49 posts categorized "Constitutional Law"

December 10, 2007

Romney's Founders

Mitt Romney’s recent reflections on the role of religion in American politics implicitly called to mind a disturbingly distorted version of history that has become part of the conventional wisdom of American politics in recent years.

That version of history suggests that the Founders intended to create a “Christian Nation,” and that we have unfortunately drifted away from that vision of the United States. In fact, nothing could be further from the truth.

Those who promote this fiction confuse the Puritans, who intended to create a theocratic state, with the Founders, who lived 150 years later. The Founders were not Puritans, but men of the Enlightenment. They lived not in an Age of Faith, but in an Age of Reason. They viewed issues of religion through a prism of rational thought.

To be sure, there were traditional Christians among the Founders, including such men as John Jay, Patrick Henry and Samuel Adams. Most of the Founders, however, were not traditional Christians, but deists who were quite skeptical of traditional Christianity. They believed that a benevolent Supreme Being had created the universe and the laws of nature and had given man the power of reason with which to discover the meaning of those laws. They viewed religious passion as irrational and dangerously divisive, and they challenged, both publicly and privately, the dogmas of traditional Christianity.


Benjamin Franklin, for example, dismissed most of Christian doctrine as “unintelligible.” He believed in a deity who “delights” in man’s “pursuit of happiness.” He regarded Jesus as a wise moral philosopher, but not necessarily as a divine or divinely inspired figure. He viewed all religions as more or less interchangeable in their most fundamental tenets, which he believed required men to treat each other with kindness and respect.

Thomas Jefferson was a thoroughgoing skeptic who valued reason above faith. He subjected every religious tradition, including his own, to careful scrutiny. He had no patience for talk of miracles, revelation, and resurrection. Like Franklin, Jefferson admired Jesus as a moral philosopher, but insisted that Jesus’ teachings had been distorted beyond all recognition by a succession of “corruptors,” such as Paul, Augustine, and Calvin. He regarded such doctrines as predestination, trinitarianism, and original sin as “nonsense,” “abracadabra” and “a deliria of crazy imaginations.” He referred to Christianity as “our peculiar superstition” and maintained that “ridicule” was the only rational response to the “unintelligible propositions” of traditional Christianity.

John Adams, who identified most closely with the early Unitarians, also believed that the original teachings of Jesus had been sound, but that Christianity had subsequently gone awry. He wrote to Jefferson that the essence of his religious beliefs was captured in the phrase, “Be just and good.” As President, Adams signed a treaty, unanimously approved by the Senate in 1797, stating unambiguously that “the Government of the United States . . . is not in any sense founded on the Christian religion.”

George Washington was respectful of traditional Christianity, but he did not have much use for it. His personal papers offer no evidence that he believed in biblical revelation, eternal life, or Jesus’ divinity. Clergymen who knew Washington well bemoaned his skeptical approach to Christianity. Bishop William White, for example, admitted that no “degree of recollection will bring to my mind any fact which would prove General Washington to have been a believer in Christian revelation.”

Tom Paine, the author of Common Sense, The Rights of Man, and The Age of Reason, insisted that “the religion of Deism is superior to the Christian religion,” because it “is free from those invented and torturing articles that shock our reason.” Paine explained that deism’s creed “is pure and sublimely simple. It believes in God, and there it rests. It honours Reason as the choicest gift of God to man” and “it avoids all presumptuous beliefs and rejects, as the fabulous inventions of men, all books pretending to revelation.”  Paine dismissed Christianity as “a fable, which, for absurdity and extravagance, is not exceeded by anything that is to be found in the mythology of the ancients.” In Paine’s view, traditional Christianity had “served to corrupt and brutalize mankind.”

These words no doubt sound shockingly blunt and “politically incorrect” to modern ears, but they were in fact the views of many of our most revered Founders. The fable that the United States was founded as a Christian Nation is just that – a fable.

It is worth noting that the Declaration of Independence does not invoke Jesus, or Christ, or Our Father, or the Almighty, but the “Laws of Nature,” “Nature’s God,” the “Supreme Judge,” and “Divine Providence,” all phrases that belong to the tradition of deism. The Declaration of Independence is not a Puritan or Calvinist or Methodist or Baptist or Protestant or Catholic or Christian document, but a document of the Enlightenment. It is a statement that deeply and intentionally invokes the language of American deism. It is a document of its own time, and it speaks eloquently about what Americans of that time believed.

The Constitution goes even further. It does not invoke the deity at all. Unlike the Puritan documents of the early seventeenth century, it makes no reference whatever to God. It cites as its ultimate source of authority not “the command of God,” but “We the People,” the stated purpose of the Constitution is not to create a government “according to the will of God” but to “secure the Blessings of Liberty.” Significantly, the only reference to religion in the 1789 Constitution expressly prohibits the use of any religious test for public office.

The Founders were not anti-religion. They understood that religion could help nurture the public morality necessary to a self-governing society. But they also understood that religion was fundamentally a private and personal matter that had no place in the political life of a nation dedicated to the separation of church and state. They would have been appalled at the idea of the federal government sponsoring “faith-based” initiatives. They would have been quite happy to tolerate Mitt Romney’s Mormonism – as long as he keeps  it out of our government.

December 05, 2007

The Second Amendment Cascade (?)

Here is a remarkable development. Just twenty-five years ago, there was a strong consensus, among judges and academics, that the Second Amendment did not create an individual right. No federal court had invalidated a restriction on guns on Second Amendment grounds (ever). As recently as 1992, Chief Justice Warren Burger, a conservative Republican appointee, rejected the individual rights view in public.

In a short period, the consensus has shattered. There is a strong possibility that the Supreme Court will accept a view that seemed implausible in the relatively recent past. Here is the question: What has happened?

Consider four possibilities:

1) Truth has finally prevailed. Perhaps new research has shown that the individual rights view is correct. It is true that a large amount of work has been produced in support of that view. Much of it has been funded by private groups with a stake in the issue -- but hardly all of it.

2) Interest groups, above all the NRA, have spurred the change. Perhaps the new view is a reflection of an aggressive social movement, not unlike the movement to ban segregation and to create a right to same-sex marriage. There can be no doubt that a great deal of time, money, and effort have been expended in an effort, by those with a serious stake, to press the individual rights view on politicians and the federal courts.

3) New judicial appointees have shown new receptivity to arguments that are a) originalist and b) associated with the political right. A key contributor to the shift is undoubtedly the presence, on the federal bench, of a number of Reagan and Bush appointees, who are sympathetic to gun rights in particular, and who also have a jurisprudential interest in originalist arguments.

4) Both politics and law have experienced an informational cascade, produced by savvy "Second Amendment entrepreneurs." Many of those involved in law and politics do not have a lot of private knowledge about the Second Amendment. They must rely on what others think. When others seem to think that the individual rights argument is right, they defer -- at least if they trust those others. On this view, the apparently supportive views of "liberal academics" -- including Sanford Levinson, Akhil Amar, Lawrence Tribe -- have been crucial in legitimating the individual rights position.

I tend to think that all of these explanations provide part of the picture, with the (important) qualification that 1) is probably wrong. (This is not the place to defend the qualification. The original understanding of the text is very complex, as shown by historians Saul Cornell and Jack Rakove among others; and longstanding social practices and many court of appeals have refused to accept the individual rights interpretation. In my view, the individual rights view, at least in its present form, is mostly a product of contemporary concerns and preoccupations.) Even if is right, it is not an adequate explanation of what has happened.

If we put 2), 3), and 4) together, we will see that the individual rights interpretation has been the beneficiary, above all, of a stunningly successful social movement. In the domain of constitutional law, there has been nothing even vaguely like it in the past quarter-century.

November 07, 2007

H2H: Jack Balkin's Last Word

(cross-posted at Balkinization)

The discussion between David Strauss and myself about whether originalism is a good idea for liberals has by now gone well beyond the narrow question of originalism itself and moved on to far deeper topics-- rhetoric, faith, and legitimacy. I cannot address all the valuable things David has to say in his last post, but here are a few comments on what I thought was most worthy of note.

I. "Rhetoric" versus "Legal Argument"

In his second post, David agrees with me that my text and principle approach "provides resources that [his] does not, particularly to groups that are trying to change the status quo," but that "the resources are rhetorical." He argues that conservative uses of common law and precedent and appeals to "deeply rooted practice[s]" are also powerful weapons for progressives, too.

Assuming that David is right about the latter claim, nothing in my text and principle approach rules out the use of appeals to precedent or tradition, or to consequences for that matter. It treats them as fully appropriate modalities of legal argument for fleshing out and implementing text and principle, and for making structural arguments where the Constitution is silent.

Indeed, I would argue that not only is common law development of doctrine by courts not hostile to originalism, it is implicit in the grant of judicial power in Article III (other aspects of common law adjudication are also assumed by the Seventh Amendment). Thus, there is a pretty good originalist argument for judicial construction of doctrine over time using common law methods.

Thus, under my approach, at least, one can have the best of both worlds, and employ all the resources of constitutional argument.

David's approach, by contrast, regards appeals to the constitutional text and its underlying principles as merely "rhetorical," rather than genuine legal arguments. As he says, when we make originalist arguments, "we should understand that we are making a rhetorical move. That's not disreputable; it's just not a legal argument."

I found this claim puzzling. What is the nature of David's distinction between "legal argument" on the one hand, and "rhetoric" on the the other? I had thought that all of the traditional modalities of legal argument were simultaneously rhetorical forms and valid modes of legal argument. David's claim seems to be that we should write off two of the modalities of legal argument-- arguments from text and appeals to principles derived from history-- as not really legal arguments at all. They are not real reasons; they are just window dressing. This makes arguments from precedent, tradition, and consequences (and possibly structure) the only appropriate forms of legal argument; the rest is mere rhetoric. You may notice the irony: in the past progressives have accused originalists of writing off (or downgrading) every form of argument except appeals to text, history and structure because they are "just politics" in disguise.

