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Christopher Shea interviews Steven D. Smith, co-director the UCSD Institute on Law and Religion, at the Boston Globe: “IDEAS: How did cases on funding parochial schools—a 1947 case said the direct funding of religious instruction would be improper—and then the school-prayer decisions of the ’60s mess up the American settlement? / SMITH: The Supreme Court, most importantly with the school-prayer decisions, effectively rescinded that settlement, because the school-prayer decisions effectively said that the constitutional position or orthodoxy was the secularist one. If I can make an analogy, that would be the modern counterpart to a decision in the 16th or 17th centuries that of the two contending sides, the Protestant or the Catholic, one was the preferred party of a realm.”
John McGinnis & Michael Rappaport at Volokh Conspiracy: Frequently, it is argued that the problem with originalism is that it forces us to be governed by an old Constitution that is out of date. We think that this claim gets it backwards: nonoriginalism impedes the Constitution from being improved through the amendment process.
Richard Wolf at USA Today: Issues ranging from same-sex marriage to legislative prayer also have offered justices a difficult question: How much weight should be given to centuries of historical practices?
John McGinnis & Michael Rappaport at Volokh Conspiracy: We propose a third theory of how to determine the original meaning (or, put differently, a gloss on the other two theories): original methods originalism. We believe the more accurate way to determine the original meaning of the Constitution is to employ the interpretive rules that the Framers’ generation would have deemed applicable to the Constitution.
Heritage Foundation (includes video): A Conspiracy Against Obamacare details how legal bloggers at the Volokh Conspiracy engaged in a spirited, erudite, and accessible discussion of the legal issues involved in the debate over the Affordable Care Act. This debate was one of the most important and public examinations of the Constitution in our history.
John McGinnis & Michael Rappaport at Volokh Conspiracy: We can summarize our argument in three simple propositions. First, stringent supemajority rules provide the best way to make a national constitution. Second, the United States Constitution was enacted mainly under such rules. Third, it is the original meaning that was enacted under those supermajority rules and therefore it is that meaning that should be followed today.
Profs. John McGinnis & Michael Rappaport at the Volokh Conspiracy: We are very happy to be blogging at the Volokh Conspiracy about our new book, Originalism and the Good Constitution, which has just been published by Harvard University Press. We want to thank both Eugene and the other Conspirators for the opportunity to offer our views on originalism.
Ilya Somin at Volokh Conspiracy: The University of Chicago Law Review recently posted its online symposium on the work of Judge Robert Bork, who passed away last year. The symposium includes essays by several prominent legal scholars, including Steven Calabresi, Bradford Clark, Richard Epstein, John Harrison, Kurt Lash, John McGinnis, and John Yoo. My own contribution, “The Borkean Dilemma: Robert Bork and the Tension Between Originalism and Democracy,” is available here.
Gerard V. Bradley at Claremont Institute: Under the leadership of Chief Justice Warren Burger, who joined it in 1969, the Supreme Court departed from the course taken during the 16-year tenure of his predecessor, Earl Warren.
Paul O. Carrese at Public Discourse: The French philosopher Montesquieu’s principle of moderation taught the founders to reconcile Lockean liberalism, classical republicanism, and Christianity—a balance we could use today.
Federalist Society: The Federalist Society’s 2013 National Lawyers Convention is scheduled for Thursday, November 14 through Saturday, November 16 at the Mayflower Hotel in Washington, D.C. The topic of this year’s convention is: Textualism and the Role of Judges.
David Bernstein at Volokh Conspiracy: But there is a reason for this. The faculties at elite law schools are able to define what was “mainstream” in constitutional law simply by who they hire to join them.
Alex Seitz-Wald at The Atlantic: America, we’ve got some bad news: Our Constitution isn’t going to make it. It’s had 224 years of commendable, often glorious service, but there’s a time for everything, and the government shutdown and permanent-crisis governance signal that it’s time to think about moving on. “No society can make a perpetual constitution,” Thomas Jefferson wrote to James Madison in 1789, the year ours took effect. “The earth belongs always to the living generation and not to the dead .… Every constitution, then, and every law, naturally expires at the end of 19 years.”
