Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

A Member of the Law Professor Blogs Network

Wednesday, April 29, 2015

Dignity, nobility, and degradation at the Supreme Court

While other Justices focused more heavily on ideas of liberty and equality during yesterday's oral arguments on same-sex marriage at the Supreme Court, Justice Kennedy's questioning of the lawyer defending the state respondents' definition of marriage focused on the idea of dignity. Unfortunately, Justice Kennedy's opinion for the Court in Windsor shows him to have previously been deeply confused about the sources of dignity in a limited, republican government. 

Dahlia Lithwick's write-up for Slate captures Justice Kennedy's perspective in yesterday's first argument well:

As for Justice Anthony Kennedy, if we know anything at all about him it is this: You don’t tell him what dignity is, or who has it, or how much it counts. As most Kennedy-watchers well know, to the extent that Kennedy’s vote is in play on most issues, what he is contemplating is dignity. Often balanced against other dignity. He’s the dignity-whisperer.

* * *

Later in the argument, Bursch [representing the state respondents] circles back to say, again, “marriage was never intended to be dignity bestowing.” At which point Kennedy almost bursts a pipe: “I don’t understand that [marriage] is not dignity bestowing. I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage. … It’s dignity bestowing, and these parties say they want to have that same ennoblement.”

Bursch replies that the “state is trying to figure out how do we link together these kids with their biological moms and dads when possible, the glue are benefits and burdens, but not necessarily dignity.” Anthony “Dignity” Kennedy can’t even believe it: “Well, I think many states would be surprised, with reference to traditional marriages, they are not enhancing the dignity of both the parties.” It seems to me that nobody puts Dignity Kennedy in the corner. Not even Michigan.

It is, of course, degrading to Justice Kennedy to be spoken of in this way. But is it inaccurate? Irreverent, sure. But not inaccurate. Indeed, there is something already degraded about the Supreme Court as an institution when one arguably requires such irreverence to accurately account for the dynamics of oral argument as Lithwick has done here. 

As for the "ennoblement" that Justice Kennedy believes the state confers through its marriage licenses, one might note somewhat pedantically that one cannot take ennoblement-through-state-marriage-law too literally as a proposition of law. After all, Article I, Section 10 provides that "No State shall ... grant any Title of Nobility." And nobody thinks (or ought to think) states have been violating this constitutional prohibition by conferring the designations of "husband," "wife," and "spouse" on individuals.

More fundamentally, and more to the point, as I previously wrote in criticism of Justice Kennedy's opinion in Windsor, the State does not confer dignity

Properly understood, the State can undermine or promote human dignity through its laws (and in many other ways as well), but the State does not "confer" dignity. Once one assigns to the State a power that it is neither authorized nor suited to exercise, the boundaries that one then seeks to place around exercises of that power risk being arbitrary.

April 29, 2015 in Walsh, Kevin | Permalink

Tuesday, April 28, 2015

Marius Victorinus and Mirror of Justice: We are glass

My remarks at the Ninth Annual Scarpa Conference were a (mostly) connected series of reflections on how it might matter to the Mirror of Justice project that the blog is constituted by the contributions of (mostly) Catholic legal theorists. 

I can’t do justice with the written word to the content of my oral reflections—which began, not incidentally, by appealing to the conference attendees’ mercy. But if I had to relate my primary theme to a contemporary pop song, I would use “Glass” by Thompson Square

The title “Mirror of Justice” is a traditional Marian appellation. Mary, Mother of Jesus (the original “MOJ”), reflects the Sun of Justice, God.

