Media coverage of the contraceptive-mandate case has emphasized the red herring of whether for-profit corporations like Hobby Lobby can assert constitutionally or statutorily protected religious beliefs (see, for example, here). David Catron has a piece at The American Spectator correcting that specious formulation, noting that the question before the Supreme Court is not whether corporations can claim protection under the Free Exercise clause but rather whether individuals relinquish theirs simply because they adopt the corporate form. Continue Reading →
Liberty Law Blog
If common law is judge-made law, as every law student these days is taught to think and as every political scientist who bothers to notice it presumes, then one easily enough understands why it is viewed by patriotic American citizens with suspicion. Everyone who reads the Constitution knows that the legislative power is vested in Congress, not the courts. Everyone who follows the courts knows that their constitutional decisions are treated in the press as judicial policy-making. And everyone who can connect the dots would conclude that common-law is the seductress leading judges away from their proper function of doing justice according to law in particular cases brought before them, and into the heady business of rewriting the Constitution when lobbied through the vehicle of a high-profile case.
Justice Scalia put this charge memorably in his book, A Matter of Interpretation, saying law students are taught in their common-law courses the art of “playing judge, which in turn consists of playing king—devising, out of the brilliance of one’s mind, those laws that are to govern mankind.” Continue Reading →
(This three part post addresses the new article on Originalism by Berman and Toh. In my first post on this article, I argued that the New Originalism is not primarily concerned with theories of law. Here I move on to Berman and Toh’s discussion of the old originalism.)
Berman and Toh also claim that the old originalists were mainly concerned with theories of adjudication rather than theories of law. Berman and Toh assert that Bork, Meese and Scalia are all focused on constraining judges rather than about the law.
But this claim is also problematic. To begin, Berman and Toh admit that Raoul Berger – perhaps the oldest of the old originalists – had a theory of law. But Bork also (in the Tempting of America) argued that the Constitution was law (and therefore could only be changed by legal procedures). In fact, that might have been his principal argument.
Even Meese in a short speech to which Berman and Tod refer, founds his argument on the fact that the Constitution is law. It is true that he uses that as an argument for why judges are bound by that law, but the basis of his argument is that the Constitution is law.
In addition, old originalist Lino Graglia also has a theory of the Constitution as law, as Berman and Toh admit. Continue Reading →
It is not difficult both to dislike and to criticize consumerism. It is often as vacuous as it is unattractive. Last week, for example, my wife took me to something called an ‘outlet village,’ an expanse of shops built in faux Eighteenth Century style that sold designer products at allegedly low prices (though, wanting nothing in particular, they seemed high enough to me). There was actually a queue to obtain entry into Prada whose products are hardly those of first or primary necessity. However deep our economic crisis, this was no queue for rations in wartime; and though I am far from an egalitarian I felt uneasy that there were so many people wanting and even eager to pay hundreds or perhaps thousands for what seemed to me to be aesthetically cheap and vulgar gewgaws while so many people await their heating bill with extreme anxiety and trepidation. Continue Reading →
“Abortion Cases in Court Helped Tilt Democrats Against the Filibuster.” This New York Times front-page story was a press release rather than an investigative report. Through it, the Obama Administration and the Democratic Party cast aside their pretense that they had turned the Senate into a purely partisan body for any public-spirited reason, and broadcast to their most faithful supporters a powerful message: We are packing the Federal Courts for you! Democrat constituencies whose daily bread comes from partisan regulations – the alternative energy industry, for example – knew that already. But less sentient parts of the “base” needed to have it spelled out that the Party uses absolutely all its powers to serve them. Continue Reading →
One of the peculiarities of the divide between the Anglo American world and that of Continental Europe is that positivism has taken two different forms. In the Anglo-American world, H.L.A. Hart is the key figure and the Concept of Law has taken on an extraordinary importance. On the Continent, however, Hans Kelsen is the most important positivist.
One important question is why there should be this divide. At first glance, it seems like an example of prejudice or chauvinism – each area prefers its own. Of course, people on each side might argue that their champion really is better – but that begs the question why each side so strongly prefers its own figure.