I am hoping that David does not really mean to say that arguments from text and principle aren't legal arguments. What is it that would make them mere "rhetoric?" Surely appeals to precedent and tradition are rhetorical: so too is the act of characterizing traditions and generalizing from and distinguishing cases. Perhaps it is David's concerns about the manipulability and uncertainty of choosing appropriate levels of generality. But all of David's previously expressed concerns about levels of generality also apply to arguments from precedent and tradition. Usually more than one principle can be derived from a case or a traditional practice, and you can read a case or a tradition either broadly or narrowly. Both principles and traditions, moreover, can be articulated at higher and lower levels of generality.

Nothing David has said really convinces me that appeals to text and principle aren't genuine legal arguments (like arguments from precedent and tradition) that offer reasons to interpret the Constitution one way rather than another. And if they are, why would one adopt an approach to constitutional interpretation that gives progressives fewer resources for legal argument rather than more?

In any case, I'm not sure that David is right that appeals to deeply rooted practices are the best way to promote a progressive constitutional agenda, especially in our current age. They might be a good way to defend against further changes by conservative social movements, but not necessarily to seek significant reform or to reject traditional practices that are unjust. My sense, rather, has been that appeals to deeply rooted practices and precedents tend to put liberals in a defensive posture. And my understanding of American history is that energized social movements for change usually call on the Constitution and its text and principles to reject what people previously thought were settled questions. They succeed by unsettling those questions and making them controversial. And when social movements succeed in changing people's minds about what the Constitution means, they tend to win in courts as well.

History seems to show that constitutional change often comes from social movements and political parties changing constitutional culture, which is then ratified by courts. If that is so, then arguments from text and principle are probably just as important as arguments from precedent in promoting either a progressive or a conservative agenda, and probably more so. Indeed, I don't think it is an accident that conservative social movements in the past generation have regularly made claims about the text of the Constitution and the purposes of the founders. Appeals to what I call text and principle have been a common feature in the arguments of most successful social movements in the United States.

Liberals have been fighting a defensive battle against insurgent social movements from the right for a generation. If I am correct about this, then for liberals to stop playing defense and push their claims forcefully once again, they cannot afford to throw away the modalities of text and principle.

II. Precedent and the Hardwired Constitution

One puzzle with David's common law approach, as I noted in my first post, is that it is hard to explain why the hardwired features of the Constitution are not subject to common law modification in the same way that judicial precedents are. If you look at David's account of why the text is biding in his Yale Law Journal article, you can see that he argues (1) that it provides a focal point for discussion, and (2) that it solves problems of coordination. As he explains, "it is more important that things be settled than that they be settled right. A legal provision can settle things, and sometimes the importance of settlement alone is enough to make the provision binding." However, "[t]he binding force of the provision rests on its functional ability to settle disputes, and not at all on whether the entity that enacted the provision is entitled to obedience or "fidelity.""

The puzzle for me is that the same things could be said of precedents. Precedents can also serve as focal points for discussion. (Think about McCulloch v. Maryland or Brown v. Board of Education.). Precedents also can settle contested questions, because, after all, they also have the force of law, and one might equally say that it is better that they be decided than that they be decided correctly. But if that is so, then why shouldn't our views about the bindingness of certain precedents be precisely the same as our views about the binding character of certain "hardwired" features of the Constitution, for example, that the President serves only four years per term, that there are only two houses of Congress, and so on?

That equivalence goes in two directions. If we decide that the length of the President's term must remain four years because the text says so, whether or not that is a good idea, why isn't the result in an old precedent like Plessy v. Ferguson equally binding on us, because it also settled an important question of law, whether or not the decision was a good one? Conversely, if we think that a long standing precedent like Plessy can be overturned or modified on a sufficient showing to a court that it has outlived its usefulness as a settled decision and now imposes very serious injustices, why couldn't we say the same thing of the limitation on Presidential terms, the Presidential veto, the malapportionment of the Senate, the Electoral College, and so on? If there is nothing special about the text that differentiates it from precedent, why couldn't courts change these rules through common law adjudication? Why couldn't the Supreme Court decide, for example, that a President can serve a longer term in office than four years because the country needs him?

The answer that an originalist like me would give is that the Constitutional text stands on a different footing than common law implementations of the text. Common law adjudication fills out contested issues surrounding text and principle, but it cannot contradict the text. But because David wants to blur that distinction, I'm not sure that the same answer is available to him.

III. Legitimacy and the Role of Commitment

David argues that a common law constitutional system poses no special problems of legitimacy, because the British system is also a common law system. I'm not sure this is a complete answer.

First, the British system has a different theory of sovereignty than the American model. The British system is based on Parliamentary sovereignty-- Parliament can change pretty much any aspect of the constitutional system at will, and Parliament can overturn decisions of courts. (The extent to which Parliamentary sovereignty has been affected by greater European integration and by the passage of the Human Rights Act I leave for others to determine). By contrast, the American system specifically broke from the English model. It was based on a system of popular sovereignty with delegated powers to the states and the Federal government, separation of powers, and demarcations of rights as limitations on government power. These delegations of power and restrictions on power were established by a written constitution, which was demarcated as supreme law. Therefore it seems to me that common law adjudication of constitutional doctrine has a different place in the American system than common law decisionmaking does in the British system. The American system seems to place the written constitution above ordinary common law and even above judicial constructions of the written constitution using common law methods. And the choice of a written constitution was designed to establish a particular model of popular sovereignty.

The theory of popular sovereignty creates a problem for David's common law model, under which the text is binding only because it serves as a focal point or solves coordination problems. What connects the work of courts to the theory of popular sovereignty in his model? The answer to that question is particularly important if common law courts can disregard or modify the commands of the constitutional text, even the hardwired features. David's is not the only theory that faces this question, but because he regards the text as on the same level as precedent, it arises even more urgently for him.

Finally, David argues that faith is not really necessary to constitutional legitimacy. He also denies that legitimacy requires that we see the Constitution as the project of many generations. (This is a puzzling claim to make for somebody who believes in a traditional constitution, but put that question aside for the moment). David reasons that even if judgments of legitimacy depend on what may happen in the future, making that judgment "is just a matter of collecting and weighing the evidence in order to figure out what the system is like today and will be in the future." That is to say, legitimacy does not depend on our attachment to the Constitution or our attitude toward it; it depends rather on a "cold-blooded" weighing of future probabilities.

I think this overlooks the attitudes of commitment and attachment that are necessary for a successful constitutional system to operate over time. For the Constitution to be legitimate, people cannot be in the position of perpetually calculating whether to defect from it or not. Rather, Constitutional government requires commitment to make the constitutional system work over time. That requires that you decide to put yourself on the side of the Constitution, wanting it to succeed, and feeling that you have a stake in it, rather than straddling the fence of obedience, so to speak. This is not a question of the presence or absence of rationality: Commitment or the lack thereof can create self-fulfilling prophecies of success or failure for constitutional systems.

David offers the example of a military coup where the junta promises that it will restore democracy soon and asks people to be patient. But in that case the Constitution has been suspended. The junta is not asking for faith in the constitution; it is asking for belief in their good faith as individuals. A far better example of the need for constitutional faith concerns whether people should have joined the Constitution in 1787 and worked for its success, when it was by no means certain that this new form of government would last. Benjamin Franklin famously said at the end of the Philadelphia Convention that he would support the new Constitution not because it was free of defects-- for in his view it was not-- but because he thought it was the best that could be done under the circumstances, and that he believed and hoped that it would succeed, and that it would eventually live up to its promises. Therefore he argued that it was worth working for its success. I call this attitude of attachment and commitment faith; it was crucial to the new Constitution's success, and is so even to this day. David may not like the use of the word "faith," perhaps because he is suspicious of religious language. But I see no reason to shy away from it as a way of understanding the sort of attitudes of commitment and attachment that are necessary to preserve the legitimacy of constitutional government in a system like ours.

November 06, 2007

H2H: Strauss' Second Post

(cross-posted at Balkinization)

Jack Balkin’s insightful and fair-minded response raises several interesting issues.

1. First, the “levels of generality” problem. The “original expected applications” originalists have a solution to this problem, in theory. They would say that a provision should be construed at the level of generality that was originally understood (or that the Framers intended, or whatever). So: can the Cruel and Unusual Punishment Clause be interpreted to forbid capital punishment? That would depend on whether the original understanding was that the Clause was to be interpreted dynamically; and if so, how dynamically. Specifically, was the original understanding that the Clause should be interpreted dynamically enough to permit “cruel and unusual” to be extended to cover capital punishment at some point in the future? (And I guess the further question, for this kind of originalist, would be whether we are now at that point.)

Of course, in practice, questions like these will almost never be honestly answerable. Even if they were answerable, the ultimate question, about being ruled by dead people, remains. But in principle, “original expected application” originalism tells us how to deal with the levels of generality problem.

But if you’re not an “original expected application” originalist, as Jack is not, then I think you’re stuck. You’re not going to look for the level of generality in the original understandings (if you did, you’d be an original expected application person); you’re going to get the appropriate level of generality from somewhere else. The somewhere else might be precedent, or it might be morality, or some combination of those two, or something else.

The language of the provision, and perhaps the historical materials, may place an outer bound on what values and principles you can attribute to the provision, although I’m not even sure about that: the idea that the Equal Protection Clause mandates “one person, one vote” became settled law pretty quickly in the face of overwhelming historical and textual material to the contrary. But in any event, the legal conclusion will be driven by something other than the original understandings, however defined.

2. For that reason, Jack is right on the money in his characterization of our disagreement. I do not agree with his position that common law development is a means of “implementing and applying constitutional values.” “Implementing and applying” suggest that the big decisions were made by the people who adopted the constitutional provision in question, and that we, today, are just the servants, the implementers. I don’t think that’s an accurate, or attractive, account of American constitutional law.

