Cool website of the day: Weaselwords.

A recent book on race and gender theory in law schools, "Toxic Diversity," by Touro law professor Dan Subotnik, is reviewed by John McGinnis for OpinionJournal.

Silly Airport Security -- Today I took my wife to the Waco airport, which has one gate and is serviced by only two airlines, American Eagle and Continental Connection. On the same flight with my wife was Kim Mulkey-Robinson, head coach of the NCAA Division I women's basketball champions, the Baylor Lady Bears (The coach is the attractive blonde woman to President Bush's right in this picture). In any event, guess who the airport security selected to be specially searched? Yep, you guessed it, Coach Mulkey-Robinson, who is perhaps the most recognizable local celebrity in Waco. Apparently, in the interest of not appearing biased, airport security chose to appear stupid. Does anyone seriously believe that the coach is a security risk?

IVF and frozen embryos. The teaching of the Catholic Church is that in vitro fertilization is a gravely evil act but that the ovum, once fertilized, is a human being. (See Donum Vitae (Instruction on Respect for Human Life).) As a Catholic, I embrace this teaching and believe it accurately reflects the natural law.

The frozen embryo is the ward, not the property, of his biological parents. The embryonic person may not be destroyed or operated upon unless the parents consent and it is morally certain that the operation would not harm him or her. It is difficult, if not impossible, to imagine circumstances in which research on embryonic stem cells would not harm the embryo.

President Bush's threat to veto federal funding of research on frozen embryos is a principled and courageous stand. Senator Frist's flip-flop is very disappointing. He is not, as he claims, balancing faith and science. He is violating both.

I furthermore don't believe it is enough, as Senator Brownback has proposed, simply to restrict the number of frozen embryos created during the process of in vitro fertilization. IVF should be banned altogether.

Assuming for the sake of argument that a flat-out ban is (a) an issue for the states and (b) unlikely to pass in any state, the difficult question remains: what to do with all the left-over frozen embryos? The law at present permits the biological parents to destroy the frozen embryos they do not use. President Bush has championed a federally-funded embryo adoption program, in which the biological parents may permit other couples to take their embryos and attempt to have them implant and come to term.

Someone please educate me if I am wrong, but I am not presently aware of any other morally licit means of giving these embryos their right to life.

"What's Your High School Stereotype?": Yep. Before I turned into a huge law nerd, I was your typical prep/jock (100%).

"Roberts and Rome--Does Catholic belief interfere with judicial reasoning? What kind of question is that?": Excellent piece by Professor Kmiec. Here's a taste:

Catholics do not have to recuse themselves, though, from judging the legality of, say, abortion or the death penalty: These are matters of constitutional, not moral, authority. When More was asked why he didn't arrest a man directly for being "bad," he replied (as retold by Sir Robert Bolt) that, though he set man's law "far below" God's, he was most certainly "not God," and he wanted to draw "attention to [that] fact." "The currents and eddies of right and wrong, which [others] find such plain sailing," More said, "I can't navigate . . . . But in the thickets of the law, oh, there I'm a forester. I doubt there's a man alive who could follow me there, thank God."

There is no match for Judge Roberts, either, in the "thickets of the law," and the Senate Democrats should evaluate him on his high merit and avoid picking a fight with American Catholics.

"Right-Wing Lawyers Who Hate Brian Leiter...or the Company that Eugene Volokh Keeps": Hey! Why didn't I make the cut?* :)

*And for the record, I don't "hate" Leiter. He's not worth that kind of time or energy. I do think he's an annoying jackass though. Does that get me on the list? :)

Scrappleface on Frist: Brilliant!

I am with Stuart Buck:

In vitro fertilization should be heavily regulated such that excess human beings are not created that would either be (1) frozen, or (2) destroyed. The basic principle on which this rests: People shouldn't create and sell human life that is meant for destruction. If such a regulation would somehow interfere with anyone's potential for reproduction -- well, there are plenty of needy children in the world that deserve a chance to be adopted.

Exactly.

Kudos to Rob Lowe for this comment:

"I feel very honored that your country has stood by our war on terror - the war in Iraq and this [performing throughout London’s terror-scare] is my way, if only by helping in a tiny way, to repay you for your support. I know there has been a tremendous cost for supporting my country’s war on terror, but I appreciate it."

(LvRC)

Friday Fun Links:

"Transparent" computer screens

A Simpon's version of "If They Mated"

Marshall Ramsey has a pretty good take on the John Roberts's nomination.

Those ACS Centrists: I live across the Potomac from our nation's capitol, so I subscribe to the Washington Post for the sports and local news. Occasionally I page through the A section, though, and find utter nonsense. Like today, when I read the feature article on the Federalist Society:

"I think the Federalist Society and some other conservative organizations have played a really important role in changing the terms of legal and, ultimately, political debate in the United States," said Peter J. Rubin, a Georgetown University law professor and founder of the American Constitution Society, which aims to do for liberals and centrists what the Federalist Society has done for conservatives and libertarians.

