Tuesday, September 1, 2020
I have an essay on the difficulty of integrating them at the Liberty Law blog--more an effort to chew over what I take to be a problem than to offer a definitive resolution, though my tentative approach to the issue depends upon other methodological moves that I did not discuss at length in this piece.
There are many others who are more committed to originalism than I am, and even more who have thought much more deeply about the relationship of originalism and stare decisis. Among them are Professors Randy Barnett, Jesse Merriam, and Ilan Wurman, who will respond to the essay by and by. A bit from the end:
Again: why is stare decisis valuable in constitutional judging, and when is it especially so? These are the questions that originalists must ask. Some scholars have begun to do so. Professor Randy Kozel, for example, argues that stare decisis’s normative foundations in constitutional judging are rooted in the legal values of stability and “impersonality,” as contradistinguished from the changeability and passion of politics. As he puts it: “Calendar pages turn and political winds shift, but the law is still the law.” Impersonality is especially necessary given the welter of interpretive and methodological pluralism in constitutional law. So long as that pluralism exists (and that is likely to be a long time), Kozel contends that stare decisis will be normatively desirable as a constraint on judges.
Kozel is asking the right questions, and his normative account of stare decisis goes some distance to explaining its importance in constitutional law. An even thicker account would recognize not merely the fact of the problem of pluralism mitigated by the constraints of stare decisis, but that the central virtue of stare decisis is in promoting the law’s endurance. Such an account would internalize Kozel’s distinction between law and politics. It would pick up on the clues dropped by the justices in cases like Gamble, Mesa, and Ramos that stare decisis is far more powerful when the Court confronts ancient, long-standing, and continuous precedents than it is when the precedent at issue is “unmoored” from the adjudicative firmament. It would prize stare decisis especially, as Justice Thomas recognized in his Mesa concurrence, when the historical sweep of judicial precedents is connected—moored, as it were—to political and cultural practices of similar age and endurance. It would acknowledge that these virtues of stare decisis may be just as powerful whether the rationales supporting them are “deliberated” (in the liquidated sense) or not, whether re-ratified in a way that seems compelling to present judicial and academic sensibilities and investments or not. The sheer endurance of any precedent is intimately connected to its lawlike properties, though common law, constitutional, and statutory precedents may have different time horizons for these purposes.
Stare decisis is not about following the most recent case. It is not, as Chief Justice Roberts wrongly claimed in June Medical, about simply “treat[ing] like cases alike” and voting for something today that one thought was wrong four years ago. It is instead, as Justice Thomas rightly countered in the same case, about “fidelity…which demonstrates ‘reverence to antiquity.’” It is about picking up the legal thread connecting a long and lasting line of cases. Where the Court confronts precedents of great age, endurance, continuity, and connection to similarly ancient and longstanding common, popular practices, the virtues of legal stability fostered by stare decisis are especially potent. Such precedents are also, as it happens, likely (though not certain) to be consistent with, even if not mandated by, the Constitution’s original public meaning. It stands to reason that stare decisis will exert a particularly strong gravitational pull on constitutional adjudicators in those circumstances. Indeed, for the Court, it already has. No “demonstrably erroneous” precedent—let alone an indelibly evil precedent—should ever survive, irrespective of its lineage. But for the considerable quantity of constitutional precedent that does not fall into this category, and with time, judges might use the deep-rooted traditions of law, politics, and culture, to integrate originalism and stare decisis.
Friday, July 3, 2020
Michael Moreland and Jeffrey Pojanowski have this very interesting paper, "The Moral of Torts"--part of a forthcoming book on Christianity and Private Law--that offers a natural law account of tort law (focusing in part on some sections of Thomas Aquinas's Summa). Among other things that I greatly appreciated about the chapter were the central position it ascribed to intentional torts and its criticisms of the ways in which some "internalist" accounts of tort law are a little shy about setting out normative criteria for what constitutes wrongfulness in tort law. Have a look.
Thursday, June 11, 2020
From the third of his Barsetshire Novels, "Dr. Thorne." Of possible use in Professional Responsibility when the subject of "professionalism" and its many senses arises.