I think constitutional law is better described as a process of resolving disputed issues using the tools of the common lawyer—precedent and past practice, which we use out of a sense of intellectual humility and also because of the importance of stability, coupled with essentially moral arguments of fairness and good policy. If we can get the Framers on our side, so much the better. But basically we are making the decisions, not implementing decisions made a century or more ago. (Jack asks why, on a common law account, we should pay any attention to the text, including what he calls the “hard wired” provisions. Those are very good questions; I’ve tried to answer them, at inordinate length, at 112 Yale L.J. 1717 (2003) (a draft of that article is here).

I should say in this connection that I totally agree with Jack about the importance of non-judicial constitutional lawmaking. But precedents are hugely important when, say, Congress and the President have a dispute over their respective prerogatives.

3. So far I haven’t said much about the specific concerns of liberals. Jack argues that his way of thinking about constitutional law provides resources that mine does not, particularly to groups that are trying to change the status quo. Again I think he is right, but for the reasons I’ve given, the resources are rhetorical. More to the point, though, small-c conservative rhetoric of the kind that progressives have been using in recent years is a pretty good weapon. That kind of conservative impulse runs deep in judges, and I think in citizens too.

Consider the constitutionality of affirmative action, for example. There is a very strong argument that the original understanding of the Fourteenth Amendment permitted affirmative action (and of course an extremely strong argument that nothing in the text of the Constitution or the original understandings forbids the federal government from engaging in affirmative action—or from discriminating against minorities). But outside the academy no one much seems to care about those originalist arguments. What does seem to persuade the Justice Kennedys and Justice O’Connors, along with innumerable business people and military officials whose political inclinations would otherwise make them opponents of affirmative action, is essentially a Burkean argument: that whatever the abstract objections to affirmative action, it has become a deeply rooted practice in American business, education, and government, and it works pretty well.

My hunch is that that is generally the more effective way for progressives to argue, when they can. If it is more effective sometimes to invoke the original understandings in some form (and sometimes, I’m sure, it will be more effective to do so), we should understand that we are making a rhetorical move. That’s not disreputable; it’s just not a legal argument.

4. Finally, a word on legitimacy. A few things in Jack’s account give me pause. First, I think legitimacy is a feature of an entire system, not just a constitution. In fact, things like the political culture of the governing class and the attitudes of one’s fellow citizens are almost certainly going to be more important, in determining the legitimacy of a system, than are formal constitutional principles, and probably more important than informal constitutional understandings, at least as long as those understandings fall within certain limits.

Second, I don’t think a common law or customary constitution poses any special problems of legitimacy. The problem of legitimacy doesn’t seem significantly different in Great Britain from what it is here.

Third, and related, Jack’s account of legitimacy seems to me a little too mystical. Jack’s point that the legitimacy of a system may depend on the future, not just the present—that’s a nice point. A system may be unacceptable now but still legitimate because of the prospect of change.

But I don’t think any of that has anything to do with faith, or that it “requires us to imagine the Constitution as . . . a joint project of many generations . . . that extends backward into the past and forward into the future.” The past might provide evidence of good or bad tendencies that will affect the legitimacy of the system; but I don’t see how that has anything to do with imagining the constitution as an intergenerational project.  It is just a matter of collecting and weighing the evidence in order to figure out what the system is like today and will be in the future.

The same is true if the system is currently unacceptable, but you want to convince me that it is nonetheless legitimate because it will improve in the future. Suppose, for example, that there has been a military coup, and you are trying to persuade me to continue to support the government because, you say, the military will only stay long enough to clean up corruption and then will restore democratic civilian rule. If you want me to treat that government as legitimate, you are going to have to make a cold-blooded, rational argument about what will happen and when. I’m not going to be interested in conversations with ancestors or future people, and religious-sounding talk about faith and redemption will just make me suspicious.

I fear this is an inadequate treatment of the many interesting points Jack has made in his papers and in this and other blog posts; certainly there is much more to be discussed. Again let me thank him for this debate.

November 05, 2007

H2H: Balkin's Response to David Strauss on Originalism -- First Round

(cross-posted at Balkinization)

Like David Strauss, I’m delighted to be able to participate in this exchange on liberalism and originalism.

In his first post, David makes two criticisms of originalism. The first is that it is empty; it has no real content. The second is that it is illiberal; it has bad content. (Note that these two claims are at least potentially in tension with each other.)

David’s first point is that originalism doesn’t determine hard cases by itself. We do not disagree. All the other modalities are usually necessary to resolve these cases. Much of constitutional law involves what I would call (following Keith Whittington) constitutional construction-- fleshing out the constitutional text and principles through implementing rules and institutions. That construction is not limited to courts; the political branches also implement constitutional values all the time. And their implementations have path dependent effects on how we construe the Constitution later on. There is not one single way the Constitution-in-practice had to end up. Much depends on what each succeeding generation does with what they are bequeathed, what institutions they create, what precedents they set, and so on.

I think David is running together the question of original meaning with the question of how best to implement the Constitution. At least, that is what I think is going on with his discussion of levels of generality. From the standpoint of the meaning of the equal protection clause, the proper level of generality is the level that we find in the text itself. The text says “equal protection of the laws.” That is the proper level of generality. David asks why the proper level of generality for understanding the clause is not “racial equality” or “equality with respect to common law rights.” The reason is that the text does not say “racial equality” or “equality with respect to common law rights.” There are important historical reasons why it did not do so.

David’s concern about the proper level of generality makes sense only if you think that the clause must somehow be confined or limited to original expected applications. Then you have to engage in debates about how to characterize those expectations, broadly or narrowly. But I reject that view. Asking about levels of generality also makes sense if you believe that determining the original meaning of the clause will do most of the work of implementing it. But I also reject that view.

David wonders why I say that the principles underlying the Fourteenth Amendment ban class and caste legislation. I say this because these are principles at the same level of generality as the text and the history strongly suggests that these were key principles underlying the Fourteenth Amendment. These ideas come straight out of Jacksonian and abolitionist ideology. When Senator Jacob Howard, representing the Committee of Fifteen, introduces the Fourteenth Amendment in the Senate in May of 1866 he explains each clause and its function. When he gets to the Equal Protection and Due Process Clauses he says that they “abolish[] all class legislation in the States and do[] away with the injustice of subjecting one caste of persons to a code not applicable to another.”

How would we implement the equal protection clause? The answer is pretty much what you would expect. We would come up with doctrines that tried to articulate when laws were likely to unfairly single out groups for special burdens or benefits, or produce or maintain unjust social subordination. Our modern scrutiny doctrines attempt to do this. (So did the old police power jurisprudence of the Lochner era.). These doctrines don’t always do it well, but that is their point.

David and I agree that the class and caste legislation principles, by themselves, do not determine the scope of their own extension. But, not to put too fine a point on it, neither does the language of the Equal Protection Clause itself. Everything he says about these two principles could also be said about the words “equal protection of the laws.” Rather, we have to implement text and principles in doctrines, constructions and institutions. We have to build methods of applying these principles in practice. To do this, we use the various modalities of legal argument that are familiar to lawyers. When lawyers develop doctrine, they try to develop conceptual tools to implement text and principle and concretize them. Think of doctrines as heuristics. Our contemporary scrutiny rules are implementations of the Fourteenth Amendment’s text and principles, which sometimes work fairly well to promote these principles and sometimes do not work very well at all.

When I say that laws banning abortion violate the class legislation and caste legislation principle, that means that I think this is the best implementation of those principles in today’s world. In my article Abortion and Original Meaning I give fairly elaborate reasons for why that is so. My arguments don’t always track existing doctrine, but in implementing these principles in concrete settings I am trying to do what existing doctrine does. The key point, once again, is that doctrine isn’t the same thing as constitutional meaning. It implements meaning.

Thus, David’s claim that originalism by itself doesn’t resolve lots of controversies is not really much of an objection from my perspective. In fact, if David and I both wrote accounts of various constitutional questions involving the Constitution’s vague and abstract clauses, we would probably rely on similar materials, and the results might often look quite similar. The major difference perhaps, is that I would start by talking a bit about text and underlying principles before launching into the other modalities and explaining how they helped implement text and principle.

In fact, I think that starting with text and principle can be very enlightening in some cases. One recent example is Romer v. Evans. If you start with our standard doctrinal models, you have to twist yourself in knots to explain the result in Romer. But if you start with the assumption that these doctrines are designed to implement the Fourteenth Amendment’s ban on class and caste legislation, Romer makes much more sense. In fact, I would argue that the law at issue in Romer is a paradigmatic example (in our day, at least) of what the Reconstruction Republicans were getting at when they spoke of class legislation. Romer is a case that shows the limits of our current models of doctrine. But doctrine isn’t written in the sky. It’s a heuristic device for implementing and applying constitutional values. Doctrinal structures that implement the Fourteenth Amendment have been different before, and they will be different again.

So far, it does not look as if David and I disagree very much. What is the nature of our disagreement, then? I think it is this: David sees text and principles as not particularly helpful or important to constitutional law; for him all of the work (or most, anyway) is done through the common law process of reasoned argument and doctrinal elaboration. By contrast, I regard the purpose of common law elaboration as in the service of fleshing out and implementing text and principles. Why does this difference matter? I can think of three reasons.

First, if doctrine and common law development serve text and principle, and not the other way around, then text and principle are always available to critique present-day doctrines-- and encrustations of doctrine-- that are no longer reasonable implementations of text and principle and no longer serve their purpose. This is especially important for social and political movements, which are the key drivers of changes in constitutional thought. These movements press for change by calling on the Constitution’s text and principles as they understand them. Sometimes their arguments are lawyerly and doctrinal, but often times they are not. Thus, the centrality of text and principle to constitutional interpretation is important if you think that much constitutional interpretation goes on (and even should go on) outside of the courts that create and depend on the elaboration of systems of doctrine. In the long run, changes in doctrine respond to changes in societal understandings of constitutional values-- and not the other way around.

