We knew it had to happen but still it’s a shock. A classical liberal – and libertarian enabler — in so many ways, William F. Buckley, Jr. was the quintessential public intellectual without whom public intellectual life is now hard to fathom.
Though not a great philosophical influence on me personally — I came around to his writing later even than I started reading National Review (originally finding it, to use both Buckleyesque language and irony, sesquipedalian) – the institution he created and movement he fostered certainly affect my life daily. Before think tanks emerged to counter the left-wing takeover of the academy and public discourse, before cable channels provided alternatives to network news, long before the Reagan Revolution, Buckley famously began standing athwart history yelling stop.
All this while embodying the prolific, polymathic, bon vivant style that appeals to those of us who ever dreamed of inhabiting that realm of ideas between academia and the real world and having great fun doing it. Well played, Mr. Buckley, well played.
Wednesday, February 27, 2008
Wednesday, February 13, 2008
Batteries and Bullets Sold Separately
This week, the U.S. Court of Appeals for the Fifth Circuit, which is based in New Orleans and covers Texas, Louisiana, and Mississippi, struck down a Texas statute that criminalized the promotion and sale of sex toys. The Fifth Circuit — where I clerked my first year out of law school — thus became the first and only jurisdiction in the country to recognize the individual right to bear both arms (in the 2001 case of U.S. v. Emerson) and dildoes. (Yes, the statute actually uses the word “dildo” as an example of a prohibited ”obscene device,” which is otherwise defined as a device “designed or marketed as useful primarily for the stimulation of human genital organs.”)
The Fifth Circuit’s analysis correctly rests on the Supreme Court’s 2003 decision in Lawrence v. Texas, which found that Texas’s anti-homosexual sodomy statute violated the Fourteenth Amendment right to engage in private intimate conduct free from government intrusion. Put simply, there is no state interest compelling enough to overcome the individual right to freedom in the bedroom.
Besides Texas, only three states have a similar obscene devices statute: Mississippi, Alabama, and Virginia. The Mississippi Supreme Court has upheld its state’s statute, while neither the Alabama nor Virginia Supreme Courts have entertained such challenges. The legislatures of Louisiana, Kansas, and Colorado had also enacted obscene-device bans, but the laws did not survive review by their respective state supreme courts.
The Eleventh Circuit (covering Alabama, Georgia, and Florida), however, just last year rejected a similar Fourteenth Amendment challenge to the Alabama statute. While the U.S. Supreme Court declined to review that ruling, the Fifth Circuit’s decision now squarely opens up a “circuit split,” which means the issue is ripe for the Court to take up next term.
The Court has not wanted to touch sex toys cases with, um, a 10-foot pole. But it now has the opportunity to enforce this particular individual right in the same year it (fingers crossed) throws out the D.C. gun ban.
(Cross-posted at the Cato blog.)
The Fifth Circuit’s analysis correctly rests on the Supreme Court’s 2003 decision in Lawrence v. Texas, which found that Texas’s anti-homosexual sodomy statute violated the Fourteenth Amendment right to engage in private intimate conduct free from government intrusion. Put simply, there is no state interest compelling enough to overcome the individual right to freedom in the bedroom.
Besides Texas, only three states have a similar obscene devices statute: Mississippi, Alabama, and Virginia. The Mississippi Supreme Court has upheld its state’s statute, while neither the Alabama nor Virginia Supreme Courts have entertained such challenges. The legislatures of Louisiana, Kansas, and Colorado had also enacted obscene-device bans, but the laws did not survive review by their respective state supreme courts.
The Eleventh Circuit (covering Alabama, Georgia, and Florida), however, just last year rejected a similar Fourteenth Amendment challenge to the Alabama statute. While the U.S. Supreme Court declined to review that ruling, the Fifth Circuit’s decision now squarely opens up a “circuit split,” which means the issue is ripe for the Court to take up next term.
The Court has not wanted to touch sex toys cases with, um, a 10-foot pole. But it now has the opportunity to enforce this particular individual right in the same year it (fingers crossed) throws out the D.C. gun ban.
(Cross-posted at the Cato blog.)
