Essential Mark Steyn (via the Corner).

Posted by: JohnL at 10:10 PM | No Comments | Add Comment
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If you want to learn more about the Ninth Amendment, Tim Sandefur has been typing like mad on the subject for the past couple of days, carrying on a running discussion with the bloggers at Southern Appeal about the history, interpretation, and modern application of one of the least-understood amendments in the Bill of Rights.

He even scored a complimentary link from con-law guru Randy Barnett, who finds that Tim has been doing a good job defending the original meaning of the amendment.

I tend to side with Tim on this, at least in this part:

"We must not allow ourselves to be spooked into thinking that the end of good government is for the judiciary to defer. History reveals that the worst abuses of Americans have proceeded from a combination of the legislature and the executive, and that judicial restraint has far more often been a license for these oppressors than a protection for our freedom. Of course we don't want unelected judges running everything. But we do not want elected legislators running everything, either. The reason we have a constitution is to stop the legislature from governing certain things. The Ninth Amendment tells us that those 'certain things' are not limited to the things specifically mentioned in the Bill of Rights -- there are other things. What are they? Well, there you must consult history, law, political philosophy, and so forth. That is what the Ninth Amendment means. That is what the privileges or immunities clause means. Any other interpretation would tend toward legislative absolutism and to rendering the Ninth Amendment a nullity, and must therefore be a flawed interpretation."

Click over and keep scrolling down.

Posted by: JohnL at 09:20 PM | No Comments | Add Comment
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To Rob the Llama Butcher, sorry about the "blowback."

You didn't touch the nerve too badly, and what you say is right. I typically have no problems with very specialized outside counsel (say, our patent lawyers or employment counsel). The key to being a successful in-house lawyer is knowing when to stop being a jack-of-all-trades, and to defer to the expertise of competent outside counsel. Lord knows I have been saved more than once by a good lawyer on the outside (much more often than I have had to argue about a junior lawyer missing the point or padding a bill).

Posted by: JohnL at 09:03 PM | No Comments | Add Comment
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Unsolicited advice from Rob the Llama Butcher:

"If you want a memo on a particular point of law to present
to some government agency, don't write one yourself and send it to your
outside counsel for fixing up. Instead, just let them write it from the
ground up.

"Buh-lieve me, you'll save yourself a lot of time and money."

Unsolicited response from in-house counsel (me):

Only if you promise not to stick some first-year associate trained in law school to spot problems instead of answers on the project!

I've noticed that much of the work product outside lawyers prepare for me is wordier and covers far more ground than required by the scope of the project. Of course we're tossing around generalizations here, but. . .

<rant mode>Outside lawyers seem to focus more on problems than solutions. When you have a limited budget, you get pretty frustrated that a ham-handed rookie with no business sense is anally citing and shepardizing the basic principles of law known to all of us in perfect Bluebook fashion, but forgetting to answer the question we asked, all the while charging us close to $200 an hour!</rant mode>

Posted by: JohnL at 12:08 AM | No Comments | Add Comment
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Jan Cydzik survived the Nazis. Then, he suffered the Soviets. He got a $1500 reparations check from the German government and bought a grandfather clock to commemorate the three years of slave labor he performed for the Germans. The Russians haven't paid him anything. Not that he's complaining.

Read the whole thing (minimal registration required to access).

(Hat tip: Catallarchy).

Posted by: JohnL at 08:42 PM | No Comments | Add Comment
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Heh. Now I'm part of the Vast Right Wing Conspiracy.

As a libertarian, I don't see myself as "right wing" in much of anything, but I appreciate the recognition. On the really big issues (especially regarding limits of federal power), libertarians and conservatives tend to share quite a bit of common ground.

I guess the link resulted from Tim Sandefur's mention of our postings on the Supreme Court Canon.

Looking at Tim's list, it's obvious that I haven't done much to keep up with Con Law since my graduation from law school in 1994.

Posted by: JohnL at 09:07 PM | No Comments | Add Comment
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I'm just a commercial lawyer. I almost never have to think of Constitutional Law, unlike the esteemed Tim Sandefur, who makes his living as a real life Constitutional litigator for the Pacific Legal Foundation.

So it's hard for me to even think of ten Supreme Court opinions, much less the ten that every American ought to read.

But here are the "top five" I would nominate:

1. Wickard v. Filburn. Ordinary people should understand just how radically the Court stretched the commerce clause during the New Deal ("What? You mean I can't grow corn on my own land for my own consumption???"). I remember being outraged at federal overreach when I read this case in law school. I would hope ordinary people would be equally outraged today.

2. Miranda v. Arizona. We all know the warnings from cop shows. We should read the original case to find out where they came from. Then, read the fourth and fifth amendments and decide where the court found the rule.

3. Marbury v. Madison. Why does the Supreme Court get the last word?

4. Roe v. Wade. Most people with an opinion on abortion talk about this case as though they understand what it means. Have they even read it?

5. Dred Scott v. Sandford. When the talking heads were running around three years ago yammering about the Court losing its "legitimacy" in the wake of Bush v. Gore, they evidently had no sense of history. This is arguably the lowest point in the Court's history, and one that gravely undermined the Court's (and much of the early Republic's) legitimacy.

Posted by: JohnL at 09:55 PM | No Comments | Add Comment
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