So, the Federalist Society is for "conservatives and libertarians," and the ACS is for liberals and centrists? That is nothing short of hilarious, as anyone familiar with that organization would agree.

Imposition of gay marriage legalization by judicial fiat? Demanding that battlefield combatants and secretive overseas terrorists enjoy the same protections as common criminal defendants? Opposing restrictions on partial birth abortion? Where was I when these sorts of ideas were "centrist"? Last time I checked -- sometime in the wee hours of the morning of November 3, 2004 -- they certainly weren't.

Here's my two cents on the whole Frist Flip-Flop Feddie (like my alliteration?) mentions here: What we need to keep in mind is that much of the embryonic stem cell debate, at least in Congress, is over whether or not the federal gub'mint should increase or decrease its funding of that research. If you are more on the conservative or libertarian side of things and support embryonic stem cell research, it seems that you would oppose government funding for what should be left in the hands of the private sector.

That said, we really need to focus on actually banning the destruction of human embryos in research.

R. Emmett Tyrrell defends the Federalist Society, briskly.

My number 2 guy: This has to be the best article that I have read to date on Mass Gov. and presidential hopeful, Mitt Romney. The Holy Cow Candidate (hat tip: RCP)

Mitt Romney, the governor of Massachusetts, loves data, hates waste, and reveres Dwight Eisenhower. He's also the Next Big Thing in the Republican Party. But can anyone so clean-cut, so pure of character, and (by gosh!) so square overcome the "two Ms"—Mormonism and Massachusetts—to be our next president?

Me: I have been suggesting his name since early last December. My heart is still with Allen til the bitter end, but if I had to jump on any other train, it would definitely be for Mitt Romney - southerner or not. Great article. (Come to think of it, I don't remember K-lo posting this on the Corner today...hmm?)

The Ninth Amendment, the common law, and the federal Constitution: Nate, I now understand your concern about my interpretation of the Ninth Amendment, but I think you misunderstand my position.

My view is that the Ninth Amendment protects the widely accepted individual rights existing at the time of ratification, but not enumerated in the Constitution. This does not mean that the amendment incorporates all of the common law in existence in 1791; it merely incorporates aspects of the common law (e.g., the right of parents to raise their children as they see fit). And this is no different than interpreting the common law terms of art contained throughout the Constitution (e.g., "cruel and unusual punishment"; "high crimes and misdemeanors"). As Katherine rightly notes in the comments to this post, "[t]he contract law stuff is easy enough to get around: the Constitution is meant to restrain the government, not private citizens." Indeed.

I hope that clarifies matters a bit.

A New Eugenics? In a review of a biography of Francis Galton, the intellectual godfather of 20th century eugenics, Kenneth Silber asks (after acknowledging that Galton's program was ugly)

Was Galton wrong to try to improve humanity biologically? Emerging or prospective genetic technologies are sometimes tarred with the brush of Nazism and accused of being harbingers of a second era of eugenics. Unlike Galton’s vision, however, the new genetic technologies are based on an understanding of how heredity actually works, including recognition of environmental influences and individual variations. Such technologies are not inherently authoritarian and do not involve control of human mating.

Moreover, in the near term, genetic technologies will focus on such objectives as preventing cystic fibrosis or providing better eyesight, not pursuing some singular teleological vision of a perfected human. The prospects of genetically improving human intelligence or personality remain distant even now; insofar as they become real, they must be approached with caution regarding tradeoffs and unanticipated consequences. But these technologies do promise a welcome expansion of human possibilities and control over our fates, so long as they are used voluntarily by individuals and parents, not imposed by the state or restricted through the pressure of moralistic busybodies. It would be an additional tragic consequence of Galton’s eugenics if its dark memory stained the very different and far more benign biological techniques available today, and tomorrow.

The question of genetic manipulation is a difficult and complex one, but I just wanted to point one thing out. The fact, if it is a fact, that a *new* eugenics would be based on valid scientific claims and "used voluntarily by individuals and parents" does not in itself give me much comfort. Giving ourselves more "control" over our nature, as C.S. Lewis once noted, merely puts us at the ever greater mercy of that same nature. For those of us who think human nature deeply corrupted, that's not a pleasant thought.


And if some eugenic techniques ought to be "approached with caution" why the throwaway bluster at "moralistic busybodies" - aren't they just really cautious?

Watch 'em go fast: This weekend, the Barber Motorsports Park, just outside of Birmingham, is hosting the Porsche 250. Lots and lots and lots of go-fast rides will be traversing the beautiful course situated in the even more beautiful park confines. If you're in the area, or even if you have to drive a while, do yourself a favor and go see what is truly one of the world's greatest racetracks, and some of the best drivers around, too.

"Holier Than Thou?" -- Interesting New Tenth Circuit Decision

Findlaw has this summary of a new Tenth Circuit decision:

O'Connor v. Washburn Univ. , No. 04-3103 (10th Cir. July 29, 2005)
A statue entitled Holier Than Thou, which depicts the head and upper
torso of a Roman Catholic bishop, placed on a university campus does
not constitute an unconstitutional endorsement of an anti-Catholic
message.

