March 7, 2008
Feddie’s Back!
Feddie’s Southern Appeal has happily returned to the blogosphere. (I’ll amend the blogroll soon!)
Meanwhile, our family has been visited by the flu, but I hope to return to blogging soon.
February 29, 2008
Natural Born Presidents
Hillary Clinton was born in Chicago, Illinois.
Barack Obama was born in Honolulu, Hawaii.
Mike Huckabee was born in Hope, Arkansas. (Oddly, the same place where Bill Clinton was born nine years earlier.)
John McCain was born in Coco Solo, in the Panama Canal Zone, Panama.
Article II, section 1 of the United States Constitution requires that “[n]o person except a natural born Citizen, or a Citizen of the United States at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”
Is a person born outside of the fifty states, in a United States military installation within a foreign country, a natural born citizen?
This article reports on the issue, concluding that most likely a birth in a military installation makes the child a natural born citizen. Notably, Theodore Olson is in the process of preparing a legal analysis for Senator McCain. The issue is one that surely fascinates academics, but realistically, I do not know how such a case would move forward. Someone would have to have standing to sue McCain. Who would that be? Any citizen? It would probably be politically risky for his opponent to bring the case. It would make a case for the case books, though!
February 25, 2008
Prayers for Bar Examinees
This Tuesday and Wednesday (and Thursday in a few jurisdictions), gaggles of stressed law school graduates will be attempting to hurdle the bar exam of states across the country. Please offer prayers for them today (as the anxiety before the test sometimes seems worse than the test itself!), especially through the intercession of St. Thomas More and St. Joseph Cupertino (patron saint of test takers, because he was asked the only question he knew the answer to in his examination for the priesthood), and for the Children of the Sacred Heart out there, we implore the intercession of St. Rose Philippine Duchesne and St. Madeline Sophie Barat!
The country may not need more lawyers, but a few more good ones are worth the prayers. I have three friends taking the bar in three different states and I wish them each a smooth, successful examination!
Courage and Confidence!
Incidentally, the term “bar” exam refers to the bar or railing separating the area around the judge in a courtroom. See here (near the bottom of the page).
February 18, 2008
Happy Birthday, Washington!
My Hallmark calendar announces today as Presidents’ Day (as do so many commercials–what do presidents have to do with kitchen appliances anyway?), but The Code (not the one that includes parlay) considers today the observance of only one president’s birth: Washington. See 5 U.S.C. 6103(a), which lists the following federal holidays:
The following are legal public holidays:
New Year’s Day, January 1.Birthday of Martin Luther King, Jr., the third Monday in January.Washington’s Birthday, the third Monday in February.Memorial Day, the last Monday in May.Independence Day, July 4.Labor Day, the first Monday in September.Columbus Day, the second Monday in October.Veterans[*] Day, November 11.Thanksgiving Day, the fourth Thursday in November.Christmas Day, December 25.
Perhaps its best, as all presidents are not equally honorable, and few could dispute Washington’s grace and leadership. A tip of the hat to loyal reader and code aficionado, Prawnik!
* Why isn’t this punctuated Veterans’ Day?
February 13, 2008
The Historical Record
I am a bit pressed for time today, but just thought I would share this fun link of trials with you. The website chronicles famous trials: from Socrates to Jesus to Thomas More to Nuremberg to Moussaoui.
A tip of the hat to my dear husband who manages to find all sorts of things using this magic box (as one of my older professors used to call the laptops that had begun to invade his classroom).
February 8, 2008
Tectonic States
Georgia’s legislature recently passed a resolution to move its northern border one mile further north, essentially invading Tennessee! At stake are riparian rights to Nickajack Reservoir, which parched Georgia seeks.
