Semi-Daily Journal

I usually respect all the Volokh Conspirators, but this is, well, crazy. I can't believe there are still people who think that someone unaware of his Fifth Amendment rights should be kept in the dark about them.

Hello, the political process gave us segregation in the guise of "separate but equal." And before Baker v. Carr, we had the votes of urban dwellers (frequently low income people of color, and even worse, Democrats) counted for less than the votes of suburbanites and rural people. These were the good ol' days?

Issues of legislative apportionment are not purely political questions when they affect the right to have an equal vote. Bush v. Gore, on the other hand, was not decided to ensure that everyone who voted within the regulations had his vote counted as it was intended to be. Moreover, it decided the outcome of one particular election alone.

That differentiates it so strongly from Baker v. Carr that Juan Non-Volokh is making a crackheaded comparison to put the two together. Baker v. Carr set up a major legal principle; Bush v. Gore just made people lose faith in the Supreme Court.

"If the composition of Court were to swing more forcefully in the conservative camp, this indirect attack on rights enshrined in legislation could turn into a direct, forceful attack on rights assumed by many (and not just liberals) to be constitutional."

Notice the stream of radical conservative nominees for Federal judicial openings. This Administration means to radically change the judiciary, and every nominee shows just this. We have a radical Administration not one that is conservative let alone compassionate. The idea of strict construction is used as a laughable smoke screen by these radical conservatives.

If you really think about it, Miranda should have almost no practical value for criminals and a great deal of practical value for cops.
Almost everyone agrees (or agreed before 9/11) that "involuntary" or "coerced" confessions are inadmissible. Some kinds of involuntariness or coercion are obvious, like torture, and giving Miranda warnings to suspects you then torture is a useless formality. The confession will be suppressed regardless of whether you recited the formula familiar from all the cop shows.
The problem comes with less obvious forms of coercion. Everyone agrees (or agreed pre-9/11) that there are non-obvious forms of coercion. (If there weren't, why would so many criminals spill their guts when TV shows have screamed at them for years to keep their mouths shut?) But these forms are, of course, not obvious, and reasonable people can disagree about whether certain interrogations are or aren't coercive. What that would mean is tens of thousands of contested evidentiary hearings on just what happened in the precinct house and as many arguments over whether what happened was subtle coercion or too subtle to be coercion. The system would grind to a halt.
So Miranda amounts to a legal fiction that, unless it's pretty clear that an interrogation was coercive and the confession, therefore, involuntary, the sprinkling of Miranda's magic fairy dust on the suspect presumptively allows the suspect to resist all sorts of subtle coercion and makes the confession admissible. Since the cops grew up watching Dragnet, Hill Street Blues, and the other cop shows, they know the drill. They can avoid lots of trouble about exactly how they conduct interrogations by reciting a magic formula.
Sounds pretty pro-cop to me. So even if Miranda was, as its critics contend, judicial legilsation about police procedure rather than a constitutional decision, what's the big deal?

Well, I certainly don't want my butler to be too well-informed. Otherwise, he might get uppity.

My judgment of Miranda is not based on my policy preferences, but rather on my evaluation of it as the work of a court. The test of whether a Court decision is "outrageous" should not be whether we like the result as a policy matter, but whether it has any legal basis. Measured against that standard, it is hard not to find the Miranda decision wanting.
My more complete response is now on-line here:
http://volokh.blogspot.com/2003_05_04_volokh_archive.html#200241670

JNoV

My judgment of Miranda is not based on my policy preferences, but rather on my evaluation of it as the work of a court. The test of whether a Court decision is "outrageous" should not be whether we like the result as a policy matter, but whether it has any legal basis. Measured against that standard, it is hard not to find the Miranda decision wanting.
My more complete response is now on-line here:
http://volokh.blogspot.com/2003_05_04_volokh_archive.html#200241670

JNoV

My judgment of Miranda is not based on my policy preferences, but rather on my evaluation of it as the work of a court. The test of whether a Court decision is "outrageous" should not be whether we like the result as a policy matter, but whether it has any legal basis. Measured against that standard, it is hard not to find the Miranda decision wanting.
My more complete response is now on-line here:
http://volokh.blogspot.com/2003_05_04_volokh_archive.html#200241670

JNoV

I am so glad that in Texas, we have stricter rules than the Miranda rules. http://www.capitol.state.tx.us/statutes/cp/cp0003800.html#cp020.38.22. Although Miranda informs people of their legal right under the 5th Amendment, it is a swearing match between the arresting officer and the accused whether such was done or not. Under the Texas system, such evidence is necessary before any statements are admitted. The Supreme Court should provide such safeguards to everyone.