Ilya Somin at Volokh Conspiracy: Supreme Court Justice Anthony Kennedy recently explained that he does not perform marriages because of concerns about the implications for federalism [HT: Josh Blackman] . . .
Steven Aden at LifeNews: Scholars, activists, and others who think they know all they need to know about the Supreme Court’s landmark abortion case Roe v. Wade should pick up and read Clarke Forsythe’s Abuse of Discretion. This masterful and very readable volume offers many surprises gleaned from the innumerable hours Forsythe spent reading in the justices’ personal papers at the Library of Congress, as well as personal interviews he conducted with law clerks and others who were involved in the decision.
Breitbart: Alan Dershowitz, one of America’s most well-known Constitutional scholars, told CNBC’s Larry Kudlow that there is no right to an abortion in the Constitution.
The New American: Austin R. Nimocks, senior counsel with Alliance Defending Freedom, responded to the news with the declaration that “marriage — the union of husband and wife — is timeless, universal, and special, particularly because children need a mother and a father.” Bruce Hausknecht, a judicial analyst with Focus on the Family, said that Americans dedicated to strong families “have to shake their heads when they see activist courts in action. First the U.S. Supreme Court decides that the federal definition of marriage must be judicially re-written to conform with state definitions that include same-sex marriage. Now a New Jersey court says that its own state definition of marriage is dependent on the new federal definition of marriage. With circular reasoning like that, there is no amount of social engineering that the judiciary cannot accomplish to achieve its own ends.”
Matthew J. Franck at National Review: Last week at Public Discourse, I detailed how New Jersey Superior Court Judge Mary Jacobson turned legal reasoning upside down and inside out in order to reach the conclusion that the state constitution now requires legal recognition of marriage for same-sex couples.
Ed Whelan at National Review: As they sum up the argument, “If we are to be faithful to law, we must follow the law’s original meaning.” . . . 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.
Matthew J. Frank at Public Discourse: A New Jersey judge’s contorted and nonsensical decision that the state is responsible for the federal government’s failure to recognize same-sex marriage highlights the irrationality that permeates the campaign for “marriage equality.”
Adam Liptak at NY Times: JUSTICES Antonin Scalia and Ruth Bader Ginsburg are ideological antagonists on the Supreme Court, but they agree on one thing. Their court is guilty of judicial activism.
Steve Farrell at The Moral Liberal: What did the Founders mean by the protections in favor of religious liberty in the Bill of Rights? Was the object freedom of religion, or as is held by some today, freedom from religion? In 1833, Supreme Court Justice Joseph Story, a man contemporary to the Founding Fathers, and who by now had been serving on the U.S. Supreme Court for 21 years, published his magisterial “Commentaries on the Constitution of the United States” . . .
Ilya Somin at Volokh Conspiracy: Indiana University law professor Gerard Magliocca has an excellent Washington Post column on why the Supreme Court’s decision largely upholding the constitutionality of Obamacare may not be fully “settled law” . . .
AP: “Any society that relies on nine unelected judges to resolve the most serious issues of the day is not a functioning democracy,” Kennedy said Thursday at the University of Pennsylvania.
The New American: Speaking of the court’s ruling last year on the constitutionality of the Affordable Care Act, Senator Lee said, “Those five lawyers wearing black robes, who we call justices, were no more empowered than the queen of England to impose a tax on the American people.” “This was a lawless act,” he added. It was indisputably a lawless act of unconstitutional lawmaking on the part of the black-robed oligarchy.
Naomi Rao at Volokh Conspiracy: Commentators on Windsor v. United States, in which the Supreme Court invalidated Section 3 of the Defense of Marriage Act, have puzzled about whether the Court’s opinion relies on a federalism rationale or instead some broader rationale about rights for same-sex couples. In The Trouble with Dignity and Rights of Recognition, recently published in the Virginia Law Review Online, I argue that one of the problematic aspects of the decision is that its use of dignity creates an unprecedented right of recognition. Because the decision ultimately turns neither on federalism nor on individual rights, it exists outside of our constitutional tradition.