My basic claim (in law professor speak) is that our public participation in the life of the Church, too, can serve through God's grace to illuminate matters for others, if we cooperate. My organizing text was an excerpt from from Pope Benedict XVI’s Introduction to Christianity

Augustine relates in his Confessions how it was decisive for his own path when he learned that the famous philosopher Marius Victorinus had become a Christian. Victorinus had long refused to join the Church because he took the view that he already possessed in his philosophy all the essentials of Christianity, with whose intellectual premises he was in complete agreement. Since from his philosophical thinking, he said, he could already regard the central Christian idea as his own, he no longer needed to institutionalize his convictions by belonging to a Church. Like many educated people both then and now, he saw the Church as Platonism for the people, something of which he as a full-blown Platonist had no need. The decisive factor seemed to him to be the idea alone; only those who could not grasp it themselves, as the philosopher could, in its original form needed to be brought into contact with it through the medium of ecclesiastical organization. That Marius Victorinus nevertheless one day joined the Church and turned from Platonist to Christian was an expression of his perception of the fundamental error implicit in this view. The great Platonist had come to understand that a Church is something more and something other than the external institutionalization and organization of ideas. He had understood that Christianity is not a system of knowledge but a way. The believers’ ‘We’ is not a secondary addition for small minds; in it a certain sense it is the matter itself—the community with one’s fellowmen is a reality that lies on a different plane from that of the mere ‘idea’. If Platonism provides an idea of truth, Christian belief offers truth as a way, and only by becoming a way has it become man’s truth. Truth as mere perception, as mere idea, remains bereft of force; it only becomes man’s truth as a way that makes a claim upon him, that he can and must tread.

Thus belief embraces, as essential parts of itself, the profession of faith, the word, and the unity it effects; it embraces entry into the community’s worship of God and, so, finally the fellowship we call Church. Christian belief is not an idea but life; it is, not mind existing for itself, but incarnation, mind in the body of history and its “We”. It is, not the mysticism of the self-identification of the mind with God, but obedience and service going beyond oneself, freeing the self precisely through being taken into service by something not made or thought out by oneself, the liberation of being taken into service for the whole.

I am, of course, no Marius Victorinus. (Assuming, that is, that he was all he was cracked up to be. One critic has suggested that “Victorinus acquired for a long time a reputation hardly merited by his contributions to learning, which did not rise above the mediocrity of the period.” W.S. Teuffel, History of Roman Literature, Eng. Tr., ii., pp. 337 f., quoted in F.F. Bruce, Marius Victorinus and His Works, The Evangelical Quarterly 18 (1946): 132-53. That may be a more attainable resemblance, however unfair it might be to Marius Victorinus.)

Whatever our abilities, we can reflect the divine light in various ways. And we should try. We may not be the perfect mirror, like Mary, but we can let light shine through even if refracted or broken up in various ways. Sort of like this guy (even if not as intensely or brightly):

  Augustine from VLS Chapel

I concluded my Scarpa Conference reflections by observing that "We are fragmented; we are broken. We are not the light, but we can come together and reflect the light ... even if we could always use more polish."

Echoes of this understanding could then be heard in the closing prayer that the conference presenters offered up in a reflection session led by Susan Stabile. That prayer, by Cardinal John Henry Newman, included the request: "Stay with me, then I shall begin to shine as you do, so to shine as to be a light to others. The light, O Lord, will be all from you; none of it will be mine; it will be you shining on others through me. Let me thus praise you in the way you love best, by shining on those around me." 

As I conclude this post, it is appropriate to acknowledge its difference in tone and emphasis from almost everything I have posted in the past. I more often stick to the safer path of arguing about the law, and that is typically of more interest to the internets anyway. One of the challenges of opening up a little window into the ideals and inspirations I have as I blog about legal topics from a Catholic perspective is an awareness of how much I fall short of those ideals and inspirations. Linking myself up to them publicly risks lowering these ideals and inspirations through association with my imperfect embodiment of them. Through a slight remix and transposition from the love song that it is to a message from me to the internet, it is perhaps fitting to conclude with some lyrics from "Glass":

We might be oil and water, this could be a big mistake,

We might burn like gasoline and fire,

It's a chance we'll have to take.

* * *  

I'll let you look inside me through the stains and through the cracks

And in the darkness of this moment you see the good and bad

But try not to judge me because we walk down different paths

But it brought us here together so I won't take it back

* * *

We may shine; we may shatter; we may be picking up the pieces here on after.   

