Liberty, it goes great with stroganoff

Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.... While it lies there, it needs no constitution, no law, no court to save it.

• Judge Learned Hand, 1944

Sorcerers' Apprentices

Charles Lane of the Washington Post recently wrote a review of an interesting new book about the tenth justice on the Court - law clerks. The book is titled Sorcerers' Apprentices: 100 Years of Law Clerks at the United States Supreme Court, written by political scientists Artemus Ward and David Weiden. The authrors gathered their information by sending questionnaires to law clerks from the past 50 years - 160 of whom replied.

The "institution of the law clerk has been transformed into a permanent bureaucracy of influential legal decision makers, scarcely resembling its original incarnation," they write. "Today, voting and editing largely defines the role of a Supreme Court justice. Clerks are now responsible for the raw material that goes into the Court's opinions."

There are some legitimate concerns with this style of research - clerks exaggerating their role in the process or conversely clerks understating their role out of loyalty to their former bosses. I'll let the folks over at ELS debate the methodology because I only have two things to say: 1) I can't wait to read this book and 2) there goes a great idea for a dissertation.

The great law-givers of history

Inside the Supreme Court chambers are marble friezes, on the walls near the ceiling, displaying a procession of "law givers" from world history.

Idiots in Iowa

No idiot, or insane person, or person convicted of any infamous crime, shall be entitled to the privilege of an elector.

• Iowa Constitution, Article II, Section 5

I know this sounds treasonous, but this constitutional provision is a situation where originalism may be the proper interpretive principle. Think about it, the contemporary definition of the word "idiot" is a foolish or stupid person, whereas in 1857 (when the current Iowa Constitution was adopted) the word meant mentally incompetent.

Could you imagine what would happen if the modern definition of "idiot" was authoritative? The results of every election in Iowa from dog catcher to president would be challenged. Campaigns from both parties would bring forth stunning allegations that hundreds of thousands ineligible voters were allowed to participate in the election. The Constitutions clearly prohibits idiot from voting, and anyone who didn't vote for [insert candidate name here] clearly is an idiot!

Here is where the story gets even more interesting. The Iowa General Assembly (mercifully) passed a constitutional amendment to change the words "idiot" and "insane" to "mentally incompetent." But, the Des Moines Register reports:

[Iowa Secretary of State Chet Culver] failed to publish a notice of the proposed changes [to the Constitution] in 2004. In addition, Chief House Clerk Margaret Thomson's office was required to publish the amendment in its entirety in the House Journal, but it was only published in part. As a result, the proposed constitutional amendment won't be on Iowa's election ballot for consideration by voters this November.

Also, blogger John Deeth notes that this is not the only bizarre constitutional provision that the state has had to fix. He writes, "Back in '92 a similar amendment was on the ballot: the Iowa Constitution prohibited anyone who'd participated in a duel from holding office."

Yes, if Aaron Burr, Alexander Hamilton, and Andrew Jackson were alive today, they could not vote in Iowa. How would a court interpret that provision in its modern context? "Yes, your honor, Mr. Smith is clearly ineligible to vote as he has conducted multiple drive-by shootings, which we believe constitutes a duel."

What a bunch of idiots, or perhaps more accurately, what a bunch of mentally challenged, special-needs individuals!

Vote Kinky in 2006!

Quote of the week!

"Guinness is the drink that kept the Irish from taking over the world. It would be unthinkable not to have a Guinness during a St. Patrick's Day parade. In fact, it would be spiritually wrong."

Texas gubernatorial hopeful Kinky Friedman, in a statement responding to criticism that he drank a beer while riding in a St. Patrick’s Day parade.

The perfect classified ad!

Check out Favorable Dicta... if for no other reason than the name. No word yet if Iron Mike endorses this blog as well.

Memo from Hagan to Ohio Senate

I know this isn't exactly fresh news, but I thought it was still worth a post. NB - I would never endorse such legislation, and I think it is corrosive to our political culture. However, it is also makes me chuckle, so here it is...

To: All Senate Members
From: Senator Robert Hagan
Re: Co-Sponsorship Request
Date: February 22, 2006

I intend to introduce legislation in the near future that would ban households with one or more Republican voters from adopting children or acting as foster parents. Policymakers in Columbus have ignored this growing threat to our communities for far too long. My legislation is modeled after a bill recently introduced in the Ohio House by Rep. Ron Hood (R-Ashville via Carrollton), which would prohibit homosexual, bisexual and transgender people from adopting children. It is unclear at this point whether Rep. Hood supports my legislation, though I remain hopeful.

Credible research exists that strongly suggests that adopted children raised in Republican households, though significantly wealthier than their Democrat-raised counterparts, are more at risk for developing emotional problems, social stigmas, inflated egos, an alarming lack of tolerance for others they deem different than themselves, and an air of overconfidence to mask their insecurities.

In addition, I have spoken to many adopted children raised in Republican households who have admitted that, "Well, it's just plain boring most of the time.'' In fact, one adopted child raised in a fiercely partisan Republican household in suburban Cincinnati described his upbringing as "18 years of hellish terror.'' "A nightmare I haven't yet awoken from,'' said a 25-year-old Republican adoptee that chose to remain nameless.

If you are interested in co-sponsoring this legislation, please feel free to contact my office.

Is that a gavel in your pocket?

Worst (or perhaps best) dicta ever!

Happy Birthday Buck v. Bell! On this day in 1927, the Supreme Court handed down a decision in which it refused to overturn the practice of eugenics. Justice Oliver Wendell Holmes, Jr., wrtiting for the majority, issued the most famous (or infamous) piece of dicta in Supreme Court history. He wrote:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.

I am ashamed to admit that this case came out of my home state of Virginia. What is even worse is that the precedent set by Buck v. Bell has never formally been reversed. As the University of Virginia notes: "Most involuntary sterilizations occurred in the 1930s and 1940s, but some states, such as Virginia, continued the practice until the law was repealed in the 1970s." It wasn't until 2002 that the government of Virginia formally apologized for its eugenics policy.

Uh huh! That's right! I said it!