I am so glad that in Texas, we have stricter rules than the Miranda rules. http://www.capitol.state.tx.us/statutes/cp/cp0003800.html#cp020.38.22. Although Miranda informs people of their legal right under the 5th Amendment, it is a swearing match between the arresting officer and the accused whether such was done or not. Under the Texas system, such evidence is necessary before any statements are admitted. The Supreme Court should provide such safeguards to everyone.

I am sorry about the duplicate posting, something seemed to be hanging up while I was posting. I refreshed, and it did not show up, so I sent it again.

Dismissing the decision as "outrageous" has rather a Star Chamber-ish feel to it. Did the ruling really have "no legal basis," none whatsoever? Why is the ruling not a modern update of well-established constitutional and legal principles designed to protect suspects against arbitrary arrest and self-incrimination?

It’s not the effect of the Miranda decision that’s outrageous; it was the judicial activism of the Warren court that was outrageous. There’s nothing wrong with reminding people under arrest of their rights, that’s good policy, but no reasonable reading of the constitution would say it’s required.

I also take issue with the idea that a citizen must be “well-educated” to understand the 5th amendment. The concept of self-incrimination and the right to remain silent is simple enough for a high school or even middle school student to comprehend. If the public schools are incapable of teaching this, then I want my tax money back. Remember “ignorance” of the law of no excuse.” This means one’s culpability for his intended actions is not a function of one’s state of mind. We do make a exception for that tiny part of the population who are so mentally deficient as not to understand the nature and consequence of their actions.

>>My judgment of Miranda is not based on my policy preferences, but rather on my evaluation of it as the work of a court.<<

One might think that in view of the Fifth Amendment requirement that no one "shall be compelled in any criminal case to be a witness against himself" and the Sixth Amendment requirement that "the accused shall enjoy the right... to have the assistance of counsel" that the Warren Court's holding was the proper work of a court. The Warren Court held that police should gather evidence under the aegis of "procedural safeguards effective to secure the Fifth Amendment's privilege against self-incrimination," and that such effective procedural safeguards could take the form of "prior to interrogation, [the suspect] be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him" or of other effective measures.

The fact that a right against self-incrimination creates a duty on the part of the police to develop and follow institutional procedures to safeguard that right seems a slam-dunk--a thing highly proper and appropriate for a Supreme Court to do. The specification of procedures that the Supreme Court would find effective at safeguarding that right also seems a thing proper and appopriate for a Supreme Court to do.

But I (thank God!) am not a lawyer.

Not my day. I did mean to mention that the Texas requirements are than any statement that can be used in court must either be in writing, with the rights plainly printed above the statement, or must be electronically recorded with the rights plainly heard on the recording prior to the statement.

I agree with your viewpoint in your last comment, Brad. The correct decision was made in Miranda. Regrettably, there are too many wrong decisions about 4th Amendment rights coming out of the Supreme Court now. It seems that no search is unreasonable under most circumstances.