We are fragile; we are human; and we are shaped by the light we let through us. 

And we break fast, 'cause we are glass. 

'Cause we are glass. 

April 28, 2015 in Walsh, Kevin | Permalink

Monday, April 27, 2015

Hobby Lobby and the Annunciation

Without giving away too much about the title of Marc's post, "Unde Origo Inde Salus," I thought I would pass along something I meant to mention in passing during my Scarpa Conference talk, but did not. The missed moment came in my discussion of some quotations from Redemptoris Mater, which I noted on my slide was promulgated on March 25, 1987. As it turns out, March 25 was also the date of oral arguments in the Hobby Lobby and Conestoga Wood cases. I will leave it to others to judge what connection (if any) there may be between those arguments and the first joyful mystery of the rosary. For whatever it's worth, it probably has nothing to do with anything that twenty-seven (the number of years between Redemptoris Mater and Hobby Lobby/Conestoga oral arguments) is a perfect cube.

April 27, 2015 in Walsh, Kevin | Permalink

Thursday, April 2, 2015

A couple of observations from John Marshall on the nature of political debate

I have the good fortune of presenting next week over lunch to the students in my law school's John Marshall Scholars program on the topic of John Marshall's private life. This seemed like a fitting topic in anticipation of their upcoming visit to the John Marshall House. In preparation, I've recently been reading My dearest Polly; letters of Chief Justice John Marshall to his wife, with their background, political and domestic, 1779-1831, by Frances Norton Mason. I came across a couple of quotations from Marshall that seemed worth sharing.

The first is from Marshall's Life of Washington, in his description of the political hysteria surrounding the deeply unpopular Jay Treaty. Marshall's contrast between the deliberate approach of the statesman and the intemperate quickness of populist critics reveals how little has changed since the 1790s in the manner in which public affairs are sometimes considered:

In the populous cities, meetings of the people were immediately summoned, in order to take into their consideration, and to express their opinions respecting an instrument, to comprehend the full extent of which, a statesman would need deep reflection in the quite of his closet, aided by considerable inquiry. It may well be supposed that persons feeling some distrust of their capacity to form, intuitively, a correct judgment on a subject so complex, and disposed only to act knowingly, would be unwilling to make so hasty a decision, and consequently be disinclined to attend such meetings. Many intelligent men, therefore, stood aloof, while the most intemperate assumed, as usual, the name of the people; pronounced a definitive and unqualified condemnation of every article in the treaty; and, with the utmost confidence, assigned reasons for their opinions, which, in many instances, had only an imaginary existence; and in some, were obviously founded on the strong prejudices which were entertained with respect to foreign powers. It is difficult to review the various resolutions and addresses to which the occasions gave birth, without feeling some degree of astonishment, mingled with humiliation, at perceiving such proofs of the deplorable fallibility of human reason. 

The second Marshall observation I thought I would share is from an autobiographical letter to Justice Story written in 1827. This observation, too, is about the debate over the Jay Treaty, from a distance of about thirty years:

As it was foreseen that an attempt would be made in the legislature to prevent the necessary appropriations, one or two of my cautious friends advised me not to engage in the debate. They said that the part which it was anticipated I would take, would destroy me totally. It was so very unpopular that I should scarcely be permitted to deliver my sentiments, and would perhaps be treated rudely. I answered that the subject would not be introduced by me; but, if it should be brought before the house by others, I should undoubtedly take the part which became an independent member. The subject was introduced; and the constitutional objections were brought forward most triumphantly. There was perhaps never a political question on which any division of opinion took place which was susceptible of more complete demonstration, and I was fully prepared not only on the words of the constitution and the universal practice of nations, but to show on the commercial proposition especially, which was selected by our antagonists as their favorite ground, that Mr. Jefferson, and the whole delegation from Virginia in Congress, as well as all our leading men in the convention on both sides of the question, had manifested unequivocally the opinion that a commercial treaty was constitutional. I had reason to know that a politician even in times of violent party spirit maintains his respectability by showing his strength; and is most safe when he encounters prejudice most fearlessly. There was scarcely an intelligent man in the house who did not yield his opinion on the constitutional question. The resolution however was carried on the inexpediency of the treaty. 

