An Ending (Probably) and A New Beginning

Well, what can I say about this blog that isn't immediately evident from its posting history. I'll belabor the obvious anyway: Semper Liberi has been effectively out-of-commission for over a year now, and it probably won't be back.

Along with a few others, I started this blog largely to provide a forum for the members of the Federalist Society chapter at the West Virginia University College of Law. Now, the original bloggers have graduated (yes, including me), and, as far as I can tell, the WVU Federalist Society chapter has pretty much disbanded since we left. Hopefully, the WVU chapter will reform shortly, but there is no prospect (right now) that any group of WV Fed Soc members will make use of this site in the near future. Thus, I'm making what was a de facto ending official: no further posts on this blog are planned.


Why am I posting this now, when it is quite possible that, the former contributors and readers having left long ago, no one else will actually read it? Because, in my view, the work we did here merits some sort of ending. As I read through the postings on this blog, I was first struck by disappointment as I recalled how things ground to a halt in 2006. But as I read on, moving to earlier posts, feelings of pride and memories of meaningful discussions surfaced. There is good work here from a number of people; more than a few things here bear re-reading. And in the typically speak-before-you-think blogosphere I think that's not nothing.

As for me, I'm starting a new, personal blog, tentatively called LPMN ("Law, Politics, and Miscellaneous Nonsense"). Among other things, I'll be discussing my views on current legal news events and starting to offer, tentatively and clumsily, some more systematically put-together thoughts about legal theory in a constitutional system.

As for this blog, it will be dormant until further notice (which will probably never come). But the archive will remain online. Indeed, at LPMN I'm sure that I will freely link back to various posts from here. But it's about time that Semper Liberi got a finish. Thanks to all who contributed, commented, and read (and to anyone who is reading now), and if you've got a few minutes to kill give the archives a scan. I bet you'll find it worth the time.

Best,
Brian Areford

A Remarkable Op-Ed

In a rare opinion piece by a sitting federal judge, J. Harvie Wilkinson writes against attempts to ban same-sex marriage by constitutional amendment in today's Washington Post.  The piece is remarkable not simply because of Wilkinson's status as one of the nation's most pre-eminent judges not on the Supreme Court, but because he raises arguments against marriage amendments from a judicially "conservative" prospective and directs them at those who hold similar beliefs about judicial power (ie. people like most of those in the Fed Soc).  Without going too deep into Wilkinson's argumentation -you simply, absolutely must read the whole thing- here's a taste:  

Judges began the rush to constitutionalize. The Massachusetts Supreme Court concocted a state constitutional right to marry persons of the same sex. The court went on to say that opposing views lacked so much as a rational basis. In other words, centuries of common-law tradition, legislative sanction and human experience with marriage as a bond between one man and one woman were deemed by that court unworthy to the point of irrationality.

It would be altogether understandable for Congress and state legislatures to counter this constitutional excess with constitutional responses of their own. Yet it would be the wrong thing to do.

The Framers meant our Constitution to establish a structure of government and to provide individuals certain inalienable rights against the state. They certainly did not envision our Constitution as a place to restrict rights or enact public policies, as the Federal Marriage Amendment does.

I won't make any comments on Wilkinson's piece at this point; it deserves some more time for processing and reflection.  On the other hand, you should stop reading this right now and go read Judge Wilkinson's article.  More later...  

Just So

Though not particularly known as a legal commentator- or, at least, as a specialist in that area- Jonah Goldberg has a piece up on consitutional law and the contradictions shown by some living consitutionalists during the NSA wiretaps controversy. Goldberg attacks the ACLU, among other groups, for construing the Consitution with great flexibility in so many areas but advocating a rigid view of presidential war powers. I think his reasoning is somewhat inelegant, and perhaps incorrect, in places, but his conclusion is nicely stated:

Long before the concept of a living Constitution was hatched, the authors of the original version — as well as the courts interpreting it — understood that the executive branch has the authority and flexibility to conduct foreign policy and wage war. Terrorists may be criminals, but they aren’t merely criminals. They’re waging war against us and doing so in ways never imagined by the founders. They don’t want territory or treaties, and they don’t use armies and cannons. They want to make our own technology and freedoms into weapons they can use against us.

And so here is the real absurdity of the “living Constitution” school. Where the Constitution is supposed to be inert, they want it alive and mutating. But where the Constitution was intended to be flexible, complete intellectual rigor mortis has set in.

We're Back...

Its been an interesting, stimulating, and ... eventful summer, but for better and for worse we're back to school here at the good old College of Law. One of the "better" implications of that formulation, hopefully, is the resurrection of this blog.

