Moral Reasoning in the Third Circuit

JAF

After a hiatus, Ius & Iustitium is happy to resume publishing pieces on law and the classical legal tradition. Ius & Iustitium welcomes submissions from academics, practicing lawyers, and students interested in the classical legal tradition. Jamie G. McWilliam is a former law clerk on the Court of Appeals for the Ninth Circuit, and the author of multiple articles on the Second Amendment.

–The Editors

Jamie G. McWilliam

If one were to open the federal reporter and find references to “those ‘certain primary truths, or first principles, upon which all subsequent reasonings must depend,’”[1] he would be forgiven for thinking he was reading a volume from the Marshall-era. In those days, such appeals to the natural law foundations of law were commonplace.[2] But this style of reasoning was lost to the courts during the twentieth century. Today, appeals to anything beyond text and history are widely considered indecorous if not wholly outside the judicial power.

Judge Matey, of the United States Court of Appeals for the Third Circuit, bucked that convention in a recent concurrence. The case of Range v. Attorney General involved a man who was disarmed under a federal statute prohibiting firearm possession by anyone “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.”[3] Bryan Range was convicted of welfare fraud in 1995 after misstating his income on an application for food stamps.[4] At the time, he and his wife were struggling to earn enough to raise three young children.[5] The crime was a misdemeanor for which Range received a sentence of only three years’ probation.[6] But because the crime was eligible for a sentence of up to five years’ imprisonment, federal law deemed Range permanently ineligible to possess a firearm.[7] Continue reading “Moral Reasoning in the Third Circuit” →

Dante’s Lawyers from Heaven: Justinian

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2021 marked the 700th anniversary of Dante’s death and saw the publication on March 25 of Pope Francis’ Candor Lucis Aeterna, a lucid analysis of Dante and his work. This is the fourth and final of a series of Ius et Iustitium pieces by Aníbal Sabater discussing lawyers in the Divine Comedy. The first three pieces, “Dante’s Lawyers from Hell,” “Dante’s Lawyers from Purgatory: Cato,” and “Dante’s Lawyers from Purgatory: Trajan,” can be found here. The goal of the pieces is to show how the classical legal theory pervades the Commedia.

As Beatrice and Dante ascend through Paradiso, they reach the sphere of Mercury, which shines splendidly because of its proximity to the sun. The view is impressive and Dante, mischievously ignoring the immutability of Heaven, claims that the planet becomes even more radiant as Beatrice sets her foot on it. The souls in Mercury are pure light, and one of them offers Dante a seat. Paradiso’s Canto 5 finishes with Dante accepting and asking the spirit who he is. In Canto 6, the spirit responds:

Cesare fui e son Iustinïano, che, per voler del primo amor ch’i’ sento,d’entro le leggi trassi il troppo e ’l vano.[1] Cesar I was, and I am Justinian, Who, by will of the first love that I feel,Excised from the laws all that was excessive and vain.

The speaker is the Eastern Roman Emperor Justinian (482-565) and the excised laws he mentions are those in the Corpus Iuris Civilis—his monumental compilation that remains the basis for the study of Roman law today. Continue reading “Dante’s Lawyers from Heaven: Justinian” →

Section Three of the Fourteenth Amendment and the Imprudence of Originalism

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Ius & Iustitium welcomes submissions from academics, practicing lawyers, and students interested in the classical legal tradition. The author is a recent federal judicial law clerk.

I.

Events of the last month provide a case study in the question of how originalists relate legal theory to legal practice. On August 10, originalist law professor and Federalist Society co-founder Steven Calabresi uploaded a post to the group law blog The Volokh Conspiracy arguing that Section Three of the Fourteenth Amendment automatically disqualifies Donald Trump from running for president in 2024.[1] This post, it turned out, was a pre-endorsement of a forthcoming law review article, 126 single-spaced pages in length, uploaded to SSRN on August 14 by prominent originalists Will Baude and Michael Stokes Paulsen.[2] The relevant constitutional text runs as follows:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.[3]

Continue reading “Section Three of the Fourteenth Amendment and the Imprudence of Originalism” →

Joel Alicea’s Failed Counter-Offensive: Further Notes on Political Authority and Natural Law

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Ius & Iustitium welcomes submissions from academics, practicing lawyers, and students interested in the classical legal tradition. The author is a recent federal judicial law clerk. What follows is a response to Alicea’s reply to an article published on I&I and available here.