April 2, 2015 in Walsh, Kevin | Permalink

Tuesday, March 31, 2015

Another pharmacists' trade group discourages provision of lethal injection drugs

The American Pharmacists' Association has adopted a policy that discourages its members from participating in executions. Here is the news release:

WASHINGTON, DC – The American Pharmacists Association (APhA) House of Delegates today voted to adopt a policy discouraging pharmacist participation in executions. The House of Delegates met as part of the 2015 APhA Annual Meeting & Exposition, APhA2015, in San Diego.

The policy states: “The American Pharmacists Association discourages pharmacist participation in executions on the basis that such activities are fundamentally contrary to the role of pharmacists as providers of health care.”

APhA Executive Vice President and CEO, Thomas E. Menighan, BSPharm, MBA, ScD (Hon), FAPhA, stated, “Pharmacists are health care providers and pharmacist participation in executions conflicts with the profession’s role on the patient health care team. This new policy aligns APhA with the execution policies of other major health care associations including the American Medical Association, the American Nurses Association and the American Board of Anesthesiology.

This new policy statement joins two policies previously adopted by the APhA House of Delegates:

Pharmacist Involvement in Execution by Lethal Injection (2004, 1985)

  1. APhA opposes the use of the term "drug" for chemicals when used in lethal injections.
  2. APhA opposes laws and regulations which mandate or prohibit the participation of pharmacists in the process of execution by lethal injection.

This APhA policy aligns with a recently adopted policy of the International Association of Compounding Pharmacies.

On the merits, I agree with these new non-participation policies. In order for them to be fully effective, there may need to be conscience protection for pharmacists should any governments try to force the issue.

Most people should have no trouble recognizing that pharmacists should not be forced to violate their conscience when it comes to execution drugs. Pharmacists should not lack this protection because they are paid for their services and the drugs they sell. Yet we sometimes hear that people operating for-profit businesses should not have conscience protection.  I hope that people who see the value of conscience protection when it comes to execution drugs can also see the value of conscience protection when it comes to assisted-suicide drugs and abortifacient drugs. 

March 31, 2015 in Walsh, Kevin | Permalink

Monday, March 30, 2015

NYTimes Beliefs Column on Catholics Finding Common Ground in Opposing Death Penalty

In this time of embarrassingly poor reporting at the intersection of law and religion, it can be helpful to recognize that not all law-and-religion matters divide on predictable lines. MOJ readers familiar with the joint editorial of various Catholic publications on the death penalty may therefore find of interest the New York Times Beliefs column from this past weekend: "Catholics on Left and Right Find Common Ground Opposing Death Penalty."

There was once a time in my life when I simultaneously subscribed to both The National Catholic Register and The National Catholic Reporter, and I have also subscribed at various times to First Things, Commonweal, America, and Our Sunday Visitor. (Much of this was before the internet and Catholic blogs were the kinds of sources they are now.) Eventually the cacophony was too much to take (particularly reading "news" stories on the same issues from both the Register and the Reporter in one sitting) and I have weaned off print subscriptions to all of them.

In any event, I'm hopeful for working together with Catholics and others here in Virginia to end the death penalty. Depending on how Glossip v. Gross comes down and on other developments, lethal injection may no longer be practicable. Proposed legislation that switches over to firing squad may be a useful way for both sides of the death penalty debate to put their respective positions before voters and legislators. 