Second, David thinks that talk of text and principles obscures constitutional argument. Quite the contrary, I think it immensely clarifies it. It shows that we are always doing is trying to implement and build on a framework, and it is a framework we are always permitted to return to, restore and redeem if we think that years of doctrinal glosses have become unwieldy, overly formalistic, or have otherwise taken us in the wrong direction. This presents a very different picture from a system of common law development that David favors, because sometimes it is difficult to explain why we can reject some precedents we don’t like (Bowers) if we want to insist that others have to stay in place (Roe).

This is a particular problem for liberals today: The present generation of living constitutionalists have found themselves on the defensive against conservative social movement energies. Like most social movements before them, these conservative mobilizations have called for a return to the Constitution’s text and to the principles of the founding generation, even if their notions of what that entails are disputable. Faced with incessant demands for constitutional revolution, living constitutionalists have become today’s “conservatives”: they have resorted to arguing for preserving the status quo, and for respecting older precedents created in politically more liberal times. But earlier social and political movements helped produce the doctrinal changes they now defend; those movements would not have succeeded if courts had applied the same concept of precedent that liberals insist on today. Arguments for respecting precedent make the most sense when they are directed at persons who do not share your constitutional views, but in that case they are a modus vivendi, not an independent criterion of constitutional fidelity. The best argument for decisions living constitutionalists admire is not that they are settled precedents; it is that they are faithful implementations of the Constitution's textual commitments and underlying principles.

Third, I think that David’s dismissal of original meaning originalism as mere rhetoric proves too much. I don’t think he can give a good account of why the "hardwired" rules in the Constitution are binding on us as law today. The common law method by itself can’t explain the binding nature of the "hardwired" features of the Constitution– the fact that there are two Houses of Congress, and so on. My version of originalism can: it argues that the Constitution contains rules, standards, and principles. All of them are binding on us in the present; however, the latter two, because they are standards and principles, require fleshing out and implementation through doctrine, institutions, and statecraft.

In fact, my sense is that most progressives already are original meaning originalists with respect to the "hardwired" Constitution. They don’t assume that doctrinal elaboration or common law reasoning can increase the number of houses of Congress or the length of the President’s term. For most progressives, living constitutionalism is primarily focused on the vague and abstract clauses of the Constitution, like those in the Bill of Rights and the Fourteenth Amendment; they want to make sure that these clauses are not limited to the original expected application. I think that my version of originalism– rather than a common law theory like David's– better explains why this attitude makes sense.

David’s second major concern is that originalism leads to inappropriate hero worship of founding generations, and it imposes the values of 18th and 19th century dead white men on the very diverse and vibrant society in which we live today. This is no small matter. The Constitution’s legitimacy comes from our present ability to see it as responsive to our needs for governance, for justice, and for the protection of our rights. Why should “people who do not feel any affinity to American traditions” have the constitutional values of an alien past forced on them? There is no special reason, David insists, why “we owe it to the earlier generations to maintain some kind of continuity with them.”

For my part, I don’t understand why these concerns don’t also arise in a common law system of constitutional development of the sort that David favors, one that also relies on reasoned elaboration of existing traditions and precedents. Won’t that sort of model be equally alienating to persons “who do not feel affinity to American traditions?” And don’t common law conceptions of reasoned development also involve continuity with previous generations? I think that David may be worried that originalism too readily binds us to the concrete expectations of people living in “the late-18th or mid-19th century”– like their views about “gender roles.” But certainly precedents of the past (and even the recent past) are also inflected with the attitudes and values of the past. Moreover, this is a strange criticism to level at my version of originalism, because, as David himself notes, I don’t believe that originalism commits us to the original expected application of the adopters.

There is a deeper question at stake, however, that I think David is aiming at. The question is whether legitimacy depends merely on our present day satisfaction with the Constitution or whether it requires that we imagine ourselves as having some continuity with earlier generations; whether legitimacy requires Americans to imagine ourselves as part of the American people, existing over time, and engaged in a common constitutional project. David’s remarks (at least here) suggest no. I say yes.

In my second article, Original Meaning and Constitutional Redemption, I argue that the legitimacy of the Constitution depends on the public’s attachment to it. Attachment is not the same thing as consent. You consent to something you have a choice in; you become attached to something that you live in and feel you are a part of. The Constitution is legitimate if people from their different perspectives can reasonably believe that, understood in its best light, it is worthy of their respect. (Frank Michelman has developed this point in his work). That means either that they either believe that it currently adequately protects their rights and respects their values or that they have faith that, in time, it will come to do so.

That means, among other things, that the legitimacy of the Constitution depends on our belief in its redeem-ability, and this requires us to imagine the Constitution as a project that extends over time, which in turn requires that we see it as a joint project of many generations, a project that extends backward into the past and forward into the future. In addition, I argue that for the Constitution to be legitimate, it must not only function as what I call “basic law” and “higher law,” it must also be “our law.” The Constitution works as “our law” when we view it as our achievement and the product of our collective efforts as a people, which simultaneously involves a collective identification with those who came before us and with those who will come after us. I don’t think this is the quite the same thing as hero worship. It does, however, require some degree of attachment to and pride in the constitutional project as a whole and a faith in its future redemption.

As you may have guessed by now, this is not your grandfather’s originalism. For one thing, it is not bound by original expected applications; for another, it carries with it a different conception of legitimacy. I’ll be interested in what David has to say about the question of legitimacy in his preferred method of constitutional interpretation in our next go-round.

November 04, 2007

November H2H: David Strauss' first post

(cross-posted at Balkinization)

In two recent and very interesting articles (here and here), and in a number of blog posts (here, here, here, and here), Jack Balkin has argued that liberals should start being originalists. Other important scholars have taken the same position. I don’t think that’s a good idea, and I’m grateful to Jack for giving me the chance to debate him on our law school faculty’s blog and on his own blog.

There are at least two reasons why it’s bad idea for liberals to embrace originalism. The first is that originalism is not a good approach to constitutional law; in fact, I’m not sure it’s an approach to constitutional law at all, as opposed to a kind of rhetorical trope. It’s a way of invoking the authority of earlier generations for a position that is actually justified on other grounds. If that’s right, then no one, liberal or conservative, should be an originalist.

The second reason is that I think originalism may be, in its nature, illiberal. That’s because—I’m not sure of this, but I’m afraid it might be true—originalism relies on a kind of parochialism and American exceptionalism that liberals, especially, should reject.

1. “Originalism” can mean several different things. Jack is very careful in specifying the kind of originalism he has in mind. He says that what is binding is not the “original expected application” of a constitutional provision, but rather the “original meaning” of the text of the provision and the “principles that underlie the text.”

The difference can be illustrated with the Eighth Amendment’s prohibition against “cruel and unusual punishment.” It’s clear that when the Eighth Amendment was adopted, no one thought that it would outlaw capital punishment. The “original expected application” approach says that therefore capital punishment can’t be unconstitutional under the Eighth Amendment. Jack would proceed differently: he would say that the question is whether capital punishment is “cruel” according to the original meaning of that word and the principles underlying the prohibition. The answer to that question might be that capital punishment is indeed cruel and is therefore unconstitutional.

There are lots of problems with “original expected application” originalism, many of which can be seen by asking a question like: What was the original expected application of the First Amendment (adopted in 1791) to a law regulating indecency on the internet? (That might seem like an unfairly chosen example, given the spectacular newness of the internet, but I don’t think it’s unfair; it just makes some of the problems of originalism vivid.) But that’s not the form of originalism that Jack embraces—he’s quite critical of it—so I’ll leave it alone for now.

The problem with “text and principles” originalism of the kind Jack endorses is that it allows us to justify pretty much anything. I think it is a sophisticated iteration of what might be called the “levels of generality” maneuver. Here is how that maneuver works. Suppose you are trying to justify Brown v. Board of Education on originalist grounds. It’s pretty clear that when the Fourteenth Amendment was adopted, people did not think it made school segregation unconstitutional, pace my friend and former colleague Judge Michael McConnell. So if you’re an originalist, and you want to justify Brown, it looks like you have a problem.

But what if you recharacterize the original understanding, in a way that is no less accurate? Yes, they didn’t think they were outlawing school segregation. But they (the drafters or ratifiers or whoever the relevant group is) did think they were requiring racial equality with respect to certain important rights. If we conclude, today, that—contrary to the understanding in 1868—education is such a right, and segregation is inconsistent with equality, then, presto, Brown is a faithful—indeed mandated—implementation of the original understandings.

I think that is essentially what Jack has done in one of his papers, which argues that there is an originalist justification for a Fourteenth Amendment right to an abortion (and also, if I read him correctly, an originalist justification for Lawrence v. Texas, which invalidated laws forbidding same-sex sodomy). Of course no one in 1868 remotely thought that they were protecting abortion rights or gay rights. That was even more remote, by orders of magnitude, than invalidating racial segregation in schools. But the Fourteenth Amendment, Jack says, is about outlawing class- or caste-based legislation. And laws forbidding abortion constitute class- or caste-based discrimination against women. So we have an originalist justification for Roe v. Wade.

This is all OK as a matter of rhetoric—it’s fine to try to enlist the Framers on your side, if your cause is just—but I just think it is not a helpful way to address constitutional issues. I think what Jack has done is just to kick up the level of generality until he’s reconciled Roe and originalism. But what justifies the move up the ladder of generality, from “equality with respect to common law rights” (roughly, the central subject of discussion when section 1 of the Fourteenth Amendment was adopted), to “racial equality,” to “no caste or class legislation”? And why stop there: why not say that the Fourteenth Amendment is about equality and fairness, full stop, so that any laws that we consider unequal or unfair are unconstitutional?

