Via Josh at OxBlog, the Open_CRS Network, which seeks to compile a database of all Congressional Research Service reports that are in the public domain. It's much easier than getting a hold of those things the old-fashioned way, which meant either tracking down a senator at a public appearance, and getting a staffer's email address from the senator himself or herself, or it meant staffers who said things like, "Here's my email address, in case you need any CRS reports" (in the next two weeks before I leave the country? what an odd pick-up line so that you can publicly provide your contact info to one person in a group).

Nifty as it would be to have all of these reports easily accessible, I have not yet decided whether or not I think this would be a good idea. Currently, CRS reports only enter the public domain once a senator or representative releases them, and even then, they're difficult to find (perhaps analogous to courthouse records in the back filing cabinet behind the "beware of the leopard" sign).

I'm inclined not to believe that making CRS reports generally available to the public would not cause a burden upon the CRS itself: as it stands, these are internal memos designed to be frank and honest and nonpartisan. They are not intended to be used as ammunition. They are not peer-reviewed. They are simply designed to be useful to members of Congress. If they must also be safe for public consumption, will they be able to fill that role?

Again, I'm on the fence: I've found the CRS reports I've used before to be helpful, and I'd be interested in reading more of them. But I'm also not sure yet if the proposal's prudent.

A few weeks ago, my friend JCA (of SuaSponte fame) and I went out for dinner at the Rustic Kitchen, both to catch up and to officially welcome her to Harvard for bar review. To be honest, we happened on the trendy Italian mini-chain while looking for parking, but I discovered later that it used to be owned by the many-tentacled celebrity chef Todd English, and was now run by his top acolytes. That night, their reputation seemed well justified. Even putting aside the clever white bean puree served with bread, (so much better than butter) we had a delightful, light, dinner - a plate of duck prosciutto, speck, and traditional prosciutto served with some startling preserved grapes, made to look like olives (though with a stale breadstick, in a moment of grim foreshadowing), followed for me with a crisp plain pizza of commendable craft. Certainly JCA's saffron tinged seafood stew was the more interesting dish, but I flatter myself with the idea that I can tell something about a kitchen's dedication to their job by eating the simplest thing on the menu. Dinner ended that night with some beautifully presented cheeses from the Formaggio kitchen delicatessen here in Cambridge - a place I know well and respect .

I was so pleased by dinner that I soon made reservations to take my parents to the same place when they arrived for graduation. The meal started similarly enough - the same smoky bean dip, the same arrangement of breads, and I even ordered the same preserved meats for the table. I did notice that the breads were stale, but I put it down to an innocent mistake - and in any case, we were celebrating. My optimism seemed well placed with the arrival of the main courses - my mother's chicken grilled under a brick was crisply salty, just as I like that dish, while my own double cut pork chop was more gamey than bland - good news when ordering pork. Happy and teetering just at the edge of sated, we ordered dessert.

And that's when the wheels fell off the wagon entirely. My parents shared a (sadly predictable and not very italian) molten chocolate cake- which, alas, wasn't molten. That's not a good look for a molten chocolate cake, and it takes only a few bites to find out why. And yet, it wasn't the worst dessert - though calcified molten chocolate cake is bad, lemon tart with a soft, terribly undercooked pastry is worse. I don't know how something so obviously bad made its way out of the kitchen, but its arrival at my place setting on a day other than April 1 says bad things about whoever is actually running the show.

As I've said multiple times when I write about restaurants, a single visit can only lead to a snapshot of a restaurant at best - a thin view of a few dishes on one day. But there are other dishes, and other days, and other chefs - and a single visit can rarely excavate the more subtle weaknesses of a restaurant's craft. In the case of my initial experience with JCA, however, our shared desire for an understated dessert obscured a gaping hole in the Rustic Kitchen. An almost inexcusable hole. Of course, subsequent visits might expose that one night as an unfortunate anomoly. Or might show that something else on the menu was so transcendant as to deserve a return visit. But the memory of that lemon tart necessarily tinges my desire to go there for anything other than a lunchtime pizza and a bit of speck. And I'm not sure I'll be around to find out more.

Todd Zywicki criticizes this New York Times editorial and asks, "no one seriously believes that it was the founders who 'came up with the idea of a clear wall between church and state' do they?"
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Here is a link to Thomas Jefferson's letter to the Danbury Baptists, which describes the First Amendment as "building a wall of separation between church and state".

I can only think of four possible explanations of Zywicki's statement.

1: He was unaware of the existence of or contents of the Danbury Baptists letter.

2: He does not think Thomas Jefferson was a "founder".

3: Zywicki means to emphasize the New York Times use of the plural "founders" and suggest that no founder other than Jefferson agreed with Jefferson.
4: He wishes to differentiate beween "a wall" (TJ) and "a clear wall" (NYT), although what the point or validity of such a distinction would be, I do not profess to know.

UPDATE: Or perhaps, as a Volokh commenter suggests, Zywicki means to suggest that the "wall of separation" predates the founding, and Jefferson stole it from someplace? This is highly unlikely.

