For the second time in so many days, the Volokh Conspiracy is announcing the retirement of “Sandra O’Connor.” This time, however, it’s Sandra Day O’Connor, the associate Supreme Court justice, creating the first opening on the Supreme Court in 11 years—and also, more importantly, allowing me to test a theory of the justices’ voting behavior that’s been kicking around in my head (and which requires the end of a natural court to test).

Will Baude disagrees with Todd Zywicki’s assertion that the “wall of separation between church and state” is a modern coinage, pointing to Thomas Jefferson’s 1802 letter to the Danbury Baptist Association.

While it’s true that Jefferson did write the letter, and he is a “founder” in some senses of the term, on the larger issue I’m not sure his opinion is dispositive as to whether or not the First Amendment should be understood as erecting a “wall of separation,” particularly since Jefferson was an executive branch official (Secretary of State to George Washington) at the time. James Madison’s position (as chief author of the Bill of Rights) would be more dispositive—and, in fact, Madison appears to have staked out a somewhat different position closer to the “coercion” and “neutrality” tests than either strict separation or Lemon.

Whether or not this should matter when interpreting the Constitution, however, is another question entirely.

Mark Steyn on the daft proposal to ban flag burning:

A flag has to be worth torching. When a flag gets burned, that’s not a sign of its weakness but of its strength. If you can’t stand the heat of your burning flag, get out of the superpower business. It’s the left that believes the state can regulate everyone into thought-compliance. The right should understand that the battle of ideas is won out in the open.

Quite right. As it turns out, one of my first bits of political almost-participation—I say “almost” because I never mailed it—was a letter to the editor to the Stars and Stripes opposing such an amendment in the wake of Texas v. Johnson. My political views on a few things have changed since then—I was something more of a nanny-statist in my youth—but not on flag burning.

þ: Peaktalk and a host of others.

Clarion-Ledger reporter Jerry Mitchell suggests that prosecutors may find forensic evidence that is sufficient to indict the real other killers involved in the slayings of James Chaney, Michael Schwerner and Andrew Goodman. Color me somewhat skeptical, but if the evidence fits, you must convict.

Another oddity: the C-L piece mentions Sam Bowers as a possible suspect in the sidebar, and Scipio points out that Bowers and Killen may soon be bunkmates at the Central Mississippi Correctional Facility in lovely Rankin County, Bowers having been convicted for killing Vernon Dahmer a few years back. You’d think they’d mention Bowers was already behind bars for another racially-motivated killing, instead of referring to him as “Sam Bowers of Laurel.”

I don’t have any particular expertise to offer on the Court’s completely and thoroughly icky decision in Kelo v. New London handed down today—for that, see folks like Orin Kerr and the Crescat gang for the legal nuances—but I will note that I’ve finally learned my lesson: never teach a constitutional law course during a semester while the Court is handing down decisions.

I am somewhat reminded of the Nissan plant case here in Mississippi (discussed here); the prevailing feeling at the time was that the Mississippi Supreme Court probably would have found that taking to be unconstitutional. Mind you, the Mississippi Constitution is rather more explicit in stating that “public use” is a justicible question than the Fifth Amendment of the federal constitution.

Also, my armchair psychoanalysis of Justice Kennedy’s recent “leftward” shift is that he really doesn’t want to be nominated for chief justice when (if?) Rehnquist retires. Not that there was much risk of that happening, mind you, but it’s as good an explanation as any.

Although I can’t find a link yet, the top of the New York TImes home page is reporting that Edgar Ray Killen was just sentenced to 60 years in prison for his role in the Neshoba County killings. Enjoy rotting in Parchman, Eddie.

Update: C-L story here.

Scipio further explains his view that the Killen manslaughter verdict indicates a weakness in the state’s case—and gives evidence from the Evers case that suggests the decision to seek the manslaughter instruction might reinforce the “political” nature of Killen’s prosecution:

Because of the peculiarity of Mississippi’s murder law, a defendant who is on the evidence guilty of murder can be convicted only of manslaughter without error attaching. But this is a decision the jury should be allowed to make, without the State telegraphing AS IT DID WITH ITS MOTION. When, immediately before trial, the State asks for a special instruction on manslaughter when murder is the real crime, it indicates a severe weakness in the case, and also that the indictment is deeply flawed.

Contrary to my pessimism earlier today, the jury in Neshoba County today convicted Killen of three counts of manslaughter, a lesser charge than murder but one that, given the sentencing range, still will probably see Killen spending the rest of his life behind bars.

Update: Scipio wonders why the state asked for the manslaughter instruction in the case:

Additionally, what went wrong with the state's case? Why did they suddenly seek that manslaughter instruction?

