My “JhnGalt” Vanity License Plate

So I received a call a few weeks ago from the Pennsylvania Department of Transportation regarding my “JhnGalt” vanity license plate. The official asked if I had ordered a vanity license plate. I replied, “Yes.”

Then, she asked me, “Who is John Galt?” I almost burst out laughing hysterically.

I replied, “a character from a book.” She asked what book? I replied “Atlas Shrugged.” The mischief this license plate will create has already begun. Every time someone pulls up behind me, they will ask themselves, “Who is John Galt?” If a police officer ever pulls me over, and asks me, “Sir, who is John Galt?” I may need to call one of my attorney friends to get me out of involuntary commitment due to my inability to stop laughing.

I was kinda hoping they would deny the plate so I could get standing and sue on First Amendment grounds. Although I haven’t yet received the plate, they cashed my check, which is a pretty good indication the plate was approved.

Oh well. Who is John Galt?

Poll: Should I wear my Madison pin to the Constitution in 2020 Conference at Yale?

As I have previously mentioned, I will be attending the Constitution in 2020 Conference at Yale Law School in New Haven, CT. I will be liveblogging from the conference, so stay tuned for posts.

I pose a question to my audience. As I am entering the lions den, should I wear my Madison Federalist Society lapel pin?

Federalist Society Logo

Law Rev Article: Hessick on the Presumption of Constitutionality

Interesting new article from Professor Hessick of Arizona State on the Presumption of Constitutionality, scheduled to be published in the Notre Dame Law Review. The abstract:

One of the judiciary’s self imposed limits on the power of judicial review is the presumption of constitutionality. Under that presumption, courts supply any conceivable facts necessary to satisfy judicially created constitutional tests. The Supreme Court has given three reasons for the presumption: to show due respect to legislative conclusions that their enactments are constitutional, to promote republican principles by preventing courts from interfering with legislative decisions, and to recognize the legislature’s institutional superiority over the courts at making factual determinations. This Article argues that the presumption does not sensibly implement these reasons. It further argues that these reasons equally, if not more strongly, support judicial deference to legislative interpretations of the Constitution, and consequently that courts should revisit their refusal to defer to such interpretations.

Legal Theory Blog: Hessick on the Presumption of Constitutionality.

I find it odd that the author cites Randy Barnett’s work only 3 times in footnotes. Professor Barnett’s Restoring the Lost Constitution, The Presumption of Liberty explains at great lengths why the Constitution calls for a reversal of the presumption of constitutionality, and demands, in certain cases, a presumption of liberty.

I’ll be attending a conference at Arizona State Law School in a few weeks. Perhaps Professor Hessick will be around. But I look forward to reading it.

H/T Legal Theory Blog

First 24 Hours: Made the WordPress Blogs of the Day List

2,000 hits for my first 24 hours of blogging! And I made the Blogs of the Day List! Sweet.

Shoutout to Texas Supreme Court Justice Don Willett!

A few months ago I attended the Institute for Justice Law Student Conference.

Justice Don Willett of the Texas Supreme Court gave the keynote address. He was awesome. An amazing libertarian Judge from Texas who gets the idea of the role of the courts, understands principles of federalism, and embraces the spirit of liberty that imbibes the human soul.

During his keynote, he mentioned that he had cited YouTube in a footnote in his opinion. Strange coincidence, but in footnote 313 of my Omniveillance article, I had cited him!

FN 313. FKM P’ship v. Bd. of Regents of Univ. of Hous. Sys., 255 S.W.3d 619, 639 (Tex. 2008) (Willett, J., concurring in part, dissenting in part), available at http://www.supreme.courts.state.tx.us/historical/2008/jun/050661cd.htm

I realized it, and mentioned it to him after he finished speaking. He encouraged me to mail him a copy, which I did.

I just received a personal thank you note from Justice Willett! I won’t relay the message, but it was so cool.

Even cooler than the thank you note was the stamp on the envelope that reads “Don’t mess with Texas. Official State of Texas Mail. Penalty for Private Use.” Perfect timing for Will Ferrell’s perfect Bushism. Strategery!

Don't Mess With Texas. Especially their mail.

Reflections on 24 hrs of blogging- It’s not what you say. It’s when you say it.

So I was chatting with my judge today about my blog, and the number of hits I received. He asked me if I said anything really interesitng. My answer; No.