You can find the decision here.

Why be selective? Just TiVo EVERYTHING: Man, oh man, oh manohmanohman. I want--I need one of these.

When Cory Doctorow visited last weekend's OpenTech conference in London, he was stunned to see a box about the size of a 1990-era VCR boasting some pretty forward-looking capabilities.

The box was a prototype of a digital video recorder from Ascot, England, start-up Promise TV that can record and index an entire week's worth of British digital-television programming.

To Doctorow, an editor of the popular culture blog BoingBoing and the Electronic Frontier Foundation's European outreach coordinator, Promise TV has broken impressive new ground with its DVR, which it plans to unveil next month.

"There wasn't a jaw in the room that wasn't scraping the floor during (the) demo," he said. "It was genuinely futuristic."

Dominic Ludlam, Promise TV's lead developer, said the project was commissioned by the BBC and uses commodity PC hardware, including a bank of hard drives totaling 3.2 terabytes.

Since Google is getting into everything now, I foresee a future where you download everything, then let Google find everything you're interested in, from "Strother Martin" to "movies containing games of mumblety-peg." Cool. Very cool.

More on the Ninth Amendment. Yesterday Steve resurrected a blogosphere debate on the meaning of the Ninth Amendment, in which he had advocated that the Ninth Amendment codified the common law at the time of enactment and required both the state and federal governments to respect those common law rights. I questioned what he meant by codifying the entire common law and weighed in and he responded graciously today. (This entire opening paragraph was an excuse for me to show off that I finally figured out how to link to earlier posts. The URL is under the time signature at the bottom of each post.)

I'm not sure I made myself very clear. My concern is that, if the Ninth Amendment is deemed to have codified the entire common law, including all the common law rights that we as individuals enjoy against each other, then aren't state legislatures and courts forbidden to alter those rights in any way?

Suppose the common law of England in 1791 required direct causation between a manufacturer's negligence and a product user's injury. Wouldn't Judge Cardozo's famous ruling in McPherson v. Buick Motor Co., eliminating the requirement of privity of contract in a product defect action, then have violated the Ninth Amendment? He narrowed Buick's common law rights.

That's why I asked about Louisiana adopting the Napoleonic Code instead of the common law of England. Under your theory, the Ninth Amendment would seem to have required Louisiana to adopt the common law.

Same thing if a state legislature displaced the common law in some way, say by abolishing or altering the Rule Against Perpetuities.

Finally, I'm not sure I understand your point about federal question jurisdiction. You said: "If you and I enter into a contract, and you breach it, my right to contract has not been denied or disparaged." I think it has been. You have been denied your common law right -- in your view, your Ninth Amendment right -- to have me fulfill my contractual obligations. Don't you have the right to bring a civil action "arising under the Constitution" [28 U.S.C. 1331]?

Tocqueville's bicentennial is today. The author of Democracy in America was born July 29, 1805. Today's Journal has a nice tribute. For more on his life and work, see here and here.

SEC football: In case anyone was wondering, it's 34 days away.

Positive Liberty: Three of my very favorite bloggers--Tim Sandefur, Ed Brayton, and Jonathan Rowe (all of whom I frequently disagree with)--have formed a new group blog (with one other blogger, who I am sure is quite good in his own right), "Positive Liberty." Check it out.

Dick Cheney for President! If for no other reason than for this to happen:

Veteran wire reporter Helen Thomas is vowing to 'kill herself' if Dick Cheney announces he is running for president...."The day Dick Cheney is going to run for president, I'll kill myself," she told the HILL. "All we need is one more liar."

Of course, I don't really want Helen to off herself. I do, however, wish America's crazy aunt in the attic would just go away.

A reply to Nate: To begin with, I appreciate the respectful tenor of your post/inquiry re: my recent Ninth Amendment post. I realize, of course, that my Ninth Amendment views are considered somewhat novel (indeed perhaps even radical) among legal conservatives, but I am convinced that the interpretation I advocate is far superior to the Borkean "ink blot" school of thought. That having been said, I will try to briefly answer your thoughtful questions.

You note:

But most common law rights are rights vis a vis other individuals (e.g., the right to have a contract enforced, the right not to be assaulted), not rights vis a vis the government (like the rest of the Bill of Rights). Are you saying that the Ninth Amendment froze all of these rights in place, so that if a state court or a state legislature expanded or contracted one of these rights, it would violate the Ninth Amendment? (Did Louisiana violate the Ninth Amendment when it adopted the Napoleonic Code instead of the common law?)

You are quite correct in noting that "most common law rights are rights vis a vis other individuals," but there are other natural law/common law rights that the state cannot "deny or disparage." For example, consider the right of parents to raise their children as they see fit. As to this and other unenumerated, individual rights, the state is prohibited from unduly interfering with them (beyond the extent permitted at the time the Ninth Amendment was ratified).