Considering that the state's case was based primarily on old evidence from the civil rights trial of Killen and testimony from relatives of the deceased, and there were no surprises at trial, one has to wonder: why did the state indict for the top offense then chicken out? One obvious reason is to guarantee a conviction of some kind. But isn't securing a manslaughter conviction in place of a murder conviction a masterly coup on the part of the defense counsel, and a big downer for the state?

On the other hand, since it’s unlikely that Killen is going to ever be a free man again, I’m not all that sure it’s much of a coup for the defense.

Elsewhere: Steven Taylor has another story link on the case; the AP’s article is here. Finally, I’ve entered this into today’s OTB Traffic Jam.

James Joyner comments thusly on the jury deadlock in the Killen trial:

One of the many problems with digging up decades-old cases for re-prosecution in order to salve old wounds is that only one outcome is “acceptable.” Our criminal justice system is supposed to be geared to put the burden on the prosecution. In these cases, though, the guilt of the man on trial is assumed and the jury is expected to play their role in the grand show by convicting him. If they do, all is as expected. If they don’t, then it just goes to show that they’re a bunch of racists and society has not changed.

I believe Killen is guilty as sin—heck, the original trial in 1967 wouldn’t have come out 11–1 if he weren’t—but I really don’t know how you can prove that in a court of law with virtually no physical evidence, relying on less-than-credible witnesses and 42-year-old memories, and that’s the fundamental problem the prosecution is facing in this case..

I tend to think that “truth and reconciliation commissions” are a bit of a joke, but there’s something to be said for them in preference to having trials where the downside—the acquital of a pretty-obviously guilty man—is much bigger than the upside of the trial confirming the obvious. The success of the Beckwith “Ghosts of Mississippi” prosecution I fear may have distorted perceptions of this equation by state authorities.

Meanwhile, at least one witness at the trial was sounding a lot like Robert Byrd:

[A well-wisher]’s affections for the KKK were echoed Monday by defense witness Harlan Parks Major, who left office eight years ago after serving two four-year terms as Philadelphia mayor. “They do a lot of good for people,” Major said of the KKK, drawing indignant chuckles from some in the audience.

Nothing like a Song of the South-style whitewash of the Klan to brighten up one’s day.

Edgar Ray Killen is set to go on trial in Philadelphia, Miss., for his alleged role in the “Philadelphia Three” murders on Monday, and the predictable flood of worldwide media coverage has materialized; probably the best pieces I’ve seen are from the New York Times and Canada’s National Post.

However, neither story makes it clear why Killen wasn’t tried again after his 1967 federal criminal trial that ended in a 11–1 hung jury; you’d think that an 11–1 jury vote would be a pretty strong indication that a second trial would have ended in a conviction… does anyone know the answer?

I’d personally like to thank the Supreme Court for announcing its decision in the medical marijuana case Gonzalez v. Raich (né Ashcroft v. Raich) today. I guess the silver lining is that I have a week before I actually have to talk about the case in my con law class.

Slightly more seriously, James Joyner approves (although not of the public policy in question), while Glenn Reynolds doesn’t. More, of course, at the Volokh Conspiracy from Orin Kerr and David “Buy My Book” Bernstein.

On the recommendation of Orin Kerr and Glenn Reynolds, I read this Jon Henke post that makes a fairly compelling case that there are systematic problems with detainee abuse in the War on Terror—relying on sources that most would consider to be objective.

Henke also proposes two solutions, POW status and real trials, both of which should be familiar to longtime Signifying Nothing readers—heck, it’s been a recurring theme from Robert and I for over two years now.

A day late and a dollar short, I find out that John Ford resigned from the Tennessee Senate in the wake of the Tennessee Waltz arrests. Good riddance, although I think there’s a fair shot he’ll be back—even if it’s after a trip to the Big House. (þ: Wizbang)

While I was off in North Carolina, apparently five current or former Tennessee legislators, including John Ford, were indicted for alleged involvement in influence-peddling after a two-year sting operation by Tennessee and federal authorities. I can’t say I’m particularly surprised that the long arm of the law has caught up with Ford, although I am surprised it wasn’t due to his TennCare or child care shenanigans.

I haven’t really been on the case, but Mike Hollihan has, so just start at the top and keep scrolling.

When I told my Civil Liberties class that one way porn producers tried to defend themselves in court was to produce adult films with “serious” artistic and political themes (one of the prongs of the Miller test), it never occurred to me that there might be a porn star who also has a career a lawyer. You learn something new every day… (þ: OTB)

Continuing a theme, Tom Traina has a worthwhile post on Lochner and Roe. I don’t have anything to add beyond what I already said in comments to Tom’s post.