Joel Alicea, the foremost defender of the position that positivism and natural law theory are actually compatible–contradicting Aquinas and all the baroque scholastics he cites–is at it again.[1] His response to my original critique misconstrues a number of my arguments and fails to engage with any of my substantive criticisms. Instead, he is content to repeat the slogan that the people’s adoption of the United States Constitution means that the Constitution is interpreted without reference to the natural law. As I noted before this position is inconsistent with those thinkers that formulated the transmission theory of authority, because for such thinkers positive law is always governed by the natural law. For example, Yves Simon distinguishes two ways of rooting authority in the people: 1) the coach-driver theory which holds that the government is bound to implement the will of the people; and 2) the transmission theory of authority in which the government upon reception of authority from the people is not bound by the will of the people but the demands of the common good.[2] Effectively while talking the language of the transmission theory of authority via sleight of hand Alicea is adopting the coach driver theory of authority. He holds that the judiciary and the United States Government must not interpret and implement the Constitution in accord with the demands of natural law but in accord with the original will of the people in 1789. Thus, on Alicea’s account the common good, right reason, and natural law do not norm this determination and direct its interpretation. Instead, judges and the government are bound to implement the will of the people in 1789. This theory, unlike the classical transmission theory, is condemned by the Catholic Church because it separates positive law from natural and divine law. Further, this account of popular sovereignty, in which the government is constrained by the will of the people, is precisely what was condemned by Leo XIII and Pius X in their magisterial teaching.[3] Alicea’s core thesis having been disposed of, I will clear up some misconceptions in his article and respond to an objection. Continue reading “Joel Alicea’s Failed Counter-Offensive: Further Notes on Political Authority and Natural Law” →

Alicea’s Noble Lie

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Ius & Iustitium welcomes submissions from academics, practicing lawyers, and students interested in the classical legal tradition. The author is a recent federal judicial law clerk.

“ATHENIAN: Tell me, Strangers, is a God or some man supposed to be the author of your laws?”

“ATHENIAN: And do you, Cleinias, believe, as Homer tells, that every ninth year Minos went to converse with his Olympian sire, and was inspired by him to make laws for your cities?”
 – Plato, Laws 624a-b

Joel Alicea has striven mightily to reconcile a form of positivist originalism with natural law theory.  He claims to have given originalism a “moral authority” derived from the natural law.  Yet his arguments reduce to either a noble lie in the vein of Plato’s Republic or an act of faith in liberalism’s founding mythology.  Alicea’s recent review of Hadley Arkes’s Mere Natural Law: Originalism and the Anchoring Truths of the Constitution demonstrates this point. There, Alicea makes a startling argument for the moral authority of positivist originalism.  He writes:

Who has care of the community in the United States? That is, who is the legitimate lawmaker in the United States? The answer — as deduced from the natural-law tradition’s teaching on the nature of political authority — is the people, the same people who, the Preamble declares, “ordain[ed] and establish[ed]” our Constitution. Once we understand this, the judicial obligation to obey the Constitution as the people understood it becomes clear — as does the moral force undergirding Dobbs.[1]

Claiming to follow the Thomistic definition of law as “an ordinance of reason for the common good, made by him who has care of the community, and promulgated,”[2] he posits that someone must have the “care” of, that is, authority for the direction of, the political community that is the United States.  So far so good.  But then he goes on to make the remarkable assertion that the “the people,” considered apart from any authority, have this authority under the natural law.  Because the people have this authority, their choices in establishing the Constitution are morally binding until revolution or regime change via the mechanisms the people set forth in the Constitution.  The same is true, he claims, of the people’s understanding of the Constitution.  This argument is fundamentally flawed.  

Continue reading “Alicea’s Noble Lie” →

Shakespeare as a Common Good Conservative

Edmund Waldstein, O.Cist.

Patrick Gray, professor of literature at the new University of Austin (UATX), was recently interviewed on Peter Adamson’s podcast The History of Philosophy Without Any Gaps. He argues there that Shakespeare was combating a neo-Senecan ethics of autonomy in much the same way that common good conservatives today combat the liberal/Kantian ethics of autonomy:

Rome for Shakespeare is the Rome of Seneca. This connection is important not least because Seneca is the model and inspiration for a contemporary of Shakespeare, the Dutch political philosopher Justus Lipsius, who in turn exercises a considerable influence on Kant. Kant’s emphasis on individual autonomy as in effect the greatest good is a legacy of the influence of Seneca. And it is a touchstone for the present-day liberal consensus as regards morality as well as politics. To put the connection a different way, when I was working on Shakespeare’s Roman plays, I wanted to find a contemporary point of view that most closely resembles his. Is he conservative? Progressive? Marxist? Libertarian? What? And what I realized is that the closest analogue of Shakespeare’s thought about politics in our time is what has come to be known as “post-liberalism” or “common-good conservatism,” such as we find in the works of authors such as Alastair MacIntyre and Patrick Deneen. Moreover, that similarity makes sense. Both authors, Deneen and Shakespeare, argue that a society where each individual is trying to maximize his or her autonomy at the expense of everyone else is a society that is doomed to oscillate between brittle autocracy and merciless civil war. Shakespeare sees this dynamic in a pre-Christian society, Rome; Deneen sees it in a post-Christian society, our world today.