Friday, February 1, 2008
Ted Kennedy's New Civil Rights Bills
I’ve taken issue with plenty of things Ted Kennedy has done in the past, most recently his suggested reforms to the judicial confirmation system. My response [$] to his proposals was essentially that he ought to go back to Civics 101 and learn the difference between law and politics, and between the respective powers of the judicial and legislative branches.
Apparently, someone on Kennedy’s staff has done just that because this week the good senator introduced two bills designed essentially to remedy what he sees as Supreme Court error in the field of employment discrimination. This action naturally caught the attention of the New York Times editorial page:
Kennedy, wittingly or not, has just demonstrated how our constitutional system of checks and balances and separation of powers should work — as well as illustrating the difference between law and politics.
The Fair Pay Restoration Act is Congress’s proper (legislative) response to the Supreme Court’s proper (judicial) decision in the Ledbetter case. The Court had no choice but to rule the way it did under the relevant (and constitutionally valid) law, even if the result was arguably unjust. The correct response is, as has happened here, to propose a bill changing that law, not to urge judges to ignore it and rule as they see fit.
Similarly, the Civil Rights Act of 2008 is a legislative attempt to correct a perceived failing in employment discrimination law as correctly interpreted by the judiciary. The wisdom of allowing people to sue for actions that have “discriminatory effect” without an intent to discriminate — whatever that means and however it can be established for legal purposes — is debatable, but it is only through congressional action (with the president’s assent or properly overridden veto) that the law can change.
The bottom line is that judges — including the highest court in the land — have the power only to interpret the law (constitutional and otherwise), not rewrite it or otherwise legislate from the bench. I’m glad that Kennedy has thus decided, for this week at least, to use his lawful authority to legislate from the legislature — instead of merely railing against a judiciary that does nothing more nor less than its job.
(Cross-posted at Cato's blog.)
Apparently, someone on Kennedy’s staff has done just that because this week the good senator introduced two bills designed essentially to remedy what he sees as Supreme Court error in the field of employment discrimination. This action naturally caught the attention of the New York Times editorial page:
One of the most troubling rulings was in the case of Lilly Ledbetter, a
supervisor at a Goodyear Tire and Rubber Company plant who was paid less than
her male colleagues after she was given smaller raises over several years. The
court’s conservative majority ruled that Ms. Ledbetter had not met the 180-day
deadline to file her complaint. It insisted that the 180 days ran from the day
the company had made the original decision to give her a smaller raise than the
men.
….
The Fair Pay Restoration Act, one of Senator Kennedy’s bills, would undo
the injustice of the Ledbetter decision by establishing that the 180-day
deadline runs from when a worker receives the unequal pay, not when the employer
decided to discriminate. It would make clear that each discriminatory paycheck
restarts the clock.Kennedy’s other bill, the Civil Rights Act of 2008, would
reverse more bad decisions. One of these is a 2001 ruling that says that people
who are discriminated against in programs using federal funds can sue only for
intentional discrimination, not for actions that have a discriminatory
effect.
Kennedy, wittingly or not, has just demonstrated how our constitutional system of checks and balances and separation of powers should work — as well as illustrating the difference between law and politics.
The Fair Pay Restoration Act is Congress’s proper (legislative) response to the Supreme Court’s proper (judicial) decision in the Ledbetter case. The Court had no choice but to rule the way it did under the relevant (and constitutionally valid) law, even if the result was arguably unjust. The correct response is, as has happened here, to propose a bill changing that law, not to urge judges to ignore it and rule as they see fit.
Similarly, the Civil Rights Act of 2008 is a legislative attempt to correct a perceived failing in employment discrimination law as correctly interpreted by the judiciary. The wisdom of allowing people to sue for actions that have “discriminatory effect” without an intent to discriminate — whatever that means and however it can be established for legal purposes — is debatable, but it is only through congressional action (with the president’s assent or properly overridden veto) that the law can change.
The bottom line is that judges — including the highest court in the land — have the power only to interpret the law (constitutional and otherwise), not rewrite it or otherwise legislate from the bench. I’m glad that Kennedy has thus decided, for this week at least, to use his lawful authority to legislate from the legislature — instead of merely railing against a judiciary that does nothing more nor less than its job.
(Cross-posted at Cato's blog.)
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