Archive for April, 2008

Justices Scalia and Souter Go Public

April 30, 2008

Supreme Court Justices Scalia and Souter have been in the news this week. Justice Scalia was on CBS’s 60 Minutes and several NPR programs. (Part One, Part Two, Part Three) The much more reticent Justice Souter delivered a speech which included a story about a recent visit to the Gettysburg Battlefield. Justice Souter used the story of the famous bayonet charge of the 20th Maine Volunteers down Little Round Top as an illustration of a moment when history pivots.

Jeffrey Toobin tells a story about Justice Souter’s reticence in his book, The Nine. The justice was on his way home to New Hampshire and stopped at a road-side restaurant for a meal. Someone came up to him and asked if wasn’t a Supreme Court Justice. Souter admitted to it. Soon it became apparent that the man had mistaken Souter for Justice Breyer. The man asked Justice Souter what was the best thing about being on the Court. He responded, “Well, I’d have to say it’s the privilege of serving with David Souter.”

Justice Scalia, in his interviews, discussed his life and judicial philosophy, originalism, which we have explained in our Maiden-Tied-to-the-Tracks series: Part One, Part Two, Part Three)



April 28, 2008

Charles Schultz must have had bloggers in mind when drawing this cartoon.

Guantanamo and the Law

April 26, 2008

Earlier in the month we invited two Australian comedians, John Clarke and Bryan Dawe, to explain the sub-prime crisis to us. They did such a good job we decided to have them back again, this time to explain a complicated American legal matter: The status of the detainees being held at Guantanamo, Cuba.

One of those detainees was an Australian citizen named David Hicks. Hicks was caught in Afghanistan by the Northern Alliance and sold to the United States authorities there for $1,000.00. Hicks allegedly had trained at an al-Qaeda training camp and allegedly served with the Taliban. The United States designated him an “enemy combatant” and took him to Guantanamo, jailing him for about six years without charging him with any crime. Eventually, Hicks was allowed to plead guilty and then sent home to Australia where he was released after serving a few more months in custody. Here is the explanation of how that all worked.


UPDATE:  In his On Language column in the Sunday New York Times, William Safire notes that using the word “detainee” when talking about the people being held at Guantanamo is technically wrong since detain has the meaning of “holding temporarily.”  Perhaps “prisoner” is the correct word.

Chicken Latin

April 25, 2008

In order to show off their great learning in the law, some lawyers and judges sometimes resort to hoary Latin maxims. Reminding himself -and us- of his own great learning in the Law, Justice Scalia got a laugh this week in the last of this year’s oral arguments at the Court by using his Latin.

Latin Maxim

An employer can’t fire or otherwise mistreat an old person simply because that person is old. That would be age discrimination which is outlawed by a federal statute. The employer has to have a better reason than that. The federal statute lists three possible excuses that the employer can raise to defend itself. All three are in the same sentence separated only by commas. Two of the three are what the law calls “affirmative defenses” which means that the employer bears the burden of proving them to be true. The second excuse, sandwiched by commas between the other two, may or may not be such an “affirmative defense.” That is the issue the Court will decide and about which it heard argument this week. Justice Kennedy wanted some legal authority for the proposition that the second excuse is an affirmative defense instead of something else.

Justice Scalia jumped in at that point:

JUSTICE SCALIA: I suppose you could appeal to the maxim noscitur ex sociis, couldn’t you?


JUSTICE SCALIA: — and say if it’s in with two other chickens, it’s probably a chicken?

MR. JOSEFFER: Exactly. I mean, words are generally known by the company they keep.

Noscitur ex sociis means, “It is known from its associates.”

Commas, the Constitution and John McCain

April 21, 2008

This blog is shy about plunging into various methods of constitutional interpretation. In fact, we have done it only once, in the 2nd Amendment case currently before the Supreme Court. But we haven’t been bashful about discussing the profligate use that the Founding Fathers made of commas; sprinkling them here and there without the slightest concern for the vexation that would someday result.

Moreover, your loyal blogger was a practicing lawyer for most of his career at the bar and practicing lawyers hardly ever touch a question of constitutional interpretation. Busy making a living in the trenches, of necessity, we leave that to our judicial and academic colleagues. (You can tell in law school which legal career a student will end up in: “A” students become law professors, “B” students become judges, “C” students become practicing lawyers. I forget what “D” and “F” students become, but it isn’t good.)

