The Declaration and Thoughtful Citizenship

If democracy is to endure, thoughtful citizenship is a requirement for a critical mass of the citizenry. We have an opportunity to live up to that obligation today. America’s birthday offers an opportunity to go back to the self-conscious beginnings of our common enterprise, where we meet the Declaration of Independence.

In a letter to Richard Henry Lee, Jefferson famously characterized the Declaration as “an expression of the American mind.” Let’s spend a few minutes considering that mind. We will find it to be: 1) logical; 2) liberty-loving; 3) manly; and 4) gesturing towards, and calling for, philosophical and theological reflection.

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The Real Lesson of Hobby Lobby

My general view on the Supreme Court is that it should do less. That nouveau libertarian George Will criticized the Court for resorting to “judicial minimalism” to achieve unanimity. But I, for one, find the Chief Justice’s emphasis on achieving modest but sustainable results refreshing. Judicial minimalism is generally better than the other extreme more characteristic of our time—judicial maximalism.

In some ways, my view is the opposite of that of the outstanding libertarian constitutional scholar Randy Barnett. Randy wants to combine the spirit of Lochner with the spirit of Roe to achieve a kind of consistent judicial activism based on the presumption of liberty on both the economic and the personal autonomy fronts. I doubt there’s a constitutional warrant for either kind of activism. As far as I can tell, our Framers made judicial review legal, but they also thought that in order for it to be safe, it would have to be rare.

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If Not Exemptions, Then What?

This week it’s the Hobby Lobby decision and the “contraception mandate” that are provoking discussion. But beyond the specific facts and carefully narrow decision in Hobby Lobby runs a more general and perennial question: Does freedom of religion mean that sincere religious objectors have a qualified (not categorical) right to be exempted from otherwise applicable laws– a draft law, a compulsory schooling law, a regulation requiring employers to provide insurance coverage that includes contraceptives and some abortifacients? At least according to the conventional wisdom, the Supreme Court’s answer to that question for many decades was “no.”

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The New Jurisprudence of ‘Beliefspeak’

Count me as a part of that population that rejoiced over the outcome in the Hobby Lobby case. It was a relief that the Green family, owners of the Hobby Lobby craft stores, and the Hahns, owners of Conestoga Wood Specialties, were delivered from the mandates of Obamacare; the mandates that compelled these families to cover abortifacients in the medical care they funded so generously for their employees. Justice Alito also did a notable service in making clear that a “corporation” is an association of “human persons”: Every association is directed to a purpose; and there is no principle that determines that this kind of corporation, alone among all other associations, may not be committed to moral and religious purposes, apart from the making of money.

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Celebrating Independence

On July 2, 1776, two hundred and thirty-eight years ago today, the Continental Congress voted that "These United Colonies are, and of right ought to be, free and independent states." John Adams, who more than any other single individual, helped push the resolution through Congress, was elated. The next day he wrote home to Abigail twice. "Yesterday the greatest Question was decided, which ever was debated in America, and a greater perhaps, never was or will be decided among Men. A Resolution was passed without one dissenting Colony "that these united Colonies, are, and of right ought to be free and independent…

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Hobby Lobby, the Culture Wars, and Big Government

Perhaps never in the history of the Supreme Court has a case of such limited practical significance generated as much press attention and hyperbole as has Hobby Lobby.  Hillary Clinton is the latest politician to try to make inflammatory use of it: just yesterday she stated that it was step toward the kind of anti-women policies seen in extremist and undemocratic societies.

The case has captured attention for three reasons. First, it lies on the fault line of our culture wars, pitting the religiously oriented Hobby Lobby against the secularly oriented Obama administration. Second, its actual legal issues are very complex and inaccessible to the non-lawyer public, thus permitting politicians like Clinton to use it for their own ends. Finally, it provides catnip to reporters and pundits because it concerns contraception: sex helps sell the news as surely as it does other products.