March 30, 2015 in Walsh, Kevin | Permalink

Thursday, March 19, 2015

Baude's "flouting the rule of law" critics should explain precisely which rule of law his proposal flouts

In the dust-up over Will Baude's op-ed proposal for plaintiff-specific compliance in King v. Burwell, one peculiar feature stands out. Some of Baude's legal critics contend that the Obama Administration's adoption of his proposal would flout the rule of law even while they do not identify any particular rule of law that the Administration would be violating. As far as I have been able to discern to this point, there is none.     

The opening paragraph of Noah Feldman's Bloomberg View commentary contends that "[o]beying the court only with respect to the plaintiffs in this case would be a flagrant violation of the rule of law." But one reads that essay in vain for an identification of which specific rule of law would be violated, flagrantly or not. Feldman's opening sentence asks: "Could the Barack Obama administration really ignore an adverse Supreme Court judgment in the King v. Burwell health-care litigation, as a University of Chicago law professor has proposed?" The problem with this sentence--as we know Feldman knows from elsewhere in his commentary--is that Baude makes no such proposal. Baude's proposal is not to ignore the Supreme Court's judgment, but to obey the Court only with respect to the plaintiffs in the case. 

Relatedly, Josh Blackman's commentary at National Review Online describes Baude's proposal as a "procedural putsch" (though it is probably more precisely pegged only as "precedential parsimony").  Blackman accuses the Obama Administration of making "unprecedented assertions of power" that "have flouted the rule of law," but he ultimately differentiates the question of legal correctness from the rule of law. "Even if legally correct," he writes of plaintiff-specific compliance,"this practice should be emphatically rejected." 

I understand the political and practical difficulties posed by plaintiff-specific compliance in King v. Burwell. And I understand why some others of Baude's critics disagree with his proposal even while acknowledging that he is right about its legal permissibility. But the "rule of law" criticisms are of a different sort, and they remain puzzling insofar as they are untethered from what one might call "the law of law." 

In the United States, there are three ways that a court's judgment can have binding legal effect: the law of preclusion, the law of precedent, and the law of remedies.

Of these three types of "law of law," both the law of preclusion and the law of precedent operate primarily in other, later cases. If the government were to lose in King v. Burwell, a non-party to that case could almost certainly use non-mutual offensive issue preclusion to win another challenge to the subsidies in a later case. [UPDATE: D'oh! Shouldn't have needed to be reminded, as I was shortly after posting, about United States v. Mendoza. Non-mutual offensive issue preclusion is unavailable against the federal government.] But it would not even be necessary to rely on preclusion, for every court would be bound as a matter of precedent to hold the subsidies illegal. To the extent that the doctrines of preclusion and precedent operate only in other, later cases, however, their reach extends only to whichever other, later cases there happen to be. Given the nature of the relief sought in King v. Burwell, there may not be very many such cases.

By contrast with the law of preclusion and the law of precedent, the law of remedies at least has the potential to provide for broader binding effect in King v. Burwell itself. If legally authorized, a nationwide injunction against the responsible government officials would authoritatively forbid any further implementation of the challenged subsidies. But the legal propriety of a nationwide injunction is far from clear.

Josh Blackman addressed some of the issues relevant to nationwide injunctive relief in two earlier posts criticizing Baude's proposal, ultimately suggesting that "unusual factors" in this case would allow for a nationwide injunction. But the reason that he had to rely on "unusual factors" is that the usual approach toward injunctive relief would require that the injunction should only be as broad as necessary to give the plaintiffs relief from their injury, and the King plaintiffs do not advance nationwide injury requiring nationwide relief. (It might also be worth noting that Blackman discusses D.C. Circuit precedent about nationwide injunctions, but not the seemingly more confining Fourth Circuit precedent that would govern in King if the Supreme Court itself does not specify the scope of injunctive relief. See, e.g., Kentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425, 434-36 (4th Cir. 2003) (reversing nationwide injunction that was "broader in scope than that necessary to provide complete relief to the plaintiff" and that "did not carefully address only the circumstances of the case").)