But now that I have moved into the exalted realm of “Blogger” I can no longer avoid these troublesome constitutional questions that hardly ever matter to practicing lawyers. For instance, no lawyer I know has the time to worry about whether John McCain could legally be the President of the United States.

Illegal Presidents?

But now I have to. Otherwise my loyal reader will not be armed with the necessary knowledge when the question arises at a cocktail party.

(Editor’s Note: Does our loyal reader ever go to cocktail parties? That sounds kind of elitist.)

Here are the facts: John McCain was born in Panama, not the United States. His Navy father was stationed there at the time.

The Constitution says, in Article II, section 1, clause 4:

No person except a natural born Citizen, or a Citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.

That is a single sentence, 61 words long and containing four commas and one semi-colon.

As we have noted before, two basic schools of thought exist as to how one interprets the language of the Constitution: Originalism and the Living Constitution. Myriads of sub-methods have been thought up by law professors and judges but time hurtles on and we are all mortal, so that will have to do for today. Republicans and conservatives tend to be originalists who believe that the text and the meaning of the words at the time of adoption control interpretation. Democrats and liberals tend to subscribe to the Living Constitution, a document susceptible to contemporary interpretations.

Our mission: To deliver a legal opinion about whether John McCain can be president. Be careful now. Are you an originalist? What work are the commas which set off the clause, “. . .at the time of the adoption of this Constitution” doing? Let me make it worse. The Founders actually play around with those commas. They were in the first draft, removed from the second, and then put back in. Even worse, they declined an invitation from Alexander Hamilton to write, “[n]o person shall be eligible to the office of President of the United States unless he be now a Citizen of one of the States, or hereafter be born a Citizen of the United States.”

In other words, unlike two of the three commas in the Second Amendment, these commas were intentional and received conscious attention from the drafters. They have to mean something. They may not be ignored.

Finally, you must know that, under standard grammatical rules of the 18th Century, the phrase, “at the time of the adoption of this Constitution” refers to both preceding clauses, i.e., to “natural born Citizen” and to “Citizen of the United States.” Since that is the case, an originalist must decide that no person not alive at the time of the adoption of the Constitution could legally be president. Zachary Taylor was the last legal president. You can read much more about the commas, and from real law professors, here, especially footnote 46.

This interpretation, required by the commas, is not as far-fetched as it sounds. Many of the Founders, especially Thomas Jefferson, would be astounded to discover that the Constitution they wrote is still in effect. They assumed that every generation or so the people of the United States would come together in new constitutional conventions and write new constitutions. Jefferson even thought an occasional revolution would be a good thing.

If you are an originalist, all the presidents from John Adams to Zachary Taylor were legal but there is a question about George Washington. The Constitution was “adopted” after 9 states ratified it. Virginia, the legal residence of George Washington, was the tenth state to ratify; which means that Washington was not a citizen of the United States at the time of the adoption of the Constitution because Virginia was not yet a part of the United States. His presidency was illegal.

So John McCain can’t be president. We can expect the Supreme Court, with its five person majority of Republican originalists, will so hold by a 5-4 vote. Of course, the Court will also announce, in dicta, that no one else can be president either, since no one is left who was alive at the time of the Constitution’s adoption. What that will mean for the nation is unknown, but that is no new thing for the Court: It didn’t know what Bush v. Gore would mean for the nation either, but they decided the case anyway. And, to an originalist, it doesn’t matter what happens. The Constitution means what it said on the day it was adopted and that is the end of the matter.

Stay tuned for our next exciting episode of constitutional interpretation when we decide whether the United States Air Force is constitutional.


UPDATE MAY 2, 2008

The Washington Post, in its continual efforts to keep up with this blog, ran a story today about Senator McCain’s legal status and whether he can, under the Constitution, hold the office of the presidency.


UPDATE,  MAY 6, 2008

I’ve just learned, from no less a source than Steven Colbert, that the photo above of President Bush and Senator McCain was taken in Arizona on McCain’s birthday, August 29, 2005 — while New Orleans was being destroyed by Hurricane Katrina.


April 17, 2008

(Editor’s Note: We apologize to our readers for today’s post. Regrettably, in order to maintain membership in the Bloggers’ Profundities Association, once a year a blogger is required to do a profound post on the subject of blogging.

(This rule, adopted by the Association after the discovery that Abraham Lincoln did not blog, necessitates a brief word of explanation.