I blurted out, on the Internet, it’s not what you say. It’s when you say it.

Like all other aspects of life, timing is everything.

I’ll attempt to replay the anatomy of the Instalanche today, for posterity’s sake, in 24 Jack Bauer Blogging Style. Beep. Beep. Beep. Beep. The following took place at….

Sep 29, 2009 @ 20:41 – Published initial Post and Launched Josh Blackman’s Blog

Sep 30, 2009 @ 11:17: Saw on Michael Krauss’s Twitter Feed that SCOTUS Granted Cert

Sep 30, 2009 @ 11:19- Post discussing Supreme Court granted Cert

Sep 30, 2009 @ 11:26- Post, mentioning Question Presented in McDonald v. Chicago, and discussing Privileges or Immunities Clause (this was the post Instapundit linked to)

Sep 30, 2009 @ 11:29- I posted a link to my Post on the Volokh Conspiracy

Sep 30, 2009 @ 11:39- Glenn Reynolds at Instapundit Links to my article, and the Instalanche Ensues!

Sep 30, 2009 @ 20:25- After receiving 2,000 hits in less than 12 hours, I made the WordPress Blogs of the Day List

I don’t think I have anything important to say. But, what I do provide for the blogosphere is my rapid speed and instant analysis. I hope to keep this up for the future.

Just a prediction. Last week in June when SCOTUS issues opinions, I’ll be glued to this blog. Its my favorite week of the year.

Thanks again checking out my blog. Thank you. Come again.

The Debate over Privileges or Immunities and the 2nd Amendment Rages on Volokh Comments

Over at the Volokh Conspiracy comment threads, a debate is raging over the Privileges or Immunities Clause and the 2nd Amendment Incorporation Case, McDonald v. Chicago.

A sampling of the comments may help explain why this is such a hot and controversial area, and why conservatives, libertarians, and liberals are all up in arms over the outcome of this case.

PubliusFL says:

What I can tell you is why libs like Jerry Brown [Attorney General of California] are supporting P&I incorporation. They’re hoping they can use the same theory to enforce other rights, unrelated to gun ownership, against state governments.

In Response to Publius, Angus says:

This is it exactly. This cases seems to make strange bedfellows. You have conservatives praising incorporation and denouncing federalism, leftists denouncing incorporation and praising federalism, and then a third group who look at this and say “Wow, we’re not interested in the gun issue, but we could really use case’s outcome to get what *we* want.”

In Response to Angus, troll_dc2 says:

Yes, yes, yes. The issue is actually less crucial than it formerly would have been both because of the use of the Due Process Clause to do the incorporation and the enactment of all sorts of civil rights laws, but if the conservative pro-gun types have to use the Privileges and Immunities Clause to get the Second Amendment to apply to the states, they may well discover that the Privileges and Immunities Clause might make the states subject to other federal rights, not all of which they might approve. So while the pro-gun result will look like a victory, the precedent that is established could bite them in the long run.

In response to Publus, geokstr says:

Yet no one believes that the left, by incorporating the 2A, can then use this theory to get everything they want. As you said above, to “…enforce other rights…against state governments.”

With a one vote shift in the balance of SCOTUS, they can also then use an incorporated 2A “against state governments” once the new court finds the hidden emanation that says this is all about formal state militias, not individual rights to own guns.

Wow. After watching how the left operates for all these decades, and still not understanding how they operate. Reminds me of an old Abbott/Costello routine: “…inch by inch, step by step, slooowwwly I turned…”, and there stood the monster.

This interesting alliance and bedfellows this creates is fascinating. See mainly the Amicus brief for this case signed by Randy Barnett AND Jack Balkin.

For these reasons, I compare revisiting the Privileges or Immunities Clause to opening up Pandora’s Box. We really don’t know what will come out. But we have to be prepared.

Though, perhaps one of the best NSFW comments is:

don’t incorporate me bro says:

Sounds like a blockbuster. The question presented is a legal academic’s wet dream.

For once, no comment from your humble blogger.

What the Law Is/What the Law Ought to Be: Marbury Revisited

I’m still riffing on the Law Is versus the Law Ought distinction.

Wrote Chief Justice Marshall in Marbury v. Madison:

“It is emphatically the province and duty of the judicial department to say what the law is.”

Often, scholars add to the end of this sentence, writing “It is emphatically the province and duty of the judicial department to say what the law is[, not what the law ought to be].”