Then also, Dr. Thorne, though a graduated physician, though entitled beyond all dispute to call himself a doctor, according to all the laws of the colleges, made it known to the East Barsetshire world, very soon after he had seated himself at Greshamsbury, that his rate of pay was to be seven-and-sixpence a visit within a circuit of five miles, with a proportionately increased charge at proportionately increased distances. Now there was something so low, mean, unprofessional, and democratic in this; so, at least, said the children of Aesculapius gathered together in conclave at Barchester. In the first place, it showed that this Thorne was always thinking of his money, like an apothecary, as he was; whereas it would have behoved him, as a physician, had he had the feelings of a physician under his hat, to have regarded his own pursuits in a purely philosophical spirit, and to have taken any gain which might have accrued as an accidental adjunct to his station in life. A physician should take his fee without letting his left hand know what his right hand was doing; it should be taken without a thought, without a look, without a move of the facial muscles; the true physician should hardly be aware that the last friendly grasp of the hand had been made more precious by the touch of gold. Whereas, that fellow Thorne would lug out half a crown from his breeches pocket and give it in change for a ten-shilling piece. And then it was clear that this man had no appreciation of the dignity of a learned profession. He might constantly be seen compounding medicines in the shop, at the left hand of his front door; not making experiments philosophically in materia medica for the benefit of coming ages – which, if he did, he would have done in the seclusion of his study, far from profane eyes – but positively putting together common powders for rural bowels, or spreading vulgar ointments for agricultural ailments.
Friday, May 1, 2020
Over in this post at my other perch, I have some observations about what I perceive (anecdotally) as rising tensions in response to the Coronavirus-related shutdown orders and other government policies. It's not every day that a municipal Italian government threatens to shut down Mass, disperse the congregants, and force a mask on a priest (see the video). The words are in Italian, but I translate enough of the exchange to give a sense of the tension. There are tensions here in the US, too, and I talk about some of those as I've observed them, from a distance, in New York.
One of the things these conflicts has me thinking about is the psychologically powerful, but (in my view) highly problematic, pull or draw of equality as equal treatment. I'm not saying anything that hasn't been said by others, but I find it interesting to observe that something of what they have said is working itself out in especially high relief and in real time.
In the very beginning of the virus crisis, the fear of the unknown and the comparatively broad coverage of the shutdown orders combined to overwhelm considerations of equal treatment. Food stores were open, yes, and churches were closed, but the emergency seemed to be understood to require drastic and rough measures, and people were prepared for a time to accept unequal treatment for, as it were, the common good.
But as the crisis reaches a second stage--an emergency of a different kind, now a more chronic or enduring condition--and as discretionary government decisions are made both as respects relaxing the closures and prosecuting violations of rules, the powerful psychological draw of equality as equal treatment starts to assert itself. Discretionary decisions require discrimination, and it's at this point that considerations of unfairness become stronger in people's psyche.
The trouble is that resentments about unequal treatment depend upon other, deeper judgments about the nature and value of various kinds of human activities. These judgments are signaled by the use of terms like "essential" but they aren't really resolved by them. Partisans of one or another sort of human activity or way of life then develop arguments for distinguishing the truly essential from the less essential, but these are invariably thought to be spurious or worse by partisans of another sort of human activity or way of life. The arguments about equality really are only cover for other sorts of arguments that it would not be possible to resolve without the rhetorical appeal to equality. The real disagreements go not only to different ways of life, but to different conceptions of the good or goods of any particular human activity. Consider religious observance. If one's view is that all of the true goods of religious observance can be obtained individually, at home, in solitary prayer in front of a screen, then one will think that distinguishing between churches and liquor stores--treating the goods of the human activities that these places foster unequally--is perfectly justified. But if one's view of the true goods of religious observance is very different, then one will not accept these arguments.
All of this to say something that has been said before, I suppose (see, e.g., Westen in part), but that seems especially striking to me right now. Both the psychological power of equality and its problematic, often unspoken, dependence on much deeper and more fundamental assumptions about the differential value of human activity, will become more acute as the crisis enters its subsequent and more attenuated phases.
