Category: Constitutional Law

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” →

What follows are my notes from a semi-extemporaneous response I delivered at the conference on Common Good Constitutionalism organized by the Harvard Journal of Law and Public Policy and the Harvard Federalist Society on October 29, after receiving some but not all of the papers in advance and listening to the discussion. The other participants’ papers and presentations were largely working drafts of final products that will appear in the Journal. The oral delivery differed from these notes in minor ways. A full version of the talk with footnotes will appear in the Journal in due course.

The editors wish to thank Mario Fiandeiro, editor-in-chief of the Harvard Journal of Law and Public Policy, and the Journal editorial board for their gracious permission to publish this in advance of the Journal’s publication.

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Thanks to everyone for coming. I think it’s been a fascinating event and suggests that these debates have only begun and will continue for a long time. Yet these debates also have an ancient history. The discussions we have had today are iterations, with appropriate variation, of discussions that happened in and during the last revival of classical legal theory, in the US and Europe in the 1950s and 1960s in the shadow of Nuremberg, when legal positivism for a time seemed patently inadequate. And those in turn were variants of many earlier iterations, going all the way back to debates over legal interpretation between the schools of Proculeian and Sabinian lawyers in Rome. Indeed, as will become clear shortly, the eternal recurrence of this sort of debate is itself, in my view, one of the great facts of history that we have to recover to make sense of our discussion today.

Continue reading “Enriching Legal Theory” →

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” →

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” →

Out today in the New York Times is an essay published with a view to the upcoming release of my new book, Common Good Constitutionalism, published by Polity Books. (The essay started as an adaptation from the book, but isn’t really anymore, although of course the broad lines of argument are similar).

An excerpt from the essay:

What’s missing from our law today is an emphasis on the common good, a concept that from the founding era onward was central to the American legal tradition, embodied in the references to the “general welfare” in both the preamble to the Constitution and its text. The classical legal tradition, the mainstream of the Western legal tradition until the 20th century, holds that laws should be interpreted in light of the legitimate aim of government, which is the flourishing of the community as a community. Classical constitutionalism holds that our political community can succeed only as a whole, rather than as a collection of warring interests, competing ideologies and isolated individuals — the underlying logic of modern jurisprudence. The aim of constitutional government and legal interpretation should be to promote the classical ideals of peace, justice and abundance.

Continue reading “Reviving the Classical Constitution” →

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” →

A few brief thoughts in response to this interesting post on the Dobbs case by my esteemed colleague Steve Sachs. (I say nothing about Steve’s broader body of work, apart from the post). Steve writes that a failure to overturn Roe v. Wade would be an “extraordinary black mark for the conservative legal movement,” but would in no way damage originalism as such. After all, “[p]eople can call themselves ‘originalists’ and still be wrong about the original Constitution, just as they can call themselves ‘historians’ and still be wrong about history.” On Steve’s view, cited in the post, originalism is a standard that defines the rightness of right answers, not a decision procedure, let alone a foolproof decision procedure, for identifying those answers. It follows that originalism is untouched by any given misapplication of the standard, or even a long series of misapplications. “What kind of views of the Constitution do you hold, if you’d go look for new ones based on what some robe-wearing politician-approved bureaucrats say?… If you think originalism requires overturning Roe, and if it turns out that the Court’s self-described originalists still won’t do it, why conclude that originalism is lousy, and not that the Justices you’re mad at are lousy originalists?”

Continue reading “Gnostic Constitutional Theory” →