Three icons of American pop culture–Andy Warhol, Prince, and the Supreme Court of the United States1–converged this week when the Court heard oral arguments in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. The case concerns whether a Warhol print based on a portrait of Prince by photographer Lynn Goldsmith constituted fair use or was instead an infringement of Goldsmith’s copyright. Warhol’s “Orange Prince” was one of a series of 16 works based on the same photograph, none with a license from Goldsmith. Goldsmith has asserted that this infringed her reproduction and derivative work rights in the original photograph. The images in question may be viewed at SCOTUSBlog’s summary of the oral argument.
Continue reading “How the Supreme Court Misses the Point on Fair Use”Fourteenth Amendment Personhood Deferred Again
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organizations, had challenged a 2019 Rhode Island law that permitted abortion prior to viability and, importantly, repealed an earlier law that established that “human life commences at the instant of conception and that said human life at the instant of conception is a person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
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 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”Symposium on Common Good Constitutionalism
Ever since Adrian Vermeule published “Beyond Originalism” in The Atlantic in the spring of 2020, there has been considerable excitement about Vermeule’s argument that it is time for conservatives to abandon originalism in favor of a more robust approach to law and government. Vermeule’s book, Common Good Constitutionalism (Polity Press 2022), expands upon the argument of the original Atlantic essay and presents his case for a new conservative approach to the law. Over the course of the next week, Ius & Iustitium is pleased to present a special symposium on Common Good Constitutionalism.
Readers of Ius & Iustitium will be familiar with the elements of Vermeule’s argument, but Common Good Constitutionalism sets it forth with admirable force and clarity. It is also an excellent introductory work for an educated general audience, which may well be aware of the ongoing debates about Vermeule’s work and wishes to learn more about his position. And above all Common Good Constitutionalism is a thought-provoking work, pointing toward numerous avenues for further investigation and further discussion. The range of essays presented as part of this symposium shows just how broad the vistas opened by Common Good Constitutionalism are.
It is a lamentable fact that much of the discourse surrounding Common Good Constitutionalism has been driven by Vermeule’s critics. The valued employees of Conservatism, Inc. have hastened, for whatever reason, to haul out their shopworn critiques of not merely Vermeule’s work but also the entire thrust of the classical legal tradition from Aristotle to the day before yesterday. Yet Vermeule understands what his critics do not: the American left of 2022 is not the left of 1982. The ivory-tower crowd can descend from their faculty lounges and think-tank offices and do their best King Canute impressions, but the Marxist waves show no signs of retreating. Ronald Reagan will not save us now.
Happily, however, there are lawyers who are not so insulated from reality by that greenest of cushions. Ius & Iustitium is pleased to present a selection of essays about and inspired by Common Good Constitutionalism written by lawyers coming from the heart of the classical tradition. Michael Foran writes about the book as a challenge to the the conventional wisdom of constitutional theory. Conor Casey writes on the place of the administrative state under common good constitutionalism. Aníbal Sabater writes on Quintilian’s presentation of the natural lawyer as the “good man skilled in speaking.” Masurius Sabinus writes on the book from the vantage point of a recent law school graduate—an important perspective given the book’s enthusiastic reception amongst law students and young lawyers. And Jacob Neu offers an all-too-often-overlooked perspective: that of the practitioner. Finally, Adrian Vermeule will respond to the authors of the essays presented here, and there will be a concluding panel discussion of the book and symposium essays via Zoom.
Common Good Constitutionalism has generated unusual excitement, perhaps unheard-of excitement for a work of jurisprudence. The audience of enthusiastic students and young professionals at the book’s recent launch at the National Press Club demonstrates that there is deep interest in Vermeule’s ideas. It is our hope that this symposium will present further opportunities for discussion and debate, above all from those committed to the classical legal tradition.
The Editors
The Short History and Checkered Tradition of “History and Tradition”
In three major cases at the end of June, the Supreme Court has relied upon a “history and tradition” test to define the scope of constitutional rights and federal powers. Writing for the Court in Dobbs v. Jackson Women’s Health Organization, Justice Alito overruled Roe v. Wade held that the Constitution did not protect a right to abortion and that unenumerated rights and liberties “must be deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty,” quoting Washington v. Glucksberg in support. In Kennedy v. Bremerton School District, Justice Gorsuch overruled Lemon v. Kurtzman’s test for a violation of the Establishment Clause and held, “The line that courts and governments must draw between the permissible and the impermissible has to accord with history and faithfully reflect the understanding of the Founding Fathers.” And in New York State Rifle & Pistol Association v. Bruen, Justice Thomas rejected reliance on intermediate scrutiny in considering government regulation of firearms under the Second Amendment, holding that the government must show a firearm regulation is support by the text, “as informed by history,” or “comported with history and tradition.” In each case, the Court expressly or implicitly rejected a tiered scrutiny framework and chose to focus instead on how the scope of the right was historically defined within the Anglo-American tradition.
What do “history and tradition” mean in these contexts, and why should they be important? By this test, the conservative majority intends to ground American law within a broader tradition to avoid the temptation of “living constitutionalism.” Yet these cases also demonstrate the problem of originalist reliance on history only at specifically favored moments in time, rather than incorporating a broader understanding of the tradition in which they are embedded. And if the “history and tradition” test is ultimately not grounded in the legal and philosophical substance of that tradition—the natural law and the Western classical legal tradition, as interpreted by English jurists—then they are at best half-hearted and superficial attempts to recall that tradition and will be easily manipulated in future cases.
Continue reading “The Short History and Checkered Tradition of “History and Tradition””John Roberts’s Dobbs opinion: discretion, restraint, rules
A quick comment on Chief Justice John Roberts’s concurrence in Dobbs. As many expected from oral argument (including me) and leaks of the deliberation in May, Chief Justice Roberts sought in vain for a middle ground that would uphold the Mississippi law banning abortion after fifteen weeks with certain exceptions, but that would not overrule the basic right to an abortion found in Roe and Casey. Roberts’s concurrence in the judgment stuck to his lonely compromise position. I hoped that Roberts might at least offer some basis for why a fifteen-week ban would be permissible without a wholesale review of Roe.
Continue reading “John Roberts’s Dobbs opinion: discretion, restraint, rules”Justice Alito and constitutional relevance
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”How to Read Dobbs
Dobbs should, first of all, be celebrated — loudly, and without feeble misgivings about the disappointment of the supporters of abortion rights. It partially (and I stress partially) cured a kind of wound in our constitutional law that had festered over time, infecting and distorting not only substantive constitutional law, but also adjacent and ancillary bodies of law such as standing, procedure and remedies. Justice Alito’s opinion for the Court is entirely convincing that, taken on its own terms, the pompous claim of the controlling joint opinion in Planned Parenthood v. Casey — that the Court could call the contending national parties to settle their controversy — had not been fulfilled. Indeed Casey perversely produced all the more conflict. Casey and Roe had to be overruled to restore the body of our constitutional law to health.
Continue reading “How to Read Dobbs”