The Supreme Court’s travel ban case, Trump v. International Refugee Assistance Project, was seen by many as a mixed decision, with part of the preliminary injunction being upheld (for persons who have a sufficient connection with the US) and part being struck down. President Trump viewed it is a victory, whereas some critics of the ban viewed it as a harbinger of ultimate victory for their side. The main argument of those who view it as a harbinger of ultimate victory is the claim that to uphold the injunction in any respect required the Supreme Court to conclude that the plaintiffs…
The late political scientist Samuel Huntington’s famous book The Clash of Civilizations (1996) argued that culture, not economics or ideology, was the key to understanding world affairs after the Cold War’s end. Different civilizations, he argued—he identified nine, including the Western, Orthodox, Islamic, Sinic, and Hindu—with different histories, religions, and values, were now reasserting themselves after a brief period of quiescence. These different civilizations would inevitably clash with one another and with liberalism, an ideology that presumed itself universal, but which was actually the product of one of those civilizations, the Western. To expect non-Western civilizations to reject their own cultures and adopt liberalism wholesale, he argued, was folly.
With the addition of Neil Gorsuch, the Supreme Court once again has two talented originalists. But two is not five, and the record so far has been that originalism’s influence on the Court has been more symbolic than consequential. In other words, the opinions that have been most orthodox in their originalism have not made much difference to America’s political life. That is not of course to criticize these opinions. Originalists should focus on reasoning, not results. But the absence of more consequential opinions does suggest that Court is not yet an originalist Court.
Originalism can be symbolic in several ways. First, a jurisprudence of a provision can become pervasively originalist and yet be largely symbolic if that provision is relatively unimportant. That is probably the case with the Confrontation Clause where Crawford v. Washington and Giles v. California are quintessentially originalist opinions. But while the Confrontation Clause is of course important to some defendants, it does not change crime control or even criminal procedure except at the margin. This kind of symbolism might be termed the “Originalism of Small Things.”
Another form of symbolic originalism is for the Court to make a thorough going originalist decision, but not to follow up on its important implications.
As Mr Bumble famously remarked, the law is an ass, the law is an idiot: especially, it seems, when the judges sit in the European Court of Justice. They have just issued a judgment that is an open invitation to fraud on a mass scale and that, if taken seriously, could bring all economic activity whatsoever, apart from litigation, to a halt. The only hope is that the ECJ judges knew not what they did: any other interpretation would be deeply uncharitable.
A recent survey reports 37 percent of Americans over the age of 18 “prefer socialism to capitalism.” After Bernie Sanders near-run candidacy last year, that cannot be much of a surprise. Still, the U.S. historically has stood out among Western nations due to its lack of a sizeable socialist movement. So what’s changed?
Today is Independence Day, which brings to mind this great passage from the Declaration of Independence: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new…
What a year it has been. “Trump wins and the Resistance begins,” might sum it up. Into this maelstrom steps our annual “What would the Declaration say?” reflection. We could turn in three directions: toward Trump; toward “the Resistance”; toward the people who fall outside his devoted followers and fierce opponents, who wish to make some contribution to the commonweal in the midst of low-intensity civil war.
This Sunday, in the print edition of the New York Times Magazine, Garry Wills joined Justice Ruth Bader Ginsburg in contending that the Declaration of Independence favors interpreting our Constitution in light of foreign law. They note that the Declaration is prompted by a “decent respect for the opinions of mankind.” The colonists are moved by that respect to recount publicly the causes of their need for separation from Britain. Wills and Ginsburg appear to believe the same decent respect should encourage Americans, including our justices, to resort to foreign law to help construe our Constitution.
But using this sonorous phrase of the Declaration as a support for resorting to foreign or international law has defects that are obvious from the text and context of the great document itself. First, the Declaration makes clear that this “decent respect” requires us to explain our own views to the world, not accept the views of others.
Second, the Signers appealed to a combination of natural law and their own historic rights as justification for their break with the mother country. They did not refer to foreign and international law as support for their position. For good reason. The Enlightenment age in which Declaration was written may have been cosmopolitan, as Wills argues. But the sovereign law in the monarchies of Europe and in despotisms elsewhere were not noticeably solicitous of the rights, like representation and freedom from unreasonable searches, that the Framers thought their birthright.