Wednesday, April 26, 2017
Another book you may wish to consider for your summer reading list is All Falling Faiths: Reflections on the Promise and Failure of the 1960s, by J. Harvie Wilkinson III.
An exchange that stood out to me in David Lat's ATL interview with Judge Wilkinson about the book was the one that elicited Judge Wilkinson's statement that "the audience is anyone who loves America":
DL: I think the book will interest a wide range of readers for a wide range of reasons — but did you have a particular reader or group of readers in mind when you were writing it?
JHW: The audience is anyone who loves America. All of us can still help to repair the damage that long-ago decade did to the spirit of tolerance in education, to the stability of family bonds and units, to the rule of law, to our sense of America as our home, to our capacity for national unity even in times of crisis, and to the sustenance we derive from the practice of religious faith. It’s also important to recognize, however, that the 1960s did great good and helped to broaden America’s embrace of all its citizens, not just some. I hope that by the end of the book, each reader will come at least to appreciate the other side of the enduring ‘60s argument.
I believe the generation of the Sixties has been given one last chance to get it right. We can help upcoming generations learn from our experience. And we can devote our later years to bringing together the nation we did so much in our youth to drive apart. We owe our beloved country at least this much, before we leave Shakespeare’s stage and life itself for good.
Marc DeGirolami and I wrote an article a few years ago that explored the relationship between constitutional adjudication and constitutional theory through a study of some judicial and extrajudicial writings by Judge Wilkinson and Judge Posner. We contended that their anti-theory stance, together with their advocacy for judicial restraint and judicial pragmatism, respectively--which functioned in some important ways similar to the theories that they criticized--were best understood as accounts of judicial dispositions in constitutional adjudication. Judge Wilkinson's new book, together with his and Judge Posner's judicial and extra-judicial writings since Marc and I wrote, provide some evidence for the comparative attractiveness of the dispositions advocated by Wilkinson over those advocated by Posner.
Wednesday, March 29, 2017
With the helpful guidance of Richard Reinsch's Brownson anthology, I have lately begun trying to understand the constitutional thought of Orestes Brownson. I am interested in the nature of our Union, and Brownson promises to be very helpful in arriving at clearer thinking on that topic.
Through something of a roundabout way, I recently found myself reading Brownson's 1843 oration at Dartmouth College, "The Scholar's Mission." This mission, he says, is nothing less than "INSTRUCTING AND INSPIRING MANKIND FOR THE ACCOMPLISHMENT OF THEIR DESTINY."
It seems to remain a matter of some dispute what the precise source of JFK's "ask not" exhortation may have been. Some hear echoes of an Oliver Wendell Holmes Jr. speech, and others of Warren G. Harding. Yet another possibility identified by others is this Brownson oration. It includes the exhortation: "Ask not what your age wants, but what it needs; not what it will reward, but what, without which, it cannot be saved; and that go and do, do it well; do it thoroughly; and find your reward in the consciousness of having done your duty, and above all in the reflection that you have been accounted worthy to suffer somewhat for mankind."
Monday, March 6, 2017
Notice anything odd about this screenshot from a few minutes ago?
Hint: Does MOJ believe you should donate to Planned Parenthood to "Save Roe"? (I guess "Save Casey" or "Save Whole Woman's Health" doesn't have the same cachet?)
I wonder what it was in my browsing history or whatever else Google has learned about me that makes me on MOJ a good target for the "Save Roe" ad. They got the supermarket ad right, after all. Kroger is our supermarket of choice in these parts of suburban Richmond.
We'll have to figure out if there's a way for MOJ to avoid being a billboard for Planned Parenthood. In the meantime, here's a podcast that explains why it might not be so good for you to let the "attention media" services use your Facebook and Twitter and other of your feeds that are really theirs as mobile billboards either. This episode of the Federalist Radio Hour features Cal Newport, author of Deep Work.
Wednesday, February 1, 2017
I've written a brief take for First Things on the Gorsuch nomination, "Gorsuch After Scalia."
Here's the opener:
The president’s introduction of Judge Neil Gorsuch to the nation as his nominee for the Supreme Court vacancy left by Justice Antonin Scalia’s death gave us a lift we sorely needed. Finally, something to be at peace about in our public life.
And a bit from the middle:
In my (pre-election) Supreme Court round-up for this journal last year, “The Court After Scalia,” I suggested that “no new justices for a spell might be better than adding anyone who could make it through our rotten confirmation process.” I was wrong. Judge Gorsuch can and will make it through, and the Court will be better with him on it. The biggest reason why someone of his caliber and judicial character can get confirmed now, though, is that the balance of the Court will not be altered by his confirmation but simply reset to where it was before Justice Scalia’s death. If the next opening comes from a vacancy left by Anthony Kennedy, Stephen Breyer, or Ruth Bader Ginsburg, the wheels may yet come off the wagon.