Joe Alicea at National Affairs: Both before and during the conference, conservative legal scholars were sharply divided about the decision. Some conservatives saw it as a model of judicial restraint and praised the Chief Justice for leaving questions of self-government up to the electorate. Other conservatives saw it as an abdication of the judicial duty to enforce the limits of the federal government’s enumerated powers. Still more legal conservatives — especially those of a libertarian bent — thought Roberts had sanctioned the health-care law’s unjust violation of individual rights.
Michael McConnell at First Things: The United States Supreme Court has two personalities. In the vast majority of cases on its docket, those involving criminal law, business regulation, statutory interpretation, freedom of speech, procedure, jurisdiction, and other technical but important legal questions, the Supreme Court acts like a court of law—a good one. The justices achieve a remarkable degree of consensus and craft opinions that are clear, persuasive, and well grounded in text, history, and precedent. This is true even in hard cases, where there are good arguments on both sides. No one will agree with every decision, but no fair-minded observer could doubt that decisions are based on conscientious legal reasoning.
Religion Clause Blog: AFP reports that for the first time in over ten years, a court in Yemen has sentenced a defendant convicted of robbery to the punishment of amputation, as prescribed by shariah law.
The GW Hatchet: Supreme Court Justice Antonin Scalia reminded the hundreds of people packed into Lisner Auditorium on Monday that the nation’s 227-year founding document does not hold all the answers to some of it’s biggest moral questions.
Blog of the Legal Times: Supreme Court Justice Antonin Scalia on Monday urged everyone to celebrate the birthday of the U.S. Constitution tomorrow — except those who think the document is an “empty body” whose meaning can be filled in by activist judges. In that case, Scalia said in his best New York accent, “Fugget about the Constitution!”
The American Prospect: But it is Ronald Reagan’s ghost that haunts the chief justice’s chambers, much as Franklin Roosevelt’s haunted the chambers of Justices Hugo Black and Felix Frankfurter for decades after his death. Roosevelt and Reagan are the only two 20th-century presidents who consciously pursued a judicial revolution at the Court. Roosevelt’s legal philosophy was based on government as the agent of freedom, equality, and opportunity; Reagan famously declared that “government is the problem,” but he tempered his motto with a willingness to govern, to compromise with political adversaries, and to tax and spend when necessary.
Religion Clause Blog: A group of 15 Evangelical and 14 Catholic law professors have just published a paper that has been 8 years in the making titled Evangelicals and Catholics Together On the Law: The Lord of Heaven and Earth. (Full text in Summer 2013 Journal of Christian Legal Thought). Heavy on theology, the 9-page joint statement begins with this explanation of purpose . . .
Appellate Daily Blog: Why John Roberts Was Wrong About Healthcare: A Conservative Critique of the Supreme Court’s Obamacare Ruling does not hide its political leanings. The title tells the story. Lee, a former Howrey partner, writes that Roberts had “distinguished himself as a fair-minded jurist and a true constitutional scholar—a man seemingly committed to the rule of law and to core constitutional principles.” This “hard-earned distinction was turned on its head” after healthcare, according to Lee.
Carson Holloway at Public Discourse: The president and Congressional supporters of attacking Syria suggest by their actions a strong disregard for public opinion and self-government.
Heritage Foundation: The Framers of the Constitution designed a federal republic in which a central government with strictly limited powers was balanced by state governments with plenary powers. The past 100 years have seen an exponential growth in the size and power of the central government.
Volokh Conspiracy: At the Originalism Blog, Prof. Michael Ramsey, a leading academic expert on constitutional war powers, has an excellent post on the implications of the original meaning for the constitutionality of an attack on Syria without congressional authorization (quoting, in part, from a 2011 post he wrote during the debate over the Libya conflict) . . .
AP: The trip to the Houston Museum of Natural Science is believed to be the first time the delicate, yellowed parchment has left England since it was issued in 1217, two years after the first version of the Magna Carta was distributed.
