Congress, not cities, regulates interstate commerce. This law, while intended for a noble purpose, must therefore be struck down.

The fate of a District law banning rail shipments of hazardous materials was back before a federal judge yesterday, nearly two years after the prohibition was enacted by the D.C. Council.

The law, which was prompted by fears that the Capitol and other landmarks are vulnerable to a terrorist attack on rail lines that skirt downtown, was quickly challenged in 2005 by CSX Transportation Inc., which controls the key freight routes through the District. The law has never taken effect. Yesterday, a judge heard arguments to determine whether it ever will.

If this law is permitted to stand, it would be the first of many such regulations that would have the effect of rendering entire segments of track unusable by railroads, or forcing the massive rerouting of shipments to meet with each little town’s ordinances. Sorry – that goes against the fundamental constitutional order of things, assuming the courts properly construe the Constitution.

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On one level, I have to agree with Justice Scalia on this point – but on another level, I think he is dead wrong.

During an appearance at Iona College, Scalia said Florida's handling of the recount, which was the key to determining whether Republican George W. Bush or Democrat Al Gore became president, was a clear violation of the Constitution's guarantee of equal protection under the law.

"Counting somebody else's dimpled chad and not counting my dimpled chad is not giving equal protection of the law," Scalia told an audience of 700 who attended his speech at the Mulcahy Gymnasium.

Scalia, who was appointed to the court in 1986, noted that seven members of the court agreed that Florida's handling of the recount represented a violation of the equal protection clause. The controversial part of the ruling - which caused a 5-4 split on the court - was the decision that there was not enough time for Florida to develop proper standards to count the ballots.

"The whole world was laughing at the world's greatest democracy," Scalia said "They could not complete an election."

Scalia's comments about perhaps the most controversial decision of his tenure came during a brief question-and-answer period that followed his half-hour speech. He let it be known that it's time for people to stop rehashing the decision.

"It's water over the deck - get over it," Scalia said, eliciting a loud burst of laughter from the audience.

Now as a practical matter, I think that Antonin Scalia is correct – over six years after the fact, the time is long-since past for folks to let their hate and vitriol fall by the wayside. On the other hand, I think there is precedent value in this case that is important, and it therefore needs some rehashing. After all, the equal protection analysis of the case does have serious ramifications for future election cases.

There is also a comment quoted at the end of the article that I think needs to be dealt with – a comment from a young man in the audience, not Justice Scalia.

Scalia also savaged the notion of the Constitution as a living document, noting the problem with that view.

"The Constitution is not a living organism, for Pete's sake," Scalia said. "It's a legal document."

Accepting a living Constitution, Scalia said, means, in reality, giving the governing majority the ability to constantly rewrite the document to meet society's views of the day and add new rights and new governmental powers that were never intended by the authors. He warned that such a practice is not healthy for a democracy.

"Freedoms will be eliminated just as freedoms will be added," Scalia said.
The best example of the living-Constitution argument, Scalia said, is the evolving view of the 8th Amendment, which forbids cruel and unusual punishment.

At the time the Constitution was adopted, he explained, the death penalty was a commonly accepted punishment but now it is argued as unconstitutional.
Abortion, Scalia noted, is another issue that is being framed in constitutional terms when it is better handled by legislatures.

On this point, Scalia is 100% correct. Legal documents are supposed to be static, and interpreted according to the original language and intent of those who entered into the contact. After all, would you sign a mortgage or a contract that was a “living document” that evolved and changed over time in ways that you could not foresee? Of course not.

There is a process for making changes to the terms of legal documents – but it isn’t “make it up as you go along”, which often appears to be how certain justices approach some elements of the US Constitution. That is the amendment process, one which is little used and often neglected as activist judges simply recast and reconstrue the language that is already there in ways antithetical to the historical understanding and common-sense reading of the document.

And then there is this comment, made by one of the students in attendance, that I think needs to be dealt with.

"I think he was a little biased," said Josh O'Brien, a junior at Iona who is majoring in political science. "He showed a conservative bias. ... I think that as the times change, the laws also have to change."