Tuesday, December 13, 2016
The federal government's RLUIPA suit against Culpeper County (Va.) for denying permit to Islamic group
The United States Department of Justice filed a lawsuit yesterday against Culpeper County, Virginia. The suit alleges that the County's denial of a "pump-and-haul" permit, which had the effect of preventing the Islamic Center of Culpeper from constructing a small mosque on land it purchased in the county, violates the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). The facts alleged in the complaint add up to what look to be winning claims. If anything, I'm wondering why there hasn't also been a private suit as well (as far as I'm aware anyway).
Also, as a matter of litigation strategy, is there a good reason that the DOJ didn't also include a Free Exercise claim, something like an as-applied version of the Hialeah case? I understand that the RLUIPA claim would be much easier to prevail upon. But including a Free Exercise claim in which intent to discriminate could be in issue would open the door to more extensive discovery, which in turn could have the effect of prompting a quicker resolution. Any thoughts?
Monday, December 12, 2016
Two very different people on my mind when thinking about this passage from Legutko's The Demon in Democracy this morning were Rod Dreher (whose online endorsements led me to read the book) and Ted Olson (whose comfort with judicialized social restructuring in the name of constitutional liberty is characteristic of one prominent strain in today's ruling class):
Today's mainstream, like the erstwhile communist ruling class, takes over the mechanisms for creating laws and regards it as its exclusive property to be used for its own goals. The modern state openly, even proudly carries out the policy of social engineering, intervening deeply in the lives of communities while enjoying total impunity, which is guaranteed by its control of lawmaking and law enforcement procedures. A markedly important function of the law, to act as a barrier to political hubris, was lost or significantly weakened. Instead, the law has become a sword against the unresponsiveness and sometimes resistance of society to the policy of aggressive social restructuring that is euphemistically called modernization. The law in liberal democracy--as under communism--is no longer blind. No longer can one envision it as a blindfolded goddess holding the scales to determine guilt and punishment. It is now, as it was under communism, one of the engines that transforms the present into the future and the backward into the progressive. The law is expected to be endowed with an accurate picture of what is going to happen in the future so that it can adjudicate today what will certainly happen tomorrow.
Source: Rysszard Legutko, The Demon in Democracy: Totalitarian Temptations in Free Societies 96-97 (Encounter Books 2016, translated by Teresa Adelson) (emphases added).
Monday, November 28, 2016
Last week, Quinta Jurecic suggested at LawFare that an essay/book by moral philosopher Harry G. Frankfurt would be "a good place to start" learning about Donald Trump's relationship to truth. If Jurecic is right, and in many respects she seems to be, then we are in rough shape already. But the Jurecic/Frankfurt take is just a good place to start.
Jacob Levy's tweet-say from this morning provides an even more unsettling, but essential for that reason, line of thought on this topic.
Levy's core claim is that Trump's promulgation of "easily fact-checked nonsense" is useful in providing "sheer shows of power and dominance" that occur when "subordinates" repeat and support Trump's obvious untruths:
The power to make someone who *knows [that] you speak untruths* repeat your untruths is profound, and big obvious lies ("2+2=5") are best for it. Trump repeatedly did this kind of thing to his subordinates over the course of his campaign, testing who was the most faithful kicked dog.
If Levy is right, and it's hard to disagree however unpleasant it is to have to acknowledge, Trump deliberately uses falsehood to compromise people within his orbit. This is a common "group initiation tactic," Levy writes, "from childhood bullies to gangs to the mafia: make the new member one of us, don't let them think they're any better."
I could be wrong about Levy being right. Judge for yourself. Regardless, we can still have some hope that separation of powers and federalism can bear the load placed on them by a Trump presidency. And perhaps reflection on the awfulness of moral and political manipulation through deliberate falsehood can help us all appreciate anew the splendor of truth.
Friday, November 25, 2016
"The Dandy and His Turkey," featuring Chief Justice John Marshall as the "polite old man" gently schooling the young fop
For an uplifting, Thanksgiving-themed counterpoint to Marc's post ("Out With the Old, In With the New!"), check out "John Marshall, 'The Dandy and His Turkey,' and true greatness" at Law-RVA. It provides two nineteenth-century schoolbook-reader renditions of a story about John Marshall. In it, a "polite old man" carries home a turkey from market in Richmond for a fashionable young man who couldn't be bothered to do it himself. Only after the old man departs does the young dandy learn that the old man was the Chief Justice of the United States. Enjoy!