The Miranda decision might be a proper thing for a Supreme Court to do if it was a policy-making body, but it’s not. That’s the job of the legislature. The court must stick to what’s in the constitution, and you can’t get the Miranda holding without creating it out of virtually nothing. The Fifth Amendment says: “… nor shall be compelled in any criminal case to be a witness against himself.” The key word here is “compelled.” The reason for not compelling testimony is that kind of coerced evidence is generally unreliable. However, you can be compelled to surrender a diary, or the keys to a safe, and most probably a password to a computer. Those kinds of physical evidence are not rendered unreliable by coercion. However, a confession without a Miranda warning is not a compelled confession, so it is not per se unreliable. The Warren court came up with the Miranda holding under a dubious theory of due process. It is in effect saying you can’t enjoy the protection of the Fifth Amendment without being informed. This kind of thinking is a slippery slope. We have the constitutional right of a free speech and a free press, does that mean we must be given the means in which to exercise those rights. No! The First Amendment specifies what the government can’t do, not what it must do for those without the means to exercise the right. A court that makes policy is not a court at all, it’s a kind of junta, where they wear black robes instead of military uniforms. Is that what you want? Why do you think the black robe confers policy wisdom anymore than the uniform? And by the way, the Fifth Amendment also says: “ … nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” Well we do this all the time. You can be tried twice for the same offense. Remember the Rodney King incident? The LA police were tried by the state of California and acquitted by a jury. Then the federal government tried the police all over again for the same offense, accusing the police of violating Rodney Kings civil rights. The courts say that’s ok because it’s two different levels of government bringing the charges. Sounds like an end-run around the Fifth Amendment to me. But that kind of result is politically correct like Miranda.

As the conservative legal academics like to insist, THEIR stated problem with Miranda is that it was a policy-based decision rather than a constitutionally-based one, not that it was good or bad policy. OK. Reasonable people can disagree about whether Miranda was any worse in that regard than a lot of other decisions they swallow without qualms, but for the sake of argument I'll take them at their word. But it hardly matters.
The real traction one gets from criticising Miranda is that it is red meat not to academic purists, real or imagined, but to the vast number of voters who have been told it shackles the cops. Maybe we can stipulate that Miranda was something of a reach -- though I don't think it was that big a reach -- but "outrageous?" The people who think it "outrageous" rather than a bit of a reach don't care a fig for constitutional theory. They think Miranda helps criminals and they want decisions, whether good constitutional theory or not, that shackle criminals, not cops. And on that score, Miranda is a phony issue.

What everyone forgets about the Miranda case is that it's essentially a case about Federalism. The right consistently complains about the Warren court simply inventing constitutional rights, but in this case the right against self-incrimination in custodial interrogations (which is what the case is about) had long been established in Federal Court.

In other words, had the Miranda case happened in Federal Court, it would have been thrown out in a second, due to a constitutional interpretation established long before Earl Warren came along. The main question before the court was whether an individual has the same 5th Amendment rights in state court as they do in Federal Court. The Warren Court didn't "invent" any rights here, they simply said that the 5th Amendment applies just as much in state court as it does in Federal court.

Most people today simply assume that the 4th, 5th, and 6th amendments protect us from the actions of the state (small 's') as much as they do from the actions of the Federal Government. In fact, the 14th Amendment seems to pretty clearly state that they do (IMHO, at least), but that simply wasn't the case before the Warren court, a fact that everybody conveniently forgets whenever these questions pop up.

(Interesting Miranda sidebar: one of the companion cases did involve a Federal case, and was argued by none other than Thurgood Marshall, who was Solicitor General at the time. The issue in that case wasn't whether the accused had to be given "Miranda" warnings, everyone agreed that they were consitutionally required, the issue was whether a previous "non-mirandized" confession to state police was valid in the Federal case. It's pretty interesting to hear Marshall make an argument that he almost definitely opposed).

"It is in effect saying you can?t enjoy the protection of the Fifth Amendment without being informed. This kind of thinking is a slippery slope"

A slippery slope to what, reality?

The notion that Miranda or Roe is somehow comparable to the atrocity that was Bush v. Gore demonstrates the intellectual bankruptcy of the right. Miranda and Roe were about the limiting of governmental power. They are quintessential expressions of the notion of the individual over the masses. In a world where Republicans were in favor of individual rights these cases would be celebrated as the embodiment of the intent of the Constitution. Bush v. Gore on the other hand was so poorly decided that the authors refused to identify themselves but claimed it was “Per Curiam.” This is not damning on its face, but when combined with the limitation of the holdings to “this case,” we see a court not content to create law out of whole cloth, but to in fact invent a new role for itself entirely – that of Presidential Appointment mechanism. Even if it weren’t for the egregiously partisan character of the decision, it is also highly self-contradictory finding that equal protection applied to the recount, but was not applicable to the initial counting – presenting us with the bizarre notion that those whose votes have been counted by machine have a protection “more equal than others.” No comparing Bush v. Gore with decisions unpopular among right wing nuts isn’t just a poor comparison, it shows a marked lack of respect for the Rule of Law. Bush v. Gore demonstrates the Rehnquist Court’s propensity for deciding law based on principals rather than principles.

