In a recent post, I noted that Justice Scalia has been criticized for departing from originalism in various areas. But the positions that Justice Scalia took in many of these cases – including a prohibition on state affirmative action, limitations on regulatory takings, and protection of various state immunities, such as sovereign immunity and commandeering immunity – could have been defended on originalist grounds. One area, however, where there is little to be said for Justice Scalia’s position has largely been ignored: the federal government’s power over immigration. In Arizona v. United States, Justice Scalia started strong, initially questioning the federal…
Archives for October 2016
Over at the Law and Religion Forum, we are hosting an online symposium on a very interesting article by Professor Vincent Phillip Muñoz, “Two Concepts of Religious Liberty: The Natural Rights and Moral Autonomy Approaches to the Free Exercise of Religion.” Muñoz’s basic claim is a historical one about the nature of the Founders’ constitutional commitment to religious freedom: They supported a narrow, but powerful, right of religious free exercise that protected fairly absolutely what were thought to be certain core features of religiosity—such as worship—but that did not protect the panoply of religious “interests” that might be dear to any given constituency.
The Supreme Court is lost. Sunday night’s debate settled that. The question now is not how to save the Court but rather how to navigate an adverse one, and the answer is to deprive it of power.
The University of San Diego's Center for the Study of Constitutional Originalism has announced the papers and commentators for the Eighth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference scheduled for February 17-18, 2017 at the University of San Diego Law School. They are: Randy Barnett (Georgetown) & Evan Bernick (Institute for Justice), The Letter and the Spirit: A Theory of Good Faith Constitutional Construction. Commentator: John McGinnis (Northwestern) Will Baude (Chicago), Constitutional Liquidation Commentator: Bernadette Meyler (Stanford) Mitch Berman (University of Pennsylvania), Our Principled Constitution Commentator: Stephen Sachs (Duke) Jud Campbell (Richmond), Natural Rights and the First Amendment Commentator: Fred Schauer (Virginia) James Fox (Stetson), Black Originalism:…
Obama’s employment law agenda consists of laying siege to employers’ management rights.
Clinton appointments to the Supreme Court would endanger constitutional governance in a variety of ways, but one of the most substantial is the creation of rights nowhere to be found in the actual Constitution. Sadly, the stage has been set for great expansion of such rights by Justice Anthony Kennedy’s Obergefell opinion. It, of course, constitutionalized same-sex marriage. More importantly for the future, it destroyed the doctrinal restraints on substantive due process—the Court’s minting house for new rights.
Previously the Supreme Court had sharply restricted the rights that could be found in substantive due process. In Washington v. Glucksberg, the Court rejected the argument that the right to assisted suicide could be found in the Constitution. The Court read its precedents to require strict objective criteria for the identification of a specific fundamental right: it must be “deeply rooted in this Nation’s history and tradition.” By that strict standard, the right to assisted suicide was a non-starter, because laws against the practice had long existed.
But same-sex marriage could hardly be termed a right “deeply rooted in the Nation’s history and tradition” either. In effect, Kennedy said so much the worse for Glucksberg. One reason he gave is that the right to abortion declared in Roe v. Wade itself had itself not met the Glucksberg test. But the right of abortion had persisted in Planned Parenthood v. Casey not because Roe was substantively correct, but only because it was a precedent. Thus, Roe hardly should be taken as generative model for substantive due process.
Tired of rants about how awful capitalism is? Here’s a fun trick: ask the people you’re discussing it with not to use the term “capitalism.” Politely suggest: since we seem to mean different things by it, let’s just say what we mean without using that one word. It might induce them to think, instead of grabbing pre-fab terms of abuse off the shelf and blaming every problem on that villain from central casting, the capitalist.
Emotionally loaded and so vague as to be almost useless, the word “capitalism” masks the massive phenomenon’s complexity—its fuel in varied motives, its entwinement with a legal order, and (most importantly) its moral ambiguities and mixed blessings.
But aren’t you bored? Thinking is just so . . . boring. Let’s complain about capitalism instead.
The new Magnificent Seven remakes John Sturges’ 1960 classic of the same name and has lots of complaining to do about “capitalism,” at the expense of its predecessor’s subtle and interesting civilizational themes.
Last week, the shorthanded Supreme Court bounced back into action with orders on the pending clutter of cases. Among a slew of cert denials, some grants in mostly tedious cases, a handful of CVSG’s (Call for the views of the Solicitor General), and a gaggle of housekeeping orders, there was a relist in The Gillette Company v. California Franchise Tax Board. The humble Question Presented is whether the Multistate Tax Compact has the status of a contract that binds its signatory States. Gillette and a bunch of other companies say “yes.” California says the Compact was just a good-natured joke, and the California Supreme Court agreed.
With the passing of Justice Scalia, various critics of the justice have made a sport of trying to point out areas where the justice might not have lived up to his own originalist principles. I certainly think it is important for all justices, especially originalist justices, to follow originalist principles. But I don’t approve of the attempt to use originalist principles as a club to attack originalists who sometimes did not live up to those principles.
It is hard to be a justice. One does not have the luxury, like a law professor, of simply writing about the issues one feels comfortable discussing. The issues come up with the cases (even given certiorari at the Supreme Court) and the justices must decide them. Given the pressures and forces of judicial politics, especially in an age where nonoriginalism has been the dominant view for generations, it is hard to expect an originalist justice to be entirely consistent.
In determining how bad it was that a justice did not follow a principle, one must consider a variety of factors, including how difficult it would be to follow the principle (in terms of matters such as consequences and reputation). That nonoriginalist justices follow their own political views – which can be adjusted to their own values, to current politics, or to most other things – is not an especially difficult thing. Thus, comparing an originalist justice who follows originalism only 75% of the time with a nonoriginalist who follows nonoriginalism 95% or 100% of the time is misguided. It is much harder to be the originalist.
The political situation in Poland has attracted the world’s attention. According to conventional wisdom, last year’s electoral victory by the Law and Justice Party was a setback for the democratic evolution of the country. The international media worries that the golden child of post-communist Central and Eastern Europe has gone astray.