is only a sampling). It is unjust to punish an individual for violating a law that was not in existence at the time of his actions. It is equally inequitable to punish a person for an activity while an equivalent activity goes unpunished. The latter principle is known as the doctrine of horizontal equity: those in like positions should be treated similarly. While discussion of horizontal equity is prevalent in debates on tax policy, this new law demonstrates its applicability elsewhere. The justice system should remain consistent in its punishment and the legislature should not make arbitrary laws that two like activities differently.

FedSoc Lawyer's Chapter Upcoming Activities

I spoke today with Andy Cook, the new President of the FedSoc's Lawyer's Chapter here in Seattle. For those of you interested, UW FedSoc members are invited to a speech at noon on June 22nd by Cleveland State Law Professor, and well-dressed, David Forte
. The speech will be entitled "The Ten Commandments and the Constitution." Please RSVP with Andy by tomorrow at andyc [at] biaw [dot] com. The event will be hosted by the WAC.

The Lawyer's chapter also has some othere vents planned for this summer (including a discussion of Community Schools v. Seattle School Board planned for July 9th) and I'll keep you posted as I learn more.

The year ahead

As the incoming President, one of my first tasks will be to fill the void created by Orrin Johnson's graduation. For those of you who are not familiar with the blog, Orrin has posted here a few times. I have been busy finishing the quarter and settling into a new city and summer job. But things are settling down and I expect to start writing more. I hope others will join in. If you would like the ability to post on the blog, please contact me and I can set you up with access.

More on Maleng

Unless I am mistaken, I think Jason neglected to post one link:

http://seattlepi.nwsource.com/opinion/317271_malenged.html

Great writing. I guess he must have needed a distraction the week before finals. The University of Washington is planning a symposium on Mr. Maleng during the next school year. Students interested in serving on the planning committee need to fill out this form. I hear an Orrin Johnson Memorial Symposium is in the works for the 2009 school year.

It's in the P-I...a tribute to Norm Maleng

Here are some other links to stories about one of our bar's finest:

http://seattlepi.nwsource.com/opinion/318067_bunting01.html
http://seattlepi.nwsource.com/jamieson/317410_robert26.html
http://seattlepi.nwsource.com/local/317256_maleng26.html
http://seattlepi.nwsource.com/local/6420ap_wa_prosecutor_remembered.html
http://seattlepi.nwsource.com/horsey/viewbydate.asp?id=1597
http://seattlepi.nwsource.com/opinion/317271_malenged.html
http://archives.seattletimes.nwsource.com/cgi-bin/texis.cgi/web/vortex/display?slug=edtoon052807&date=20070529&query=maleng
http://archives.seattletimes.nwsource.com/cgi-bin/texis.cgi/web/vortex/display?slug=malenged27&date=20070527&query=maleng
http://archives.seattletimes.nwsource.com/cgi-bin/texis.cgi/web/vortex/display?slug=malenglegacy26m&date=20070526&query=maleng
http://archives.seattletimes.nwsource.com/cgi-bin/texis.cgi/web/vortex/display?slug=normmaleng25&date=20070525&query=maleng

It's Gotta Be Those Darn Catholics!

So suggests Professor Geoffrey Stone on the University of Chicago Law School's Faculty Blog, blaming our "faith based justices" for the Gonzales v. Carhart partial birth abortion decision correctly upholding the ban. After making his own factual assertions (including, amusingly, that partial birth abortion procedures are taught at many law schools) meant to show that the bi-partisan legislation enjoying overwhelming public support was completely irrational, he said:

"What, then, explains this decision? Here is a painfully awkward observation: All five justices in the majority in Gonzales are Catholic. The four justices who are either Protestant or Jewish all voted in accord with settled precedent. It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore.
***
"By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality." (emphasis added)

That's right. It couldn't have anything to do with the fact that the five justices very correctly believe that Congress as a whole is better equipped to make factual findings than 9 lawyers, or that the "settled precedent" is hardly as iron clad as he claims, or that the entire line of abortion cases were wrongly decided from the start. It was the people of the United States, through their representatives in Congress across the political spectrum, who overwhelmingly came to the moral and factual conclusions - not just five justices who happen to be Catholic.

How typical. If a judge doesn't follow the reasoning of a most learn'd professor, it can't be that the professor is wrong, or even that there could be two legitimate but different interpretations of the existing law. No! There must be some nefarious motive! Perhaps the Court's opinions are now being routed through the Vatican for approval. Maybe the Freemasons have something to do with it. Wasn't it Justice Scalia holding the camera in the studio where they faked the moon landing?

When called out on this absurdity by many comments on his post, other bloggers, and even Professor Rick Garnett on the same blog, Professor Stone responded by resorting to what may be the most tired and dishonest meme in academia - "I was just trying to make people think."