On the one hand I suspect that our current system of plea-bargains extracts a lot of false confessions (Central Park jogger case anybody?)"

What makes you think the Central Park jogger confessions were false?

Go to this NYPD website:

http://www.nyc.gov/html/nypd/html/dcpi/executivesumm_cpjc.html#claim

"From the various accounts that Reyes has given in different interviews that we have been able to review, there have been significant problems or inconsistencies in his description of the details of the attack and subsequent events. In addition, several statements were made by witnesses to officers investigating the incident and by the defendants, speaking outside the formal interrogation process, which directly contradict Reyes’s claim that he acted alone, and evidence the participation of the defendants. They include inculpatory statements by defendants Wise, Richardson and Santana both to police officers and to civilian witnesses who reported the statements to police. Santana and Richardson separately pointed out the location of the rape when brought to Central Park. When Wise was questioned, he made reference to a man named “Rudy” who took the jogger’s Walkman; the description of the jogger’s “Walkman pouch” was similar to Reyes’s description of a “fanny pack.” At the time of this interview, the police had no way of knowing that the jogger had a Walkman or that she carried it in a pouch. Wise also commented on the amount of blood at the spot where the rape occurred. When asked why he was so surprised by the amount of blood, he answered, 'I knew she was bleeding but I didn’t know how bad she was. It was really dark. I couldn’t see how much blood there was at night.'"

"We adopt the view that the most likely scenario for the events of April 19, 1989 was that the defendants came upon the jogger and subjected her to the same kind of attack, albeit with sexual overtones, that they inflicted upon other victims in the park that night. Perhaps attracted to the scene by the jogger’s screams, Reyes either joined in the attack as it was ending or waited until the defendants had moved on to their next victims before descending upon her himself, raping her and inflicting upon her the brutal injuries that almost caused her death."

"On this theory of the facts, there is no reason to believe that the defendants were prompted into making erroneous statements."

"With respect to the other crimes for which the defendants were convicted, we are aware of no new evidence or reason to review the old evidence regarding those crimes. Two of the defendants reaffirmed their guilt for these crimes at parole hearings and one of these, together with a third, did so in 2002, after Reyes came forward to make his confession. Moreover, four other individuals who had pleaded guilty to the assaults, implicated the defendants in these crimes in their interrogations or recorded statements. We understand the technical legal position espoused by the District Attorney and adopted by the Court, vacating these convictions. However, we firmly believe that this legal ruling affords no basis for maintaining that the defendants were not involved in the other crimes for which they were convicted."

"Miranda and Roe were about the limiting of governmental power. They are quintessential expressions of the notion of the individual over the masses."

Not really. Not Roe, anyway...unless you completely discount the embryo or fetus as an individual.

Roe increased the power of the unelected members of the federal Supreme Court, at the expense of elected members of state legislatures. That is very similar to what happened in Bush vs Gore. (With the exception that the U.S. Supreme Court's verdict in Bush vs Gore addressed--though I think inappropriately--the *Florida* Supreme Court's illegitimate projection of power above the Florida state legislature.)

"...it shows a marked lack of respect for the Rule of Law."

No one on the left should *ever* comment about respect for the Rule of Law!

"Sounds pretty pro-cop to me. So even if Miranda was, as its critics contend, judicial legilsation about police procedure rather than a constitutional decision, what's the big deal?"

The big deal is that we are supposed to be a nation ruled by laws, not by people. Judicial legislation is very bad, because there is no check or balance to it. (Especially since Supreme Court judges are appointed for life.)

For example, why was Casey Martin versus the PGA such an awful decision? After all, Martin apparently can't play golf well enough, even riding in a cart, to compete in the PGA. So, no harm, no foul, right?