O’Brien simply misunderstands the view that Scalia and the originalists have of the law and the Constitution. I know of no one who holds to a strict constructionist view of the Constitution who disagrees with the idea that the law must change as the times change. Where we part company with the “living document” proponents is HOW the law and the Constitution must be changed. Simply put, we believe that the process laid out in Article V should be followed. The alternative makes constitutional law the equivalent of quicksand, with no certain meaning to any provision.

UPDATE: Looks like Kennedy and O'Connor have also spoken on the case.

"A no-brainer! A state court deciding a federal constitutional issue about the presidential election? Of course you take the case," Kennedy told ABC News correspondent Jan Crawford Greenburg in her new book, "Supreme Conflict."

Kennedy said the justices didn't ask for the case to come their way. Then-Vice President Al Gore's legal team involved the courts in the election by asking a state court to order a recount, Kennedy said.

* * * O'Connor said the Florida court was "off on a trip of its own."

She acknowledged, however, that the justices probably could have done a better job with the opinion if they hadn't been rushed.

Still, O'Connor said the outcome of the election would have been the same even if the court had not intervened.

She was referring to studies that suggest Bush would have won a recount limited to counties that Gore initially contested, although other studies said Gore might have prevailed in a statewide recount.

I do have one problem with this new article, though -- while it repeatedly argues that the case was decided 5-4, that was not the case. The decision was 7-2 that the recount as conducted under the supervision of SCOFLA (Supreme Court of Florida) was unconstitutional. The 5-4 portion regarded the remedy -- whether there should be another recount or not. Unfortunately, the appropriately named SCOFLA had run the clock out in such a way as to make a recount impossible under the constitutional and statutory deadlines that existed under Florida and federal law.

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On one level, I have to agree with Justice Scalia on this point – but on another level, I think he is dead wrong.

During an appearance at Iona College, Scalia said Florida's handling of the recount, which was the key to determining whether Republican George W. Bush or Democrat Al Gore became president, was a clear violation of the Constitution's guarantee of equal protection under the law.

"Counting somebody else's dimpled chad and not counting my dimpled chad is not giving equal protection of the law," Scalia told an audience of 700 who attended his speech at the Mulcahy Gymnasium.

Scalia, who was appointed to the court in 1986, noted that seven members of the court agreed that Florida's handling of the recount represented a violation of the equal protection clause. The controversial part of the ruling - which caused a 5-4 split on the court - was the decision that there was not enough time for Florida to develop proper standards to count the ballots.

"The whole world was laughing at the world's greatest democracy," Scalia said "They could not complete an election."

Scalia's comments about perhaps the most controversial decision of his tenure came during a brief question-and-answer period that followed his half-hour speech. He let it be known that it's time for people to stop rehashing the decision.

"It's water over the deck - get over it," Scalia said, eliciting a loud burst of laughter from the audience.

Now as a practical matter, I think that Antonin Scalia is correct – over six years after the fact, the time is long-since past for folks to let their hate and vitriol fall by the wayside. On the other hand, I think there is precedent value in this case that is important, and it therefore needs some rehashing. After all, the equal protection analysis of the case does have serious ramifications for future election cases.

There is also a comment quoted at the end of the article that I think needs to be dealt with – a comment from a young man in the audience, not Justice Scalia.

Scalia also savaged the notion of the Constitution as a living document, noting the problem with that view.

"The Constitution is not a living organism, for Pete's sake," Scalia said. "It's a legal document."

Accepting a living Constitution, Scalia said, means, in reality, giving the governing majority the ability to constantly rewrite the document to meet society's views of the day and add new rights and new governmental powers that were never intended by the authors. He warned that such a practice is not healthy for a democracy.

"Freedoms will be eliminated just as freedoms will be added," Scalia said.
The best example of the living-Constitution argument, Scalia said, is the evolving view of the 8th Amendment, which forbids cruel and unusual punishment.

