Tag: Constitution Day

Kozinski on Privacy at Constitution Day

The Hon. Alex Kozinski gave the annual B. Kenneth Simon lecture at Cato’s Constitution Day conference on September 15, 2011. He spoke about changing cultural expectations of privacy regarding new technologies and how judicial applications of the Fourth Amendment have changed over time to reflect these expectations. Judge Kozinski is the Chief Judge on the U.S. Court of Appeals for the Ninth Circuit.

Constitution Day

On September 17, 1787, the Framers of the Constitution of the United States of America, having completed their work over that long hot summer, sent the document out to the states with the hope that conventions in the states, pursuant to Article VII, would see fit to ratify it. Nine months later, on June 21, 1788, New Hampshire became the ninth state to do so, making the Constitution effective between those states. Shortly thereafter, three more states ratified the document; and Rhode Island, the last, did so on May 29, 1790.

The Constitution was not perfect – what human creation is? – not least in its oblique recognition of slavery, believed necessary to ensure union. But it provided for amendment, as with the addition of the Bill of Rights in 1791 and the Civil War Amendments several decades later, which ended slavery and brought the Bill of Rights to bear upon the states. All things considered, especially when we look at the rest of the world, the Constitution has served us well, enabling us to prosper in greater freedom than most have ever enjoyed.

Over the past century, however, we’ve allowed governments at all levels to grow far more than the Framers ever would have imagined the Constitution allowed, until today the modern redistributive and regulatory state is everywhere upon us. James Madison, the principal author of the Constitution, wrote in Federalist 45 that the powers of the new government would be “few and defined,” leaving us largely free to plan and live our own lives. If we’re to restore that Constitution of limited government, it will take more than courts and “politics as usual” to do so. We’ve got to take the Constitution seriously not just on Constitution Day but on every day. Fortunately, there are stirrings in the nation today that suggest that ever more Americans are doing so. Thomas Jefferson said it best: “Eternal vigilance is the price of liberty.”

Cato’s Eternal Vigilance

Today is Constitution Day, when all educational institutions are supposed to teach something about our founding document and when all citizens should think about the liberty that is so precious, but that requires, as Jefferson said, eternal vigilance.  We at Cato celebrate Constitution Day with our annual symposium – this year held yesterday so as to accommodate Yom Kippur, which begins tonight – and by releasing the Cato Supreme Court Review, the nation’s first in-depth review of the Supreme Court term just ended.

We’ve now had nine such conferences – which take place about two and a half months after the previous term concludes and two weeks before the next one begins – and published nine such volumes.  We are proud of the speed with which we publish the Review – authors of articles about the last-decided cases have little more than a month to provide us full drafts – and of the tome’s accessibility, at least insofar as the Court’s opinions allow for that.  Both the book and the conference are intended for everyone from lawyers to educated laymen and interested citizens.

I hope that our Constitution Day event and the Review’s collection of essays will deepen and promote the Madisonian first principles of our Constitution, giving renewed voice to the Framers’ fervent wish that we have a government of laws and not of men.  In so doing, we hope also to do justice to a rich legal tradition in which judges, politicians, and ordinary citizens alike understood that the Constitution reflects and protects the natural rights to life, liberty, and property – including The Right to Earn a Living, to quote the title of a new book by my friend and Cato adjunct scholar Timothy Sandefur (for which we’re having a Hill briefing today and book forum Monday) – and serves as a bulwark against the abuse of government power.

In this uncertain time of individual mandates, endless “stimulus,” financial “reform,” and general overreach, it is more important than ever to remember our Constitution’s roots in the Enlightenment tradition.

Cato Supreme Court Review on the Road

With last week’s Constitution Day conference behind us (watch it here) – and the release of the 2008-2009 Cato Supreme Court Review – I can finally escape the office where I’ve been holed up all summer.  Yes, it’s time to go on the road and talk about all these wonderful legal issues we’ve learned about over the past year, as well as previewing the new Supreme Court term.

To that end, below the jump is my fall speaking schedule so far.  All these events are sponsored by the Federalist Society (and in some cases co-sponsored by other organizations) and all are open to the public.

If you decide to attend one of the presentations after learning of it from this blog post, please feel free to drop me a line beforehand, and do introduce yourself after the event.

