Month: May 2022

Book Launch Cornucopia

Adrian Vermeule

The book launch for Common Good Constitutionalism took place last Thursday evening at the National Press Club. The run of show went as follows: (1) an introduction by Sohrab Ahmari; (2) my talk; (3) in-person responses from Judge Paul Matey, Jeff Wall, and Professor Patrick Deneen; (4) on video, a response from Judge Amul Thapar, who was unfortunately unable to attend in person; and (5) some thoughts by me in reply to each of the respondents. Unfortunately the program ran a bit long, so time did not permit questions from the audience. The program as a whole featured a genuine diversity of views, with Jeff Wall taking a rather libertarian perspective and Judge Thapar an originalist one.

This post includes, in order: (1) my written talk, which as inevitably occurs, differs slightly from the actual delivery; (2) an audio recording of the whole proceeding (barring a few words cut off at the beginning of Sohrab Ahmari’s introduction); (3) Judge Thapar’s video, posted separately because the audio quality of the recording of the whole may make it difficult for the listener to hear his remarks; (4) a written version of my reply to Judge Thapar in particular, again differing slightly from the actual delivery, and posted separately to make the discussion of Aquinas more accessible.

Please bear in mind that this was not a strictly academic event. These materials are informal and are posted in the hopes of advancing the debate. Enjoy! Continue reading “Book Launch Cornucopia” →

A notable new opinion from the heart of the classical tradition

Pat Smith

On May 25, 2022, the United States Navy-Marine Corps Court of Criminal Appeals (“NMCCA”) handed down an opinion in United States v. Dereck Tabor, No. 202100046. The case involves the unpleasant question of whether encouraging someone via text message to commit self-abuse while lying in bed next to a sleeping child constituted a lewd act upon the child for the purposes of Article 120b of the Uniform Code of Military Justice. See United States v. Tabor, No. 202100046, slip op. at 2–3 (N-M. Ct. Crim. App. May 25, 2022). Ultimately, under military precedent, this becomes a question of whether the acts were committed in the presence of the child, which, in Tabor, turns on whether the child was aware of the lewd acts. Id. at 5. The provisions at issue, which have been amended and restated several times since the promulgation of the UCMJ, have vexed the military courts since they were introduced in 1951. Judge Christopher Deerwester’s opinion for the Court admirably traces the statutory developments and the responses of the military courts over the last sixty years and comes to the conclusion that it is sexual abuse of a child to encourage someone to abuse herself while the child sleeps next to her. 

In and of itself, United States v. Tabor deals with lamentable criminal conduct by a member of the armed forces and a statute that has given the military courts no end of trouble. However, Senior Judge John Stephens’s separate concurrence is worthy of special attention. He begins by acknowledging that “we are supposed to use a textualist approach to statutory interpretation.” Id. at 42. But, in his view, textualism “has contributed to the confusion over the meaning and effect of Article 120b(c) . . . and whether it possesses some penumbric ‘awareness’ element.” Id. To “cut the modernist Gordian knot,” id., Senior Judge Stephens proposes returning to the classical legal tradition. Id. Looking to Adrian Vermeule’s Common Good Constitutionalism, Thomas Aquinas, and Blackstone’s Commentaries, Senior Judge Stephens proposes interpreting Article 120b from the perspective of the common good. See id. at 44–46.

Continue reading “A notable new opinion from the heart of the classical tradition” →

Second thoughts about a first look

Pat Smith

The leak of Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization is unprecedented. The mere fact of the leak is unprecedented, though perhaps not surprising since ready access to abortion has become something more than a legal question to many lawyers, activists, and politicians. Norms, no matter how cherished or long held, yield in emergencies, and one suspects that a certain kind of advocate believes this is an emergency. Scarcely less shocking than the leak, however, is the fact that the draft opinion itself indicates, at least as a preliminary matter, that there are five votes to overturn Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey, the twin pillars of the legal abortion regime in the United States. 

Justice Alito’s draft was dated (at least for the purposes of circulation) February 10, 2022 and is marked “1st Draft.” Considering that Dobbs was argued at the beginning of December 2021 and the conference on the case held shortly thereafter, I think it is safe to assume that it represents a fairly early draft of the opinion, written before concurrences and dissents were circulated. The Dobbs opinion probably has developed in some dimensions since February 10. Nevertheless, one imagines that the broad outlines of the opinion will remain substantially the same, barring a change in votes or some other exigency. It is only slightly premature, I think, to conduct a close analysis of the Dobbs draft as though it were the opinion of the Court.

Continue reading “Second thoughts about a first look” →

A Victory for Originalism?

Yves Casertano

The leaked draft majority opinion in Dobbs v. Jackson Women’s Health Organization suggests that the Supreme Court is poised to finally overturn Roe v. Wade (1973). While the fight for legal protection of the unborn will continue and even intensify, it is undeniable that the demise of Roe would be an improvement over the status quo and a true victory—at least in the “end of the beginning” sense. Who deserves credit for this victory? First and foremost, the pro-life movement. Instead of retreating into obscurity following Roe, pro-lifers grew a movement, captured a political party, and forced it to make abortion a top priority in the appointment of judges. Credit is also due to the mainstream conservative legal movement, which includes and is led by many committed pro-lifers for whom overturning Roe v. Wade was always a top priority. Despite its many shortcomings and failures (which this blog routinely highlights), there can be no denying that the conservative legal movement may have finally delivered the result it has promised for decades. But what credit do we owe originalism, the official ideology of the conservative legal movement? Based on Justice Alito’s draft majority opinion, the answer seems to be nothing. Originalism will not have played any meaningful role in overturning Roe.

Continue reading “A Victory for Originalism?” →

No Fence to Sit On

Jacob Neu

I had been working on a post addressing a new abortion policy bill in Connecticut, which is headed to the governor’s desk for signature sometime this week, when Politico published the leaked first draft of Justice Alito’s opinion last night. Regarding that news, I will make only two comments. First, while it reflects a final holding (overruling Roe) that I believe most if not all contributors to I&I support, any opinion is not official until promulgated by the Court itself, and I’m not going to comment on its substance. Second, the leak should be seen for what it is—an attempt to interfere with the normal processes of an institution and to galvanize public opinion and legislative and executive officials. The leak should be investigated and the individual sanctioned appropriately.

Nevertheless, the public reaction to the draft opinion was predictable in the emotional response it has generated and the calls for court-packing, impeachment, and other politically punitive actions. That reaction points to a key conclusion—once Roe nationalized abortion policy, there is no easy way for the Court to extract itself from that issue. The great twentieth century American moral philosopher Johnny Cash once said, “How well I have learned that there is no fence to sit on between heaven and hell. There is a deep, wide gulf, a chasm, and in that chasm is no place for any man.” A final decision returning abortion policy to the states is not the end—as Connecticut shows, it is only the beginning of a new phase.

Continue reading “No Fence to Sit On” →