Well, it was such an awful decision because it complete violated any sane interpretation of The Law (not only the Constitution of the United States, but even the probably-unconstitutional Americans with Disabilities Act itself). In essence, the Casey Martin case clearly demonstrated that we are NOT a nation ruled by law, but instead ruled by people. Specifically, 5 unelected lifetime members of the Supreme Court.

>>No one on the left should *ever* comment about respect for the Rule of Law!

And you see Mark, that's why nobody bothers to argue with you very much ....

The Casey Martin ADA/PGA case as an example of arbitrary rule by men rather than principled rule by laws? Now we're getting weird. As it happens, I think Scalia & Co. got that one right and the majority got it wrong, but what were both sides doing? They were both doing the best they could to determine the meaning of a statute (whose constitutionalty, by the way, is beyond serious question) duly passed by Congress. Just as they do when they try to figure out whether a stock dividend is "income" for purposes of the Internal Revenue Code or whether someone who brings a lawsuit that causes the government to change its behavior is a "prevailing party" for purposes of the Civil Rights Attorneys Fees Act. This is perfectly ordinary judicial business, done every day and sometimes done wrong. And when it gets done wrong Congress can fix it. While many people disagree with the Casey Martin decision, and some think it stupid, nobody, but nobody, thinks it even close to illegitimate.
Making a fuss about Casey Martin as illegitimate just goes to show how much of the rant about judicial legislation and unprincipled decisionmaking is nothing more than hifalutin' distaste for results. Which was my point from the beginning.

"And you see Mark, that's why nobody bothers to argue with you very much ...."

Yes, I understand that no one likes to lose arguments. :-)

Seriously, though, I should have qualified it, as, "No one on the left *in the United States* should ever comment about respect for the Rule of Law." I don't know how you Brits, or our Canadian neighbors, do things. (Understand you Brits don't even have a Constitution! Amazing!)

The history of the left in the United States has been an almost constant attack on the Rule of Law, as embodied in the U.S. Constitution. I could probably literally give 100 examples, but here are just a few highlights (or lowlights):

1) Federal Minimum Wage: Everyone who could read knew that a federal minimum wage was unconstitutional. (In fact, it was a matter of legitimate Constitutional debate whether *state* minimum wage laws were unconstiutitonal.) So FDR told Frances Perkins (his ditzy Labor Secretary) to put the minimum wage bill that had been drafted into her desk drawer. Then, after some unfortunate example of the fact that people in the Depression weren't making much money (I forget the details), FDR knew the time was right. He told Frances Perkins, "Get that nice little unconstitutional bill out of your drawer." In other words, FDR *himself* was JOKING about how he was violating his OATH to "preserve, protect, and defend the Constitution." (What a slimeball!)

2) Federal Social Security: Again, everyone who could read the Constitution knew Social Security was a violation of the 10th Amendment to the Constitution (just like a federal minimum wage). So leftist Frances Perkins was discussing the matter with someone in the FDR administration. She asked (rhetorically!), "Well, isn't it our job to figure out how to get these things done?" (That is, "Isn't it our job to figure ways to get around the Constitution?"!) But they couldn't figure it out.

Then, she was at a White House tea with leftist Harlan Stone...chatting about how the Roosevelt Administration couldn't figure out how to get around the Constitution, to create the Ponzi scheme currently known as Social Security. He gave her a little advice on how to get away with it. (Apparently, it doesn't trouble leftists, when a Supreme Court justice gives a Presidential appointee a little ex-parte private advice on how to get around the Constitution...and then fails to recuse himself when the case later comes before the Supreme Court.)

http://www.ssa.gov/history/tea.htm

And, of course, anyone who cares about the Constitution knows that James Madison would probably have shot Harlan Stone...or at least taunted him within an inch of his life ;-)...if Madison had heard Stone claim that the power to tax allows Social Security.

3) Federal ownership of land: The Constitution very clearly states that the only land the federal government can own is "an area, not to exceed 10 miles square" for the federal capital (Washington DC), and areas that are purchased from the states for federal "forts." (Which could reasonably be extrapolated to "military bases.") In other words, every single square inch of land outside of Washington DC or federal military bases can not be owned by the federal government. No National Parks, Forests, Wilderness Areas, or Historical Sites. Nothing.