Sept. 24 at 11:50am - DePaul Law School, Chicago - Debate on the Second Amendment post-Heller

Sept. 24 at 4:30pm - Chicago-Kent School of Law - Panel on Rule of Law in Iraq

Sept. 29 at 5:00pm - University of Cincinnati Law School - Rule of Law and Economic Development

Sept. 30 at 12:00pm - Capital University Law School (Columbus, OH) - Review of October Term 2008/Preview of October Term 2009

Sept. 30 at 3:30pm -  Ohio Northern School of Law (Ada, OH) - Debate on Ricci and Affirmative Action in Employment

Oct. 1 at 12:00pm - University of Toledo Law School - Debate on Ricci and Affrimative Action in Employment

Oct. 1 at 5:00pm - Thomas M. Cooley Law School (Auburn Hills, MI) - Immigration and the Constitution

Oct. 5 at 12:00pm - University of Pennsylvania Law School - Debate on the Use of Foreign Law in Constitutional Interpretation

Oct.6 at 5:30pm - Blank Rome LLP in Philadelphia (Federalist Society Lawyers Chapter; small admission fee) - Panel on Rule of Law in Iraq

Oct. 8 at 1:00pm - Penn State-Dickinson Law School (University Park) - October Term 2009 Preview

Oct. 13 at 5:15pm - George Mason University Law School (Arlington, VA) - October Term 2009 Preview

Oct. 26 at 12:00pm - Florida International University Law School (Miami) - Topic TBA

Oct. 27 at 12:30pm - University of Miami Law School - Topic TBA

Supreme Speculation

With no hard news to report and the Supreme Court not in session — they’ll release opinions in the remaining cases on successive Mondays (plus the Tuesday after Memorial Day) beginning May 18 — Washington is abuzz with speculation over potential high court nominees.  While Senator Orrin Hatch earlier this week said he expected an announcement this week, the White House is far more likely to take its time vetting candidates, with no real pressure to announce a pick until the Court recesses at the end of June. 

Nobody other than the president himself really knows who’s favored, but ABC News’s Jan Crawford Greenburg — who will be contributing to this year’s Cato Supreme Court Review and speaking at our Constitution Day conference September 17 — has some fascinating scuttlebutt:

No clear favorite has emerged, but the pick has prompted an internal struggle between legal and political officials within the administration, sources say.

Political officials like Chief of Staff Rahm Emanuel are favoring Sotomayor, who would be an historic pick as the Court’s first Hispanic justice.

Obama, the thinking goes, could score huge points with Hispanics, an important and increasingly powerful constituency, by nominating Sotomayor or another Latino. Sotomayor has a compelling life story, moving from the projects to the nation’s most elite educational institutions and then onto the federal bench.

But Sotomayor has not dazzled or distinguished herself on the appeals court as a forceful theoretician or writer — something Obama, the former constitutional law scholar who will drive this decision, is likely to want in his Supreme Court nominee, sources close to the process said. Moreover, she’s also been criticized for abrasiveness — which could be problematic on the high court.

Legal officials in the Administration want Obama to tap a candidate who would be a more obvious force on the Court, bringing both intellectual prowess and a proven ability to build coalitions. They favor either Kagan or Wood — prospects who could be considered judicial rock stars capable of going toe to toe with Scalia and Roberts.

I would expect Senators Claire McCaskill (D-MO) and/or Amy Klobuchar (D-MN) also to be on the shortlist — more likely the former because she was one of Obama’s first supporters in the Senate (and whose replacement would be appointed by a Democratic governor).  Senators have historically been fairly easy to confirm because of the courtesy extended to them by their erstwhile colleagues.  Still, we haven’t had such a nominee — or anyone other than sitting appellate judges — in the poisonous post-Bork world, so all bets are off.

Were it not for Ricci v. DeStefano, Sotomayor would be a shoe-in on the simple formula of Princeton+Yale Law+Second Circuit+Hispanic woman.  Now, and also for the reasons Jan cites, that is looking less likely.  I still favor Wood because she has a proven judicial temperament, sterling qualifications in technical fields like antitrust and trade regulation, and would be no worse — and quite possibly better — than the other contenders on constitutional issues.  If I were putting money on it, however, I would have to go with Kagan precisely because she was so recently vetted and confirmed (61-31, with Arlen Specter voting ”no” under Scottish law because he felt she hadn’t sufficiently answered his questions).