At the time the Constitution was adopted, he explained, the death penalty was a commonly accepted punishment but now it is argued as unconstitutional.
Abortion, Scalia noted, is another issue that is being framed in constitutional terms when it is better handled by legislatures.

On this point, Scalia is 100% correct. Legal documents are supposed to be static, and interpreted according to the original language and intent of those who entered into the contact. After all, would you sign a mortgage or a contract that was a “living document” that evolved and changed over time in ways that you could not foresee? Of course not.

There is a process for making changes to the terms of legal documents – but it isn’t “make it up as you go along”, which often appears to be how certain justices approach some elements of the US Constitution. That is the amendment process, one which is little used and often neglected as activist judges simply recast and reconstrue the language that is already there in ways antithetical to the historical understanding and common-sense reading of the document.

And then there is this comment, made by one of the students in attendance, that I think needs to be dealt with.

"I think he was a little biased," said Josh O'Brien, a junior at Iona who is majoring in political science. "He showed a conservative bias. ... I think that as the times change, the laws also have to change."

O’Brien simply misunderstands the view that Scalia and the originalists have of the law and the Constitution. I know of no one who holds to a strict constructionist view of the Constitution who disagrees with the idea that the law must change as the times change. Where we part company with the “living document” proponents is HOW the law and the Constitution must be changed. Simply put, we believe that the process laid out in Article V should be followed. The alternative makes constitutional law the equivalent of quicksand, with no certain meaning to any provision.

UPDATE: Looks like Kennedy and O'Connor have also spoken on the case.

"A no-brainer! A state court deciding a federal constitutional issue about the presidential election? Of course you take the case," Kennedy told ABC News correspondent Jan Crawford Greenburg in her new book, "Supreme Conflict."

Kennedy said the justices didn't ask for the case to come their way. Then-Vice President Al Gore's legal team involved the courts in the election by asking a state court to order a recount, Kennedy said.

* * * O'Connor said the Florida court was "off on a trip of its own."

She acknowledged, however, that the justices probably could have done a better job with the opinion if they hadn't been rushed.

Still, O'Connor said the outcome of the election would have been the same even if the court had not intervened.

She was referring to studies that suggest Bush would have won a recount limited to counties that Gore initially contested, although other studies said Gore might have prevailed in a statewide recount.

I do have one problem with this new article, though -- while it repeatedly argues that the case was decided 5-4, that was not the case. The decision was 7-2 that the recount as conducted under the supervision of SCOFLA (Supreme Court of Florida) was unconstitutional. The 5-4 portion regarded the remedy -- whether there should be another recount or not. Unfortunately, the appropriately named SCOFLA had run the clock out in such a way as to make a recount impossible under the constitutional and statutory deadlines that existed under Florida and federal law.

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Here is a historical tidbit on the retirement of Justice Sandra Day O’Connor and the death of Chief Justice William Rehnquist. It seems that the pair wanted to avoid the possibility of a double vacancy – and that Rehnquist’s decision to stay forced O’Connor out. But then again, she wanted to go, given her husband’s slow descent into the twilight world of Alzheimer’s disease.

By June, with only weeks left in the term, O'Connor went to visit her old friend again. Even though he had been coming to the court every day, she, like the other justices, still believed he would be retiring soon. She'd begun to think she would spend one more year on the court before retiring herself.

She knew that Rehnquist believed emphatically that the court shouldn't have two retirements at the same time. She guessed that he would imminently announce his retirement, allowing her to stay one more year.

She guessed wrong.

He stunned her by telling her: "I want to stay another year."

O'Connor was caught off guard. Rehnquist's implication was clear: She must retire now or be prepared to serve two more years. Rehnquist was unilaterally deciding both of their fates.

Now these two had known each other for over half a century, dating back to Stanford Law School. I believe IÂ’ve even read, though I do not remember where, that at some point the two future justices may have dated once or twice. They were certainly more than colleagues, they were friends.