And no, I don't believe Louisiana violated the Ninth Amendment when it adopted the Napolenomic Code. Thanks to the "Original 13," all Americans enjoy the protections afforded by the Ninth Amendment.

Next, you ask:

And which body of government gets to enforce this constitutional moratorium on the development of the common law? After Marbury v. Madison, it would presumably be the federal judiciary. But then every breach-of-contract or slip-and-fall case becomes a federal question. The Tenth Amendment becomes effectively meaningless. Even Congress could not disturb the federal courts' decisions on how to allocate legal responsibility in private transactions, since the common law has been made the supreme law by the Ninth Amendment.

Both the federal and state courts, as courts of concurrent jurisdiction, are authorized to interpret the scope and contours of the Ninth Amendment, with the Supreme Court obviously having the final word. I would take issue with your assertion that acknowledging the original meaning of the Ninth Amendment will result in "every breach-of-contract or slip-and-fall case becomes a federal question." I am not quite sure why you interpret my understanding of the Ninth Amendment's scope as encompassing such matters. If you and I enter into a contract, and you breach it, my right to contract has not been denied or disparaged. Now, if the state passed a law preventing me from suing for a breach of contract, that might make things more interesting, but I don't think that's what you're getting at. Anyway, I suspect that I do not fully understand what you're attempting to convey with that statement, so you may need to clarify things a bit for me. But in doing so, please keep in mind that my interpretation of the Ninth Amdendment only concerns very specific aspects of common law (i.e., the common law concerning the unenumerated, widely accepted and recognized, individual righrs in existence at the time the Ninth Amendment was ratified).

You then note:

In the alternative, you could say that the Ninth Amendment did not freeze but simply adopted the common law of England and permitted the United States courts to continue developing that law in the traditional case-by-case fashion. But this evolving common law would still be part of the Constitution, so you would still have the problem of the federal judiciary being the final voice on what constitutes the common law, gutting the Tenth Amendment.

In my view, the unenumerated rights falling within the ambit of the Ninth Amendment's protection are to be interpreted in the same fashion as those enumerated in the federal Constitution. And while the collective meaning of those rights is fixed as of 1791 (thus respecting the founders'/framers' understanding of the text's original meaning), the application of that meaning has and will continue to change as society evolves. I do not believe this view "guts the Tenth Amendment" any more than Marbury did. Now, if you want to go back and reconsider Marbury, I am most certainly game, but in the meantime I don't think my view of the Ninth Amendment changes the constitutional dynamic in the least bit.

Finally, you note:

It seems like the Ninth Amendment is better interpreted as acknowledging that there is a broad panoply of natural rights out there, far beyond what were enumerated in the first eight amendments, but leaving it to the states in the exercise of their reserved powers, and to the federal government in the exercise of its enumerated powers, to see that those natural rights are respected and enforced. The Ninth Amendment is restating the presumed purpose of any constitution -- to facilitate the realization of the natural law in the day-to-day affairs of a nation -- and reminding us just in case there is any confusion that this natural law consists of more than just the first eight amendments to the constitution. This broad statement of purpose should not be a tool of judicial review, which is premised in Marbury v. Madison on the constitution being composed of discrete and discernible written rules.

Look, I understand and appreciate this view (as I once held it), but I simply do not see a way of getting around the explicit text of the Ninth Amendment. The framers knew how to use "Congress" and "the States" when they wanted to convey something with regard to the powers and domain of these governments, but they chose instead to use "retained by the people" in the context of a Bill of (Individual) Rights. I am sorry, but for me the plain meaning of the text controls, and the unenumerated rights protected by the Ninth Amendment must be treated just like any of the other individual rights explicitly protected by the federal Constitution.

Roberts and Documents: I've been trying to figure out why the White House rolled so easily on releasing documents from Roberts' work in Reagan administration, but maybe this is part of the reason - they just wanted to make sure they picked a fight with the liberal interest groups (and folks like Sen. Kennedy).

Manuel Miranda and GOP "Squishyness"

Mr. Miranda is really staying on top of the White House with regard to Supreme Court nominations. Earlier, he took it to them over being squishy on the Federalist Society. Now, in another Wall Street Journal op-ed, he takes it to them again and challenges the White House on the capacity of its stomach to fight. The article contains some good material, including this:

Whatever is to be said, as the Journal's editorial page did yesterday, about whether the White House blundered in volunteering 75,000 pages of John Roberts's work product from his years in the Reagan administration, one sentiment is widely shared among conservatives: What a relief. Judge Roberts's writings as a young lawyer show him to be a solid constitutionalist.

. . . .

George Washington would have been happy with John Roberts. Of the documents released this week, my favorite is his response to the House Democrat who proposed that the White House and Congress hold a "conference on power-sharing" to iron out the duties of each branch. Said then-Mr. Roberts: "There already has, of course, been a 'Conference on Power Sharing. It took place in Philadelphia's Constitution Hall in 1787, and someone should tell [Congressman] Levitas about it and the 'report' it issued." If this is an indication of the nominee's wit and clear-headedness, move over Scalia.

