Guardians of the New Class

Justice on Wooden Piece Arranged by Businessman

 

Those of us who believe in the rule of law and limited government are understandably flummoxed by the conclusion of the Supreme Court’s 2014-15 term: in rapid succession, and generally by narrow margins, the Court “fixed” an internal defect in the ObamaCare statute (King v. Burwell); recognized so-called “disparate impact” claims under the Federal Housing Act (Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.); created a constitutional right to same-sex marriage and struck down contrary state laws (Obergefell v. Hodges); and re-wrote the “elections clause” of Article I, section 4 to allow non-legislative redistricting (Arizona State Legislature v. Arizona Independent Redistricting Commission). 

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The Constitutional Morality of Restraint

Randy Barnett and Ed Whelan have revived the supremacy debate in the wake of the Chief Justice’s opinions in King and Obergefell, with Barnett arguing most recently that judges should be guided by the “constraint” of the text rather than “deference,” both of which he classifies as forms of restraint. Much commends that notion, and the distinction is analytically useful. But in the course of embracing a particular strain of originalism, it finds itself in tension with the original understanding of the judges’ role. Barnett’s standard for judicial nominees is a “proven record of willingness to be constrained by the original…

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We Must Be Forced to Be Free

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Many things will be said in the coming days about the Supreme Court’s holding in Obergefell v. Hodges, better known as the same-sex marriage case.  I don’t think I can in general improve upon the dissents written by the four Supreme Court justices—who object to the sweeping and poorly reasoned argument offered by Justice Anthony Kennedy as the “reasoned judgment” of a “bare majority” of his colleagues.  But I think I have something to add to the discussion regarding Kennedy’s understanding of his role as a Supreme Court justice.

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What Is Judicial Equality?

Law and Order Pillars in the Supreme Court during the day

When the topic is the Constitution, law professors and political science professors often talk past each other, and I’ll cop to talking past Randy Barnett, whose work commands respect even by way of dispute, first. But I’m not sure his reply at Volokh—which, in fairness, was primarily to Ed Whelan, mentioning my post here only in passing—reached my argument either. I never fired on the hill Barnett defended.

His post defended judicial review. I attacked judicial supremacy. There’s a difference.

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When Is “the Law” Violated Under the Constitution, Anyway?

Supreme Court of United States

Recently a New York Times headline blared: “McConnell Urges States to Defy U.S. Plan to Cut Greenhouse Gas.” It was the first in a barrage of mainstream media stories to the same effect. Majority Leader Mitch McConnell (R-KY) was telling the states to violate the law! An apalled ranking environmental committee Senator Barbara Boxer (D-CA) said she could not recall another top politician actually “calling on states to disobey the law.”

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What’s the Matter with Kansas?

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A Kansas court has just ruled that it would be unconstitutional under that state’s founding document to spend $548 million on police, infrastructure, health care or welfare. The court’s ruling does not explicitly disclose this, of course, nor will the judges on the panel admit it. But this is what happens when judges, who reside in a magical, apolitical world shorn of scarcity and therefore tradeoffs, mandate hundreds of millions of dollars in new education spending: The money comes from someplace else.

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Philosophical Absolutes and the Constitution

juengling_kappesIn his lucid and compressed account of the argument of Damon Root’s new book Overruled, the excellent libertarian judicial scholar Ilya Somin has done us the service of presenting in a pithy and powerful way the libertarian vision of the proper place of the Supreme Court in our constitutional system. The key conflict these days is between libertarians and (social) conservatives, and the key interpretive choice is between “originalism” and deference to legislatures.

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The Constitution and Omega Glory

Recently, Bryan Caplan put up a Facebook post by “political scientist and game designer Chris McGlothlin” on the Star Trek episode Omega Glory.  That is the one where Kirk goes to a planet and instructs the Yangs about their document, “The Constitution of the United States.”  The Yangs – through centuries of decline – cannot even read the document properly and do not understand its meaning.  Kirk corrects them.  For many originalists, Omega Glory is a metaphorical tale of how the Supreme Court and the modern legal culture have misunderstood the Constitution.

McGlothlin doesn’t seem to like the episode, but to my mind his post makes one mistake after another.  First, he writes that “we never see a copy of the Bill of Rights in the bundle of aged parchments Kirk leaves them. . . . Without the Amendments, those Kohms are goners.

I am not sure what this point is supposed to mean.  The Bill of Rights is part of the Constitution, so what is the problem?  Moreover, the Bill of Rights is important, but these amendments are hardly the only important ones.  The original Bill applied only to the federal government.  If one wants additional protections against the states, one has to look to the 14th Amendment.  And one must look there (and elsewhere) for equality limitations.  The unamended Constitution was a great start, but one of the best things about the Constitution is that it provided for amendments, which continued to improve the document.

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