Recently, a number of legal thinkers who might be described as conservative nonoriginalists have criticized originalism -- Charles Fried, Harvie Wilkinson, and perhaps Justice Sam Alito. They appear to have differing philosophical viewpoints -- a certain kind of deontology, pragmatism, and Burkianism -- but all seem to reject originalism as the primary basis for constitutional law. What is going on? Originalism has grown mightily in recent years -- greatly expanding among libertarians and even increasing among liberals. But one has the impression that the great majority of conservatives are originalists. Does this trinity suggest otherwise? I don't think so, but part of…
Archives for May 2012
Those who have learned about the Catholic position on church and state only from the study of European history or from Enlightenment commentaries upon it may surprised to read—and wary to accept—the assertion that “American Catholics have been advocates for religious liberty” from the earliest days of the country’s European settlement. But this claim, which introduces the recently released statement of the United States Conference of Catholic Bishops’ Ad Hoc Committee for Religious Liberty, “Our First, Most Cherished Liberty,” can indeed be documented, both by the 1649 Toleration Act in Maryland, which the bishops cite, and the published writings of the first Catholic bishop in the United States, John Carroll, who complained about remaining religious establishments in 1789 that “the constitutions of some of the States continue to entrench on the sacred rights of conscience; and men who have bled and opened their purses as freely in the cause of liberty and independence, as any other citizen, are most unjustly excluded from the advantages which they contributed to establish.”[i]
Catholics’ insistence is not in the first place for exemptions from generally applicable law or “conscience clauses” that allow individuals to stand aloof from common practice on religious grounds—allowing nurses who object to abortion, for example, from having to assist in the procedure, and allowing doctors to forego abortion training as part of medical school—though they will accept such exceptions when they lose the policy debate. The Church, after all, treats the Christian conscience not as autonomous voices but as a shared inheritance, making the formation of consciences one of the central tasks of her ministry. At stake for Catholics is the ability to live the faith freely in the midst of society, not only in worship, but in business, sport, education, entertainment, politics, and everything else. “That is the teaching of our Catholic faith,” the bishops write, “which obliges us to work together with fellow citizens for the common good of all who live in this land. That is the vision of our founding and our Constitution, which guarantees citizens of all religious faiths the right to contribute to the common good together.”[ii]
The bishops sound alarm—they call their statement an “urgent summons”—because of several developments across the political spectrum, and they feature two in particular which, as they are associated with opposite political parties, might insulate their complaint from charges of partisanship.
Over at our sister site, EconLog, the bloggers are discussing Bleeding Heart Libertarianism. Caplan notes with approval David Friedman’s criticism that the BHLs have not made clear the weight which they attach to the interests of the poor. Caplan wonders whether BHLs are claiming for the poor “anything stronger than a utilitarian would accept?” Caplan, however, does recognize that BHL “deserve credit for pointing out the many neglected ways that government hurts the truly poor.” These two points by Caplan give me greater confidence in my consequentialist version of BHL. I actually don’t like the term “social justice.” And I find…
At the originalism blog, Mike Ramsey has a number of thoughtful posts on the Arizona immigration case and its central preemption question. His April 24 post rejects the contention that Arizona’s law is preempted because it “conflicts with the generalized purposes of federal law or with executive branch enforcement policies.” In support of that position, Mike cites and discusses Justice Thomas’s important concurring opinion in Wyeth v. Levine (2009).
I agree that “generalized (statutory) purposes” in and of themselves don’t preempt (although in the Arizona case, the feds have additional, more persuasive preemption claims). And I certainly agree that Justice Thomas’s Wyeth opinion is the most forceful and fully developed statement to date of the originalist-textualist position on federal preemption.
That opinion, however, goes well beyond the common-sense proposition that courts shouldn’t make up legislative purposes, preemptive or other. Unmistakably, the Wyeth opinion means (although it does not say) that Chief Justice Marshall’s celebrated decision in Gibbons v. Ogden was wrong—because it was anti-originalist and extra-textualist. For discussion see The Upside-Down Constitution, pp. 369-372 (excerpted below).
This conflict between Marshall’s jurisprudence and modern-day, clause-bound and textualist originalism isn’t a fluke; it’s part of a pattern. By strict originalist standards, the second holding of M’Culloch (states can’t tax the Bank of the United States) was surely wrong: if Congress wants to protect its instruments against state interference, it should and must say so. Brown v. Maryland, holding that a license tax on importers was the equivalent of a constitutionally prohibited tax on imports and therefore preempted, was wrong. So was Marshall’s expansive riff on the Contracts Clause, or on corporations and diversity jurisdiction. Truth be told, I can’t think of a single Marshall opinion (let alone a Story opinion—Martin v. Hunter’s Lessee or Swift v. Tyson, anyone?) that would pass muster on the originalism blog. The reason is no great mystery: every notable Marshall opinion either starts with or soon turns on the purpose of the statute or constitutional clause at issue. And by the lights of (positivist, clause-bound, textualist) originalism, that is verboten.
Forced to choose between clause-bound originalism and John Marshall’s jurisprudence, I’m inclined to hang with Marshall. Still, I remain open to the suggestion that the Chief was a rogue. What strikes me as overdue is a candid acknowledgment of the conflict.
Wyeth v. Gibbons
[Wyeth v. Levine arose over a tragic injury to a patient whose doctor and nurse, in an act of flagrant malpractice, had administered a drug in direct contravention of the federally approved warning label. The wording of that label conformed with — in fact, was practically dictated by — FDA requirements under the Food, Drug and Cosmetics Act (FDCA). The question in Wyeth was whether the patient could still sue the manufacturer under a “failure to warn” theory under state law or whether the federal act and the FDA-approved label preempted the imposition of state-law liability. But by a 6-3 majority, the court decided against preemption. (Justice Alito dissented, joined by Chief Justice Roberts and Justice Scalia.) Justice Thomas submitted an opinion concurring with the majority.]