Sunday, April 26, 2020
My colleague, Mark Movsesian, and I have a short podcast reflecting on the problem of church closures and the coronavirus. We talk about some of the legal, cultural, and religious permutations of the controversy. One interesting feature of these cases is that the challenges from Christian groups have generally (at least so far) come from Evangelical, and not Catholic or Orthodox, churches. Mark and I speculate a little about why that might be. Have a listen!
Thursday, February 13, 2020
This evening and tomorrow, the St. John's Center for Law and Religion and the Journal of Catholic Legal Studies (which I'm honored to advise) are delighted to be hosting a conference on a forthcoming book by Professors John Breen and Lee Strang, A Light Unseen: A History of Catholic Legal Education in the United States.
The conference will convene a "deans panel" and a "professors panel" to comment on various features of the book and the project, with responses from John and Lee. Participants include Deans Kathleen Boozang, Marcus Cole, Vincent Rougeau, William Treanor, and Robert Vischer; and Professors Angela Carmella, Teresa Collett, Rick Garnett, Jeff Pojanowski, and Amy Uelman. Our own Dean Michael Simons will be the master of ceremonies and Judge Richard Sullivan and Professor Margaret Turano will moderate. Our students have worked very hard to put this terrific event together.
Details and registration at this link. A happy fortuity that the conference coincides with this blog's anniversary.
Monday, January 13, 2020
I have a review of Professor Greg Weiner book, The Political Constitution: The Case Against Judicial Supremacy, over at the Liberty Fund blog. I've reposted a bit below. I enjoyed the book very much, especially because it got me to think critically about a general orientation to judicial review that I happen to favor. And I should add that I could and should have raised racial fragmentation as another reason for skepticism about a return to the localist republicanism of earlier days (thanks to Professor Ekow Yankah for some useful correspondence on this point).
The book’s basic argument is that contemporary Americans have lost the sense in which the Constitution is fundamentally a “political” document, by which Weiner means a vehicle for “pursuing human goods through interdependent lives” with “openness to shared ideas of noble ends pursued with common purpose.” The Constitution, he says, embodies a certain kind of politics—republicanism—in which authority is vested in the people, working through their representatives, to take primary responsibility for the “res” of the “res publica” in the pursuit of the “ends we share.” Weiner contrasts this vision with one of individualist constitutionalism, in which all valid political ends are derived from the private choices of individuals, and which is not really a form of politics at all—an “anti-political” (as Weiner puts it) politics of rights maximization without concomitant social responsibilities.
These two models of constitutional politics (or politics and “anti-politics”) correspond, Weiner claims, to two views of the nature and scope of federal judicial power in America: judicial restraint and judicial engagement. Judicial restraint, in Weiner’s view, empowers the people to reclaim what is rightfully theirs as republican citizens from a judiciary that has usurped their sovereignty and enervated their capacity for self-governance in declaring itself the supreme expositor of the Constitution. Judicial engagement—which Weiner associates especially with the work of Professor Randy Barnett and the Cato Institute’s Clark Neily and Roger Pilon, but there are several distinguished scholars in this camp—empowers the judiciary to guard individual liberty against the perpetual encroachments of the government’s other branches while itself perpetually encroaching on the claims of the people qua political entity.
One view favors the claims of the political community as against the individual, asking judges to acquiesce in them; the other, the claims of the individual as against the political community, asking judges to vindicate them. Yet while the cost in abandoning the former may only be the loss of some implausible claims of individual freedom, the cost in forsaking the latter, Weiner says, is nothing less than the American republican soul….
The problem that the book sets out to solve is therefore dwarfed by the problem that it actually uncovers. If that problem—the problem of the endurance of “We the People” in America—is to be engaged (I say nothing of solved) from the judicial end of the table in a satisfactory way, it will not be through judicial disengagement and leaving the people to their own devices, as ill-considered and noxious as they may be. It will instead be at least in part by asking courts—carefully and always honoring the limits assigned to them by the Constitution—to engage with American constitutional law in ways that differ substantively from the partisans of “judicial engagement” whom Weiner criticizes.