If Georgia acts on the resolution, litigation would doubtlessly follow. Interestingly, it would provide a rare instance for the Supreme Court to exercise original jurisdiction over the matter. (That is, the states could bring the case directly to the Supreme Court without going through the district or appellate courts.) Article III, section 2 of the Constitution reads in relevant part, “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” 12 U.S.C. 1251 further provides that “[t]he Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States,” but in all the other options from section 2, the Supreme Court has “original but not exclusive jurisdiction.”
The exercise of original jurisdiction by the Supreme Court is relatively rare, so the prospect of such a case is exciting, at least to this court watcher!
February 5, 2008
Super Mardi Gras
Just in time for Super Tuesday and Mardi Gras, the Federalist Society released a print debate on judicial philosophies of the current presidential candidates here. So far, only two Republicans (McCain and Romney) have participated.
(UPDATE: Huckabee and Paul have submitted responses too.)
I hope everyone out there can enjoy a paczki while watching the delegate count tonight. Indulging in paczki is a great annual treat, but why not invest in a paczki bobblehead to enjoy all year round? Available in three different scents. (Anybody else rather frightened by the fuzzy smelly paczki toys?)
A Tribute to Judge Selya from a Former Clerk
A former clerk to Judge Selya, a senior judge on the First Circuit with a penchant for using neglected words, penned this tribute to his judge (and his judge’s vocabulary) recently in the National Law Journal. In one brief anecdote (my favorite from the article), the clerk recounts how he managed to work “crapulous,” a word he gleaned from a page-a-day calendar, into an opinion. Crapulous means suffering from excess food or drink, making the word a bit trickier to place than one might initially think (since decorum and proper usage would preclude simply referring to the crapulous briefing . . . ). Fortunately, Judge Selya had the opportunity to decide a case involving a bar serving a noticeably crapulous customer.
My previous posts about Judge Selya can be found here and here. A tip of the hat to one of my regular lurkers out there for pointing this article out to me!
February 4, 2008
Blade Runner
On Friday, a jury convicted actor Wesley Snipes (a.k.a. Blade the Daywalking Vampire Slayer–I confess I have seen all three of those movies!) on failure to file tax returns (for three of the six counts charged), and acquitted him of tax evasion and conspiracy. It appears that the jury found that Snipes acted in good faith, a defense to the intent requirement. I have not followed the trial closely, but it looks suspiciously like jury nullification to me, even though the jury convicted the non-celebrity co-defendants, the promoter and the accountant. Unfortunately, this verdict only bolsters the crazy tax-protester movement for which I have little sympathy. Furthermore, with a jury verdict like this, I do not imagine the prosecutor has many options for an appeal given the deferential standard of review applied to a jury verdict.
I will be interested to see what the judge does at sentencing; with the guidelines now being advisory, the judge could depart upward. I would think Snipes would be making arrangements to pay back taxes to show some remorse to the judge in an attempt to avoid jail time, but that is just my speculation. Judge William Terrell Hodges is a Nixon appointee who assumed senior status in 1999.
Here’s a link with a bunch of the documents in the case. The “Wesley Snipes'[s] Anti-Tax Manifesto” is a particularly interesting sample of the pro se genre of legal filings.
January 22, 2008
A Memorial
Not many Supreme Court case names become common parlance. Most of the memorable ones seem to come in criminal law (often constitutional cases of criminal procedure, many interpreting the Fourth Amendment’s protection against “unreasonable searches and seizures”). Their names alone (even just the first party) become shorthand for their holdings. Schneckloth v. Bustamonte (which just rolls off the tongue–I imagine some Supreme Court clerks just shaking their heads and deciding they have to get the justices to take this case, whatever it is about) held that the state must demonstrate voluntariness of consent and that consent is determined by the totality of the circumstances. Miranda v. Arizona formulated the infamous Miranda warnings and Terry v. Ohio permits investigative or “Terry” stop-and-frisks. Kyllo v. United States held that the government’s use a device that is not in general public use (in that case, a thermal imaging device) constitutes a search and requires a warrant.
