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.”
Federalism and the Treaty Power: The Scope of the Treaty Power
Last week the Supreme Court decided Bond v. US, which raised the issue whether a federal statute, justified as an attempt to give effect to a treay, could reach local behavior. While the Court held that the statute did not reach the local conduct based on the federalism canon of statutory contruction, I am interested in the related constitutional issues. Justices Scalia, Thomas, and Alito all believed that the statute reached the local conduct and therefore discussed the constitutional issues.
There are two basic questions raised by these justices’ discussion: (1) Whether it is constitutional for a treaty to be made that does not involve international issues, but only domestic matters?; (2) Whether it is constitution for a statute to be passed that exceeds Congress’s enumerated powers and therefore can only be justified as necessary and proper to the Treaty Power?
In the decision, Justices Scalia and Thomas both answered no as to both issues. Justice Alito answered no as to issue 1, saying nothing about issue 2. I thought I would briefly discuss each of these issues. In this post, I discuss the first issue: The Scope of the Treaty Power. (I should note that I am not an expert in this area and therefore my remarks here should be taken as preliminary.)
What is the scope of the treaty power? What subjects can it address? There are three leading positions:
The Treaty Power is limited by the enumerated powers of the federal government.
The Treaty Power is limited by the traditional subjects of treaties – that is, international matters.
The Treaty Power is essentially unlimited, extending to any subject the US and another country want to enter into a treaty about.
Paying the Debt of Civility
I’m often asked whether it’s challenging to be a Jewish professor at a Catholic college that takes its religious identity seriously, to which my answer is, first, no, and, second, I certainly prefer it to being a Jewish professor at a Catholic college that takes its religious identity casually. In any event, my contributions to the institution’s Catholicity through participating in its intellectual life are warmly welcomed, and to the extent I am involved in ritual events, I treat them like I would treat being a guest in someone else’s home. Still, my colleagues have been accommodating nearly to a fault. In more than one setting, prayers have been ecumenically tailored to my presence—wholly unnecessarily, but considerately nonetheless.
Law and Moral Obligation II: A Response to Ilya Somin
Ilya Somin has posted an essay at Volokh that narrows that gap between our views on the source of the moral obligation to obey the law—I certainly agree, for example, that there are exigent circumstances in which one might be not merely entitled but obliged to disobey—but our underlying disagreement persists: whether the calculation itself is an individual or a political one.
When Westphalia Fades
What is wrong with America? It does not seem to work anymore. Low employment, static wages, burdened business, persistent poverty, destructive lifestyles, exploding debt, threatened entitlement bankruptcy, and stagnation generally seem to be its future, following the path to decline set by Old Europe the century before.
It may seem peculiar that a peace treaty signed in 1648 might hold the answer.
What Do Americans Voting with Their Feet Prefer? Better Public Services or More Cash?
In his new book, Average is Over, Tyler Cowen makes a number of observations about the intersection of technology and society, and explains how these shifts will impact our society. Specifically, Cowen argues that being average is over. Echoing forecasts by Charles Murray, Cowen explains how the middle class will continue to shrink as technology can replace many more of their routine jobs. Those with certain skills and abilities, or can learn to work with technolgoy, will continue to flourish more. Those who do not adapt, Cowen argues, will earn less, and learn to deal with less (and that is not necessarily a bad thing, he contends). One manifestation of this shift will be that people with less means will, to use Ilya Somin’s framework, vote with their feet, and move to places where living is less expensive, and a lower salary will go further.
This Republic of Federalism
Timothy Sandefur’s The Conscience of the Constitution contributes to the debate over the best way to limit the powers of the United States government in order to secure liberty. Sandefur, a lawyer and legal scholar, believes that 
“American constitutional history has always hovered in the mutual resistance of two principles: the right of each individual to be free, and the power of the majority to make rules.” (1) For Sandefur adherence to the natural rights theory of Declaration of Independence manages the tension between the two principles.
Clarifying the State of Our Liberty
I am grateful for to Peter Lawler for his interesting comment on my post. I agree with much of it. My focus in The State of Our Liberty—an implicit response to the State of the Union– was on the effects our government is having on liberty, which I think are generally not happy. Lawler believes, and I do as well, that technological developments may nevertheless help foster liberty.
Indeed, I am even somewhat more optimistic than Lawler in this regard, because I do not believe technology poses as much risk to equality as he appears to think. As I have written on this blog, technological innovation helps equality in important respects, because innovations create a pool of cheap and free goods that everyone soon enjoys. Middle class people and the very rich have more equal lives today than did the middle class and very rich in previous times, because both spend an increasing amount of time on the internet and their experience there is not dissimilar. And innovations like smart phones go down the income scale much more rapidly than do previous innovations like refrigerators.
Moreover, the social media of today equips a much broader group of people to spend a large part of their lives writing and otherwise expressing themselves through blogs and even Facebook postings. As Clive Thompson has written in his excellent book, Smarter than You Think, the personal creativity enabled by social media dwarfs that of the letter writing of old. Thus, I do not agree that even a robotic future will relegate people to lives of passive entertainment, which appears to be the view Peter Lawler ascribes to Tyler Cowen. They will be able to follow their passions in ways that are inexpensive and largely free.
Live (Almost) From New York
Yesterday, the folks at the Manhattan Institute (who have done terrific work on pensions and other state policy issues) did an interview with yours truly, on a wide range of federalism-related issues. The podcast is here. Comments welcome.
Thanks, guys!
Polarized States: A Quick Update
A few weeks ago I blogged political polarization among states, and the potential upsides. The topic has traction. Adam Freedman and the Manhattan Institute have a fine take here. And the New York Times has two feature-length pieces here and here. Mirabile dictu, these actually convey information. The first piece examines the national political strategies (on both sides) to shape state politics: hugely interesting. The pessimistic interpretation is that states are becoming mere staging grounds for national winner-takes-all combat. The optimistic interpretation: it’s good that the combatants have to fight state-by-state. It diffuses and compartmentalizes the conflicts. The second piece is on…
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