Another way of coming at the scope-of-injunctive-relief issue is to imagine that the King plaintiffs had sought to represent a class of all subsidy-eligible plaintiffs and asked a court to certify that class under Rule 23(b)(2). Would it have been proper to certify the King plaintiffs as representatives of such a class? Not a chance. Why, then, should they be able to secure an injunction that would accomplish the same result?

The reason this all seems confounding is that it would usually be foolish to engage only in plaintiff-specific compliance with a Supreme Court ruling. But that is largely because of all the court losses that would follow in later cases. Those losses would be attributable, however, to the law of precedent and the law of preclusion, not to a nationwide remedy. And it would be a mistake to treat the potential absence of enough later cases in which precedent or preclusion would compel practical nationwide compliance as an argument for authorizing nationwide injunctive relief.

Perhaps I am missing something. But until Baude's "flouting the rule of law" critics explain which particular rule of law would be violated by adoption of his proposal, I don't know how to find my way to agree with them on this point. 

To say that plaintiff-specific compliance is legally permissible is far from suggesting it would be advisable for the Obama Administration to follow that course. There is much that is legally permissible that is inadvisable for any number of reasons. And I would not advise being so grudging in King v. Burwell.

It is nonetheless important to acknowledge the legal permissibility of plaintiff-specific compliance. Not only is casual acceptance of judicial supremacy undesirable but clear appreciation for the legal limits of judicial authority can also usefully inform the Supreme Court's crafting of interim relief such as a temporary stay like the one issued after Northern Pipeline. If the Court declines to grant such relief to ease the transition, but the Obama Administration deems some transitional relief necessary, the Administration can lawfully rely on the legal limits on judicial relief when deciding how to proceed.

March 19, 2015 in Walsh, Kevin | Permalink

Sunday, March 15, 2015

Two Virginia governors with different estimations of various things Catholic

As a Catholic Virginian, it was somewhat jarring to read in the same sitting Thomas Jefferson's correspondence from approximately two hundred years ago and a statement of Terry McAuliffe's spokesman reported in Friday's Richmond Times-Dispatch. From Jefferson there was condemnation of various dogmas of the Catholic faith, while from McAuliffe's spokesman there was confusion about Catholic teaching.

Governor McAuliffe's spokesman publicly professed him to embrace what Jefferson privately condemns-- Catholic faith. But it remains unclear what the governor's professed faith has to do with his actions in office. The spokesman portrays Catholic teaching on the protection of unborn human life and the definition of marriage to require a man and a woman as improper for implementation in public law: "The governor is a lifelong Catholic who takes his faith very seriously. . . . He also believes in keeping government out of decisions that should be left to women and their doctors, or to consenting adults who love each other.” 

As for Jefferson, it is difficult to know which of his many expressions on matters of false faith would be the best to quote for a flavor of his thinking. But an aside in his Halloween 1819 letter to William Short includes a helpful list of examples of the "imputation of imposture, resulting from artificial systems, invented by ultra-Christian sects, unauthorized by a single word ever uttered by [Jesus]," from which Jefferson believed it desirable to rescue the enlightened teachings of Jesus (whom Jefferson described in the same letter as the "greatest of all reformers of the depraved religion of his own country").

Jefferson's list of imputations of imposture contains "[t]he immaculate conception of Jesus, his deification, the creation of the world by him, his miraculous powers, his resurrection and visible ascension, his corporeal presence in the Eucharist, the Trinity; original sin, atonement, regeneration, election, orders of Hierarchy, &c."

Given this list, Jefferson would presumably be disappointed to find the spokesman of the present governor of Virginia professing Governor McAuliffe a "lifelong Catholic who takes his faith very seriously." But this disappointment would probably be offset by attention to Governor McAuliffe's public actions with respect to the law over his spokesman's public words with respect to the governor's faith. 

