You’ve decided to go to law school. You have probably acted against the advice of family, friends, acquaintances, strangers, teachers, clergy, and, above all, lawyers. But as my late mother said to me often: some people have to learn things the hard way. I will not dwell on the decision to go to law school. But if you are reading Ius & Iustitium, you either are doing oppo research for your Conservatism Inc. job or you have an interest in the classical legal tradition. As many students are beginning law school this month, I thought I would offer some reflections for your edification.
Continue reading “Some Reflections for Law Students”Month: August 2022
The Bourbons of Jurisprudence
Profs. William Baude and Stephen Sachs have published a review of Adrian Vermeule’s new book, Common Good Constitutionalism. Ius & Iustitium is pleased to publish Vermeule’s response as a coda to our symposium on this work.
The Editors
Adrian Vermeule[1]
In a recent and illuminating paper,[2] Emad Atiq (a legal philosopher) and Jud Mathews diagnosed what they called a “jurisprudential turn” in public law scholarship, and argued that this turn amounted to a poorly theorized attempt to rule in certain approaches to public law theory, and rule out other approaches, on highly contestable grounds, by a kind of unwarranted conceptual fiat. One of the central examples Atiq and Mathews used to illustrate this critique is the work of William Baude and Stephen Sachs.[3] Baude and Sachs confidently imagine that their particular, highly idiosyncratic versions of positivism and originalism provide the yardstick against which all public law theories should be measured. They present as unquestioned axioms of legality and legal interpretation in our legal order what are, in fact, highly controversial views, which do not correspond to or derive from any recognized version of positivism in jurisprudence. As Atiq and Mathews put it, “[Baude and Sachs] argue that an originalist approach to constitutional interpretation is a requirement of law, and that this fact follows from the correct first principles about law—roughly, the positivistic claims of H.L.A. Hart. In fact, it takes work to clarify the controversial variation on Hart’s theory that underwrites their defense of originalism. … Baude and Sachs’ originalist conclusions do not follow from standard versions of positivism defended by Hart, Raz, and Shapiro.”[4] Continue reading “The Bourbons of Jurisprudence”
The price of victory in Kansas
Yesterday, Kansas voters rejected decisively an amendment to the Kansas Constitution that would have clarified that the Kansas Constitution does not protect a right to abortion. This defeat represents a major victory for the conservative legal movement. The Kansas Supreme Court, in Hodes & Nauser v. Schmidt, 309 Kan. 610, 440 P.3d 461 (2019), found that the right to an abortion was protected by provisions in the Kansas Constitution. In response, the legislature proposed a constitutional amendment that would effectively nullify the Hodes & Nauser decision. That amendment was submitted to the voters. Following an acrimonious campaign, it was defeated. The process worked, just as leading conservative legal thinkers told us it would, even if many are deeply disappointed by the result in concrete terms.
Continue reading “The price of victory in Kansas”