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In his review of Sandy Levinson’s new book, Framed, JPS can’t but help criticizing opinions in which he dissented:

 And neither the Tenth Amendment, which merely confirms that federal legislation must be authorized by an enumerated power, nor the Eleventh Amendment, which by its text concerns only suits by one state’s citizens against another state, should be understood to affect this point.

In a handful of recent cases, however, the Supreme Court has made the fundamental mistake of failing to properly account for the constitutional compromise that created the Senate. Majority approval of the states, as reflected in the outcome of a Senate vote, should be sufficient to justify the exercise of federal power. Yet inAlden v. Maine (1999), the Court held that the states could not be required to obey laws applying to the national labor market. In Printz v. United States (1997), it ruled that state agents need not assist the federal government’s efforts to secure the safety of its citizens. These are examples of Supreme Court cases that will be seen as unfaithful to that compromise.

. . . .

Levinson’s discussion illustrates errors that have been committed by the Supreme Court in reading limitations on federal power into the Constitution that are unsupported by its text. In Printz v. United States, the Court held that the federal government could not direct county officials to conduct background checks on prospective handgun purchasers during an interim period in which federal officials could not. That holding makes no sense. Just as the federal government can draft citizens into the army, so, too, should it be able to call upon state agents to assist with federal functions.

Or make them buy broccoli.

Similarly, in New York v. United States, the Court invalidated an act of Congress that attempted to provide a solution to the national concern about the disposal of radioactive waste; the Court held that the federal government could not command states to “take title” to such waste. In neither Printz nor New York was the holding even arguably mandated by constitutional text; nor was there historical or structural support for the Court’s conclusions, as my dissents in those cases explained.² In the face of pressing national problems, such as those at issue in Printz and New York, or far more serious and time-sensitive emergency situations, such as the September 11 attacks, it is exceedingly unwise to restrict the ability of the federal government to meet the crisis on the basis of a constitutional reading that lacks historical justification or textual support.

Such as the historical analysis Justice Kennedy used in Boumedienne v. Bush to limit the Chief Executive’s ability to deal with an issue of national security. Oh wait. (I don’t disagree with the outcome of Boumedienne, but efforts by Stevens to cast it in term of historical justification is farcical).

Nothing new here. He made the same points in his book, 5 Chiefs.

Either as a fine, or a tax (paging JGR):

Apropos of my post yesterday, I have no idea what these numbers mean now that the case is over. Though it seems that now that the Supreme Court has spoken, fewer people think the federal government should be able to compel the purchase of health insurance by imposing a fine.

My most sincere thanks to the editors of the Dukeminier & Krier text for using a case from the New Jersey Supreme Court to illustrate the public trust doctrine with respect to whether land along the beach (in this case the Jeresey Shore) can be privately owned. See Matthews v. Bay Head Improvement Association (the source of the above quotation).

And from Raleigh Ave. Beach Association v. Atlantic Beach Club (in Cape May, NJ):

Because the activity of swimming “must be accompanied by intermittent periods of rest and relaxation beyond the water’s edge,” the lack of an area available to the public for that pur- pose “would seriously curtail and in many situations eliminate the right to the rec- reational use of the ocean.”

I think this video sums up the doctrine nicely.

Without access to the sand ancillary to the beach, how else would Snooki find the beach? It can’t just be a simple three-foot strip (as the owner of the private club sought). No, it must be the wide expanses of the sand, held in the public trust, so the patrons of the Jersey Shore can wander and meander about, much like the free water, to find the shore. The common law prevails again. How would this case have turned out if the beach was privately owned? Well, Snooki still would’ve gotten arrested, but for different reasons!

 

MTV? Please! Celebrity Death Match: Scalia v. Posner. I will raise whatever funds necessary to make that happen. Or maybe Greenbag can make Bobblehead Rock’em Sock’em Jurists so the two Judges can spar. They definitely need to take this outside.

Following Round 12, we now have Round 13! (Reuters calls it Scalia v. Posner: Round 4. I’m glad they are using a similar naming scheme but their numbering is WAY off).

This time Justice Scalia provided what can only be described as a press release to Reuters in response to Posner’s statement:

On Friday, Scalia retorted with a two-paragraph written statement, and that may be the last word on this matter: Posner, shown a copy of Scalia’s latest statement, declined to make further comment.

What follows is Scalia’s statement. Below that are links to an article about Scalia’s Monday interview with Reuters and to Posner’s response.

This is why judges place a limit on the number of reply and sur-reply briefs parties can file! So what did Scalia say?

I stand by my statement.

Judge Posner did not simply write, as his justification would lead one to believe, that I used legislative history. He wrote that although I am a “pertinacious critic” of legislative history, I use it whenever I try to determine the meaning of 18th-century texts. To assess whether that charge of inconsistency is true, it is what I mean by legislative history, not what Judge Posner means, that must be consulted. And I always use it to mean what lawyers understand by the term: not (what Judge Posner thinks it means) “the background and events leading to the enactment of a statute,” but the hearings, debates, and committee reports in the body that adopted the text at issue, pertaining to the meaning of that text.

As for Judge Posner’s concluding assertion that at least in one case (District of Columbia v. Heller) I did use legislative history in the sense I abhor: the reader need only consult the cited pages to determine that even this is false.

This should be the end. Or not. Following Rounds V, VI, VII, VIII, IX, X, XI and XII, I am getting tired!

Update: And this from Garner on Twitter:

First Judge Posner called me a liar, and then Justice Scalia called Judge Posner a liar, and now I'm completely out of Twitter characters.

— Bryan A. Garner (@BryanAGarner) September 22, 2012

To be precise, that message is 138 character, so Garner lied. He had two more characters to go.

Dave Weigel has an interview with the Producer of Atlas Shrugged II: The Strike here.

The Producers of the movie must be ecstatic about the Paul Ryan nomination, and the refocus on Rand leading up to the election.

I will be interviewing Anne C. Heller, author of Ayn Rand and the World She Made, on an episode of JoshLive on October 4. We will be talking about the attention on Rand in light of the Ryan pick. I will be sure to ask about, let’s call it, Ryan’s faint-hearted Randiness. I interviewed Heller about her cool book three years ago.