March 15, 2015 in Walsh, Kevin | Permalink

Tuesday, March 10, 2015

Marshall on political liberty, the Declaration of Independence, and Jefferson's 1801 inaugural address

A recent reading of some of John Marshall's correspondence provides grounds to doubt both the standard narrative of the American Revolution offered in the Declaration of Independence and the counter-narrative offered by Christopher Ferrara in Liberty, the God that Failed: Policing the Sacred and Constructing the Myths of the Secular State, from Locke to Obama

The contents of the Declaration of Independence, including its recitation of a "long train of abuses and usurpations," should be well known.

Here is Ferrara describing his counternarrative:

In the final decades of the 18th century radical coteries in America and France, guided by the thought of Hobbes, Locke, and the philosophes of the "moderate" Enlightenment, and animated by a burning antipathy toward monarchs and institutional religion, employed propaganda, the exploitation of popular grievances, and political theater to incite a small segment of the populace, almost entirely in key urban areas, to revolt against existing authority. (Ferrara, Liberty, the God that Failed at 8)

To the extent that Ferrara's counter-narrative captures some aspects of the American Revolution, it captures more of a Jeffersonian strand than to represent the thought and actions of individuals like George Washington and John Adams. This counter-narrative thus shares a Jefferson-centric way of thinking with the standard narrative rooted in the Declaration of Independence.

Writing to Edward Everett in 1826 to acknowledge his receipt of Everett's oration on the fiftieth anniversary of independence, John Marshall described the Declaration of Independence as more of a public-relations piece than an account of the true reason for the American Revolution, even while insisting that "[t]he war was a war of principle." Here's Marshall:

Allow me to express the peculiar satisfaction I felt at reading your statement of the causes in which our great revolution originated. Our resistance was not made to actual oppression. Americans were not pressed down to the earth by the weight of their chains, nor goaded to resistance by actual suffering. "They were not slaves rising in desperation from beneath the agonies of the lash; but freemen snuffing from afar 'the tainted gale of tyranny.'" This view of the subject is not only more consistent with the fact, but is more honorable to the intelligence of those virtuous patriots and sensible men who dared to lead us into the mighty conflict. The long list of tyrannical acts which is found in our declaration of independence, and which swells the papers of the day, was judiciously inserted as tending to produce unanimity, and was justified by the irritated feelings of the moment; but the time is arrived when the truth may be declared, and it is most honorable to our ancestors to declare it. The war was a war of principle, against a system hostile to political liberty, from which oppression was to be dreaded, not against actual oppression. (John Marshall to Edward Everett, August 2, 1826)

Twenty-five years prior, a Marshall letter to Charles Cotesworth Pinckney on the day Marshall administered the oath of office to Jefferson reveals the distance in political philosophy between Marshall and Jefferson. Marshall wrote:

To day the new political year commences--The new order of things begins. Mr. Adams I believe left the city at 4 OClock in the morning & Mr. Jefferson will be inaugurated at 12. There are some appearances which surprize me. I wish however more than I hope that the public prosperity & happiness may sustain no diminution under democratic guidance. The democrats are divided into speculative theorists & absolute terrorists: With the latter I am not disposed to class Mr. Jefferson. If he arranges himself with them it is not difficult to foresee that much calamity is in store for our country--if he does not they will soon become his enemies and calumniators.

4 OClock

I have administered the oath to the President. You will before this reaches you see his inauguration speech. It is in the general well judged & conciliatory. It is in direct terms giving the lie to the violent party declamation which has elected him; but it is strongly characteristic of the general cast of his political theory.

(John Marshall to Charles Cotesworth Pinckney, March 4, 1801)


March 10, 2015 in Walsh, Kevin | Permalink

Monday, March 9, 2015

GVR in Notre Dame's HHS Mandate case

The Supreme Court this morning granted certiorari, vacated the Seventh Circuit's decision denying Notre Dame's RFRA challenge to the HHS mandate, and remanded for reconsideration in light of Burwell v. Hobby Lobby Stores Inc. Given that the Seventh Circuit's decision pre-dated Hobby Lobby, this course of action makes good sense. (The petition and related briefs are linked at SCOTUSBlog.)

March 9, 2015 in Walsh, Kevin | Permalink