Author: Pat Smith

Bleeding Montana

Pat Smith

In August, Kansas voters rejected a constitutional amendment specifying that the Kansas Constitution did not protect a right to abortion or require the state government to fund abortion. In response, I wrote a piece here pointing out that this was precisely the result that the conservative legal movement sought via the Supreme Court’s decision in Dobbs. The only principled position, we have been told, is neutrality. The voters can approve or disapprove abortion as they like, but what matters is that the voters decide. The Constitution does not tell them what they must or must not do, and judges must not interfere with this posture of principled neutrality.

Such a position does not have deep roots in the classical legal tradition, which certainly does not hold that the law can be neutral on essential questions of morality, letting the voters decide such basic questions as who is alive. And one can find arguments against the idea in the American tradition, including in Abraham Lincoln’s arguments against Stephen Douglas’s principled neutrality on the question of slavery. I said so. New York Times columnist Ross Douthat took issue, saying that I “complain[ed] the Court did Something when it could have just done Everything itself.” The Institute for Human Ecology at the Catholic University of America even took a short break from posting pictures of the saint the day to amplify Douthat’s criticism. (Don’t worry: the Institute got back to posting pictures of the saint of the day.)

However trenchant the criticism may have seemed to Douthat and his friends at the Institute in August, it is by no means clear that it is so trenchant today. Five states had measures on the ballot relating to abortion. In California, Michigan, and Vermont, the question was whether to amend the state constitution to create an explicit right to reproductive freedom, which is of course a euphemism for abortion. In Kentucky, the question was about an amendment specifying that nothing in the state constitution protected a right to abortion. And in Montana there was a proposal to establish that children born alive were persons and entitled to legal protection. In each state, the pro-life position was rejected. In every state where life was put to the vote, the voters chose the other option. As Douthat says, the Court did Something instead of Everything—and what a Something!

Continue reading “Bleeding Montana” →

Fourteenth Amendment Personhood Deferred Again

Pat Smith

Yesterday, the Supreme Court denied certiorari in Doe et al. v. McKee (No. 22-201), an appeal from the Rhode Island Supreme Court presenting squarely the question of whether unborn persons are entitled to Fourteenth Amendment protection. The petitioners, including pro-life organizations, had challenged a 2019 Rhode Island law that permitted abortion prior to viability and, importantly, repealed an earlier law that established that “human life commences at the instant of conception and that said human life at the instant of conception is a person within the language and meaning of the fourteenth amendment of the constitution of the United States . . . .” The Supreme Court’s denial of certiorari has been reported as a setback for the personhood argument. No doubt it is.

Continue reading “Fourteenth Amendment Personhood Deferred Again” →

Some Reflections for Law Students

Pat Smith

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” →

The price of victory in Kansas

Pat Smith

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” →

Justice Alito and constitutional relevance

Pat Smith

The Supreme Court has overruled its decisions in Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey. The decision in Dobbs v. Jackson Women’s Health, penned by Justice Samuel Alito, and joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, makes it clear that Roe and Casey were wrongly decided and protected rights not actually deeply rooted in the history and tradition of the United States. As a result, the Supreme Court has held that the states are free to craft for themselves regimes of abortion regulation, subject to rational basis review. 

When Justice Alito’s draft was leaked, I expressed concerns about what I have called “Little Giant Constitutionalism,” referring to Stephen Douglas’s position in the Lincoln-Douglas Debates. The Dobbs opinion takes a contentious national issue and makes it…a contentious national issue. This is by no means a problem if you are a positivist or a relativist. If, however, you believe that there are principles of the natural law at stake, putting them to a vote is hardly a welcome prospect. But that is as good, it seems, as it is going to get under Dobbs. As Adrian Vermeule has noted, Justice Kavanaugh, who seems to be the critical fifth vote in the Dobbs opinion (remember that Chief Justice John Roberts concurred only in result and scolded the majority for going as far as overturning Roe and Casey), was at pains to distance himself from the Fourteenth Amendment personhood argument.