There are two problems here, and I don’t think Jack’s key notions—“meaning” and “principles”—give us much help with either. One is the question of where to stop this ascent. But even if we knew that the right way to think about the Fourteenth Amendment is that it forbids class or caste legislation—not at a more specific or more general level—it seems to me that the judgment that some particular law constitutes caste or class legislation is one that we make on some other basis; and that basis is concealed by the invocation of originalism.

So: Why does the Fourteenth Amendment forbid anti-abortion laws, or discrimination against gays, or school segregation, but not the progressive income tax or rent control—laws that which can be (and are, by some) characterized as “class” legislation? Or, for that matter, why aren’t the Bush tax cuts unconstitutional because they were “class” legislation? Or maybe their repeal would be? Or perhaps the war in Iraq is unconstitutional because certain social and economic classes are so heavily represented in the front-line military? And so on.

There are answers to these questions, but I don’t see how you get them from originalism, however originalism is defined. You have to get them from somewhere else—whether you give “liberal” or “conservative” answers. My own view is that they come from an amalgam of precedent and normative reasoning that is characteristic of the common law, but that’s another subject. The main point is that I don’t see how the invocation of originalism helps us to analyze these issues, or to justify the positions we take. Something other than originalism is doing that work, and talking about originalism just obscures that fact."

2. I am less sure about my second argument, but if it is right, then it is more troubling, because it suggests that originalism is not just empty but maybe even pernicious. Thomas Jefferson posed a famous challenge to the use of written constitutions: essentially, that adhering to a constitution adopted by a previous generation is a form of irrational ancestor worship. I think there is a way around Jefferson’s objection in certain kinds of cases: sometimes, adhering to an old text, or even to original understandings, can be justified for reasons that have nothing to do with ancestor worship. For example, it is a good thing that we know how long a President’s term is and when he must leave office, and you don’t have to worship our ancestors (or even like them) to realize that it makes sense to rely on the Constitution to settle those matters.

But when you start to use old, abstractly-worded provisions of the Constitution to resolve highly controversial issues, then you have Jefferson’s problem. Why exactly, to choose a pressing example, should the attitudes that late-18th or mid-19th century people had about firearms determine an important issue of pubic policy in the incomparably different world of today? You can substitute any number of things for firearms in that question (“gender roles,” but also “jury trials”); it is not a liberal or conservative concern.

When originalists—liberal or conservative—try to answer questions like that, they usually, and I think unavoidably, start slipping back into ancestor worship. The central idea seems to be that we owe it to the earlier generations to maintain some kind of continuity with them. So there are invocations of “fidelity,” veneration of the text of the Constitution, talk about conversations among generations, assertions about American traditions—things like that.

This seems to me a troubling way to think about constitutional law, and it should be especially troubling for liberals. There should be room in our society for people who do not feel any affinity to American traditions and who do not especially want to be in a conversation with (someone else’s) ancestors. The decisions we make on matters of constitutional law will affect those people, and we ought to be able to give them an account of how we make those decisions that relies only on the demands of reason. Of course, any nation’s institutions will be, in significant part, the product of historical accident. But there are often sensible, functional reasons for accepting those accidental institutions. Once we get past those reasons and begin to rely on the distinctive American-ness of something as a justification, we run the risk of being parochial and exclusionary.

Jack has written eloquently and effectively about the dangers of what he calls “idolatry” in constitutional law, and I am certain he and I do not disagree in principle on this point.  Also, Jack’s version of originalism allows a wide range for arguments based on reason alone—that’s why I question whether the originalism component is more than a rhetorical device. But I do wonder if even the invocation of originalist rhetoric is something that liberals, especially, should be wary of doing.

October 31, 2007

Thomas Miles and Cass R. Sunstein: Partisanship and Activism on the Supreme Court

(Please note: this essay is also posted at the New Republic Open University blog.)

We have been engaged in a long-term study of judicial voting patterns, and we  recently published an oped in the Los Angeles Times, in which we gave “awards” to Supreme Court justices, based on a statistical study of their votes. The Judicial Neutrality Award went to Justice Anthony Kennedy. The Judicial Restraint award went to Justice Stephen Breyer. The less coveted Partisan Voting Award went to Justice Clarence Thomas. Justice Antonin Scalia received the Judicial Activism Award. 

In various circles, our oped seems to have caused a bit of a stir – especially, we suspect, because Thomas emerges as the most partisan justice, and Scalia as the most activist. (But we did not spare liberal members of the Court; Justice John Paul Stevens was a close second for partisanship.) Our goals here are to offer a more detailed explanation of our method, to provide some general remarks on partisanship and activism on the Supreme Court, and to respond to some criticisms.

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October 30, 2007

Constitutional Vision

We are now several weeks into the Supreme Court’s 2007 Term. We should keep a watchful eye on the Court. With Chief Justice Roberts and Justice Alito now firmly ensconsed, we might be on the verge of a significant paradigm-shift within the Court. If their performance last Term is any indication of what is to come, we may be in for quite a ride.

A Balanced Court?

In the media, we constantly read about how “closely divided” the Court is and about how many cases are decided by a vote of five-to-four. There are, according to the media, the “conservative” Justices – Scalia, Thomas, Roberts, and Alito; the “liberal” Justices – Stevens, Souter, Ginsburg, and Breyer; and Justice Kennedy -- the “man in the middle.” The impression created by such accounts is that this is an “evenly balanced” Court. This is a fallacy, and a dangerous one at that. What do we mean by “balance”? Why don’t the many five-to-four decisions prove that this is a “well-balanced” Court?

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October 25, 2007

Comparative Textualism: Land Sabbatical Battles in Israel and American Constitutional Compromises

Few readers of this Blog will have paid much attention to the Israeli Supreme Court’s recent decision disallowing that country’s chief (centralized) rabbinate’s decision to permit local variation in rabbinic councils’ certification of kosher foods, as some of these local councils preferred to be more textualist (and strict) in their understanding of how to abide by the biblical requirement that the holy land be fallow every seventh year (the sabbatical, or “shmita” year). Impermissibly harvested crops would then bring about a refusal to certify foods as kosher. That decision itself seems mysterious to those of us who are accustomed not only to more of a church-state separation, but also to the idea that certification standards should normally proliferate because consumers and producers can then decide on their own courses of action.

An interesting aspect of this far-away dispute is that it demonstrates the unreliability of precedent when there is a confounding text in the background. The law there begins with the biblical text calling for the earth to have a sabbatical year. In that year farming is forbidden and perennial crops are ownerless, with an explicit redistributive nod to poor people who will benefit from the freely available food. But how will the agricultural sector survive this extreme form of crop rotation? One possibility would have been for the lawmakers to interpret the text as requiring each parcel of land to enjoy some sabbatical year, but to permit rotation across the country. Instead, the entire land, within later-defined boundaries, is said to observe the same sabbatical cycle. Modern alternatives or loopholes permit hydroponics, growing crops in trays on tables (not on the “Land”), or transacting with non-Jews. But the most dramatic solution was to permit a form-over-function sale of the land, with the seller working the land as an employee of sorts, with the right or even obligation to buy the land back at the end of the year. This is not a sale-and-leaseback any legal system would accept for tax or criminal law purposes, but it became the dominant means of coping with the text.

One useful and comparativist way to think about this is that a structural argument about the text was allowed to trump a piece of text itself. The structural argument is that the text anticipates an agricultural sector and, for the state to thrive, some solution to the sabbatical prohibition was required. For a long time, only a tiny percentage of lawmakers and consumers found this permissive solution offensive. But affluence makes stricter religiosity possible. Consumers can import produce, and expect contributions or subsidies to prop up farmers who work the land but six of seven years. Sure enough, there is now a substantial movement to reverse the (religious law) precedent and to insist that the sale-and-leaseback accomplishes nothing. Restaurants and other intermediaries are caught in the middle. Law has become a cause of instability. It is possible that the solution was misguided. A more stable equilibrium might have come about through a decision to declare produce farmed in the sabbatical year as ownerless for a brief period of time and then “reclaimed” before sale to the public. Or perhaps the solution should have been to permit export of the otherwise forbidden produce, so that the cost of the text’s prohibition would be limited to the transactions costs of importing and exporting.

In our own legal system we are also accustomed to solutions of uncertain stability that are at odds with, or unanticipated by, our most important text. Roe v Wade’s trimester is one good example, and its stability became an open question after years of apparent precedential force. Dormant Commerce Clause cases may offer another. Various decisions with respect to affirmative action and Equal Opportunity provide other examples. In all these cases, my sense is that once there is serious questioning and “exposure” of the arbitrariness of the first anti-textual solution, we should expect a new (clever or arbitrary) solution, rather than stability based on the text itself or based on broad agreement to abide by the precedent that came to be accepted but then somehow became vulnerable to textual and other objections. Israel’s agricultural sector is too important to be cut down by fierce, minority religious opposition, but the lawmakers will probably need to come up with something new to take the place of, or improve upon, the sale-and-leaseback arrangement. Similarly, the prediction here (to be developed, I hope, in my future work) is that we should expect new means of compromise in the abortion and affirmative action debates. And then these solutions will also have significant but limited lives, for that is the nature of democracy, intense preferences, and the need to pay homage to a founding text.

October 06, 2007

A Review of Jack Goldsmith's "The Terror Presidency"

Jack Goldsmith's "The Terror Presidency" is one of the most interesting and most insightful books yet to come out of the Bush White House.

In October 2003, President Bush appointed Goldsmith, a self-described conservative who proudly proclaims that he is not a civil libertarian, head of the Justice Department's Office of Legal Counsel, thus making him chief adviser to the president about the legality of presidential actions. Ten months later, Goldsmith resigned because he could not endorse the unlawful policies the administration had implemented in the war on terror.