AP: . . . NAACP President and CEO Benjamin Jealous said a broader coalition is needed to fight the civil rights battles of the 21st century. “Last century we needed lawyers; this century we need big, broad coalitions,” he said.
AP: The U.S. Supreme Court is making decisions that should be left to Congress or the people, from wiretapping to “inventing” new classes of minorities, Justice Antonin Scalia said Monday.
Corley, Pamela, Collins, Paul M. and Hamner, Jesse, The Influence of Amicus Curiae Briefs on U.S. Supreme Court Opinion Content (2013). APSA 2013 Annual Meeting Paper. Available at SSRN: http://ssrn.com/abstract=2300505
Tulsa World: An Oklahoma constitutional amendment that would bar the state’s courts from considering or using Sharia law was ruled unconstitutional Thursday by a federal judge in Oklahoma City. | Awad v. Ziriax, No. CIV-10-1186-M (W.D. Okla. Aug. 15, 2013)
Simon Lazarus at the New Republic: On its final two days, June 25 and 26, Chief Justice John Roberts and his colleagues—”the most conservative” set of justices ever—delivered four intensely anticipated decisions. When the dust settled, progressives had scored two unambiguous wins: The Court struck down the Federal Defense of Marriage Act, and it left standing a lower court’s decision striking down California’s ban on same-sex marriage. A third case yielded a stand-off that felt like a win, because a huge loss had been expected: The University of Texas’ race-conscious admissions regime was remanded for further review . . .
“How Gay Marriage Became Legitimate: A revisionist history of a social revolution” | Richard A. Posner at The New Republic
Richard A. Posner at The New Republic: ll in all, the judicial role in the rise of homosexual marriage seems to have been quite modest. Probably the courts have done little either to accelerate the trend in acceptance of such marriage or, through backlash, to retard the trend. In retrospect, the growing acceptance of homosexual marriage seems a natural consequence of the sexual revolution that began in the 1960s rather than an effect, even to a small degree, of litigation. That should come as no surprise when one thinks of another significant social and cultural development in America in the same era: the virtual disappearance of discrimination against Jews, Catholics, Irish Americans, Italian Americans, and Asian Americans, which also owed very little to litigation.
Richard Reinsch at Library of Law and Liberty: Frank Buckley is the editor of a new collection of essays entitled The American Illness: Essays on the Rule of Law, which features great scholars in business law, class actions, securities, regulatory law, among other subjects, who look into the ways America has departed from its pivotal commitment to the rule of law. The essays are oriented around the idea that America may be alone among western nations in the variety of ways it is descending from the rule of law.
USA Today: But we might do well to pay more attention where the court rules unanimously, particularly when they go against the White House. When a president pursues policies that require such expansive federal power that he can’t get a single justice to agree, something is probably amiss.
Aspen Times: Speaking to a gathering of the Utah State Bar Association at the Westin Resort in Snowmass Village, the longest-serving justice on the nation’s highest court lamented a trend among federal judges, including his colleagues on the Supreme Court, to read and interpret the U.S. Constitution as a “living document” that changes over time.
Ryan T. Anderson at First Things: These remarks were delivered on Thursday June 11, 2013 in Laguna Nigel at the closing banquet of Alliance Defending Freedom’s Academy . . . Culture shapes law, but so too does law shape culture. The law both reflects our values and teaches values—especially to younger generations. The better metaphor, I think, is that of two coasts connected by a tide, that comes in and out, that picks up and drops off on the shorelines. Law and culture reinforce each other, either for or against human dignity and human flourishing.
Kathryn Jean Lopez at Patheos: A beautiful reflection from a young man who has been answering a call to try to help on the most neuralgic of issues; Ryan Anderson speaking at an Alliance Defending Freedom event . . .
David Davenport at Forbes: The legalization of same sex marriage started with the vote of a single judge in Massachusetts ten years ago, and pressed forward with a single unappealable decision by a California federal judge. As in Roe v. Wade and the fury it caused about abortion, the courts would do better to leave social change to the people and their elected officials.