While I have read Hart, I have only read small portions of Kelsen. But reading this much of Kelsen reveals that his writing is in the style of much continental philosophy, which makes it quite hard for Anglo-Americans to understand (apart from translation problems). Continental writing, especially from the German speaking countries, is often filled with abstract language that is hard to understand, and to people from the Anglo-American world, often comes across as vacuous.
I have often wondered about this aspect of Continental writing when reading Friedrich Hayek, whose works I know quite well. For example, his discussion of a spontaneous order is an important advance, but it is often vague and unclear. It has taken many subsequent articles, by Anglo-American types and economists, to clarify it. I can’t tell you how many times I have been reading Hayek and have thought, “an example would really help here,” but rarely is one provided. Continue Reading →
Here’s a case worth watching: this past April, the Center for Individual Rights (lead attorney Michael Rosman) and Jones Day (Michael Carvin) filed a First Amendment challenge to California’s “agency shops” for public school teachers. (An “agency shop” means that non-union members must still pay a fee to the union for activities related to collective bargaining.) Plaintiffs are teachers who have about had it with the defendant unions. The State of California will likely join the case on the defendants’ side. A recent blog on the case is here; a copy of the complaint here.
This baby ought to move fast: as the plaintiffs readily acknowledge, extant law is against them, and only the Supreme Court can fix that. Justice Alito’s opinion for the Court in Knox v. SEIU strongly suggested that the Court is willing to revisit the precedents. This lawsuit says “Thank you, Justice Alito. Invitation accepted.”
The jurisprudential issue here is a striking discontinuity in First Amendment law. Labor relations involve a lot of protected speech, laced with political content—by employers, union bosses, and (as here) workers with different opinions. Still, the New Dealers thought, you want to regulate this stuff on a comprehensive basis. To prevent the First Amendment from getting in the way, the post-New Deal Court put this stuff into a separate conceptual box called “labor law,” where ordinary protections for political speech and against compelled speech don’t apply. Over the decades, though, First Amendment doctrines have become much more protective, to the point where the conflict with the made-for-labor-regulation First Amendment is glaring.
If the Supreme Court were to align its labor cases with the First Amendment, that would be very big, and very good.
It took Woodrow Wilson a century and a quarter, and help from Harry Reid, but America now has what Wilson said we needed in 1885: government by a majority party empowered to do whatever it wants to push the country along the paths of progress – just like in Europe. Harry Reid and the Obama Democrats’ unilateral change of rules to make the US Senate run strictly on majority votes simply capped a long process of growth in partisanship that has Europeanized public life in America without changing a word in the Constitution. This is not how Wilson wanted to do it, but the unlovely results are the same. Continue Reading →
There has been a great deal written about the failed rollout of Obamacare, much of which I have not read. Still, it strikes me that there are some key aspects of this rollout, and what it says about the President, that are worth emphasizing. (I apologize if others have made these points.)
1. The failed rollout obviously exhibits tremendous incompetence on the part of the Obama Administration and the President. This is the signature “achievement” of the Obama Presidency but they failed miserably on this key aspect.
2. The incompetence does not merely extend to the design of the website. It also extends to the failure to know that the website was failed. If the Administration had known of the failure, they could have delayed the implementation of Obamacare.
3. The incompetence also extends to politics. The Administration had a perfect excuse for delaying the rollout of Obamacare. It could have “reluctantly” agreed with the Republicans and delayed the implementation for a year. It could have been sold as showing that Obama was willing to work with his political opponents. He was a compromiser. Continue Reading →
You would have thought we were watching a Mr. Smith Goes to Washington ending with the corrupt Senator shooting filibustering good guy Jimmy Stewart.
Whatever good or ill the filibluster has produced in years past, reliance on this and other institutional devices kept conservatives from making more fundamental arguments concerning the Senate’s purpose. Fundamental, philosophic issues were suppressed in favor of “process.” Thus in the leadership slots we get American variants of Anthony Trollope’s parliamentarian Timothy Beeswax when we need men with virtues beyond cunning. Continue Reading →