Houston Hits ‘Pause’


“Words had to change their ordinary meaning and to take that which was now given them.”

Houston voters, being Texan and therefore retrograde, have defeated an ordinance that Mayor Annise Parker, being progressive and therefore enlightened, says should never have been up to them. “No one’s rights,” she explains, “should be subject to a popular vote.”  The ordinance—in pursuit of which Parker tried to subpoena the sermons of opposing pastors—would have prohibited discrimination, which is to say distinctions, in a variety of areas, including public accommodations (bathrooms), for a variety of reasons, including gender identity.

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Flowers and Headscarves, Oh My!

Abercrombie-Headscarf Firing

Have you heard the one about the Christian florist who declined to sell flowers for a gay wedding? She got sued by the Washington AG and by the ACLU. In a 60-page opinion, a state judge ruled against her. The florist is appealing. Also, she has since stopped selling flowers for any kind of wedding, lest “discrimination” break out yet again.

Have you heard the one about the young lady who showed up for a job interview with Abercrombie & Fitch wearing a black headscarf? You will: her fate is at issue in Equal Employment Opportunity Commission v. Abercrombie & Fitch, pending before the Supreme Court. Abercrombie’s strict regulations of its floor “models’” attire and appearance include a prohibition against headgear.

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Who Are the Guardians of the Natural Rights Polity?


The status of judges in the constitutional regime is fundamentally a question of the place of politics, rightly understood, in human life—a point illustrated by the thoughtful exchanges between Richard Reinsch and Randy Barnett in this space and at Volokh. Reinsch argues the danger of giving judges indeterminate power over unspecified natural rights. Barnett replies that these need not be specified; judges need only ensure that governmental power is reasonably used to promote permissible ends.

Theirs was a productive conversation, and it might be usefully expanded to the following question: Even granting a robust reading of the Ninth and Fourteenth Amendments, what is the basis, and what are the costs, of empowering judges to safeguard the rights therein contained?

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The Thirteenth Amendment as a Conservative Counterrevolution

  In “If Slavery Is Not Wrong, Nothing Is Wrong,” I proposed that the Civil War was fought to restore the original unity of the Declaration of Independence and the Constitution, and that the Thirteenth Amendment, adopted in 1865, was the culmination of that colorblind restoration. In the antebellum period, opponents of slavery could not specify what would result once slavery was ended. Would free blacks have equal rights? Vote? Intermarry with whites? Thus did Stephen Douglas mock Abraham Lincoln. The post-bellum answer of universal freedom nonetheless preserved much of the antebellum distinction between being anti-slavery and being anti-black. While Black Codes prevailed…

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Civil Rights and Constitutional Moments

Bruce Ackerman of Yale Law School is one our most renowned constitutional law professors.  His most famous theory is that of constitutional moments–one of the many alternatives to originalism offered in the academy.   As a positive matter, a constitutional moment is period of heightened concern and deliberation about the Constitution. Controversially, as a normative matter a constitutional moment can change the Constitution without going through Article V.  Here is a simplified synopsis of  that theory: One  political party proposes enactments of statutes that are not permitted by the Constitution as interpreted at the time, the people send this party to power, the party puts their program into effect and the opposition party acquiesces in the program when it comes to power. For instance,  through his theory of constitutional moments Professor Ackerman has justified the transformation of the federal government’s enumerated powers that happened during the New Deal.

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Friday Roundup, March 14th

Comes now Joel Alicea opining in this month's Forum on Richard Epstein's essay "In Defense of the Classical Liberal Constitution." Hank Clark of the BB&T Center for the Study of Capitalism at Clemson provides our feature Books essay this week on George Smith's The System of Liberty: Themes in the History of Classical Liberalism. David Henderson @ Econ Lib catches noted inequality czar Thomas Piketty dodging a straight-forward question on inequality in America. In an interview with New York Times columnist Eduardo Porter Piketty was asked: Might inequality in the United States be less damaging than it is in Europe because the very…

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The Conscience of a Madisonian Conservative

Nathaniel Peters’ review of Robert George’s Conscience and Its Enemies is an insightful introduction to the Princeton scholar the New York Times Magazine resident anthropologist of conservatives, David Kirkpatrick, described as “this country’s most influential conservative Christian thinker.” Aptly titled, “The Dynamic Unity of Conscience,” the essay was almost entirely devoted to George’s understanding of marriage and the philosophic analysis that supported it. In summarizing George, Peters elegantly illustrates how conscience is the first pillar of a decent society, followed by marriage, justice, education, and wealth. Conscience is the central philosophic issue to be sure, but a broader audience might appreciate how George’s understanding of the conscience influences his public policy choices.

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Negroes and the Gun

I have been away from this page for several months, working on book that is now nearing completion. Thought I would say hello again and give a preview of the book. You may recall my posts responding to eruptions from Bob Costas, Jason Whitlock and Danny Glover. Those posts tried to retrieve the debate from the swirl of myths, absurdities and glib chatter that often afflict the intersection of race, gun rights and firearms regulation. I have spent a substantial part of my scholarly effort over the years within that intersection. The culmination of that work so far, is my…

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Obama as Originalist Orator

obama lincolnMuch of President Obama’s speech commemorating the 1963 civil rights March on Washington deserves praise–or at least admiration. Speaking from the Lincoln Memorial, he began by reciting the most famous lines from the Declaration of Independence. He reminded his cynical audience that the cause of civil rights comes from the heart of our national existence. And he reinforced that principle by later quoting Lincoln, in his brief speech on the meaning of the Declaration, that “the weights should be lifted from the shoulders of all men, and that all should have an equal chance.”

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Quotas for Criminals

No, not traffic cop ticket-writing quotas: Government-mandated quotas for hiring criminals. We’re that close to them.

The latest decrees, from the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP), would virtually prohibit employers from using criminal background checks to screen job applicants. But unlike earlier passivity, the outrage from employers is now actually provoking a rebellion, including the improbable combination of BMW and Dollar General stores—both of which are united in their need for trustworthy employees.

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