As he has courageously been on life-issues (abortion, stem-cell research, etc.), President Bush has so far been strong on his judicial selections. However, the GOP tendency toward squishyness is almost unbearable. Memo to GOP: we won the election, we hold (because the American people handed us) all the cards, the country has rejected the Democrats' old 1960's-style liberalism (especially the youth, who are becoming more conservative-libertarian if anything). It is time to win.

As a friend of mine who worked as counsel to the Senate Judicary Committee once said, perhaps we should get little "WWDD" bracelets made up and distributed. That way, when GOP types wonder what to do on one of these important hot-button issues, they can look at their wrist and ask "What Would the Democrats Do?" Well, when they were in power and were faced with two open seats on the Court, they put through the former general counsel to the ALCU (Ginsburg) and the former special counsel to ultra-liberal icon Sen. Ted Kennedy (Breyer). And they did it without apology or concern for "moderation." Of course, "moderation" is not the middle ground between two substantive positions, it is a substantive position itself, and in political terms almost always represents an abandonment of conservative principles for liberal ones. While there are some things that can be resolved through give-and-take (i.e., how much should Army Captains make per year?), there are many others that cannot (is abortion the taking of a human life, or is it not?). On these latter issues, we must win. To that end we should take heed to Baroness Thatcher's famous comments on "compromise" and "consensus":

"If you set out to be liked, you would be prepared to compromise on anything at any time, and you would achieve nothing."

"Nothing is more obstinate than a fashionable consensus."

And my favorite:

"To me, consensus seems to be the process of abandoning all beliefs, principles, values and policies. So it is something in which no one believes and to which no one objects."

(Of course, as I am sure that Nate would remind me, there is the real possibility that some in the GOP do not want or care to "win" on these issues....)

A Family Dinner: A few years ago, NBC used to run these "The More You Know..." segments where various network stars exhorted viewers to do good things. I remember one pretty vividly. It was one of the stars of "Frasier" (Niles, if I recall correctly), and he was trying to convince people to have dinner with their families - at least once a week, he said. I remember thinking at the time that this was ludicrous, that our culture had fallen so low that we now thought trying to have dinner together once a week something to which we should aspire. I still think that, though now that we're both working and we have two kids, I can see more easily how people fall into not having common dinners. Still, when I read things like this I can't help but think that many people's "struggle" to find time for their families is really not a struggle at all. They have chosen particular careers or to live certain places (in the article's case, the author notes he commutes 55 miles to work every day) and their obligations as fathers (and mothers, for that matter) are clearly secondary. A shame, really.

The 2005 Bulwer-Lytton Awards have been announced. The competition, now in its 23rd year, "challenges entrants to compose the opening sentence to the worst of all possible novels." The grand prize-winning entry is funny, but I think this guy, who received the Grand Panjandrum's Special Award, should have won overall:

India, that hangs like a wet washcloth from the towel rack of Asia, presented itself to Tex as he landed in Delhi (or was it Bombay?), as if it mattered because Tex finally had an idea to make his mark and fortune and that idea was a chain of steak houses to serve the millions and he wondered, as he deplaned down the steep, shiny, steel steps, why no one had thought of it before.

Ken Aclin
Shreveport, LA

Stick a fork in Senator Bill Frist, he's done.

Shameless Self-Congratulation: See? I told you so.

Hey boys (and girls), here's a nice little factoid to place on the Brownbackblog:
I was just watching Hardball, and straight from the horse's mouth, Brownback says he's not 100% sure on Roberts. In very Reaganesque terms, he says that he'll probably vote for him but he's in the "trust but verify" stage right now. Why? Because he knows very little (or nothing) of Roberts' willingness to overturn Roe v. Wade.
Personally, I like this kind of talk coming from Brownback. He's still a party man - he knows who pays the bills - but he doesn't want to settle just b/c the president wants an easy victory.

Again, and this is in a bit of response to Nate's last post, I sympathize with Coulter. We could be talking about McConnell, or Luttig, or - may it be so - Pryor right now...but we're not. We are talking about Roberts. It has nothing to do with Roberts per se. The man is brilliant. He's a closet-conservative. He's brilliant. He'll pass easily. And, he's brilliant. But that's not the point. The point, as Brownback puts it, is that we know nothing of this man. We can intelligently guess (and hope) that we're not wrong, but why worry with all that in the first place when we have a solid majority in both the House and the Senate, a Republican president, and God's gift to judicial nominations - John McCain and the 13 merrymen? There's a reason that the American people put the GOP (Gov. of the People) in power - and, personally, I just don't believe that it was to semi-wimp-out on a SCOTUS nomination.

As always, I could be (and hope) that I am wrong. But, I'll stand with Brownback on this one: "trust but verify."

Dillard on the Ninth Amendment. Steve, I'm intrigued by your thesis (I would link back to the post here if I knew how) that the Ninth Amendment is a source of rights against the states.