UPDATE TWO: It's worth making clear what I've been repeating in comments-threads across the blogosphere. I don't mean to take on the claim of whether or not Jefferson's views in the Danbury letter accurately express the meaning, original or otherwise, of the religion clauses of the First Amendment. I just mean to point out that the term is not at all of modern coinage.

Jack Balkin and Amber Taylor have heavy criticism of Scalia's paean to monotheism. I will grant that even as Scalia dissents go, this is one of the most intemperate ones I have seen (although it hardly compares to Michael Stokes Paulsen's forthcoming dissent in Roe v. Wade, which will take direct aim at Jack Balkin).

Balkin also reiterates his criticism that originalism underdetermines outcomes and that Scalia therefore reads his own political preferences to fill in that space. Still, it is worth noting a bit of an oddity. Professor Balkin seems to admit that more devotedly hewing to history and tradition would yield the conclusion that the govenment can endorse Christianity specifically, not just monotheism generally. It is in deviating from this that Scalia supposedly reads his own views into the clause. In other words, Scalia is not a true originalist because he is faint-hearted, insists on moderating the effects of unadulterated originalism somewhat with the addition of some liberal enlightenment.

I don't mean this clarification as a criticism of Professor Balkin's post-- indeed, one might think that it is quite unprincipled for an originalist to do this, even when the results are normatively better than they would have been before. Or one might think that this kind of half-hearted adherence to originalism leads to bad forms of status quo bias (e.g., Bowers v. Hardwick which tried to stop substantive due process expansion without being willing to cut back the doctrine that had gotten that far). But it is still worth noting that this is actually the form of the criticism, and also that none of it seems to apply to Justice Thomas's more radical opinion.

On the advice of SCOTUSBlog's Marty Lederman, I have been reading articles (any articles, all articles) by Charles L. Black. [My favorite thus far is his homage to dear Alexander Bickel, but I have plenty more to go.]

One of Black's repeated refrains is about the wrongness (and unconstitutionality?) of the death penalty on procedure/error grounds. This is a common argument nowadays, but it may well have been innovative then. Black argues that so long as our system is riddled, top to bottom, with errors that make it unlikely that the "right" people will be chosen for death, then we shouldn't kill the people that our system picks out.

I'm not so sure about the merits of this claim with respect to the death penalty, but one of Black's savviest arguments is his reply to death-penalty utopians, who ask him "Would you be for capital punishment--if you were sure it were being administered with perfect fairness?" This is how I feel when bloggers ask whether public-use abuse be a problem if we "fully" compensated homeowners for their losses. (E.g., Vic Fleischer, Marty Lederman, Dave Hoffman, Paul Goyette, and so on).

Charles Black had two replies to those death penalty supporters, and I now offer them to supporters of the Kelo decision. First, that it should not embarrass eminent domain opponents even if we hoped for a broader, less popular, limitation on government power. Or as Black put it: "The radical incapacity of human justice to handle this business right is only a lesser included case of its intrinsic wrongness--or at the very most is in no way inconsistent with the latter view." The Death Penalty Now, 51 Tul. L. Rev. 429, 445 (1977).

Second, and more importantly, we do not have such a system of perfect compensation, and there is no short-run chance and little long-run chance that we will. We have a system where largely under-supervised governments and unelected private agencies can take people's land while significantly underpaying, even if fighting city hall is worth the costs, which it frequently isn't. The question-- and there is one question at the moment, not two-- is whether we ought to let the government take-and-underpay on Wal-Mart's and Pfizer's behalf as well as its own.

Unsurprisingly, Black put this reply more eloquently than I can or could:

One could ask, "Would you take trains if the earth were made flat, or would you fear they would run off the edge?" I cannot assert for absolute sure that technology, even in my life, may not be adequate to flattening out the earth, gently enough to leave me alive. But why would we be talking about that now?

Let us not bother too much, now, about what we would do if the earth were made flat, or if π were a rational number ... No. Let us think instead about a real world, a real legal system, real cases.

Lyle Denniston calls John Cornyn's new eminent domain bill "bold" and implies, erroneously, that its constitutionality is questionable under Boerne. Not so. Cornyn's bill restricts federal eminent domain power quite severely, but this is constitutional if the eminent domain power is permissible in the first place-- just as Congress can repeal or partially repeal statutes, and just as RFRA (establishment and severability challenges aside) could still be applied to the U.S. Code. Cornyn's bill also restricts state/local governments but only to the extent they directly use government money-- this is spending clause power that even Justice Thomas would uphold.

However bold the bill may be politically, it is surely one of the most constitutionally unassuming things to come out of the 109th Congress.

[Alternatively, of course, we could move to the world of the late Professor Charles Black, who wrote in 1977 that "Insofar as the American experience speaks to that, it says that 'enumeration of powers' is on all fronts, judicial and practical, a failure." The Myth and Reality of Federalism, 9 U. Tol. L. Rev. 615. Yuck!]

UPDATE: Jenn Carter makes the same error.