"I also acknowledge that the fact that all five Catholic Justices voted together in this case to make up the 5-to-4 majority might have nothing to do with their religion. These five Justices often vote together on matters having nothing to do with religion. Perhaps Carhart was just coincidence. Perhaps it was a reflection of their common approach to constitutional law that has nothing to do with their religious convictions. The point of my post was to pose the question and to invite people to think about it." (emphasis added)

How good of him to so "acknowledge." But with respect to the Professor, that was not the point of the post. The point, made clear in the title "Our Faith-Based Justices" and made even clearer in the direct statement that "these justices have failed to respect the fundamental difference between religious belief and morality," was to answer a question, and make an (untrue) accusation - that the majority intentionally ignored settled law to make a decision based on their personal policy preference. How ironic that a defender of Roe v. Wade would be upset by such a thing...

Accusations like this seek not to inform the debate over how to use and interpret our Constitution, but to stifle that debate by making it illegitimate. "Limited government or a well documented history of judicial restraint isn't their motive, their real goal is to institute a papal theocracy! No reasonable person could have come to the majority's conclusion, this is what happens when we let those ignorant religious nuts vote!"

This attitude is intellectually bankrupt and profoundly un-democratic. Sadly, neither intellectual rigor nor respect for democracy are de rigeur in academia these days.

Encouraging the Enemy Kills American Troops

Raise your hand if you think al-Qaida's deadly bombing in Baghdad yesterday had nothing to do with Harry Reid's "the war is lost" pep talk for the enemy? The Arab and Iranian press certainly had a good time with his comments. The soldiers seem to think increased violence and defeatism at home could be related.

Even if a US leader honestly was of the opinion that a war was lost, why would you say it? Somalia didn't have anything to do with 9/11, but our defeat there certainly emboldened our enemy, encouraging them to attack us. If the Democrats aren't going to join the fight for their civilization, is it at least too much to ask that they not actively fight for the enemy?

This is the danger of being so politically invested in defeat. If Iraq succeeds, the Democrats will face resounding defeats at the polls - and they know it. They need not have put themselves in this position, but they have through the language they've used. But they've gone so far over the line in their re-treaded Vietnam "America-causes-all-evil" rhetoric, that anything other than total failure there will eliminate their credibility for decades.

I'd rather the Republicans lose every election for the next 20 years than have us surrender in Iraq. The security of America comes first. It's unfortunate that the Democratic leadership can't say the same for their own strategies for power.

Reid clarifies

In an earlier post I had referred to Harry Reid's inconsistency (a kind word) in voting for the Partial Birth Abortion ban and then criticizing the court's upholding that ban. Turns out he actually supports the decision, his criticism was apparently aimed only at Alito. In his usual clear-headed and well reasoned and well informed way, this is how he clarified what he said:

"Recalling his many votes against partial birth abortion, he indicated he supported the court's decision. "I just don't like what Alito has done on other cases," he said. What other cases? "I can't recall," Reid replied, but he promised aides would let me know."

A smart move to have his aides get back to the journalist, because when Reid recalls, he makes a complete hash of things. His aides eventually produced 5 cases out of the more than 50 that Alito's actually participated in. There is no record of Reid criticizing any of Alito's opinions or dissents till this vote on the Partial Birth Abortion case.

The man just talks rot nonstop. Surely the country deserves a better Senate Majority leader.

And the 2006-2007 award for Cognitive Dissonance goes to ...

Harry "I routinely vote for legislation that I feel is unconstitutional and downright evil" Reid. His statement on the decision handed down yesterday:

"Senate Majority Leader Harry Reid (D-NV) was among those who denounced yesterday's Supreme Court ruling upholding the Federal Partial Birth Abortion Act. Commenting on the decision, Reid said "A lot of us wish that Alito weren't there and O'Connor were there," indicating his desire that there has been a fifth vote to invalidate the statute, as Justice O'Connor had provided the fifth vote to invalidate Nebraska's partial-birth abortion ban in Stenberg v. Carhart."

Reid's vote on this bit of legislation that he clearly seems to think violates the constitution? He voted for it ...

The Seattle Times Shills for the Enemy

Today the Seattle Times published one of the most ridiculous excuses for surrender in Iraq that I've ever seen. Using this single photgraph ((c) 2007, Seattle Times), seemingly without context, they opined:

The image in Tuesday's newspapers was of a sea of Iraqi flags, as tens of thousands of Iraqis paraded in Najaf against the occupation of their country by the United States. If anyone were looking for an Iraqi answer to the "surge," it is in that photo.

There are those in America who still believe that a measured increase in manpower could bring about order and safety in Iraq. To them, we say: Look at the photos from Najaf. There is what they think of your idea. Ponder that crowd. See how many flags are in it. Think of the last time you saw American flags flying everywhere — what event had just happened. That was 9/11. Recall how people felt then. That is Najaf now. "Death to America," the crowd said. Thousands said it.

There is no arguing with a force like that.

The piece went on to argue that leaving with our tails between our legs was perfectly honorable, and not a surrender at all because we weren't giving our troops up as prisonoers.