In the abstract, your argument makes sense. What I'm uncertain about is what you propose to be the content of the Ninth Amendment and how you propose that it be enforced.

You appear to equate the natural rights protected by the Ninth Amendment with the common law rights of Englishmen. But most common law rights are rights vis a vis other individuals (e.g., the right to have a contract enforced, the right not to be assaulted), not rights vis a vis the government (like the rest of the Bill of Rights). Are you saying that the Ninth Amendment froze all of these rights in place, so that if a state court or a state legislature expanded or contracted one of these rights, it would violate the Ninth Amendment? (Did Louisiana violate the Ninth Amendment when it adopted the Napoleonic Code instead of the common law?)

And which body of government gets to enforce this constitutional moratorium on the development of the common law? After Marbury v. Madison, it would presumably be the federal judiciary. But then every breach-of-contract or slip-and-fall case becomes a federal question. The Tenth Amendment becomes effectively meaningless. Even Congress could not disturb the federal courts' decisions on how to allocate legal responsibility in private transactions, since the common law has been made the supreme law by the Ninth Amendment.

In the alternative, you could say that the Ninth Amendment did not freeze but simply adopted the common law of England and permitted the United States courts to continue developing that law in the traditional case-by-case fashion. But this evolving common law would still be part of the Constitution, so you would still have the problem of the federal judiciary being the final voice on what constitutes the common law, gutting the Tenth Amendment.

It seems like the Ninth Amendment is better interpreted as acknowledging that there is a broad panoply of natural rights out there, far beyond what were enumerated in the first eight amendments, but leaving it to the states in the exercise of their reserved powers, and to the federal government in the exercise of its enumerated powers, to see that those natural rights are respected and enforced. The Ninth Amendment is restating the presumed purpose of any constitution -- to facilitate the realization of the natural law in the day-to-day affairs of a nation -- and reminding us just in case there is any confusion that this natural law consists of more than just the first eight amendments to the constitution. This broad statement of purpose should not be a tool of judicial review, which is premised in Marbury v. Madison on the constitution being composed of discrete and discernible written rules.

I truly do not understand Ann Coulter's quarrel with Judge Roberts, unless she is saying that his stealth advantage should have been saved for when the fifth vote to overturn Roe v. Wade was at stake. I believe he is going to go down in history as one of the all-time greats. (From our point of view, not the New York Times.)

In lieu of a post with substance, I present some fun links:

You have to feel embarassed for this fellow.

"The Exorcist in 30 Seconds with Bunnies"

"Have you ever though you were having a bad day"

"Custom Gadgets You Can't Buy"

Ann Coulter's not backing down: Fool me 8 times, shame on me

At least when Souter was nominated, we needed a stealth nominee. The Senate was majority Democrat back then. The Judiciary Committee consisted of eight Democrats and six Republicans – two of whom were aggressively pro-abortion. A year later, faced with the same Democratic Senate, the current president's father nominated Clarence Thomas. Who would have thought the current Bush would be less macho than his father?

Roberts would have been a fine candidate for a Senate in Democratic hands. But now we have 55 Republican seats in the Senate and the vice president to cast a deciding vote – and Son of Read-My-Lips gives us another ideological blind date.

Me: For whatever it's worth, I'm not quite as pissed as she is, but I sure as heck can't find that much to argue with her over either. Her reasoning isn't all too wacky.
Nonetheless, this is an easy win for Bush and he knew it. Bottom line: IMO, Conservative's win on this won (barely); but we've still settled.

Funding higher ed: Heather Mac Donald has some tips for donors who do not wish to subsidize the trashing of western civilization:

Would-be alumni entrepreneurs should seize the moment. The model for starting a revolution has already been forged: fund professors already in place. If you can’t find anyone committed to liberal education at your own university, send your money instead to places that are more open to traditional scholarship. The National Association of Scholars and the American Council of Trustees and Alumni have databases of worthy candidates. If your alma mater sees that it is losing philanthropic dollars to institutions that support the traditional liberal arts, it may figure out a way to win back your donations.

Brendan Miniter explains the irony of federal guarantees of education loans:

Unfortunately, by footing these bills and turning higher education into an entitlement, Congress itself is primarily responsible for isolating academia from normal consumer pressure by shielding most students (and their parents) from the true cost of higher education. That's why schools can keep ratcheting up tuitions beyond what any middle class family can reasonably afford to pay--because they know taxpayers stand ready to take up the slack.

"When justices refuse to retire" Jeff Jacoby is concerned. Comments?

Did Illinois Gov. Rod Blagojevich use coercion?

An emergency rule issued by Governor Blagojevich, requiring all Illinois pharmacies to dispense the morning after pill even when it was against the pharmacist's conscience, was investigated earlier this week thanks to Representative Manzullo.

one witness claimed she was "humiliated and discriminated against" by a pharmacist who explained to the witness that she couldn't fill her prescription. The witness drove to another store, which she admitted under questioning was a mere 20 minutes away. Republican Rep. Marilyn Musgrave of Colorado chastised the witness for expecting her convenience to trump another human being's moral convictions, and called her complaint "unseemly."