Matthew J. Franck at National Review: In the weekend edition of the Wall Street Journal, Harvard law professor Mark Tushnet had a very smart essay raising the central question about the extent to which we are governed, on our most important political issues, by an unelected, unaccountable judiciary. That question is, why do we put up with it? No one can seriously say that what the Supreme Court did in the Windsor case last week was constitutional law.
Maggie Gallagher at Mercury News: Justice was not blind at the Supreme Court on Wednesday. It was deaf — deaf to the will of the people of California and the nation. With its decision in the Perry case, a majority of the Supreme Court abandoned the 7 million California voters who passed Proposition 8. And by overturning DOMA, the court subverted the will of Congress and the people who elected the senators and representatives who serve there. To overturn the Defense of Marriage Act, Justice Anthony Kennedy invented a standard of “heightened scrutiny” for any law representing what he termed an “unusual deviation.”
Same-sex marriage decisions beg question, should America’s new motto be ‘in polls we trust’? | Cal Thomas at Fox News
Cal Thomas at Fox News: The problem for people who believe in an Authority higher even than the Constitution is that in our increasingly secular and indifferent society it has become more difficult to persuade those who do not subscribe to an immutable standard to accept that view.
Mario Loyola at NRO: Beyond its use as a standard label for any high court decision that doesn’t go their way, liberals use the phrase “judicial activism” to describe high court rulings that strike down some law of Congress as unconstitutional.
Is Congress’s Power Under the “Necessary and Proper” Clause a General Police Power? | Ed Whelan at NRO
Ed Whelan at NRO (6/24): Anyone interested in the scope of Congress’s power under the Necessary and Proper Clause will want to study today’s opinion in U.S. v. Kibodeaux.
DOMA Supreme Court: What Is “Judicial Engagement,” and Why Could It Save Same-Sex Marriage? | PolicyMic
PolicyMic: Alliance Defense Fund Senior Legal Counsel Austin R. Nimocks, who defended Proposition 8 before the Supreme Court, cited the precedent of rejecting same-sex marriage as reason to uphold both laws. Pursuant to judicial engagement, if precedent constricts liberty without a constitutional basis or infringes on the Constitution, the court is compelled to diverge from it. Precedent itself may not justify upholding a law. T
We Stand in Solidarity to Defend Marriage and the Family and Society Founded Upon Them | Freedom Federation
The statement is available here in pdf format.
Bradley Abramson at Townhall: In fact, it can mean anything one wants it to mean. And a constitution that can mean anything is a constitution that means nothing—a mere 17 years after it supposedly meant something.
CANewsService: Supreme Court Justice Antonin Scalia told UC students that the Constitution is not a living document to be reinterpreted with every new generation, but a rigid set of rules which can be amended by lawmakers or citizens as society evolves.
Religion Clause Blog: Earlier this week, the Pew Forum On Religion & Public Life released two related studies. The first, titled Applying God’s Law: Religious Courts and Mediation in the U.S. surveys the routine operation of religious courts across the United States. The second is titled State Legislation Restricting Use of Foreign or Religious Law.
Ross Douthat at NY Times: The notion that nobody would have entertained what Drum later calls the “esoteric” idea that marriage has an essential link to the way that human beings procreate if desperate social conservatives hadn’t grasped at it is apparently quite a popular view, judging by the fact that other writers raised it on Twitter over the weekend, and its popularity testifies to the way that the gay marriage debate has encouraged a strange historical amnesia about the origins of marriage law.
ChrisAdamo.com: So perhaps the Supreme Court in its arrogance believes it can forcibly impose a redefinition of marriage on America. Let it next endeavor to strike down the law of gravity as “unconstitutional” on the basis that it clearly affects citizens in a decidedly disproportionate manner and thus is a primary source of “inequality” among the people. Then every concurring jurist, bureaucrat, and countercultural activist who regards the court’s decision as credible will be free to find a high precipice from which to test its merits. We will then see benefit that can actually be reaped from blind faith in liberal arrogance.
