Fans of the late Justice will treasure a new collection of his speeches.
Justice Antonin Scalia definitely had a way with words. Law students pore over his opinions not just for Scalia’s keen analysis but to delight in the verve of his prose—pungent, clear, combative, and always colorful. Scalia aficionados also savor his books and essays, which showcase his forceful rhetoric and deft pen. Alas, the body of Scalia’s judicial decisions and scholarship, although considerable, is finite. Fortunately, Scalia fans now have a treasure trove of new material to savor, in the form of a recently-released compilation of the late Justice’s speeches, entitled Scalia Speaks: Reflections on Law, Faith, and Life Well Lived.
The Obama administration has ordered schools and government facilities to give transgender individuals access to facilities such as bathrooms and showers on the basis of the gender which they identify, regardless of their biological sex. Ed Whelan has already shown in a series of persuasive posts how wrong the administration is in it its interpretation of Titles VII and IX of the Civil Right Act. Here I want to discuss another mistake: the impulse to nationalize rules about complex matters of social norms that are better handled by private and decentralized ordering.
Permitting transgender people to use facilities involves issues of respect for individual difference and the privacy of personal space. I am not sure how I would resolve these issues myself. It may well depend on circumstances, such as context and place. But we will make more sensible resolutions of these issues in the long run, if the businesses and localities are allowed to make their own decisions for private and public facilities respectively. New social norms are likely to be shaped for the better, if individuals and groups are allowed to act freely without government intervention outside of preventing force and fraud.
The contrary view is that this is a matter of civil rights where national laws are needed based on philosophical premises. The analogy is to the discrimination against African Americans before the Civil Rights Act. Indeed, for the left on such matters it is always 1964.
But the analogy to racial discrimination of that era is misleading.
In the Weekly Standard, libertarian law professors Josh Blackman and Randy Barnett offer five recommendations to a new Republican President on how to select Supreme Court nominees. Conservative blogger and activist Ed Whelan disagrees with many of these recommendations. I thought I would weigh in on each of them.
1. Bruising confirmation battles are worth the political capital for a lifetime appointment.
Whelan largely agrees with this, but he points out that only certain Presidents will be willing to incur those costs. That is certainly true. I would assume that both sides believe that it is important to elect a President who is committed to originalism and lawfulness, and therefore who would be willing to fight the good fight on this issue.
2. Paper trails are an asset, not a disqualification.
(This post is written jointly by John McGinnis and Mike Rappaport) Ed Whalen objects to the treatment of precedent in our book Originalism and the Good Constitution. First, he questions our conclusion that Article III’s grant of judicial power provides authority for judges to apply precedent rules in constitutional decisionmaking. While he does not dispute our evidence that at the time of the Framing judges routinely applied rules of precedent in decisions interpreting legal texts, he says that this is no reason to suggest that this power encompasses constitutional precedents, because the legislature cannot overrule erroneous constitutional precedents, as it can…
(This post is written jointly by John McGinnis and Mike Rappaport)
Ed Whelan has read our book and is kind enough to describe it as “an impressive work, rich with interesting and intelligent arguments.” And he writes, “Their book will surely play a prominent role in the ongoing debate over originalism.”
Ed does, however, offer some criticisms in his two posts on our book. In this and the next post, we will respond to some of his arguments.
First, Ed questions whether our consequentialist defense of originalism – as involving a good Constitution that should be enforced – is really the best normative defense of originalism. He first notes that we reject the notion that following the law is the best defense of originalism. He then states:
To state my point more affirmatively: I find much more appealing the normative argument for originalism that law professor Lawrence B. Solum makes in his long law-review article “Semantic Originalism” (pp. 149-160). That argument, at its essence, is that in a “reasonably just society” like ours, it’s wrong to lie about the meaning of the Constitution. . . . Even in the collapsing state of our culture, the proposition that it’s generally wrong to lie seems to me to retain broad appeal.
We are not exactly sure what Ed is proposing as the best normative defense of originalism. On the one hand, he might be arguing that we should follow the original meaning, because it is the law. If that is his argument, then we would point to Mike Rappaport’s earlier post rejecting this argument. In particular,
another problem with the argument that the original meaning of the Constitution is the law that it is not clear that it is true. What does it mean to say that the Constitution’s original meaning is the law? Certainly, people are in jail in the U.S. – lots of them – for violating laws that are inconsistent with the Constitution’s original meaning. More generally, nonoriginalist Supreme Court decisions are enforced without a second thought by most people all the time.
But perhaps Ed means something else – perhaps he is basing his argument simply on the obligation not to lie. We have a couple of concerns about this.