(Trafficking in profundities, while not overtly illegal, as say trafficking in illegal drugs; nonetheless is a dangerous activity requiring careful attention to others who have gone before. One must be careful not to plagiarize another’s profundity.

(Plagiarism, according to Ambrose Bierce’s The Devil’s Dictionary, is a verb meaning, “To take the thought or style of another writer whom one has never, never read.” For instance, it might be plagiarism to write this post in the style used by Russell Baker of the New York Times in his column about baseball of April 7, 1992.

(Which I have never, never read. Ever.

(More troubling is the fact that hyperspace is filled with millions of people blogging about everything. The odds are high that no matter what profundity I choose, it will already have been thought and written. Nothing new under the sun and all that. Worse, someone may be writing the same thing that I am at this very moment. Worst, that person may upload that post before I upload mine rendering mine suspect as plagiarism, especially given how easy and how fast it is to copy and paste someone else’s internet electrons.

(Well, there is nothing for it but to dive in. . . .)

Abraham Lincoln would not have been a good blogger. In the first place, he lacked a computer. More important though, was the care he took with each of his written utterances. Wandering around in his Collected Works you realize that even casual letters were thought out and composed long before Lincoln put pen or pencil to paper or before he strolled over to the War Office to send a telegram to one of his generals; say George McCellan, whom Lincoln wired to ask if he might borrow the Army of the Potomac since McCellan wasn’t using it.

(Editor: Are you about through? We’re already up to 400 words.)

Which brings us to another reason Lincoln would not have been a good blogger. Today’s readers have many demands on their time. To devote the time to read even 500 words written by a complete stranger is a great compliment to the blogger. But some things can’t be said in 500 words. Especially some of the profound things.

(Editor: You’ve got 62 words left.)

All one can hope to do is avoid platitudes and cliches if 500 words is all you get, especially if you have to write something almost every day and you are not used to working that hard.

(Editor: 17 left)

But at least we didn’t bore you with a dissertation on some Supreme Court decision.

Let be.

(Editor: That “let be” was a quote from Shakespeare and you didn’t give him credit for it. And you made me go over the 500 word limit to save you from a plagiarism charge. Do you think our readers have all day? Bread and water for you tonight. And are you sure that Lincoln sent that telegram?)

The Machinery of Death

April 16, 2008

Death is on the Supreme Court’s docket this week. In a gruesome opinion — actually a splintered set of opinions, 97 pages worth — the Court held that the three drug lethal injection method of killing a human who has received the death penalty is not unconstitutional. After issuing that opinion, the Court heard oral argument in a case from Louisiana which poses the question of whether a child rapist can constitutionally be executed.

The Court has, over the years of the Republic, upheld hanging, shooting and electrocution as means of killing someone convicted of a capital crime. But each method fell into disfavor and eventually became cruel and unusual punishment which the Eighth Amendment to the Constitution outlaws. The method du jour is a three drug injection. The first drug supposedly puts the recipient into a deep coma so that he cannot feel the pain which the next two drugs indisputably cause if they are administered to someone capable of feeling pain. But the second drug immobilizes the person so there is no way of knowing whether he is feeling pain or not. Nine justices filed seven opinions. So much for a clear legal ruling. Only three justices agreed on a reason for upholding the method of inducing death.

Then the Court moved on to a Louisiana case in which a step-father received the death penalty for a particularly violent, ghastly rape of his step-daughter which did not result in her death. (Capital punishment for crimes which do not result in the death of the victim is increasingly rare. Death of the victim is not a requirement for child-rapists to get the death penalty under the Louisiana statute.)Many states allow execution of child-rapists only after a second conviction. Louisiana is the only one that allows execution for a first-offense.  Prior Supreme Court decisions resulted in an oral argument which swirled around the wide breadth of the Louisiana statute and whether a “national consensus” exists on the question.

In other words, legal niceties about death consumed the day at the Court. Small wonder that Justice Blackmun decided that the unseemly legal morass of death penalty jurisprudence simply isn’t worth it. He wrote, “From this day forward, I no longer shall tinker with the machinery of death.”


