Implementing Obergefell: Who Decides the Scope of a Newly Minted Right?

The Supreme Court’s fractured decision in Obergefell v. Hodges (2015) required states to recognize same-sex marriage. Obergefell came less than 30 years after Bowers v. Hardwick,[1] in which the court refused to recognize a right to engage in homosexual sodomy. In changing its mind, the Court effectively amended the U.S. Constitution with its Delphic utterances.

Under that document’s Supremacy Clause,[2] all states must follow Obergefell. But what is the scope of that obligation? Are all legal distinctions involving same-sex couples now invalid? A case pending before the Texas Supreme Court frames that question.

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We Want Workers, But We Must Form American Citizens

Ellis Island, New York

Gerald Russello, editor of the University Bookman, has put together a great symposium on immigration entitled Citizen, Community, and Welcoming the Stranger with pieces by Yuval Levin, Bruce Frohnen, Peter Lawler, David Azerrad, Brad Birzer, and Daniel McCarthy. Below is my contribution which is reposted with permission from the Bookman.

America’s more open approach to widespread immigration is faltering, the support for it eroded by our low-growth economy. For too many, the pie seems to be shrinking, with those at the Little Debbie level much more aware of this than those who can afford double-swirly cheesecakes. To be sure, some of the blame for the Obama era’s anemic growth can be put on aggressive regulatory policy. Obamacare increased, in effect, the tax on labor that employers must pay, with predictable responses on their part. The Federal Reserve became the largest financial intermediary in the country under the reign of quantitative easing, meaning that the central bank, and not an array of investors, has been the biggest allocator of capital. As Bastiat told us, we’re unable to see the value that wasn’t created as a result of centralized policies that squelched opportunities for growth.

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Welcoming James Rogers

rogers

I'm excited to announce that James Rogers has joined us as a regular blogger. He opens with a response to Cass Sunstein's criticisms of originalism. Rogers is no stranger to this space, having guest blogged in November and, before that, contributing other posts and reviews. His review of Ilya Somin’s Democracy and Political Ignorance is worth revisiting. Rogers has a joint faculty appointment at Texas A&M University and at the TAMU campus in Doha, Qatar. He holds a Ph.D in political science as well as a J.D. In addition to publishing numerous articles in the American Journal of Political Science, Journal of Law,…

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Sunstein’s Critique of Originalism

In his most recent column, Harvard Law Professor Cass Sunstein criticizes originalism: But originalism is just one of many possible approaches to the Constitution. If it is taken seriously, there is a good argument that it would produce results that most Americans would despise -- and that any Trump nominee should be asked about. For example, originalism could easily lead to the following conclusions: States can ban the purchase and sale of contraceptives. The federal government can discriminate on the basis of race -- for example, by banning African Americans from serving in the armed forces, or by mandating racial segregation in the D.C.…

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Why Originalism?

Editing First Amendment Pencil US Constitution

In a recent column criticizing originalists for putting politics over principle, Cass R. Sunstein described a common take on what motivates originalism: “Originalists have an honorable goal, which is to limit the power of unelected judges and to promote the rule of law.”

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Gorsuch Nomination: Potentially the Best News for Originalism since 1987

With his nomination of Judge Neil Gorsuch President Trump may have done more for originalism than any President since Ronald Reagan. Unfortunately, a few days later, he called into question his own commitment to the rule of law by calling an Article III judge a “so-called judge.”   The juxtaposition of the excellent and the reckless continues what I have argued is the essential pattern of his Presidency:  He makes appointments (except in the trade area) that  on balance advance classical liberalism and limited government, but makes remarks that are foolish with the potential to undermine much of the good his appointments will do.

First, the good news: Gorsuch is a fine nomination, a worthy successor to Justice Scalia in the three ways that count. First, he is an originalist. That matters, because the last two Republican appointees, Chief Justice John Roberts and Justice Samuel Alito, have not shown themselves to be either declared or relatively consistent originalists. And it is originalism tha holds the most promise for maintaining a beneficent Constitution and a constrained judiciary.

Second, as I argued at the City Journal, Gorsuch is a superb writer. To be powerful and influential  with the public, as Scalia was, a justice needs to convey his ideas clearly and pungently. Justice Clarence Thomas, for all his other fine qualities as justice, is not as good as Scalia was at this task.  Gorsuch is in the top 2 percent of all federal judges in this ability.

Third, to be influential with academics, justices must be at home in the world of legal scholarship and theory.

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American Nehemiad

A view of the US-Mexican border fence at Playas de Tijuana. (Justin Sullivan/Getty Images)

For many Republicans, the presidency of Barack Obama felt like a Babylonian exile. America was in ruins, and Donald Trump surveyed them—seeing, as he said in his inaugural address, “rusted out factories scattered like tombstones across the landscape of our nation” as evidence of a broader “American carnage.”

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Patriot Fight Club: A Conversation with Steven Hayward

patriotism is not enoughHow did key participants in Straussian fight club, especially Harry Jaffa and Walter Berns, challenge the progressive settlement of political science, the history of the American Founding, and constitutionalism? Our guide for understanding this debate will be Steven Hayward who joins this edition of Liberty Law Talk to discuss his latest book, Patriotism Is Not Enough: Harry Jaffa, Walter Berns, and the Arguments that Redefined American Conservatism.

Questions About Obama’s Syrian Refugee Policy

Sometimes I think following politics is just crazy.  It is as if one is being manipulated by someone for their own purposes, except I’m not quite sure who that person is. Take the recent controversy over the pausing of Syrian refugees.  The conventional understanding has been that Obama allowed a significant number of Syrian refugees into the country and that Trump wants to reduce or eliminate those refugees.  But this account, while not entirely false, is extremely misleading.  According to David French at National Review, supported by the State Department website, here are the number of Syrian refugees admitted in the…

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A Return to Constitutionalism

Neil Gorsuch, Supreme Court nominee.  Andrew Harrer/Bloomberg via Getty Images

Judge Neil Gorsuch of the Tenth Circuit Court of Appeals is by virtually every account a stellar jurist. His writings are now being mined, by supporters and opponents alike, for evidence of his commitment to judicial restraint and the separation of powers.

That evidence is not hard to find. In an address delivered on April 27, 2016, Gorsuch spoke of “the great project of Justice Scalia’s career,” namely to expound “the differences between judges and legislators.”

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