As mentioned, I recently received my latest Cato Supreme Court Review, an annual collection of the preceding term, officially released on Constitution Day (September 17*). Somewhat appropriately, it began its reign in 2002, the year when I firmly began my online commentary activities over in the Slate fray. Overall, my interest in the field goes back much farther, surely as far back as the late 1980s as shown by some half legible handwritten remarks I have respecting the Webster abortion opinion. Online sources make the interest that much easier to handle.
The series puts forth a libertarian perspective with a somewhat doctrinaire originalist leaning sentiment shown in many articles as well as a bias against "wishy-washy" rules that seems to them as replacing "law" with thinly disguised "politics." Life tends to be a tad more complex in real world environs, especially with competing views that need to be balanced. Yes, this leads to some hazy lines, lines that I am not always a fan of, but that do tend to be a bit more reasonable than some snide leaning comments suggest.
All the same, no limited constructionist they, willing – when felt required by the Constitution – to have the courts broadly strike down legislation such as limits on adult sexual practices (Lawrence v. Texas) and to rein in executive power in the "war on terror" (exception would be the essay by John Yoo, favored by the conservative publisher of the series balanced by one from the other side that truly respects international law and so forth). It also thinks Congress has run riot of late in any number of fields – some here are no big fans of the New Deal.
As shown by the opening "lecture" that traditionally starts things going, "libertarian" is not a simple label – you can have liberal and conservative leaning sorts, those who oppose governmental vouchers to religious schools and those who find them constitutionally mandated in various cases. Thus, the publisher (Roger Pilon) supports Yoo, while also (in the first volume) opposing arbitrary limits in the "war on drugs" such as suspicion-less urine testing of school children or federal criminalization of medicinal marijuana grown/distributed only locally. Overall, I am sympathetic to these approaches, putting aside the pro-executive hypocrisy, even if not always agreeing with particular sentiments.
The volumes so far have been generally worthwhile, especially since they only cost around $10. It started on the right foot, slacked a bit, was helped by the 2004 detainee cases, and was fairly interesting the last two years. I have a couple articles left, but let me briefly touch upon this year’s offerings. Nadine Strossen (ACLU) starts off arguing her organization’s stance on religion is libertarian, opposing recent attempts to limit religious freedom to an "equalitarian" approach, e.g., supporting funding of religious organizations in an equal matter. I still have an article on the particular case covered last term on religious accommodations by the national government pursuant to federal law … supporting such things, which I firmly support.
I mentioned the two articles on the Hamdan ruling; there also are a couple on economic issues of some importance (securities regulation and antitrust) that largely went over my head because they involve issues outside of my interest/expertise. Two federalism articles were fairly interesting, dealing with "clear statements" (important given the reach of federal spending and restrictions on states generally) and "dormant commerce clause" issues (a somewhat arcane field, but sort of interesting all the same). The criminal justice articles cover the lethal injection protocol ruling (welcoming the small step to force public policy to address the issue) and Fourth Amendment issues (by the losing lawyer in the "knock and announce" ruling). I did not read the latter, but the former was interesting.
[Update: On the other two articles ... the religious accomodations case article puts forth a reasonable approach: allow a federal law that singles out such things, but don't necessarily require it as a constitutional command so that political branches can tweak it. One restraint: if you have exceptions, religious groups should be treated equally. Many states also constitutionally require religious exemptions to general laws. I favor that approach, but RFRA is the best of both worlds. And, anyway, many things allow some exceptions, so in practice, things in a "post-Smith" world is not quite as hard as it might be.
The Fourth Amendment article was interesting. Again, I like this line from Breyer's dissent in the key ruling addressed: "That is the right way to win. The very process of arguing the merits of the violation would help to clarify the contours of the knock-and-announce rule, contours that the majority believes are too fuzzy." IOW, don't cheat, don't just assume you are right, especially when you think the facts ultimately are on your side. Reminds me of the Bush Administration ... tellingly, the implication is the facts are not always on your side.]
The two freedom of speech articles also took paths somewhat different than some of my usual allies. The first questioned the value of reliance on Buckley v. Valeo (campaign finance) as some sort of "superprecedent" (including a somewhat brief discussion of this term raised during the CJ Roberts hearings) because it simply is confused. This partially goes back to my point above that the law tends to be a bit messy than doctrinaire law review sorts like these wish it to be – the reason why a case like Buckley sticks around arguably in part arises from the fact it supplies some baseline principles … even if the applications can be all over the place. Still, though written by someone clearly not a fan on even limits on expenditures, the article provided a good critical eye on current practice.
The second article concerns the FAIR case that upheld the power of the federal government to require colleges to host military recruiters, even though the colleges believed this was a sort of coerced speech that interfered with their freedom of association to boot. Anyway, it was a sort of "unconstitutional condition" on their governmental funding, especially since it would lead to loss of all funds, not just from the Defense Department or the particular branch (law schools) of the university refusing the support. The article firmly found the unanimous ruling wrong, especially its presumptive and dismissive tone.
And, I do tend to agree, even if it seems like the schools wish to "have their cake and eat it too." First, I find expression here – promoting a way of life (military service) led me to believe that recruitment is not just an economic situation. Second, the schools have some real concerns here, especially given the special concern a law school might have to follow certain ethical rules. Third, we are dealing with a lot of funds, and a questionable state interest – was the long held previous regime without this "string" problematic respecting recruitment. Apparently not. Finally, though somewhat minor, there is real First Amendment restrictions here, defended in a questionably "this is obvious" way that can lead to problems in other cases.
The book ends with a look ahead to this term, including the roles of Roberts, Alito, and Kennedy. Overall, an interesting set of articles, ones that liberals might find useful as well.
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* The Constitution was officially agreed upon by the Framers on September 17, 1787. An article in the volume mentions a CD piece of legislation favored by Sen. Byrd in a unique sort of way.