Continue reading “Justice Alito and constitutional relevance” →

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” →

Scissors, Paste, and Aquinas

Pat Smith

I understand altogether the desire of certain originalists to elevate their jurisprudential preferences to the sphere of morality. It is one thing when conservative donors want originalism to be right; it is another thing when God wants originalism to be right. Likewise, the moral dimension has certain charms when deployed against critics of originalism. Today, criticism of originalism must be treated in fundamentally academic ways: through the marshaling of evidence and argument. If originalism can be lacquered to a moral shine, then one may dispense altogether with the laborious work of answering one’s critics. To oppose originalism is simply to be immoral, and sin does not require the same work. For example, no one feels the need to argue against the sin of Onan; condemn, deplore, rebuke—but not argue. 

Heretofore the Church has been unwilling to make a dogmatic proclamation in favor of the originalists—the Munificentissimus Deus template no doubt having been mislaid in the shuffle of Predicate Evangelium—leaving them to their own devices. Catholic University of America law professor Joel Alicea is the latest moralist of the originalists who has attempted to supply the missing condemnation, writing a paper that soon will be published in the law review of the second-oldest law school in Indiana. Already the professional originalists have found not merely a moralist but a true champion. Professor Alicea’s essay has been featured prominently by such publications as National Review. This, too, is understandable. Adrian Vermeule has been all too troublesome for the professional originalists (and, one suspects, their donors have had awkward questions about the younger generations). Professor Alicea finds a moral basis for originalism. At last, to the sin of Onan, the originalists may add the sin of Vermeule. At long last, they may condemn, deplore, and rebuke—but not argue.

Continue reading “Scissors, Paste, and Aquinas” →

A tort for “cancel culture”

Pat Smith

In his annual address to the Vatican diplomatic corps on January 11, Pope Francis decried the phenomenon of “cancel culture.” The Pope noted that “[u]nder the guise of defending diversity,” “cancel culture” obliterates “all sense of identity, with the risk of silencing positions that defend a respectful and balanced understanding of all sensibilities.” Worse than that, it promotes a kind of thinking that is “constrained to deny history or, worse yet, to rewrite it in terms of present-day categories, whereas any historical situation must be interpreted in the light of a hermeneutics of that particular time, not that of today.” 

One finds examples of the “cancel culture” condemned by the Pope everywhere, with new examples emerging almost daily. Professors and podcasters alike find themselves in the hot seat with astonishing regularity. However, few solutions to “cancel culture” have been identified. The cycle continues. Some prominent professor, executive, or personality says something wicked, foolish, or merely unpopular. The usual suspects of left-wing journalists and Twitter power users find it and boost the signal, often notifying the person’s employer through the phenomenon of “snitch tagging.” The outrage builds in a sort of positive feedback loop. Finally the desired goal is reached and the professor or executive finds herself without a job, without friends, and without prospects. 

Continue reading “A tort for “cancel culture”” →

Little Giant Constitutionalism

Pat Smith

The oral arguments in Dobbs v. Jackson Women’s Health have been held and the cause taken under advisement. If the past practice of the Supreme Court is any indication, one morning in late June 2022, a little after 10 AM, the Supreme Court will issue a decision. Pro-life advocates and abortion supporters have been poring over the tea leaves from the oral argument pretty much nonstop since Chief Justice Roberts gaveled them to a close on December 1. And soon, one suspects, the incessant drip of leaks from One First Street will begin—if it has not begun already.

Conservative commentators have decided that originalism itself hangs in the balance. If the Supreme Court does not take the opportunity presented by Dobbs to overrule Roe and Casey, that’s the end of originalism. Ed Whelan, the reliable fixture of the judicial wing of Conservatism, Inc., thinks that there will be much to answer for if that happens. And Joel Alicea, a law professor at Catholic University of America, has gone so far as to say that the Supreme Court’s decision in Dobbs is all that stands between originalism and a future dominated by Adrian Vermeule.

Continue reading “Little Giant Constitutionalism” →