The ought element is often added derisively to ridicule Judges who impart their subjective views on the Constitution, and normatively attempt to change the law to reflect their personal tastes.

But what if a Judge’s personal tastes, so to speak, did in fact reflect what the Constitution actually means; what the law is. If Is and Ought are the same, then much of this distinction fails.

Now, I doubt any Judge in existence could be such a faithful arbiter of the law, such that his or her personal views do not get in the way, even in the slightest bit. Of the current Justices, Justice Thomas is probably closest to this ideal. But he has but one vote.

The problem with the Is/Ought distinction falls to the personal predilections of the Judges.

The socratic  syllogism would go as such:

A Judge is a Person.
All People Are Biased.
Therefore Judges are Biased.

So I suppose the solution to this problem would be to eliminate the human element.  What if courts were run by computers? But, who programs the computer? That’s a question I pondered in a Jurisprudence class, taught by the venerable Michael Krauss, at Mason. Maybe fodder for another post.

Interesting Law Rev: Articles I & III on Enumeration

In my second post today involving Seinfeld, Professor Gil Seinfeld from Michigan Law has posted an interesting article on SSRN

Legal Theory Blog: Seinfeld on Articles I & III on Enumeration.

Article I, § 8 and Article III, § 2 of the U.S. Constitution deploy parallel strategies for constraining the power of the federal government. They enumerate powers that the national legislature and judiciary, respectively, are permitted to exercise and thereby implicitly prohibit these two branches of government from exercising powers not enumerated. According to conventional thinking, this strategy has failed in connection with Article I and succeeded in connection with Article III. That is, it is widely acknowledged that Congress routinely exercises powers that are difficult to square with the Article I enumeration; but it is commonly thought that the subject matter jurisdiction of the federal courts is, in fact, limited to the nine categories of cases specified in Article III, § 2. If one examines the crucial cases governing the constitutional limits on federal court jurisdiction, however, it becomes apparent that the enumeration in Article III, § 2, like its cousin in Article I, does little work when it comes to reining in federal power. This is reflected most dramatically in the fact that the Supreme Court has never struck down a federal statute on the ground that it confers jurisdiction on the federal courts in cases lying outside the enumeration in Article III. Instead, over the years, Congress has enacted numerous jurisdictional statutes that push hard on the limits specified in Article III, § 2, and the Justices have consistently found ways — through a series of highly tendentious interpretive moves — to avoid deeming these provisions unconstitutional. This article explores the similarity of our practice under Articles I and III. It seeks to demonstrate, in particular, that despite the strict enumeration rhetoric that pervades the case law and scholarly commentary relating to federal court jurisdiction, the Supreme Court has shown little interest in keeping the federal courts within the subject matter limits of Article III, § 2.

I’ve always been fascinated by Article III, § 2, and the scope of Congress’s powers to limit the jurisdictions of the Court. This became a huge hullabaloo after Lujan, when Cass Sunstein slammed Nino in What’s Standing After Lujan? Of Citizen Suits, Injuries, and Article III. Whenever Congress attempts to limit the Court’s jurisdictions, as this author puts it, “Justices have consistently found ways — through a series of highly tendentious interpretive moves — to avoid deeming these provisions unconstitutional.” Convenient, eh?

Just a thought, but wouldn’t these statutes by definition be political questions? Or at least, on separation of powers grounds, shouldn’t the Court avoid these. The correct answer, of course, is no, because the Supreme Court is the final arbiter of these matters, and they saw what the law is. I look forward to perusing this article, nonetheless.

H/T Legal Theory Blog

Instalanche! My New Blog, linked to by Instapundit, Gets Flooded!

I officially launched this blog last night. This morning I wrote a post about the Cert Grant in McDonald v. Chicago, and within minutes Instapundit link to my site.

One hour later, I have over 800 hits!

This is a classic case of the Instalanche! H/T Ilya Shapiro for tipping me on to this term.

I hope everyone enjoys this blog, and checks it out from time to time.

Update: (1:30 PM EST) I just hit 1,200 hits.

Update: (2:15 PM EST) I just hit 1,400 hits.

Update: (2:35 PM EST) I just hit 1,500 hits.

Update: (5:00 PM EST) I just hit 1,800 hits.

Update: (7:40 PM EST) I just hit 2,000 hits.