Daring to, in fact, "argue[] with a force like that," I wrote the following letter to the editor. I've included links in this version.

Editor, The Times:

Your absurd editorial, “The Flags of Najaf,” represents perfectly the complete disconnect between the reality of Iraq and the head-in-the-sand leftist media vision of it.

You paint a picture of a popular uprising, a spontaneous demonstration from everyday people who just want America to leave so they can get back to their lives and businesses. Nothing could be further from the truth. First, you claim there were “tens of thousands” of demonstrators, when in reality, the numbers were closer to 5 – 7,000. Even the protesters themselves only were able to claim 10,000 – at most half of your claim. Either this is a sloppy oversight or flat dishonesty.

Second, you fail to mention that the demonstration was orchestrated by murderer Muqtada al Sadr from his hiding place in Iran, likely with logistical support and funding from Iran itself. This demonstration is actually a profound sign of this villain’s weakness, not strength. When the best he can do is get a few thousand people to waive flags as opposed to besting joint American/Iraqi forces in the field, things are definitely looking up. This was a failed attempt at enemy propaganda, and it takes a willful blindness to see it as anything other than that.

Finally, you laughably argue that leaving on a timeline demanded by those who have sworn to destroy our nation is not a surrender, as if Iraq is locked away in its own little hermetically sealed bubble. No serious person believes that leaving Iraq won’t have deadly consequences for the brave Iraqis still risking their lives to form their democracy, or for the safety of the United States itself. Iran’s fingerprints are all over the Najaf “protest” – does anyone seriously believe they aren’t a threat to us?

I urge the Times to stop going out of their way to shill for the enemies of America. Your readers deserve facts, not false jihadist propaganda.

I'm looking forward to their correction, of course.

Update: Shockingly, the Seattle Times didn't print my letter, or even include it in the "online only" letters. Oh, well. I suppose I understand, though - they had to make room for the guy informing us all about "Halliburton and the other fattening merchants of war" and "The unborn generations of Americans whose future has already been mortgaged by the Bush administration".

Journalism at its finest.

Iran to Monitor Iran's Nuclear Program

That's right. The UN - that "gravely concerned" international body charged with keeping world peace and dedicated to nuclear disarmament - has elected Iran as one of the vice-chairs of the UN Disarmament Commission.

In celebration, Iran once again threatened to wipe Israel off the map.

The most ardent foe of the United Nations couldn't make this kind of thing up. How is it that anyone thinks we should entrust our sovereignty or security to this organization? Does ANYONE seriously think the UN is in any way effective in keeping peace, preserving freedom, or saving lives?

Iran probes, the West retreats. They commit an act of war/piracy in another nation's territorial seas. As a result, they lost nothing and gained a humiliated Great Britain, some of the combatants they'd sent into Iraq to kill coalition soldiers back, and a cessation of any Royal Navy interdiction operations in the entire Persian Gulf. They openly pursue nuclear weapons, and are met with tepid concern from an international organization they (or oil customers who count on them) control - an organization known for doing nothing, at that. They attack Israel via Hezbollah, and even the United States accuses Israel of overreacting. They attack the United States in Iraq, and for fear of "starting" a war that they've waged against us for 28 years, our press and our government say nothing. In fact, with the full knowledge that Iran is the sole reason the insurgency is still able to exist (funding, training, etc.), our Congress is now attempting to surrender to Iran and their Iraqi fighters - fighting hard to accede to the demands of our enemy.

Perhaps they should save us all a lot of time and start drafting Constitutional Amendments that will conform with Sharia law.

And now, because both of them are heavily invested in an American failure in Iraq, Nancy Pelosi wants to once again violate the Constitution and the Logan Act, and visit Ahmahdinejad in Iran, further signalling that he can act at will with no reaction from the west save surrender.

When are liberals going to understand that the enemies we face, despite their shared hatred of George Bush, are not fellow liberals who just want to sit around, smoke weed, and like, get aLONG, man? That they aren't acting in good faith? That they are using our international institutions and press against us? That they already "understand us" just fine, and don't want to live in peace with us?

The genteel Europeans have already given up. British teachers have stopped teaching about the Holocaust because muslim students are offended. Scandinavian women wear headscarves and dye their hair black in many public areas to prevent the sometimes violent rape and harassment of the Islamic "youths" (who we are assured aren't radicalized, because some of them listen to rap - as if angry teens should follow some kind of consistent philosophy). Meanwhile, their governments cover up these crimes for fear of not being multi-cultural or tolerant enough. The intifada in France goes on, and typically, France is losing.

Are we to join them?

Iran has already determined that the west is doomed. The only question for them is whether the global caliphate with be Sunni or Shi'ite. And no western nation is doing anything to disabuse them of their assumptions.

80 years from now, when our great grandchildren are studying the history of this war, they will read about these events with the same incredulity as modern students have for the world's appeasement of Adolf Hitler in the 1930's. The only question is going to be how much damage we'll take before we decide to fight for our civilization. Or if it will survive at all.