4) Campaign Finance Reform: Thanks to the incredible efforts of the left in this matter, now people can be thrown in prison for saying or printing political speech "too close" to a primary or election. What part of "Congress shall make ****NO**** law...abridging freedom of speech..." does the left not understand?

5) Federal Department of Education: For the first 200 years that this country existed, nobody realized that the Constitution allowed a federal Department of Education. But Jimmy Carter found it...no doubt, it was mixed in with some penumbras.

6) Casey Martin versus the PGA: This isn't necessarily an case with a major impact on the quality of life in the United States. But it's an absolutely prototypical example of the left totally ignoring The Law, in favor of what makes the left feel good.

7) The Federal War on Some Drugs: The Harrison Narcotics Act was passed in 1914, and signed into law by leftist Woodrow Wilson. Federal marijuana Prohibition was legislated in 1936, and signed into law by leftist FDR (the man really ought to be dug up and impeached). The left's efforts have been absolutely *essential* in both initiating and perpetuating the completely unconstitutional federal War on Some Drugs.

Those are 7 clear examples of the U.S. left's contempt for the Rule of Law. As I wrote, I could probably come up with literally 100 examples. It's an indisputable fact. The left in the U.S. cares nothing about the Rule of Law, as contained in the U.S. Constitution.

I'd be happy to debate the matter with anyone. But the debate would be pretty one-sided. No one on the left truly supports following the Constitution. If they truly supported the Rule of Law as contained in the Constitution, they wouldn't be on the left...because the Constitution does NOT allow ANYTHING that the left holds dear: federal minimum wage, Social Security, federal ownership of lands outside of Washington DC and military bases, speech restrictions in Campaign Finance Reform, the Department of Education, forcing private organizations to change their rules for handicapped people, the Federal War on Some Drugs...etc. etc. etc.

Mark, given your comments, it would be a complete waste of time to debate you. Your mind is made up and to hell with the facts. And to hell with any kind of reasonable give and take, for that matter. Why on earth would *anyone* want to actually debate a nutcase who has already announced that he doesn't want a debate?

Sigh! The law is my business and the Constitution is the meat-and-potatoes of my practice. I spend too much of my professional time arguing with cranks who insist that whatever violates their private notions (whether sound or unsound) of desirable exercises of government authority (whether leftist or rightist -- crank lawsuits are an equal-opportunity exercise) violates the Constitution. Unless someone wants to pay me my hourly billing rate, I'll forego explaining why every single one of Mark's examples of "leftist" unConstitutional action is not only wrong, but foolish. All I'll say is that a notion of "leftist" broad enough to cover a racist Southern Democrat like Woodrow Wilson (yeah, I know, he moved to New Jersey toward his middle years) and an establishment Republican like Harlan Fiske Stone lacks any limiting meaning. Of course, these days the Richard Nixon of detente, desegregation, the EPA, the guaranteed annual income, and price controls would be far too liberal for the Republicans and might be a stretch even for the Democrats, so maybe this usage is the way of a dreary future.

"Mark, given your comments, it would be a complete waste of time to debate you."

Only if you're not interested in learning anything.

"Your mind is made up and to hell with the facts."

No, my opinions are made *by* the facts. When I initially joined the Libertarian Party, I thought that the leaders of the party (e.g., 1996 and 2000 Presidential candidate Harry Browne) were "nutcases" (to use your phrase) when they were saying that the overwhelming majority of what the federal government does is unconstitutional. But, by simply reading the Constitution, and reading the words of the people who wrote the Constitution, I discovered that they were right; the overwhelming majority of the activities of the federal government are unconstitutional.

"Why on earth would *anyone* want to actually debate a nutcase who has already announced that he doesn't want a debate?"

Well, I don't mind debating you, and you're a nutcase, a poor reader, or a liar (or some combination of all three). You say I "announced" that I "don't want to debate." That is the exact OPPOSITE of what I said. The FACT is, I wrote, "I'd be happy to debate this matter with anyone."