Shortly after taking office, Goldsmith reviewed a series of highly confidential opinions written by his predecessors in the Bush administration that defended the legality of "some of the most sensitive counterterrorism operations in the government." To Goldsmith's shock and dismay, he found that some of these opinions "were deeply flawed: sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the President." What was going on?

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September 27, 2007

Columbia, MoveOn.org, and General "Betray Us"

In a recent post, I argued that Columbia University did nothing "wrong" in inviting Mahmoud Ahmadinejad to speak. To the contrary, its invitation to this allegedly "cruel and petty dictator" was well within Columbia's fundamental mission as a university, which is not to "endorse" particular ideas as "right" or "wrong," but to promote a robust and lively and sometimes controversial exchange of views in order to promote the ultimate goal of education.

In this post, I want to draw a subtle but perhaps illuminating connection between the response of Columbia to its own decision to invite Mr. Ahmadinejad to campus and the Senate's response to the recent MoveOn.org ad in the New York Times attacking General Petraeus.

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September 26, 2007

Ahmadinejad and Columbia University

Why all the fuss about Iranian President Mahmoud Ahmadinejad’s speech at Columbia University? Critics of Columbia’s decision to invite Mr. Ahmadinejad to speak maintain that, because he is a “cruel and petty dictator,” in the words of Columbia President Lee Bollinger, Columbia should not have invited him to speak. In their view, a great American university should not lend its name and prestige to a man who denies the Holocaust, threatens to destroy Israel, promotes terrorism, and routinely violates human rights. Columbia’s critics argue that in providing Mr. Ahmadinejad a forum, Columbia implicitly dignified his views and betrayed its own values.

It would be difficult to be more wrong. A fundamental mission of a university is to educate. A university does this not by taking positions on political, social, moral, economic, medical, or international issues, but by creating an environment in which all perspectives on all issues are open to robust and lively debate.  The central responsibility of a university is not to decide who is right about the war in Iraq or the moral legitimacy of terrorism or the meaning of human rights, but to create and nurture an intellectual environment in which faculty, students, staff, alumni and others have the complete freedom to explore such questions without constraint or intimidation.

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September 08, 2007

"Conscience of a Conservative"

I commend to you Jeffrey's Rosen's article in this Sunday's New York Times Magazine, which describes the experiences of former University of Chicago Law School Professor Jack Goldsmith in the Bush Justice Department. Goldsmith and I overlapped briefly on the faculty. During most of his time at the Law School, I was serving as Provost of the University. But we got to know one another, and I was much impressed with his intelligence, integrity, and judgment.

Goldsmith and I disagreed about many issues. I am a civil libertarian. As Goldsmith says in the Rosen article, he is not. We therefore often came to quite different conclusions about the appropriate limits of government power, particularly in the realm of individual rights. In our discussions of such issues, Goldsmith was always smart, open-minded, and thoughtful. I learned a lot from him. I hope he felt the same about me. In some ways, our mutual respect, friendship, and colleagueship despite strong differences of opinion, like my more long-term relationships with Dick Posner, Richard Epstein, and Bill Landes, represent what is truly best and most unique about the culture of the University of Chicago Law School.

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August 28, 2007

The Gonzales Legacy

“The first thing we do, let’s kill all the lawyers.” Alberto Gonzales’s sorry tenure in the Bush administration would seem to give credence to Shakespeare’s oft-cited incitement against the legal profession.

The primary responsibility of the Attorney General is to uphold the Constitution and laws of the United States in a fair and even-handed manner. In failing to comprehend this responsibility, Alberto Gonzales compromised himself, his office, the Constitution, and ultimately even the President who appointed him.

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August 23, 2007

Hate Crimes and the Gospel

On May 3, the U.S. House of Representatives voted to pass the Local Law Enforcement Hate Crimes Prevention Act of 2007. The Senate will take up a companion bill, known as the Matthew Shepard Act, when it returns from its summer recess. If enacted, this law would authorize the Justice Department, in certain narrowly defined circumstances, to criminally prosecute an individual who “willfully” causes bodily injury to another person or, “through the use of fire, a firearm, or an explosive ... attempts to cause bodily injury” to another person, because of that person’s race, color, religion, national origin, gender, sexual orientation, gender identity, or disability.

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August 20, 2007

Despite it All, U.S. Civil Liberties Strong

On August 5, President George W. Bush signed into law legislation that amended the Foreign Intelligence Surveillance Act of 1978 (FISA). This new legislation authorises the electronic surveillance of international telephone conversations and e-mails, even if one of the participants is an American citizen on American soil, as long as the intercept is undertaken for foreign intelligence purposes and is “directed at a person reasonably believed to be located outside of the United States.”

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August 14, 2007

Mollie and Andrea's Wedding

Last November, after my daughter Mollie informed me that she and Andrea had gotten engaged, I was moved to post an entry on this site ("Marriage: Scripture v. Morality" [November 14, 2006]). “Mollie and Andrea,” I wrote “are deeply committed to one another. They want to spend their lives together. Watching them over the past few years, it is easy to see why. They complement each other, take care of one another, respect each other, and love one another. They want to have children, for all the right reasons. In my experience, they are no different in their love, commitment, and aspirations than any of the other young couples whose weddings I have attended over the past half-century. But Mollie and Andrea cannot marry.”

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August 06, 2007

What the "Unitary Executive" Debate Is and Is Not About

Not long ago, a wild-eyed man came up to me in a large city, pushing a piece of paper into my hand and saying, in an alarmingly loud voice, "DO YOU KNOW WHERE THE IDEA OF THE UNITARY EXECUTIVE COMES FROM?" I couldn't help but laugh, because I do know (more or less), and the answer isn't quite what he said (which was Hitler, or it might have been Stalin). Because the idea of the unitary executive is so much in the news, and because it is creating a lot of confusion, it might be useful to set out some of the basics here.

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July 09, 2007

The Supreme Court: What Conventional Wisdom Misses

According to conventional wisdom, the Supreme Court is equally divided between a conservative wing and a liberal one, with Justice Anthony Kennedy acting as the swing voter. But there is something extremely strange about this view of the current situation. By the standards of the recent past, the liberal wing isn't liberal at all.

According to conventional wisdom, the Court has long been evenly balanced between left and right, and it has finally shifted a bit to the right under Chief Justice John Roberts. But there is something strange about this view as well. The Court shifted quite dramatically to the right between 1972 and 2000, indeed between 1980 and 2000, and yet people continued to speak of an alleged "balance" even as the dramatic shift was underway.

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June 28, 2007

Roberts, Alito and the Rule of Law

For the Supreme Court of the United States, this will be remembered as the year of intellectual dishonesty. In their Senate confirmation hearings, John Roberts and Samuel Alito cast themselves as first-rate lawyers, as masters of legal craftsmanship who are committed to the principle of stare decisis.

John Roberts assured the Senate Judiciary Committee that judges must “be bound down by rules and precedents.” Invoking Alexander Hamilton and James Madison, he affirmed that “the founders appreciated the role of precedent in promoting evenhandedness, predictability, stability,” and “integrity in the judicial process.” Although acknowledging that it is sometimes necessary for judges to reconsider precedents, he stressed that this should be reserved for exceptional circumstances, where a decision has proved clearly “unworkable” over time. But in general, “a sound judicial philosophy should reflect recognition of the fact that the judge operates within a system of rules developed over the years by other judges equally striving to live up to the judicial oath.”

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Four New Horsemen? Of Minimalists and Visionaries

(The following is a mildly edited version of an oped that appeared today on the Washington Post website.) The most intriguing development on the Supreme Court this term has been the emergence of a powerful alliance between two different kinds of conservatives: the visionaries and the minimalists. Justices Antonin Scalia and Clarence Thomas, the visionaries, are not merely predictable in their votes; their sweeping opinions call for fundamental changes in constitutional law. They do not greatly respect stare decisis. Chief Justice John Roberts and Justice Samuel Alito, the minimalists, have also turned out to be predictable in their votes. But their opinions tend to be cautious, narrow and unambitious. They are reluctant to reject the court's own precedents, and attempt to rule in a way that preserves them.

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Justice Kennedy and the School District Cases

There are two very important ideas that emerge from Justice Kennedy's concurring opinion in Parents Involved, the landmark school desegregation opinion handed down today.  Because of the way the remaining justices split their votes, it's Justice Kennedy's concurrence that really tells us what "the law" says going forward.  Kennedy's first important idea is that school segregation and racial imbalance is no longer a white-nonwhite dichotomy.  In a city with substantial racial diversity, a school with 50% white students, 50% African American students, and no Asian or Latino students, is not racially balanced.  The defendant school districts lumped all students of color together in assessing racial imbalance, and Seattle did not permit individual students to be classified as members of multiple racial groups for school assignment purposes.  Justice Kennedy sensibly argues that school districts must do better, and use finer-grained racial classifications if they are to use them at all.  I believe that this part of Kennedy's opinion will be uncontroversial within a few years, if it isn't already.

Justice Kennedy's second idea ought to be more controversial, and it is certainly more intellectually ambitious.

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June 10, 2007

The Wrong Side of History

After the long years of the Bush administration, the United States needs to elect a president in 2008 who can inspire the nation and call upon us to be the best Americans we can be. In that light, I watched last week’s Republican presidential debate with special interest. The moment in the debate I found most revealing, most distressing, was when the moderator asked the ten Republican candidates to raise their hand if they believe gay and lesbian Americans should be allowed to serve openly in the armed forces of the United States. Not one of them raised his hand.

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May 15, 2007

On Constitutional Visionaries

The justices of the Supreme Court have historically included people who seemed, even during their service, to be genuine visionaries. But things are different today. Notwithstanding its unsurpassed level of sheer competence, the Court lacks old-style constitutional visionaries--in a way that tells us a great deal about the nature of contemporary constitutional law. There is an important qualification to this claim. But before getting to it, we need to clarify some terms.

