I've gotten a couple of e-mails asking a) what the hell the title of the blog means; and b) what significance the descriptive quote has. So, here are some quick answers.
a) I just shortened the title to Exclusio Unius from the cumbersome Expressio unius est exclusio alterius, which is legalese/legal latin/incomprehensible jargon. If you haven't looked it up on wikipedia yet, it is a canon of statutory construction that means "the express mention of one thing excludes all others." I first learned about it in my 1L ConLaw class in the context of the dormant commerce clause, which is the theory that the individual states are prohibited from regulating interstate commerce because the constitution explicitly gives the federal government that power. Exciting! I like it because it gives me an air of authority that, with only one year of legal education under my belt, I don't exactly have.
b) My constitutional law professor was a man named Lino Graglia, a hard-headed, erudite Brooklynite. He subscribes to the school of thought known as constitutional originalism à la Justices Thomas and Scalia and if the name Robert Bork rings a bell, you might find it interesting that Graglia describes himself as "Borkier than Bork." Consequently, one of his pet peeves is 14th amendment jurisprudence, especially the infamous theory that the 14 amendment encompasses a "penumbra" that gives rise to emanations such as the right to privacy, the right to bodily autonomy, and, by extension, the right to have an abortion. I'm pro-choice, so I like the practical outcome of this theory, but I understand Graglia's point that it might be a bit of a stretch to divine a right to autonomy from the 14th amendment (more on this later). In class, he likened those justices who invoke the "mystical" penumbra to astrologists, and the quote that I use as the blog description is from his lecture on Roe v. Wade.
5 comments:
adam i like your blog. youre a huge nerd though.
in an earlier post it seemed to me you were dissing the new yorker for breeding intelectual snobbery. first that is a little hypocritical coming from a political philosophy nerd like yourself. second, people that read the new yorker ARE better than other people, so their snobbery is justified.
yo, thanks for writing this. I saw the nation article (http://www.thenation.com/doc/20080630/hafetz), and then read the wikipedia article (http://en.wikipedia.org/wiki/Boumediene_v._Bush) (and then everything that linked to, ad infinitum) but yours was the only bit that really talked about the opinion, thanks very much.
also I replied to your godard comment at http://www.michaelbrotzman.net/?id=10&c#post10
Who cares about due process penumbra, when you can get there directly from the Ninth Amendment? That's the silly thing about Graglia's originalism - it can't coherently handle open-principle applications. (Plus, "Borkier than Bork" is a bad thing - see, for example, Posner's searing dissection of him in Overcoming Law
~~Miguel
By the by, happy birthday Adam!
Thanks Miguel! Also, don't be so sure that you can topple Graglia's originalism by invoking 9th amendment jurisprudence. First of all, it's a product of the "legal activism" of the last 30 years, so an originalist can always rely on the (plausible) argument that the 9th amendment wasn't intended to confer sweeping rights to privacy, etc. Also, Graglia would always equate the 9th amendment with the 10th— that it's just a truism.
Again, I don't necessary buy Graglia's arguments and this is just some devil's advocacy, but Graglia isn't a total quack. I mean, he's more consistent than Bork.
But I don't think it's the case that originalism can't handle open-principle applications, it just provides narrower, simpler answers, which isn't a good thing. Insofar as law regulates, monitors, and shapes human behavior, constitutional jurisprudence should pay attention to subtlety.
There's something else involved here, too, that reminds me of our old S&P seminar with Schuldenfrei. He used to rail against direct democracy (e.g. California referendum), in favor of a hierarchical political arrangement. I've often thought about how conservative political theorists like Shouldenfrei and Harvey Mansfield espouse Aristotelian and Platonic political philosophies but conservative legal theorists like Graglia and Bork advocate originalism as the saving grace of democracy (because the Supreme Court justices are basically platonic guardians). Just a thought.
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