On the other hand, pharmacist Luke Vander Bleek, owner of several pharmacies serving rural areas, testified that Blagojevich's order "creates an environment in Illinois whereby a person holding deep moral convictions concerning the unborn cannot own and operate a licensed pharmacy."

Dr. Walter E. Williams on "Will We Defend Ourselves?"

Dr. Walter E. Williams is a friend and one of my favorite commentators. He is right on the money (again) with his latest article. A portion:

Regardless of how we feel now about the treatment of terrorists, and suspected terrorists, I can envision a day when Americans will care less about interrogation techniques used in the quest to get intelligence about terrorists. That day will be when there's a chemical or biological attack in one of our cities that kills and injures tens of thousands of Americans. If that day ever comes, you can bet the rent money that the Dick Durbins, the Nancy Pelosis and others who've undermined and attacked our interrogation efforts, complaining about our not treating international cutthroats humanely, will blame the attack on President Bush. The last thing they'll do is blame themselves for sabotaging our efforts to get intelligence that might stymie terrorist plans.

By all means, read the whole article.

Brits fear as many as six terrorist cells are preparing to strike again. See this article from The Scotsman.

Feddie on the Ninth Amendment redux: Ah, let the debate resume.

Long-time readers may remember that SA initiated a blawgosphere debate on the Ninth Amendment not too long ago.

FWIW, this excerpt (from a previous post) provides a nice introduction to my views on the original/plain meaning of the Ninth Amendment:

Having examined many of the written records from the founding period, as well as several of the framers' "theoretical writing[s]," I can say, with a good deal of confidence, that most (if not all) of the "rights" protected by my Ninth Amendment jurisprudence would simply be those natural law rights recognized by well-established English common law. These rights (in most instances) have clearly defined historical parameters, which would make it possible to establish a coherent Ninth Amendment jurisprudence.

In sum, I think my interpretation of the Ninth Amendment is far superior to Judge Bork's, which renders the amendment [virtually] meaningless, or Randy Barnett's, who seeks to use the amendment to support a radical form of individualism never envisioned by the framers.

As does this one:

In my view, and I confess this may be a novel one, the Ninth Amendment did more than restrict the federal government from interfering with certain unenumerated rights. It also, IMHO, can be interpreted to restrict the States as well. Consider the text of the Ninth Amendment:

"The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

I read this text as conveying two separate and distinct propositions. First, the fact that certain rights are enumerated in the Constitution should not be taken as a denial of the existence of (or abandonment of) other, unenumerated rights. Second, there are other, unenumerated rights that the people retain in an extraconstitutional sense.

Please note that there is no qualifying language in the Ninth Amendment. It does not provide: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people, to the extent such other rights are recognized by the respective state governments."

Thus, while state constitutions and state common law jurisprudence might be used to identify the unenumerated rights covered by the Ninth Amendment, the text of the amendment seems to make clear that these rights are natural law rights that reside with "the people" and are not subject to erosion or serious governmental interference (federal or otherwise).

In sum, I believe that when the States ratified the Ninth Amendment they enshrined the foregoing natural law principle and precluded their successors from tampering with (to any serious degree) the unenumerated rights covered thereby. While the P&I Clause of the Fourteenth Amendment may further support applying the Ninth Amendment against the States (i.e., a variation on the current incorporation doctrine), I don't think it is a prerequisite to reach the conclusion I have regarding the meaning and application of the Ninth Amendment.

I also made the following observations about the Ninth Amendment in response to criticism from a former co-blogger:

I am . . . of the opinion that the Ninth Amendment, in and of itself, can be used to prohibit the States from infringing on the unenumerated rights falling within the ambit of the amendment's protection. Here's why (and one could apply the following argument to the enumerated rights contained in the first eight amendments as well): The federal constitution cannot be interpreted in a vacuum. It does not just outline the powers delegated by the States to the federal government (although that is certainly a primary purpose of the document), but an entirely different governmental blueprint for the United States--one of dual sovereignty between the federal government and the States. What's even more interesting is that there is a third sovereign involved in the process--"the people." It is true, of course, that the people's sovereignty is generally expressed through the establishment of government, and that to the extent the people "retain" certain aspects of the "sovereignty pie" it is hard to quantify such residual sovereignty outside the rule of law context. In other words, natural law rights only have practical value to the extent government is willing to recognize and honor them. This, I think, is where the Bill of Rights (specifically the Ninth Amendment for purpose of this discussion) comes into play.