I continued by writing, "But the debate would be pretty one-sided." That's merely because the facts are virtually all on my side. A simple reading of the Constitution, reading of what those who wrote the Constitution said, reading of history, and application of simple logic, completely supports that the federal government is massively violating the Constitution.

I invite ANYONE to pick ANY OR ALL of those 7 examples I gave, and try to defend the position that the federal government is NOT violating the Constitution in those matters. Go ahead, make my day; in matters of debate on the Constitution, I eat leftists for breakfast.

And that includes the neoconservative leftists on "Free Republic." :-)

http://www.freerepublic.com/focus/f-news/905556/posts?page=214#214

http://www.freerepublic.com/focus/f-news/905556/posts?page=220#220

"Sigh! The law is my business and the Constitution is the meat-and-potatoes of my practice."

Oh! Well, then! I fall to my knees before your high muckity-muckiness. ;-)

The environment is my business, and air pollution is the meat-and-potatoes of my work. However, on matters of air pollution science (such as global warming, for example), this means nothing. My views are either right or wrong.

Arguments from Authority are suitable for religion; they aren't suitable for matters of science, and shouldn't be for matters of constitutional law. The Constitution isn't a Bible; there are no allegories or mystical references. (As my brother sometimes notes, phrases like "work corruption of the blood" SEEM mystical...but there is a clear historical explanation of what the Founding Fathers meant.)

"Unless someone wants to pay me my hourly billing rate,..."

I know I don't. You may think your explanations in this matter are valuable, but I don't yet have evidence of that.

"...I'll forego explaining why every single one of Mark's examples of "leftist" unConstitutional action is not only wrong, but foolish."

Heh, heh, heh! You're a riot, C.J.! If this is an example of the worthiness of your opinions, I'm getting exactly what I pay for, for offering nothing. :-) You apparently can't even remember what you yourself have written, from one day to the other!

To refresh your memory, you yourself wrote yesterday, about the Casey Martin decision, "As it happens, I think Scalia & Co. got that one right and the majority got it wrong,..."

Well, if "Scalia & Co. got that one right," and the "majority got it wrong," then the decision violated the Constitution. Or will you now try to make the point that the decision, either way, wouldn't have violated the Constitution? (Do you have some sort of "quantum theory of law"...such that a decision doesn't violate the Constitution, regardless of which way the decision goes...in the same manner that an electron can be in two places at one time?)

"All I'll say is that a notion of "leftist" broad enough to cover a racist Southern Democrat like Woodrow Wilson (yeah, I know, he moved to New Jersey toward his middle years) and an establishment Republican like Harlan Fiske Stone lacks any limiting meaning."

In fact, my usage of the term "leftist" is in the only way that DOES have a repeatable, logical meaning. Far left is 100% central government, and far right is 0% government, at any level. Under that repeatable, logical usage, both the Nazis and the communists are far left, and Libertarians and anarcho-capitalists are far right. If you have some other definition of left and right, you're welcome to offer it. (And yes, Richard Nixon was a leftist, at least from the point of view of a Libertarian, according to this repeatable, logical definition.)

Summary: I gave 7 examples of where Supreme Court decisions violated the Constitution. You apparently agreed with one of them. If my other 6 examples are "not only wrong, but foolish," you should be able to dispose of them (or at least *one* of them) quite quickly. Take your pick, and hit me with your best shot. We'll let "history decide," as they say. :-)

"Sigh! The law is my business and the Constitution is the meat-and-potatoes of my practice."

Oh! Well, then! I fall to my knees before your high muckity-muckiness. ;-)

The environment is my business, and air pollution is the meat-and-potatoes of my work. However, on matters of air pollution science (such as global warming, for example), this means nothing. My views are either right or wrong.

Arguments from Authority are suitable for religion; they aren't suitable for matters of science, and shouldn't be for matters of constitutional law. The Constitution isn't a Bible; there are no allegories or mystical references. (As my brother sometimes notes, phrases like "work corruption of the blood" SEEM mystical...but there is a clear historical explanation of what the Founding Fathers meant.)