Darwin, Grant R., Originalism and Same-Sex Marriage (February 15, 2013). University of Pennsylvania Journal of Law and Social Change, Vol. 17.1, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2239782 Supreme Court Justice Antonin Scalia has repeatedly asserted that same-sex marriage is an easy …
Politico Misses Kagan ’09 Statement on DOMA Story: ‘There Is No Federal Constitutional Right To Same-Sex Marriage’
Newsbusters: Yet, let’s do a flashback to 2009. Kagan was nominated to be the United States Solicitor General — the officer of the executive branch who represents the United States in controversies and cases which go before the U.S. Supreme Court — and was specifically asked about DOMA and same sex marriage (emphasis mine):
Mark Steyn at NRO: Three weeks ago, I wrote: An institution that predates the United States by several millennia will be defined for a third of a billion people by whichever way Anthony Kennedy feels like swingin’ that morning. The universal deference to judicial supremacism is bizarre and unbecoming to a free people.
Gerard Bradley at SCOTUS Blog: The Justices should be wary of the “science” route. Consider just the leading decisions mentioned during the arguments as instructive parallels to the instant cases. Consider, for example, Plessy v. Ferguson. Justice Sotomayor said that the Court let segregation “perk” for fifty years, until the Justices finally pulled the plug in 1954. But the Plessy Court did not wait upon social scientific evidence of the negative effects of segregation, as Sotomayor implied that it did. That Court was instead party to – at best – a sordid compromise with entrenched racist elements in American society.
“Partial-Birth Abortion” litigation: An example of the problem of an uncertain role definition for federal trial judges
Hercules and the Umpire: Turning to the meat of this post, I was the trial judge in both of the Carhart cases that ended up in the Supreme Court. Compare Carhart v. Stenberg, 11 F. Supp. 2d 1099 (D. Neb. 1998) (Nebraska’s partial-birth abortion statute was unconstitutional), aff’d, 192 F.3d 1142 (8th Cir. 1999), aff’d, Stenberg v. Carhart, 530 U.S. 914 (2000) with Carhart v. Ashcroft, 331 F. Supp. 2d 805 (D. Neb. 2004) (the federal partial-birth abortion statute was unconstitutional), aff’d, Carhart v. Gonzales, 413 F.3d 791 (8th Cir.2005), rev’d, Gonzales v. Carhart, 550 U.S. 124 (2007). Even though there was very little difference in the cases from my perspective, the Court affirmed the first decision but reversed the second. To say that I was perplexed is an understatement. It is that perplexity that prompts this post.
Intelligencer Wheeling News-Register: They see the court also as a court that only reluctantly makes new law, whereas in the past I think they viewed it as a court that looked for opportunities to legislate.
A History Lesson From Clarence Thomas: Correcting a liberal smear about the conservative Supreme Court justice.
Damon W. Root at Reason: Many of his critics may be too ignorant to know it, but Thomas’ writings are steeped in African-American history and grapple repeatedly with the long shadow cast by slavery and Jim Crow. He may not be a modern liberal, but there is no question that Clarence Thomas is part of a civil rights tradition that started with Frederick Douglass.
AP: These varied family portraits of the justices are somewhat at odds with the arguments of gay marriage opponents who stress the unique ability of heterosexual couples to have babies as a reason to uphold bans on same-sex marriage.
Jack Balkin at Balkinization: At a meeting of the Supreme Court Clinic this evening, we discussed the upcoming arguments in the Marriage Cases. We considered what arguments would likely weigh most heavily with the Justices. I noted that one of the strongest influences on the Justices, and especially Justice Kennedy, was how they believed their decisions would look in in ten or twenty year’s time. Would they be seen as defenders of liberty and equality, or would they be viewed in hindsight as defenders of prejudice, fighting against the tide of progress?
Steve Aden at Constituting America: During the founding era, Alexander Hamilton had written Federalist 78, to assure those wary of a strong federal judiciary that “[T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution,” because it holds neither the power of the sword, as the Executive (Presidential) Branch does, nor the power of the purse strings, as the Legislative Branch (Congress) does. “It may truly be said to have neither force nor will,” Hamilton said, “but merely judgment.”