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May 11, 2007

From the Mercantilist World to Market-Based Liberalism: Money as a Constitutional Medium

On Thursday, May 10, 2007, Christine Desan, Professor of Law at Harvard Law School, delivered the Maurice and Muriel Fulton Lecture in Legal History. Professor Desan's title was "From the Mercantilist World to Market-Based Liberalism:  Money as a Constitutional Medium." She described the talk as follows:

"Money, far from a neutral currency, is a medium that holds value because of the practices that support it.  Those practices differently configure the political economies in which they operate.  At the end of the early modern era, a large transformation occurred in the way the Anglo-American societies “made” money.  The transformation tells us much about both the mercantilist world, and the modern market-based liberalism that followed it."

Interested? Listen to the talk here

April 25, 2007

Faith Based Justices (Again)

Among the many responses to my earlier post about Carhart, were some that accused me of "anti-Catholic bigotry." I can't say this completely surprised me, but it's surely unfortunate. Assume the following: (1) In 1954 the Supreme Court, in a closely divided decision, holds that racial segregation in public schools is unconstitutional. (2) Seven years later another case comes to the Court posing almost exactly the same issue, with only a slight variation in the underlying policy. (3) A well-trained and disinterested lawyer would conclude that the 1954 decision clearly controls the new case. (4) Because of changes in the makeup of the Court in the intervening years, by 1961 five of the Justices now come from states that had been racially segregated in 1954 and that continue to contest desegregation. (5) In its 1961 decision, the Court essentially limits the 1954 precedent to its facts, without offering a persuasive or principled legal analysis. (6) The vote is 5 to 4 and all five Justices in the majority are those from the deep South. In such circumstances, would it be rash or inappropriate to point out the possibility that the five Justices in the majority might have let their personal values and beliefs have an undue impact on the decisionmaking process?

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April 20, 2007

Our Faith-Based Justices?

My colleague Professor Stone characterizes, in his recent post, the five Justices -- who are Roman Catholics -- who were in the majority in Gonzales v. Carhart as "Faith-Based Justices."  The claim, as I understand it, is that by failing to invalidate the federal partial-birth-abortion ban -- which, in Professor Stone's view, is clearly invalid under the Constitution, correctly understood -- the Justices are best seen as imposing sectarian beliefs on those who do not share those beliefs.  In my view, though -- as I have suggested elsewhere -- this charge misses the mark. 

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Our Faith-Based Justices

In Gonzales v. Carhart, the Supreme Court, in a five-to-four decision, upheld the constitutionality of a federal law prohibiting so-called “partial birth abortions” (properly described as “intact dilation and evacuation” or “intact D & E”) despite the absence of an exception to protect the health of the woman. Gonzales reversed an earlier decision, Stenberg v. Carhart, in which the Court had held a virtually identical state law unconstitutional, primarily because it failed to include an exception to protect the health of the woman.

In the majority’s view, the critical difference was that in enacting the federal law Congress made several findings to support the legislation. The majority accepted  those findings even though, as Justice Ginsburg observed in an unusually scathing dissent, those findings were nothing more than political nonsense.

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Equality and Abortion Rights

(The following is a mildly revised version of an op-ed that appeared in the Los Angeles Times.)

In the long run, the most important part of the Supreme Court's ruling on "partial-birth" abortions may not be Justice Anthony M. Kennedy's opinion for the majority. It might well be Justice Ruth Bader Ginsburg's dissent, which attempts, for the first time in the court's history, to justify the right to abortion squarely in terms of women's equality rather than privacy.

Roe vs. Wade, decided in 1973, was founded on the right of privacy in the medical domain, but the court's argument was exceedingly weak. The Constitution does not mention a generalized right to privacy, and, in any case, the idea of privacy seems to describe a right of seclusion, not a right of patients and doctors to decide as they see fit. It is true that the due process clause refers to "liberty," and the right to choose abortion might be taken to be part of "liberty." But the due process clause seems to be procedural; the idea of substantive due process remains highly controversial; and the spectre of the Lochner era looms over efforts to invoke the due process clause to resolve contested political questions.

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April 19, 2007

Apprendi’s Domain: Challenging the Court’s Link Between the Right of Jury Trial and the Reasonable-Doubt Rule

The Supreme Court’s decisions in Apprendi v. New Jersey and subsequent cases have extended the Sixth Amendment right of jury trial to some (but not all) disputed factual questions at sentencing.  They require juries to resolve any non-recidivist sentencing fact that increases the ceiling on a defendant’s punishment, but do not extend this requirement to facts that decrease a defendant’s punishment or that establish mandatory minimums without raising the maximum allowable sentence. 

Yet the Supreme Court has simultaneously decided that all facts subject to the Sixth Amendment jury requirement must also be proved beyond a reasonable doubt, as if they were “elements” of substantive criminal offenses.  In the Court’s words, a non-recidivist fact that increases a defendant’s maximum allowable sentence must be treated as “the functional equivalent of an element of a greater offense.”  This has produced a regime in which prosecutors must prove certain sentencing enhancements beyond a reasonable doubt, and allege such facts in indictments in federal prosecutions, as if they were “elements” of a substantive crime.  The pro-Apprendi Justices defend this outcome by claiming that sentencing enhancements had always been regarded as “elements” of substantive crimes whenever they increased a defendant’s maximum allowable punishment.  To support this historical claim, they rely on Joel Prentiss Bishop’s Criminal Procedure treatise, which said that nineteenth-century indictments were required to include “every fact which is legally essential to the punishment.”

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April 05, 2007

Sexual Orientation: The Third Way

Legal recognition of same-sex relationships is a central issue in the so-called culture wars. Happily, for those of us who support the legal recognition of such relationships, there is now compelling evidence of a real shift in public attitudes. A recent study by The Third Way Culture Project, headed by Rachel Laser (J.D. '95), reveals "a general national warming trend on issues relating to gays and lesbians."

Nearly 90% of Americans now support equal job opportunities for gays and lesbians, and almost 80% now support gays serving openly in the military. Forty-nine of the Fortune 50 companies now include sexual orientation in their non-discrimination policies, and a majority of Fortune 500 companies provide domestic partner benefits.

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March 26, 2007

Executive Privilege: A Primer

In view of the current conflict between Congress and the President, it might be useful to outline existing law on executive privilege, and thus to provide a kind of primer (a tentative, preliminary, and incomplete one to be sure). The following does not focus on or attempt to resolve the current controversy.

Nor does it trace the practices of Congress and the executive branch over time. One of the largest lessons is that much of the law remains unsettled. The Supreme Court has not said a great deal; the court of appeals for the District of Columbia Circuit has said more; but it is not at all clear that a majority of the Supreme Court would agree with what the lower court has said. Here is (the bulk of) the law as it now stands.

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March 20, 2007

In Support of Civil Unions

On Wednesday, March 21, the Human Services Committee of the Illinois House of Representatives will hold hearings on proposed Illinois House Bill 1826, which would legalize civil unions in Illinois. I strongly support this bill.

A central theme of American history has been our willingness to reexamine our preconceptions.  As Justice Oliver Wendell Holmes once observed, “time has upset many fighting faiths.” Our tradition of reevaluating and reconsidering our conventions and beliefs, particularly when they may cut against individual dignity and freedom, is at the very core of the American character. It is through this process of open-minded, self-critical, and rigorous questioning that we have discerned our most fundamental truths.

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March 14, 2007

Taxpayers and Religion

When the government has violated the Constitution, who is entitled to complain? The Supreme Court will soon cast new light on this question in one of the most intriguing cases in recent years, a suit challenging President Bush's "faith-based initiatives."

To be entitled to go to court to challenge a government action, people have to have "standing." Taxpayers as such lack standing. But in the particular domain of religion, the Supreme Court has long made an important exception. If Congress says that taxpayer money will go to a particular church, taxpayers can complain. The reason is simple: The Constitution bans the establishment of a religion by government, and a major point of this ban is to ensure that the power to tax and spend would not be used to support preferred religions. It is most unclear whether Chief Justice Roberts and Justices Scalia, Thomas, and Alito would originally have supported taxpayer standing to contest congressional expenditures; but the principle is pretty firmly entrenched in the law.

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March 13, 2007

"Trust Us"

One reason the Bush administration has fared so poorly over the past several years is its obsessive fear of public accountability and separation of powers. From its secret prisons to its classified torture memos, from its closed deportation proceedings to its incommunicado detention of José Padilla, from its clandestine NSA spying to its persistent efforts to deny the Guantánamo Bay detainees access to the writ of habeas corpus, the Bush administration has entered one long plea of "trust us." President Bush is, after all, “The Decider.”

As the Framers of the Constitution well understood, however, such an approach to governance is a recipe for disaster. The Framers believed in both openness and checks-and-balances. They recognized the dangers of an overzealous executive, operating in secret, unchecked by the courts, the Congress, the press, and the public. The recently-released Justice Department audit of the FBI's use of PATRIOT Act authority is the latest example of the consequences of the Bush administration’s “trust us” theory of governance.

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March 05, 2007


The Constitution Project released the following statement today. Richard Epstein and I helped draft the statement:

We, the undersigned members of the Constitution Project’s Liberty and Security Committee and the Project’s Coalition to Defend Checks and Balances, are deeply troubled by the recent legislation eliminating habeas corpus for certain non-citizens detained by the United States.    We recommend that Congress vote to restore federal court jurisdiction to hear these habeas corpus petitions.
Habeas corpus has for centuries served as the preeminent safeguard of individual liberty and the separation of powers by providing meaningful judicial review of executive action.    In 2004, the United States Supreme Court upheld the right of Guantanamo detainees to file habeas corpus petitions to challenge the lawfulness of their indefinite detentions.


