Category Archives: Law: Constitutional Law

For a good roundup of the current state of play on crypto tech & politics, see The Importance of…: A Race the FBI Can't Win: The Increasingly Asymmetric Costs of Wiretap Surveillance vs. Wiretap Avoidance. I'd write more on this — I used to write very long articles about it, but I have to run off ot the airport to catch my plane back to Miami….

The following words, written by Justice Scalia for seven members of the Supreme Court in today's Crawford v. Washington decision, will — if taken seriously — lob a hand grenade into many regions of Constitutional interpretation. As one who believes that balancing tests are indeed swallowing the Constitution (this is deep into the territory where left libertarian-leaning people meet right-libertarian leading people — a zone I only frequent rather than residing in) I think this has the potential to be a wonderful and transformative tonic for much of what ails constitutional doctrine:

By replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design. Vague standards are manipulable, and, while that might be a small concern in run-of-the-mill assault prosecutions like this one, the Framers had an eye toward politically charged cases like Raleigh’s—great state trials where the impartiality of even those at the highest levels of the judiciary might not be so clear.

Of course, it could also lead to disaster if the bright lines get drawn in the wrong places…

It will be absolutely fascinating to see whether and how this principle is applied in all the upcomong cases in which the government claims various exceptions to ordinary rules of criminal and constitutional procedure in order to fight the War on Terror. (I can already imagine an out for the monarchist tendency on the Court, however: treat something as an 'exception' or a 'special case' and it's not a 'balancing' issue.)

Incidentally, the underlying decision in Crawford — that the Confrontation Clause should be interpreted strictly and thus should exclude most types of hearsay — is pretty incendiary too, as it overrules almost 25 years of contrary Supreme Court precedent, if not more.

Oh, I love this: Kieran Healy of Crooked Timber has an idea — “High Concept for a Horror movie: The Constitution really is a living document.”

Bet you someone actually does this as a short.

Longtime (in internet years) readers will recall my interest in the validity of the 'do-not-call' registry. The 10th Circuit, having vacated the lower court's injunction, has now issued its ruling on the merits, and it upholds the registry. A quick look suggests this case doesn't break new ground. It doesn't try to untangle the confused Supreme Court jurisprudence on content discrimination. Rather, it just says that what the government did here is reasonable (and more likely to be effective than the rule struck down in Hudson Valley, the newsracks case) and that the action is permitted by the statute.

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Ilya Somin of George Mason University School of Law has an op-ed in the Detroit News about the possibility that the Michigan Supreme Court might overturn the infamous Poletown decision. Michigan should alter property grab rules.

In Poletown the court allowed Detroit to seize the homes of more than 4,200 people under its power of eminent domain. This time-hallowed power lets the state seize property for public use. Although the state must pay market value, there's no way to monetize the value of the destruction of a neighborhood, its churuches, and its vanished sense of community. 'Public use' had been thought to mean something the government does for all of us, but in Poletown the purpose of the seizure was to give the land to General Motors so it could build a factory. (The idea was that the new jobs would benefit the public; in the event, far fewer jobs were created than promised and Prof. Somin argues that the project was a net economic loss to the community.)

I recall being outraged by this case when I read about it in the papers, and being outraged again when I read it in law school. Here's hoping…

Whatever his other peculiarities, William Safire has always been good on privacy — having been wiretapped himself by Nixon he understands how intrusive it is to have the government recording you. Today he shows he's good on anti-privacy too, that is the freedom of information: Behind Closed Doors. Of course, working in a profession which depends on access to public information may have helped inform this view.

The Bush administration's position in the Cheney energy task force case is maximalist. If there were a term beyond “extreme” I'd use it. Deciding in its favor would tilt the separation of powers much further towards the White House; deciding against it only preserves the status quo.

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