Right now, Semper Liberi has both a lot to cover and not much to cover. There are still a lot of cases from last year's SCOTUS term that this blog hasn't covered yet and which certainly deserve coverage (Hamdan not least among them, of course).  And, as always, there's tons of great scholarly material and commentary floating around out there that merits attention here.  However, until the first Monday in October rolls around there will probably be fairly few legal events that will require immediate discussion, at least for the purposes of this blog.  That should allow some time for the commentators  (read mostly, but hopefully not exclusively, me) to catch up somewhat.

The bottom line regarding the blog, I suppose, is that we'll see how it goes as it goes. Thanks for your patience and readership.

Brian

P.S.

I also have to extend a special thanks to all those who wished me well during the "unpleasantness" of the spring / first half of summer.  Fortunately,  I have good reason to think that those matters are now permanently in the past .  Getting back to the practice and (now) the study of law has been the  -aside from the above mentioned expressions of concern-  the best medicine.

A Mid-Summer Status Update

As one can tell by the date of my last post, things have not gone well regarding the blog this summer. I've been preoccupied by some personal (medical) matters from the latter portion of the law school semester until the present; that has been the primary cause of the admitted posting deficiencies. (One could question what sort of aliment, short of coma, could cause such a prolonged gap. I have no good answer to that, or at least not one I'd like to proffer here.) In any event, I shall try to update more frequently in the near future, but to be honest things are not likely to get appreciably better in terms of update frequency on my part for the rest of summer.

That this period of inactivity has coincided with the year-end opinion surge from the first year of the Roberts Court has, of course, not escaped my attention. It also does not escape my attention that a law blog that does not address such decisions on a timely basis is basically worthless. I have no defense to offer on that front.

A Rather Sad Objection

With the recent revelations about William Jefferson (D-LA.) and the FBI search of his congressional offices, it appears that yet another member of Congress will face formal corruption-related charges in the very near future. Of course, this comes in the wake of the bribery convictions of James Traficant (D-OH.) and Randy Cunningham (R-CA.), and is concurrent with the continuing investigation into the Abramoff scandal and recent suspicions that have arising around my own dear representative, Alan Mollahan (D-WV). The reaction on Capital Hill has been one of outrage:

House Speaker J. Dennis Hastert (R-Ill.) expressed alarm at the raid. "The actions of the Justice Department in seeking and executing this warrant raise important Constitutional issues that go well beyond the specifics of this case," he said in a lengthy statement released last night.

Well, ok, so maybe they're not immediately outraged about the same things that people outside Congress are ( House Minority Leader Nancy Pelosi and Senate Leader Bill Frist have expressed similar sentiments). The "constitutional issues" that Hastert refers to supposedly stem from the "speech and debate" clause in Article I, Section 6:

They [senators and representatives] shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

Of course, the text on its face refers only to arrests, and makes no reference to investigations or the execution of search warrants unrelated to a representative's "speech and debate". Moreover, even in the realm of arrests the exception for "treason, felony, and breach of the peace" has been interpreted very broadly, to encompass virtually all modern crimes (see this annotation from the Cornell Legal Information Institute). As former assistant attorney general Viet Dinh explains in the article, "the raid on [Jefferson's] offices itself does not define a constitutional issue."

If I were Hastert, Pelosi, or Frist, I would be more worried about whether my members were selling their offices, and the electoral consequences of that discovery, than trying to stigmatize the FBI for aggressively investigating corruption.

The Post's New Law Blog

I finally got around to taking a look at the Washington Post's new law blog, Bench Conference (gee, no similarity in the name at all to any established blog). Afterwards, I felt a lot better about our humble site. No matter its flaws, our blog will never host discourse like this representative sample on the proposed federal constitutional amendment to ban gay marriage:

And even if the amendment somehow miraculously passed through Congress and the states it is not at all clear that such a change to the Constitution would survive a court challenge, even with a solidly conservative Supreme Court in charge. There is a reason that smart judges around the country have had problems with same-sex marriage bans. They are not always and on their face legal.

Here's a quick refresher on Con Law: if a proposed amendment gets passed by 2/3's of each house of Congress and 3/4's of the states, it becomes part of the Constitution. Period. The amendment could institute limburger as the national cheese, to be consumed at all official functions, and it would still be a valid amendment. The "judges" the Post's blogger refers to are some who have addressed various proposed amendments to various state constitutions, which often have somewhat less straightforward (if also often less onerous) methods of amendment.

I normally dislike those who take potshots at other sites, and try to refrain from doing so myself, but the Post's blog is simply filled with shoddy and silly pieces of legal analysis like the one quoted above. The Post is and remains an excellent source for legal news, but their new law opinion blog is an embarrassment.