February 21, 2007

We Need a Federal Journalist-Shield Law NOW

As the new Democratic Congress moves ahead decisively on a panoply of issues, it should confront a particularly pressing one: freedom of the press. Congress should expeditiously enact a federal journalist-source privilege law, which would protect journalists from compelled disclosure of their sources’ confidential communications in the same way psychiatrists and lawyers are protected. Importantly, neither Congress nor the press should be unwilling to compromise when the alternative is to forgo such a privilege altogether.

A strong and effective journalist-source privilege is essential to a robust and independent press and to a well-functioning democratic society. It is in society’s interest to encourage those who possess information of significant public value to convey it to the public, but without a journalist-source privilege, such communication will often be chilled because sources fear retribution, embarrassment or just plain getting “involved.”

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February 02, 2007

Chief Justice Roberts and the Role of the Supreme Court

In a recent speech in Chicago, Chief Justice John Roberts stated that the Supreme Court functions best “when it can deliver one clear and focused opinion of the Court.” He lauded the importance of judicial “consensus,” arguing that cases should be decided “on narrow grounds” and that differences of opinion among the Justices generally should be expressed secretly in the Court’s private conferences, rather than in published dissenting or concurring opinions.

            As one who does not share the very conservative inclinations of the majority of the current Supreme Court, I should heartily endorse the Chief Justice’s call for “narrow” decisions that reflect a “consensus” among the Justices. The more the Court follows the Roberts, the less damage it is likely to do to the fabric of constitutional law. My self-interest as a citizen should cause me to cheer Roberts on.

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January 22, 2007

"Supreme Conflict"

Jan Crawford Greenburg, a graduate of the University of Chicago Law School, has just published an already-widely-noted book, "Supreme Conflict," on the Supreme Court and its Justices.  Here is a long excerpt from the book's introduction, which includes some interesting news about Justice O'Connor's decision to retire; here is a Washington Post op-ed, excerpted from the book, discussing the nominations and confirmations of Justices Alito and Roberts, and also the nomination and withdrawal of Harriet Miers; here is a Wall Street Journal piece discussing the Justice Thomas's views and contributions (which, in Greenburg's view, are often and unjustifiably overlooked, or lumped in with Justice Scalia's); and here is a television interview with the author.

December 10, 2006

Secrecy and Self-Governance

The next time our government insists it needs to keep things secret from us, we should remember where we are today. From the day it took office, the Bush administration has wrapped itself in unprecedented secrecy.  It intentionally hid critical information about its deliberations and decisions from Congress, the courts, the press, and the American people. Those who attempted to investigate or disclose what the administration kept secret were attacked and discredited.

For a time, this strategy worked. Protected by a shroud of secrecy, the administration appeared competent and all-knowing. Armed with a monopoly on information, it countered criticism as “ill-informed.” And so, we went to war. By almost all accounts, the war in Iraq has proved to be a disaster.  The sad truth is that if the American people had known what the members of the administration knew when they knew it, many frightful errors might well have been avoided. That is why we have the First Amendment.

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December 03, 2006

Promises the Justices Can't Keep?

Once in a while, Supreme Court Justices write dissenting opinions in which they announce that they not only disagree with the majority's ruling, but that they disagree so strongly that they will never recognize the decision as binding precedent.  I wonder, how often do the Justices stick with these promises?

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November 26, 2006

Federalist Society Speaker Discusses Rational Basis Jurisprudence

On November 1st, the University of Chicago Law School chapter of the Federalist Society presented a discussion of the flaws and failings of current rational basis jurisprudence. Clark Neily of the Institute for Justice spoke; Professor Cass Sunstein provided commentary.  You can view the video here. (Many thanks to Peter Ternes for videography.)

October 27, 2006

Gay Marriage Timing in New Jersey

Suppose that a multimember court has decided (a) that a state must allow same-sex marriage, (b) that a state may not continue affirmative action programs, or (c) that a popular environmental statute is unconstitutional. Suppose too that the opinion is written -- and that a national election will be held in two weeks. Suppose finally that the court is aware that the ruling will have at least some degree of relevance to voters. Should the court refuse to issue the opinion until after the election?

It is worth raising this conclusion because the New Jersey ruling (not requiring the state to allow same-sex "marriage," but requiring same-sex couples to be provided with the material equivalents of marriage) was issued within two weeks of the national election, and some people believe that it will have electoral salience. As far as I am aware, there is no serious scholarship on the question whether and when it is appropriate to wait to issue a controversial ruling until after an election.

Consider two possible positions:

1. The court should issue an opinion whenever it is ready to do so. It does not matter whether an election is imminent. It is no more neutral to hold the opinion than to issue it immediately. If the court's decision is controversial, the voters deserve to know about it before they vote, not after. "Holding" an opinion is too strategic; it smacks of opportunistic behavior on the court's part, an effort to avoid electoral reprisal.

2. It is appropriate and possibly the better practice for the court not to issue a controversial opinion in the period immediately preceding an election, simply because of the risk that the timing will give the opinion undue salience, in a way that will distort the process. Of course any particular event might have such a distorting effect, if it occurs immediately before an election. But if judges can control the timing of their intervention to avoid the risk of that distorting effect, they should do so.

I tend to think that under certain circumstances, (2) is correct; but it is a reasonable objection that voters deserve to hear about the ruling when they are deciding how to vote. Whether the objection is reasonable, as opposed to right, may depend on whether the timing will improve voters' information, or instead distort the whole process by making one development especially salient.

October 25, 2006

Gay Marriage in New Jersey

The New Jersey Supreme Court held today that denial of the legal benefits of marriage to gays and lesbians violates the equal protection guarantee of the New Jersey Constitution. At the same time, the court declined to hold that gays and lesbians have a right to "marry." The court concluded that a right of equal access to the legal benefits of marriage does not necessarily entail a right to characterize the relationship as "marriage." Hmmm.

Among the many intriguing facets of this decision is that the vote was 4-to-3. The three dissenting justices did not argue that gays and lesbians do not have a right to the legal benefits of marriage; rather, they argued that gays and lesbians are also entitled to equal access to the word "marriage." Thus, the court was unanimous in holding that New Jersey could not constitutionally (under the state constitution) deny gays and lesbians the legal benefits of marriage.

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October 11, 2006

Samaha Previews the Supreme Court Term

Each year, the Law School asks a faculty member to deliver a "First Monday" lecture in several cities in honor of the opening of the Supreme Court term. These lectures vary wildly in topic and scope, depending on what the speaker thinks the upcoming term will hold. Needless to say, the Supreme Court has been the subject of much discussion since the 2005 First Monday lecture, so Adam Samaha's talk called "Meet the New Boss" was both well-attended and well-received. We've had several alumni ask for a podcast of this talk, and we're delighted to bring it to you now. As always, podcast instructions are here.

October 08, 2006

Liberal Values

For most of the past four decades, “liberals” have been in retreat. Since the election of Richard Nixon in 1968, Republicans have controlled the White House 70% of the time and Republican presidents have made 86% of the Supreme Court appointments. In many quarters, the word “liberal” has become a pejorative. Part of the problem is that liberals have failed to define themselves and to state clearly what they believe. As a liberal, I find that appalling. In that light, I thought it might be interesting to try to articulate ten propositions that seem to me to define “liberal” today. Undoubtedly, not all liberals embrace all of these propositions, and many conservatives embrace at least some of them. Moreover, because ten is a small number, the list is not exhaustive. And because these propositions will in some instances conflict, the “liberal” position on a specific issue may not always be predictable. My goal, however, is not to end discussion, but to invite debate.

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July 14, 2006

Summer Reading: Are Judges Political?

Want to know how Republican appointees and Democratic appointees differ? Want to know how judges vote, depending on whether they're sitting with Republican appointees or Democratic ones? Want to know whether federal courts have been getting more conservative, and whether Bush appointees differ from Reagan appointees?

Are Judges Political?, the first major product of the Chicago Judges Project, is now out in published book form. Two of the authors are recent Chicago grads: Lisa Ellman and Andres Sawacki. A third author is David Schkade. The fourth author is a certain someone (hint: his name rhymes with Bunstein) everyone here warmly knows.

The book itself is up for sale at all the normal places online. For reviews and a summary, click over to the Brookings website. (And, while browsing in the genre, don't forget our pal Adrian Vermeule's new book, Judging Under Uncertainty, which is also newly out this summer.)

June 09, 2006

A Podcast of a Different Color: Currie and the Constitution

Here at the Law School we are ever striving to provide something new, interesting, and fun for you. In this podcast, we think we might have found something unique as well. Our very own David Currie, to mark the occasion of his retirement from the Law School faculty after 44 years, has kindly read the entire text of the United States Constitution aloud for us to record. We have created a web page where you can listen to the recording in its entirety (which you may also do by clicking here), or listen to its component parts. We hope that this page will serve as a resource for educators wishing to enhance their teaching of the Constitution. We could think of no better person to bring this document to life than David Currie - constitutional scholar and actor extraordinaire. The Law School Class of 2006 (who graduated today - see below) received as their graduation gift from the Law School a USB flash drive loaded with this recording. We hope you, and they, will enjoy it.

June 07, 2006

Searching Rep. Jefferson's Office

We haven't heard much in the last few days about the search of Representative Jefferson's congressional office. Undoubtedly negotiations are underway about what to do with the things seized during the search--they have been placed "under seal"-- and probably there will be some sort of compromise.

But the issue is pretty important, and, depending on the precedent set in this case, it will could certainly come up again. I think the consensus, in the immediate aftermath of the search, was that there was no plausible constitutional basis for the bipartisan outrage over the search of Rep. Jefferson’s office. I don't think I agree with that consensus. I wouldn't say that a Representative's (or Senator's) office should never be searched. But on the other hand it's not just a garden-variety search, and maybe it should be subject to stricter rules. Some thoughts:

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