Kevin Aylward apparently thinks people who violate court orders with impunity should get off scot-free since the people who are calling for enforcement of the court order have, in the past, defended people Kevin doesn’t like. For that matter, I don’t really like those people too, but neither do I particularly like people who confuse public schools with Sunday school.

There are a few things around the web of interest on the “Real ID” Act today:

Orin Kerr thinks Bruce Schneier is overstating his case against the Real ID provisions,although Kerr is unconvinced of the merits of the proposal (þ: Glenn Reynolds).

Lamar! is among the senators opposed to the Real ID provisions… but they’re going to be law anyway, thanks to a 100–0 Senate vote on the supplemental appropriations bill they were contained in.

“Hannibal” of Ars Technica says there’s more to be concerned about in the bill, although I have to say I’m somewhat less upset than he that Congress suspended part of NEPA for the purpose of improving border security.

John “Don’t Call Me Juan” Cole notes that the ACLU is challenging a 1805 North Carolina statute forbidding cohabitation by unmarried couples in court. For those considering living in sin elsewhere, the Tar Heel State is not alone in its opprobrium toward cohabitors:

North Carolina is one of seven states that still have laws on the books prohibiting cohabitation of unmarried couples. The others are Virginia, West Virginia, Florida, Michigan, Mississippi and North Dakota.

As a longtime opponent of such “uncommonly silly” laws, I offer the ACLU my unqualified support in this matter.

Well, the state’s budget crisis was fun while it lasted… but apparently it’s now over after a $100 million settlement with the corpse of MCI over back taxes owed to the state. As always when large sums of money are being tossed around and lawyers are involved, Mike Moore manages to work his way into the plot:

Negotiations were stalled until two months ago, when MCI contacted former Attorney General Mike Moore. His law firm has represented MCI.

“They just called me up when they decided they wanted to get serious about negotiations,” Moore said.

Yeah, whatever. More on the fallout here.

From a recent 7th Circuit opinion:

The trial transcript quotes Ms. Hayden as saying Murphy called her a snitch bitch “hoe.” A “hoe,” of course, is a tool used for weeding and gardening. We think the court reporter, unfamiliar with rap music (perhaps thankfully so), misunderstood Hayden’s response. We have taken the liberty of changing “hoe” to “ho,” a staple of rap music vernacular as, for example, when Ludacris raps “You doin’ ho activities with ho tendencies.”

Sounds a lot like my paper grading over the past week. (þ: BTD Greg)

A friend passed along the Ron Mexico name generator. My alter ego is apparently “Bruno Jamaica.”

Incidentally, at least none of my students in intro last night thought the Supreme Court case that applied the exclusionary rule to the states was People v. Ron Mexico. (On the downside, I did have one student who thought the Shakira-Aguillera test had something to do with the free exercise clause.)

This is my entry in today's DIY OTB Traffic Jam.

Robert’s post below juxtaposes rather oddly with this bizarre ABC News story I just saw on memeorandum. Freaky.

A good David Brooks piece appeared in today’s New York Times on the hyperpoliticization of the abortion issue in the wake of Roe v. Wade. An excerpt to whet your appetite:

Justice Harry Blackmun did more inadvertent damage to our democracy than any other 20th-century American. When he and his Supreme Court colleagues issued the Roe v. Wade decision, they set off a cycle of political viciousness and counter-viciousness that has poisoned public life ever since, and now threatens to destroy the Senate as we know it.

When Blackmun wrote the Roe decision, it took the abortion issue out of the legislatures and put it into the courts. If it had remained in the legislatures, we would have seen a series of state-by-state compromises reflecting the views of the centrist majority that’s always existed on this issue. These legislative compromises wouldn’t have pleased everyone, but would have been regarded as legitimate.

Instead, Blackmun and his concurring colleagues invented a right to abortion, and imposed a solution more extreme than the policies of just about any other comparable nation.

ATSRTWT.

I meant to blog this before I went to bed last night, but the permanent link hadn’t appeared yet in the RSS feed. More here.

Tim Sandefur* has a post on Lochner for dummies. I’m personally still wrestling with how to teach ESDP in my constitutional law classes†—in general, the economic liberties stuff in Epstein and Walker is the weakest material and the hardest for the students to understand—so every little bit I can get from alternative perspectives helps. Of course, the quasi-artificial division of ESDP in “Con Law I” and other forms of SDP—what normal humans call the right to privacy (with or without scare quotes), the right to travel, and the whole mess that is discrimination law—in “Con Law II” doesn’t help student understanding much either.

* Who I don’t read nearly often enough because he doesn’t ping any update services when he posts—hint, hint!
† Which I can mercifully put on hiatus while at Duke, though the over-under is that I’ll probably return to the role of jack-of-all-trades Americanist where ever I end up tenure-track (which actually I don’t mind that much).