Continue reading “Shakespeare as a Common Good Conservative” →

Prince, Pop Art, and the Purpose of Copyright

Jacob Neu

What do we want copyright law to do, and who do we want it to protect? At the end of the day, those are the questions driving the decision in Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith. Behind all the analysis of market factors, review of decades-old licensing agreements, and the surprisingly rancorous back-and-forth between Justice Sotomayor’s majority opinion and Justice Kagan’s dissent, these two questions emerge: Should copyright law protect individual creativity or the public’s right to use? And if the former, which individual is being protected, the original artist or the person inspired by it?

Continue reading “Prince, Pop Art, and the Purpose of Copyright” →

Accept No Substitutes

Jacob Neu

William Baude’s recent lecture “Beyond Textualism?” has been making the rounds in conservative circles, including a response here from Adrian Vermeule and Connor Casey welcoming Baude’s agreement that the natural law would have been accepted as “unwritten law” among the Founders. Baude has responded on Twitter that his position is not new and in fact remains originalist.

Now I’m just a caveman patent lawyer, not a constitutional law professor—their world frightens and confuses me! But it seems to me that the dispute can be summarized in the following manner: Baude would accept natural law jurisprudence because the Founders interpreted their own law against that background, and therefore it is a valid interpretive principle today as well. In contrast, Vermeule and Casey would say to apply natural law principles because they are true and accurate principles of law, regardless of whether the Founders applied them or not. The first version is positivism (though perhaps of a Pickwickian kind), whereas the second is natural law.

And if that is the case, I will confess that in my younger days as a law student I would have taken Baude’s side. There is an attraction to it for lawyers of a conservative bent: “It is not I who have taken this or that position that seems at odds with general public mores today, but we must apply the law that was publicly enacted by the Founders. We cannot contravene their law, can we? And unless you change the law, well, you have to accept these essentially conservative positions of the law.”

Continue reading “Accept No Substitutes” →

The Owl of Minerva and “Our Law”

Adrian Vermeule

Conor Casey & Adrian Vermeule[1]

On 28th February, William Baude of the University of Chicago Law School delivered the annual Scalia Lecture at Harvard Law School,[2] titled “Beyond Textualism?”—with startling results. Startling but also welcome, as we will explain.

The main question posed by Baude at the outset of his lecture is whether textualism is “missing something important”? Baude began in a conventional register by suggesting that textualism is said to reflect the “basic insight central to the structure of our government…and fabric of our law” that the job of the interpreter is (a) usually to enforce rules that have been made some place else, not to make the rules herself; and (b) not to imagine decisions that were actually never made by the legislature. In general, says Baude, the results of the “textualist revolution” have been “salutary” for embedding these ideas into legal practice and thought.

The talk, however, then took a sharp and surprising turn—indeed a turn towards the very approach to legal interpretation, the classical approach, that Ius et Iustitium was founded to advocate. Baude’s answer to the question posed at the start of his lecture turned out to be an emphatic yes. Textualism is grievously incomplete, Baude now argues, chiefly because it fails adequately to take account of other sources of law, including “unwritten background principles” and “natural law.” (Yes, everything in quotation marks is a quote from the lecture). Continue reading “The Owl of Minerva and “Our Law”” →

The Supreme Court’s First Crack at Section 230(c)(1)

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Ius & Iustitium welcomes submissions from academics, practicing lawyers, and students interested in the classical legal tradition. Adam Candeub is Professor of Law and Director of the Intellectual Property, Information & Communications Law Program at the Michigan State University College of Law.

The Supreme Court last week heard oral arguments Gonzalez v. Google—its first opportunity to consider Section 230(c)(1) of the Communications Decency Act, the statute that sets the basic liability rules for the internet. The Gonzalez plaintiffs represent victims of the Paris, Istanbul, and San Bernardino terrorist attacks. They claim that YouTube’s targeted recommendations radicalized the terrorists to commit their heinous crimes, and YouTube is liable for damages under the Anti-Terrorism Act (ATA), 18 U.S.C. § 2333. Google, YouTube’s parent company, argues Section 230(c)(1) shields it from that claim.[1]

Continue reading “The Supreme Court’s First Crack at Section 230(c)(1)” →