And then there is Roe v. Wade. Perhaps more than any decision, this one has wrought untold grief upon both the individuals harmed by the abortion procedures (mothers, fathers, and children) and upon our entire form of government. Today, thousands will be marching in Washington D.C. not to the legislature, where changes in law ought to be made, but to the Supreme Court, where the “least dangerous branch” (Federalist Paper #78 Alexander Hamilton) of government does its work. I wish that both sides of this debate could at least agree (although this is not the case) that the whole issue should have been left to the legislatures of the several states, and not constitutionalized. This would have avoided the confirmation process for judges becoming ridiculously politicized and perhaps would have precluded some of the convolutions in constitutional interpretation. I leave more of that legal analysis to others for the moment.
I went through a large portion of my life not thinking much about abortion. Without critical thinking or decent catechesis, I probably landed somewhere in the camp of personally opposed, but thought it should be legal. I had vague notions of free choice and not wanting the world to become over-populated. Then I found myself in a bastion of conservativism, in a place where only one side of the debate (life!) reigned, and the other side was dismissed as irrational. I do have to admit the pro-choice crowd is not irrational, they are just wrong. There is a critical difference. For piping up with this thought, many suspected I was pro-choice (I never really said, and at the time I was not so sure what I was, at least that’s how I remember it). I did have personal growth to do on this issue, and on much of my faith, but the glaring lack of dialogue and disdain from some in that environment did not help my journey.
Anyway, I still believe that those supporting choice are not irrational, but make a fundamental mistake about when human life begins or ensoulment occurs. I assume that abortion supporters stop short of advocating infanticide. I also assume that they do not believe that the status of the (what to call it? every term is loaded!) fetus depends on the intent of the mother to bear or abort. (Really, that’s a lousy argument.) Thus, at some point something actually happens in reality, and everyone (except Peter Singer) recognizes a human person that should not be killed. When is that critical moment? Those supporting abortion rights consider the fetus, at least at early stages, to be just a blob of tissues. Removing a blob of tissues is not morally problematic. Thus, why not abort? I, however, will not support the proposition that the blob of tissues is not a living human being or that it lacks a soul for several reasons. (Caveat: this is a blog post, not a moral treatise, so this is the gist of argumentation, not its most eloquent form. For fuller defenses see here (be sure to click on the titles for the non-summary version of arguments). See also here.) Primarily, when considering critical and unknowable questions such as the beginning of human life or ensoulment, it is most prudent to err on the side of caution. Caution dictates that conception is the moment at which all the genes come together to create a unique person, distinct from the mother or father, not just an Aristotelian potential. Science also continues to reveal more and more about fetal development that suggests an early beginning of life. Ending another person’s life is morally problematic, unlike removing a blob of tissue.
More personally, I have now experienced pregnancy and childbirth. Having held Little One in this world, and being able to look back at the ultrasound images and to recognize Little One, and looking back on the experience of pregnancy, I am convinced that a separate person and soul was within me for those many months. By eight weeks I had heard that individual’s heartbeat, not just the functioning of some tissue. The personhood of that being was not dependant upon my intent to bear the child. The personhood existed, and I am convinced this existence began with conception. (Note to argumentative lurkers out there, this is a bald assertion, not an argument.) My conviction gained strength after giving birth, I thus imagine it would be much easier for a young girl to choose abortion than for a mother who already has a child. I do not know what mental gymnastics some women must do who bear a child, and then take that child to have an abortion of her own, thinking it is in the daughter’s best interests. What about the interests of the grandchild? I know so many couples anxious to adopt, and who have adopted. Those children are wanted!
My husband and I (but not Little One!) will be fasting today for all the pregnant women out there who, for all sorts of reasons, feel the need to choose an abortion. May they find comfort and one of the many places that can help and support them. To be clear, those women deserve such love! There is no room for anger at them if they make a desperate choice. The choice to abort is wrong, but we must find help for those women to enable them to make the right choice.
The Write Bailiwick 