Although it is undeniably true, as Owen points out, that the Bill of Rights was intended to act as a protective measure against the newly created, and vastly expanded, federal government, it seems to me that the first nine amendments to the federal constitution (and perhaps part of the Tenth) also serve to codify into the fabric of our dual sovereignty republic certain individual liberties. Think of it this way. Many judicial conservatives, like myself, subscribe to the notion that the federal constitution created a "compact" between the federal government and the States. In this respect, the federal constitution serves as a contract of sorts; outlining the powers to be delegated to and exercised by the federal government and those to be retained by the States. This contract, however, also has a clear third party beneficiary--the people. Indeed, the document constantly refers to the various and sundry rights held or retained by the people. So here's my question: If the Constitution, a document signed off on by both the federal government and the States, asserts (in no uncertain terms) that "the people" possess or retain certain individual rights, how is it that future state governments possess the power to take these rights away or to refuse to recognize them in any appreciable way? In making this statement, I recognize that there are other aspects of the federal constitution that explicitly restrict the States (see e.g., Article I, section 10). These provisions, however, seem to preclude any regulation by the States at all with respect to those specific matters (e.g., "No State shall enter into any treaty . . ."); whereas applying the first nine amendments to the federal constitution against the States would not preclude them from regulating these rights to the extent such regulation was permitted in 1791.

In sum, while I agree with Owen that the primary purpose of the Bill of Rights was to protect the citizens of the States from having the federal government trample or rescind the individual liberties for which they fought so dearly, I have become increasingly skeptical of the notion that the framers or those participating in the ratification process held the view that the enumerated and unenumerated rights referenced by the federal constitution are dependent upon the States' willingness to recognize and honor them in the future. Indeed, given all that I've read from those living at or near the time of the founding, I think such a view is entirely untenable. Thus, in my opinion, when the States signed off on the federal constitution they permanently enshrined and protected certain individual liberties. Maybe I'm out in left field on this one, but I am starting to believe that the incorporation doctrine may not have even been necessary.

One other thing. While I agree with Owen that historical context matters when interpreting the text of the Constitution, one must keep in mind, as Justice Story once noted, that "it is a constitution we are expounding." In this respect, history is most relevant in constitutional interpretation when it informs as to the meaning of the relevant text. In this discussion, Owen is using history not to ascertain the meaning of the Ninth Amendment, but to render it meaningless! I also believe that one should be careful about giving too much weight to statements made by any one participant in the constitutional process. Yes, Madison was an important fellow, but his subjective intent on a particular constitutional provision means very little to me (except to the extent it informs me as to the general consensus among those living at or near the time of ratification).

Finally, my interpretation of the Ninth Amendment would not, as Owen puts it, create "a reservoir for the courts to recognize new rights." It would simply recognize well established rights in existence at the time of ratification. This is not about federal power, but individual rights and liberties. And I think Owen loses sight of this in his analysis.

Anyway, that's a fairly good summary of the fedster's views on the glorious Ninth Amendment. :)

The Picard Song: Hilarious, yet disturbing at the same time.

"Life Explained": Yep.

Hmmmmm: I don't remember reading about this incident in the recent "please send us some money" publication put out by my law school.

GO WEST YOUNG MAN!
That is essentially what the Marine Corps has told me. On 1 August I detach from Marine Corps Recruit Depot Parris Island, South Carolina and begin the process of moving my family and possessions to my new duty assignment, Camp Pendleton in sunny California. As a born and bred Southerner I will miss living in the South. Nevertheless, moving to places one might not wish to live in is one of the sacrifices of service. At any rate, posting from me will be rare to non existent for the next month or two until I get established at my new duty station.

DR-CAFTA, a free trade agreement with the Dominican Republic and the Central American nations, narrowly passed the House, 217-215. The Cato Institute and the Heritage Foundation each have good stuff on why CAFTA is good policy.

27 Republicans voted against it:

Boustany (LA), Capito (WV), Coble (NC), Cubin (WY), Foxx (VA), Garrett (NJ), Goode (VA), Gutknecht (MN), Hostettler (IN), Hunter (TN), Jindal (LA), Jones (NC), LoBiondo (NJ), McCotter (MI), McHenry (NC), McHugh (NY), Miller (MI), Ney (OH), Norwood (GA), Otter (ID), Paul (TX), Rehberg (MT), Simmons (CT), Simpson (ID), Smith (NJ), Tancredo (CO)

And 15 Democrats voted for it:

Bean (IL), Cooper (TN), Cuellar (TX), Dicks (WA), Hinojosa (TX), Jefferson (LA), Matheson (UT), Meeks (NY), Moore (KS), Moran (VA), Ortiz (TX), Skelton (MO), Snyder (AR), Tanner (TN), Towns (NY)

GOPers from sugar producing and textile making states played the protectionist card, though the sugar import quotas are only loosened up by a very small amount under CAFTA.

President Reagan's radio address re: his nomination of Daniel A. Manion: I recently stumbled across a radio address that President Reagan gave back on June 21, 1986, supporting my judge's then hotly-contested nomination to the Seventh Circuit Court of Appeals, and thought I'd pass it along to y'all:

Our selection for the Court of Appeals, Daniel A. Manion, is such a nominee. He has substantial litigation experience and a reput