Yet the case is of limited practical importance for no less than four reasons. First, it interprets the Religious Freedom Restoration Act, not the Constitution. Congress could change the result tomorrow, if it chose. To be sure,  a law on the books benefits from inertia and a divided Congress is unlikely to amend RFRA soon on this matter. But its failure to do so shows that the Supreme Court’s decision is not wildly out of step with popular sentiment as sometimes are its constitutional decisions, which are far more difficult to amend. So much for Hobby Lobby being a step to undemocratic extremism. And going forward, Congress can exempt future legislation from RFRA’s strictures to the extent it wishes.

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The Recess Appointments Decision Part III: How Protective Are Pro Forma Sessions Against Improper Recess Appointments

While people who favor the original meaning of the Recess Appointments Clause were disappointed by the majority decision in Noel Canning, some people argue that at least the Court’s holding as to pro forma sessions puts a significant check on executive power. According to this view, the Senate can simply hold pro forma sessions every 3 days to prevent the President from making a recess appointment. That would prevent recess appointments, because the Supreme Court held that a recess of more than 3 days and presumptively more than 10 days is required to make a recess appointment.

Moreover, these people argue that even if the party opposing the President only controls the House and not control the Senate, it can still block recess appointments. Since neither house can adjourn for more than 3 days without the consent of the other house, the House of Representatives can force the Senate to meet every 3 days (by the House refusing to adjourn for more than 3 days). The party opposing the President can therefore prevent recess appointments so long as it controls one house. Thus, even if the Supreme Court’s holding regarding pro forma sessions conflicted with the original meaning, it at least constrains the Presidents otherwise excessive recess appointment power.

While there is something to be said for this view, it is by no means clear that the pro forma sessions will work to constrain the President. There are two issues here: how many houses the party opposing the President needs to control and whether a single Senator from the President’s party can defeat the pro forma session procedure.

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“If Slavery Is Not Wrong, Nothing Is Wrong”

Could anything be clearer than the Thirteenth Amendment? A model of succinctness, it reads in full:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

From its modest yet revolutionary text some contemporary legal commentators have derived governmental power to address every category or practice that involves a form of discrimination or inequality: racial profiling, poverty, migrant workers, pregnant women (for abortion rights), and more.[1] Such a Thirteenth Amendment might devour the rest of the Constitution, marking the demise of constitutional government that protects individual rights, as any means would be justified to attack every ill that might have some relationship to freedom. The fight to end slavery would have become the fight to end freedom.

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Hello From July Guest Blogger Steven Smith

There are relatively peaceful historical periods of "business as usual" (which of course still have their issues and challenges). And then there are "interesting times," as the apocryphal Chinese curse puts it. My sense is that, for better or worse, we live in interesting times—profoundly troubled, potentially transformative times—in which fundamental commitments to liberty, law, rights, authority, and constitutional government (not to mention other traditional institutions, like family, faith, and morality) are under serious challenge. I hope to raise and discuss some of these challenges and concerns over the next month as a guest on this blog. For readers who…

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The Recess Appointments Decision Part II: Pro Forma Sessions Are Not Real Sessions

In my first post, I noted that I thought Justice Breyer’s decision was wrong on all three grounds based on the original meaning of the Constitution. This may surprise some people who believe that the third ground of the Court’s decision – that the pro forma sessions were real sessions and therefore the recesses were not long enough to justify a recess appointment – was a favorable rebuke of the Obama administration. But in my view, the majority’s third ground is probably not in accord with the original meaning.

I have come to this position over time. But the final straw was Justice Breyer’s opinion, which ironically convinced me that the pro forma sessions were not real ones (ironic since he was arguing the opposite position). It is significant that Justice Scalia and the other concurring justices did not join this part of the opinion, suggesting that they may agree with my doubts about this conclusion.

A pro forma session involves two or three Senators meeting for a minute or two. Justice Breyer argues that the Senate is entitled to deference as to its conclusion that the Senate is in session and therefore the Court and the President must treat these sessions as real ones.

But this is mistaken. The Constitution establishes that a majority of the Senators constitutes a quorum. Therefore, one or two Senators cannot operate the Senate. If the Senate was in a recess, a meeting of two Senators would not end the recess. The Senate as a whole would lack capacity to conduct business.

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