"Unless someone wants to pay me my hourly billing rate,..."

I know I don't. You may think your explanations in this matter are valuable, but I don't yet have evidence of that.

"...I'll forego explaining why every single one of Mark's examples of "leftist" unConstitutional action is not only wrong, but foolish."

Heh, heh, heh! You're a riot, C.J.! If this is an example of the worthiness of your opinions, I'm getting exactly what I pay for, for offering nothing. ;-) You apparently can't even remember what you yourself have written, from one day to the other!

To refresh your memory, you yourself wrote yesterday, about the Casey Martin decision, "As it happens, I think Scalia & Co. got that one right and the majority got it wrong,..."

Well, if "Scalia & Co. got that one right," and the "majority got it wrong," then the decision violated the Constitution. Or will you now try to make the point that the decision, either way, wouldn't have violated the Constitution? (Do you have some sort of "quantum theory of law"...such that a decision doesn't violate the Constitution, regardless of which way the decision goes...in the same manner that an electron can be in two places at one time?)

"All I'll say is that a notion of "leftist" broad enough to cover a racist Southern Democrat like Woodrow Wilson (yeah, I know, he moved to New Jersey toward his middle years) and an establishment Republican like Harlan Fiske Stone lacks any limiting meaning."

In fact, my usage of the term "leftist" is in the only way that DOES have a repeatable, logical meaning. Far left is 100% central government, and far right is 0% government, at any level. Under that repeatable, logical usage, both the Nazis and the communists are far left, and Libertarians and anarcho-capitalists are far right. If you have some other definition of left and right, you're welcome to offer it. (And yes, Richard Nixon was a leftist, at least from the point of view of a Libertarian, according to this repeatable, logical definition.)

Summary: I gave 7 examples of where Supreme Court decisions violated the Constitution. You apparently agreed with one of them. If my other 6 examples are "not only wrong, but foolish," you should be able to dispose of them (or at least *one* of them) quite quickly. Take your pick, and hit me with your best shot. We'll let "history decide," as they say. :-)

Basic point: Casey Martin was NOT a Constitutional case. It was a stautory interpretation case. No party suggested that there was a Constitutional issue, no Justice suggested there was one, and there wasn't one. What the partiers and the Justices argued about what NOT whether the ADA violated the Constitution or whether it would have violated the Constitution if it covered Casey Martin, but WAS about what the ADA MEANS. That is no more a Constitutional case than is a case about whether stock dividends are "income." On the only issue in the case, the meaning of the ADA, I agree with Scalia & Co.
If you want to eat leftists for breakfast on the Constitution, learn what is and what isn't a constitutional case. Otherwise, you'll get indigestion.

C.J. Colucci writes, "Basic point: Casey Martin was NOT a Constitutional case. It was a stautory interpretation case."

1) If the Supreme Court interprets a statute in a manner that is outside of that statute (not addressed by the statute), wouldn't you say that was a violation of the Constitution? Or do you think that the Constitution essentially gives the Supreme Court the power to legislate (to make rulings outside the bounds of legislation)? If you *do* think that the Supreme Court has the Constitutional authority to make rulings outside of the bounds of legislation--in effect, to "legislate from the bench"--what portion of the Constitution gives the Supreme Court that authority?

2) Is the Supreme Court allowed to ignore a statutory (Congressional) violation of the Constitution, if it occurs? That is, if a case before the Supreme Court deals with the statutory interpretation of a law that the majority on the Supreme Court thinks violates the Constitution, does the Constitution give the Supreme Court the authority to ignore the Congressional violation of the Constitution, in order to focus on the statutory interpretation?

The ADA requires that "public occomodations" such as "golf courses" have "reasonable modifications" to meet the needs of the handicapped.

1) If the ADA applies to "public occomodations" and "between the lines"--i.e., the area where the *players* are, as opposed to the fans--at a PGA tour event is NOT a "public occomodation," hasn't the Supreme Court violated the Constitution? If not, why not?

2) Under what Constitutional authority did Congress act, in including that specific part ("golf courses") of the ADA?

A final question: can you name any cases where the Supreme Court ever *did* violate the Constitution?