April 9, 2008

Occasionally, judges with senses of humor allow some of that humor to seep into their opinions. Recently the Ninth Circuit Court of Appeals had before it a case about the Communications Decency Act of 1996. operates a web site designed to match people with rooms to rent with people seeking a place to rent. Subscribers to the service can post specific preferences, including preferences that would violate the fair housing laws if applied to lending institutions or real estate agents. The question before the court was whether Roommate was exempt from those requirements under the law Congress passed in 1996 regarding web-based communications. The author of the opinion, Judge Kozinski — well known for his writing ability and his sense of humor — spent some time describing some of the preferences which were posted on the Roommate web site. He wrote the following, including footnotes 34 and 35 of the court’s opinion:

Some common themes are a desire to live without “drugs,
kids or animals” or “smokers, kids or druggies,” while a few
subscribers express more particular preferences, such as preferring to live in a home free of “psychos or anyone on mental medication.” Some subscribers are just looking for someone who will get along with their significant other (34) or with their most significant Other. (35)

(34) “The female we are looking for hopefully wont [sic] mind having a little sexual incounter [sic] with my boyfriend and I [very sic].”

(35) “We are 3 Christian females who Love our Lord Jesus Christ . . . . We have weekly bible studies and bi-weekly times of fellowship.”

The Financial Crisis – Part Two

April 7, 2008

Last week we brought you an Australian take on the subprime crisis. This week we get an English view.

Morning Coffee

April 6, 2008

I’m not worth a damn until after my second cup of coffee in the morning. Even the dogs know how useless and cranky I am; they stay away from me. When I first wake up I am grouchy and stupid. After the coffee, I am amicable and brilliant. Just ask me — right after that second cup of coffee. Don’t talk to me before then. I think it’s the caffeine which turns me into a human being. (And why is that an “e” after the “f” in caffeine instead of an “I”? Don’t coffee drinkers follow the rules?)

There is good news for us coffee drinkers at the BBC. Coffee is good for us. It may well help delay or even prevent the onset of many dementias. Mammals have a “blood-brain barrier” which protects our brains from many of the substances carried by the blood. It is a membrane between the capillaries and the brain itself. Composed of densely packed endothelial cells, the membrane prevents most substances from reaching the brain. All the body’s capillaries have this membrane but it is much more tightly packed in the head. Only substances the brain needs, like oxygen, carbon dioxide, some sugars and amino acids are allowed in. As is ethanol, which explains why booze is literally a mind altering substance. It may also explain why caffeine may not protect against alcoholic dementias even while protecting against others such as Alzheimer’s. (But red wine lowers cholesterol so my glass or two of red wine in the evening is also good for me. I love science!)

But high levels of cholesterol in the blood make the blood-brain barrier leak. Nobody knows why but cholesterol softens up the blood-brain barrier which contributes to dementia. But — bring up the trumpets — caffeine disrupts the ability of the cholesterol to attack the blood-brain barrier. Just a cup of coffee a day helps and, if one cup is good, four is better.

That’s the good news. From the New York Times comes a fly in the caffeine.Our grocery shopping, especially in the winter and spring is killing songbirds and raptors. The beautiful and justly famous Bobolink, Swainson’s Hawks, Barn Swallows and Eastern Kingbirds are a few of the victims of North Americans’ desire for fresh fruit and fresh vegetables year-round. The Latin American countries from whom we get these fruits and vegetables are spraying huge amounts of pesticides long outlawed in the U.S. on those crops and the pesticides are killing birds which migrate to those Latin American fields in the winter. The birds are being poisoned to keep us in fresh fruit. In one study half of the Bobolinks tested had, “drastically reduced levels of cholinesterase, an enzyme that affects brain and nerve cells — a sign of exposure to toxic chemicals.” Caffeine doesn’t help that.

What does this have to do with our pleasant morning ritual of coffee drinking? We need to buy organic coffee. Here is what Dr. Stutchbury suggests:

What should you put on your bird-friendly grocery list? Organic coffee, for one thing. Most mass-produced coffee is grown in open fields heavily treated with fertilizers, herbicides, fungicides and insecticides. In contrast, traditional small coffee farmers grow their beans under a canopy of tropical trees, which provide shade and essential nitrogen, and fertilize their soil naturally with leaf litter. Their organic, fair-trade coffee is now available in many coffee shops and supermarkets, and it is recommended by the Audubon Society, the American Bird Conservancy and the Smithsonian Migratory Bird Center.

Done. Only organic coffee will be served in our home from this point forward. You’re welcome to stop by for some. But not until I’ve had my second cup.