Tuesday, November 22, 2016
You Are Still Crying Wolf (re: Trump's racism) & The Wages of Crying Wolf (re: Supreme Court's aconstitutionalism)
This blog post and this law review article, written over forty years apart, have made for a bracing forty minutes or so of reading this evening. I don't recommend reading them together. In any event, both raise the question not only of how to know when a wolf comes as a wolf, so to speak, but also what to do when a wolf comes to a community that celebrates what wolves do to sheep.
Monday, November 7, 2016
What's so great about 5-4 decisions ASAP anyway? Some further thoughts on reducing the Supreme Court to seven Justices.
Picking up on an issue that most Americans aren't paying attention to at the moment, the New York Times has a house editorial titled "A Coup Against the Supreme Court." I recommend you read it and think about the editors' use of language while doing so. Are they not careless in using words like "coup" and expressing worries about "the very survival of the court as an independent body"?
The editors are concerned that the Supreme Court will be short-handed if Senate Republicans don't vote to confirm a ninth Justice. This worry may not matter after tomorrow's elections, but the editorial seemingly contemplates a Democrat as President with a Republican majority in the Senate, so let's go with it.
There is currently one vacancy on the Court. Three more may emerge over the next few years if one uses the number of Justices aged eighty years or older on the Court as a reasonable indication of the number of vacancies that could occur. With four appointments, the next President may have an opportunity to shape the future of the Court, and of the constitutional law promulgated by that body, in a way that hasn't been seen since FDR.
Should the next President be trusted with that profound responsibility on her own? Would the editors of the New York Times be so convinced of the duty of Senators to confirm presidential nominees to the Supreme Court today if they believed Donald Trump were likely to win tomorrow? Or might it be that our Constitution's requirement of Senate serves a practical purpose by preventing that unilateral executive action?
I've previously argued that now is the time to reduce the size of the Supreme Court from nine justices to seven. I continue to believe that is the best path for the Court and for our country.
Many of my reasons match Michael Stokes Paulsen's arguments for bringing the Court down to six in "The Case for Shrinking the Supreme Court." I also see the attractions of the arguments offered by John McGinnis and Eric Segall about how an eight-Justice Court might be good for America. With an even number of Justices, though, both of these proposals present a risk of an evenly divided Court. People overestimate the negative consequences of such a division. But there is an admitted cost of disuniformity when lower court decisions go different ways on the same legal issue. If there were seven Justices on the Court, the problem of persistent even splits would not be much greater than if there were nine.
With seven Justices, it would only take four instead of five to conjure up a new constitutional right that lasts as long as a majority of the Court wants it to last. And it might be a bad idea to make it even easier to make up new rights. But the flip side is these invented rights could be undone by four votes as well. Live by the four, die by the four. And worries about that kind of reversal might induce the Justices to exercise more self-restraint. The six- and seven-Justice Court that Chief Justice Marshall presided over in the early nineteenth century, for example, didn't give rise to a series of constitutional rulings undone by later courts. And maybe Justices who have seen the size of the Court reduced on their watch and recognize their own responsibility for that reduction would be less adventuresome than they otherwise would be.
One wonders whether the editors of the New York Times have given thought to the possibility that it might be better if the Court able to operate for a time outside the kind of fevered environment that descends on Washington whenever there is a confirmation hearing.
Why not lower the temperature with a pause? Drop to seven, then let the current vacancy and the next one go.
The editors' favored Justices would still hold a majority on the Court. And the lower federal courts would remain as they have been shaped by President Obama over the past eight years.
Does our country really need to go through all that we go through with a confirmation process just so that we can make more 5-4 decisions a reality? Does the Court?
Asking these questions is nothing like calling for a coup. The size of the Supreme Court is left up to ordinary legislation. And there's nothing special about nine.
Some of the Court's best years came with a composition of seven. Congress has twice before acted successfully to reduce the size of the Supreme Court at a time of presidential transition. It can do so again.
If the Republicans control the House and the Senate, they can pass legislation anticipatorily reducing the size of the Court to seven, effective as of the next vacancy. President Clinton can veto that legislation, for sure, but she won't be able to fill any vacancies without a majority of the Senate to vote on and for any nominee.
If that were to happen, the Republic would endure. Or so we may hope. And if it doesn't, it won't be because the next President didn't get her nominees confirmed to a nine-Justice Court.
And now let us step back and be real.
All of this has assumed, along with the editors of the New York Times, that we will be looking at divided government after tomorrow's elections, with President Clinton in the Oval Office and a Republican majority in the Senate. If that is how things shake out, though, Senate Republicans would most likely confirm Judge Garland if they can. He is likely to be less dangerous to the Constitution--and older--than a Clinton nominee.
If anything, though, this state of affairs would strengthen the arguments for moving prospectively toward a seven-Justice Court. Justice Garland is even less dangerous to the Constitution on a soon-to-be-diminished Supreme Court.