And that leads me to wonder. Was Rehnquist’s decision one predicated upon personal stubbornness and a refusal to face his on mortality? Or was it a personal sacrifice by one friend on behalf of another – trying to stick it out so that O’Connor could have that last bit of quality time with the man she loves, despite Rehnquist’s own infirmity? I don’t know, but I’d like to believe it was the latter. And while his decision resulted in that very double vacancy that the Chief Justice wished to avoid, I believe the result is a stronger Supreme Court.

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It is official – not only can the government take your property and give it to a private developer, private developers with political clout can now legally engage in extortion against land and business owners using the threat of eminent domain action.

The Supreme Court on Tuesday bypassed an opportunity to revisit or limit its much-disputed 2005 ruling that upheld governmental power to use eminent domain to foster economic development.

Without comment, the justices declined to hear a case from Port Chester in Westchester County, N.Y., that challenged the villageÂ’s use of eminent domain in a dispute between a property owner and a private company designated as the developer of a run-down 27-acre urban renewal area.

The redevelopment plan, adopted by Port Chester in 1999, envisioned a retail area that would include a drugstore. In 2002, the developer, G & S Port Chester LLC, announced that a Walgreens store would be part of the project. But Bart Didden, the owner of the parcel where the store was to sit, had by that time separately entered into a lease with a competing drugstore chain, CVS.

After negotiations between Mr. Didden and G & S Port Chester failed, the village sided with its developer and notified the property owner that his half-acre parcel would be taken by eminent domain and made available for the developer’s use. Mr. Didden and his business partner, Domenick Bologna, brought a lawsuit in 2004 arguing that Port Chester’s condemnation of the property was not for a true “public use,” the phrase that identifies the constitutionally permissible use of the eminent domain power, but rather for the private financial benefit of the developer.

In other words, the government can now pick and choose who is the economic winner when there is a set redevelopment plan. There was already a drugstore slated to go on that parcel – the government simply decided that it would take the land and give it to G & S Port Chester to build a drugstore unless G & S Port Chester got a financial stake in already existing drugstore project. Where is the public use or benefit of this decision?

The failure to take and decide this case merely reinforces the question I asked after Kelo – does private property still exist in the United States, despite the guarantees of the United States Constitution?

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Signaling that the university recognizes the dubious nature of the charges against them, two of the students charged in the Duke Rape Frame-Up Case have received letters from a senior administrator at Duke University welcoming them back to campus as students in good standing for the spring semester.

Duke University will allow two former lacrosse players accused of sexual assault to return to campus as students in good standing.

The university informed Reade Seligmann and Collin Finnerty in letters dated Jan. 2 that they were welcome to come back to Duke for the coming semester. They they had been placed on interim suspension and then administrative leave of absence. The third accused player, David Evans, graduated from Duke last year.

It's unclear whether Seligmann and Finnerty will accept Duke's offer to return this semester. The next court hearing in the case is scheduled for Feb. 5.

The gesture reflects the university's new stance toward the three former players. After rape charges were dropped in December, Duke President Richard Brodhead issued a statement calling into question Durham District Attorney Mike Nifong's handling of the case and the fact that kidnapping and sexual assault charges remain against the three men.

In a letter to Seligmann, Larry Moneta, vice president for student affairs, wrote: "As circumstances have evolved in this extraordinary case, we have attempted to balance recognition of the gravity of legal charges with the presumption of your innocence. Now with the approach of a new term, we believe that circumstances warrant that we strike this balance differently."

The return of these young men to school is a complicated question. Both are still facing serious charges, and could stand trial during the coming semester. Would their return to school be an additional complication as they prepare to defend themselves against the increasingly flimsy charges brought by DA Mike Nifong? Will they really be welcome on a campus where a large group of professors have publicly issued a statement declaring them guilty – a statement that has never been retracted? Given the race-baiting engaged in by Nifong and others, will these young men be physically safe in Durham? Frankly, I’d be surprised to see either of them return prior to their full acquittal or the dropping of all charges – and even then I wonder if it would be more appropriate for them to make a clean start somewhere else.

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