Monday, December 9, 2019
I’m delighted to notice this new church-state reader put together by John F. Wilson and my friend, Donald L. Drakeman, Church and State in American History: Key Documents, Decisions, and Commentary from Five Centuries (4th edition, Routledge). Don kindly informs me that what is new about this edition of the reader is a greatly expanded historical section before the American founding, beginning with the Biblical texts and proceeding through the early Christian and medieval era. It also has the American context, the big Supreme Court cases, and so on.
Every time I teach a church-state course of any kind, I cobble together material from a number of different sources as a kind of rapid introduction for students to this area of the law (John Witte's fine and helpful work figures prominently). This book looks like a handy solution. And I’m sure it’s written with Don’s typical flair and panache.
Here is the description from Routledge:
Church and State in American History illuminates the complex relationships among the political and religious authority structures of American society, and illustrates why church-state issues have remained controversial since our nation’s founding. It has been in classroom use for over 50 years.
John Wilson and Donald Drakeman explore the notion of America as “One Nation Under God” by examining the ongoing debate over the relationship of church and state in the United States. Prayers and religious symbols in schools and other public spaces, school vouchers and tax support for faith-based social initiatives continue to be controversial, as are arguments among advocates of pro-choice and pro-life positions. The updated 4th edition includes selections from colonial charters, Supreme Court decisions, and federal legislation, along with contemporary commentary and incisive interpretations by modern scholars. Figures as divergent as John Winthrop, Anne Hutchinson, James Madison, John F. Kennedy, and Sandra Day O’Connor speak from these pages, as do Robert Bellah, Clarence Thomas, and Ruth Bader Ginsberg.
The continuing public and scholarly interest in this field, as well as a significant evolution in the Supreme Court’s church-state jurisprudence, renders this timely re-edition as essential reading for students of law, American History, Religion, and Politics.
Tuesday, November 5, 2019
This case, now on the Supreme Court's docket, concerns a Louisiana law requiring that physicians who perform abortions at clinics obtain admitting privileges at area hospitals. In this podcast, Mark Movsesian and I discuss the case: the 5th Circuit opinion, the petition, and the cross-petition. And in this post, I consider some of the arguments about standing advanced in the cross-petition.
Monday, September 23, 2019
Traditionalist constitutional interpretation takes political and cultural practices of long age and duration as constituting the presumptive meaning of the text. This essay probes traditionalism’s conceptual and normative foundations. It focuses on the Supreme Court’s traditionalist interpretation of the First Amendment to understand the distinctive justifications for traditionalism and the relationship between traditionalism and originalism. The first part of the essay identifies and describes traditionalism in some of the Court’s Speech and Religion Clause jurisprudence, highlighting its salience in the Court’s recent Establishment Clause doctrine.
Part II develops two justifications for traditionalism: “interpretive” and “democratic-populist.” The interpretive justification is that enduring practices presumptively inform the meaning of the words that they instantiate. Generally speaking, we do what we mean, and we mean what we do. The democratic-populist justification is that in a democracy, people who engage in practices consistently and over many years in the belief that those practices are constitutional have endowed them practices with political legitimacy. Courts owe the people’s enduring practices substantial deference as presumptively constitutional. The populist element in this justification is that traditionalism is a defensive interpretive method against what abstract principle in the hands of elite actors has wrought: intolerance, the corrosion of lived experience, and the distortion of text to mirror a particular class of contemporary moral and political views.
In Part III, this essay compares traditionalism with originalism, reaching two conclusions. First, traditionalism’s reliance on practices as presumptively constitutive of constitutional meaning is most distant from originalist theories that rely on abstract principle as constituting the meaning of text and that reject practice-based evidence as the equivalent of irrelevant “expected applications.” It is closest to varieties of originalism that read text concretely. Yet traditionalist judges are not engaged in making guesses about “expected applications,” but in making decisions about retrospective applications—drawing on old and enduring practices either to include within, or exclude from, a tradition the specific practice under review. Second, the essay investigates the connection between so-called “original law” theories of originalism and traditionalism. Original law theorists argue that originalism is “our law” as a sociological and cultural fact. But traditionalism may be more “our law” than originalism in some areas within the First Amendment and outside it. If the positivist defense of originalism truly counts as a justification for any theory of constitutional interpretation (an issue on which this essay takes no position), then it may support traditionalism as much as originalism.