Tuesday, April 23, 2013
After law school, I had the pleasure of clerking for Chief Justice Jack Pope, a man of profound integrity and intellect. A great mentor, he recently turned 100. Happy birthday!
"Pope served on the Supreme Court from 1964-85, with his final two years as chief justice, and at 100 is the longest-lived state chief justice in U.S. history and appears to be the first to reach the century mark, said Osler McCarthy, staff attorney for the Supreme Court."
A very interesting piece defending what Michael McConnell says is "one of the most reviled decisions of the Supreme Court in recent years." The piece is not a defense of the reasoning in Citizens United; moreover, it criticizes "the majority's sunny dismissal of the corrupting influence of independent expenditures" as "wholly unpersuasive."
Instead, McConnell defends the outcome on the basis of the First Amendment freedom of the press:
There is no serious doubt that some corporations – media corporations – have a constitutional right under the Press Clause to editorialize about candidates while the voters are making up their minds . . . . So the dispositive question becomes whether the protections of the Press Clause are confined to a certain set of actors, namely the institutional press (however defined), or whether it protects an activity: publishing information and opinions to the general public. Only if the former, narrower, interpretation is valid can Citizens United be wrongly decided. Although the narrow interpretation has received some support in recent years, and Justice Stevens appears to embrace it in one sentence and a footnote in his Citizens United dissent, it is in conflict with the great weight of precedent, departs from the unequivocal historical meaning of the Clause both before and for more than 100 years after its enactment, and – perhaps most decisively – requires a legally enforceable line between “press” and others, which is inherently unworkable and probably would not even produce a different result in Citizens United itself.
He then explores the implications of this disposition, one of the most important of which is that while the right of groups to publish views and opinions about candidates and campaigns would be protected, campaign contributions would not be:
The right to publish belongs to everyone – to natural persons like Thomas Paine, to business corporations like the New York Times Co., and to non-media corporations like Citizens United – but contributing to candidates is not an exercise of the freedom of the press. This is not to claim that there is no constitutional right to contribute to campaigns – just that the Court could have decided Citizens United while leaving the jurisprudence of contributions untouched. From the point of view of judicial minimalism, that would have been a virtue.
Monday, April 22, 2013
On Friday, at Notre Dame Law School, I had the pleasure of participating in a really interesting interdisciplinary roundtable-conference, which was generously organized by Prof. David Opderbeck of Seton Hall (and, this semester, of Notre Dame). One of the presentations was by (and several of the discussion-sessions were about) Christian Smith, who presented the basic argument of his fascinating book, What is a Person? Rethinking Humanity, Social Life, and the Moral Good from the Person Up (Chicago 2010). How cool, to write -- and to pull off! -- a book with that title.
Not to give too much away, but . . . a person is "a conscious, reflexive, embodied, self-transcending center of subjective experience, durable identity, moral commitment, and social communication who -- as the efficient cause of his or her own responsible actions and interactions -- exercises complex capacities for agency and intersubjectivity in order to sustain his or her own incommunicable self in loving relationships with other personal selves and with the nonpersonal world." It's critical realism, personalist theory, antinaturalistic phenomenological epistemology, and Charles Taylor about social structures, human dignity, and the good. Wow!
Congratulations to Chris Eisgruber--a fellow member of the law and religion guild--upon his election as the 20th President of Princeton University. Eisgruber's book (co-authored with Larry Sager) Religious Freedom and the Constitution (Harvard, 2010) has been a formidable contribution to the field (especially for those of us who disagree with aspects of it), and Chris has been a generous conversation partner at many law and religion gatherings.
This also continues an interesting story about lawyers being tapped for university presidencies. With some notable exceptions (Robert Maynard Hutchins and Kingman Brewster come to mind), it seems to me there was a longtime bias against JDs (or LLBs in a bygone era) serving as presidents of elite institutions, but there is a trend over the past few decades in the other direction--Lee Bollinger, James Freedman, and Derek Bok are just a few examples. Why? My guess is that it's a significant marker of the acceptance of legal scholarship as a research field in the wider academy and the skills that lawyers often bring to such administrative positions--and, of course, the talents of the individual candidates.
You should make the time to read Rob Vischer's new piece, Do For-Profit Businesses Have Free Exercise Rights? One interesting feature of the paper is Rob's engagement with the First Amendment institutionalism literature. He makes the case for some line drawing, in his usual careful and thoughtful way. Here is the abstract:
Americans are understandably troubled by the prospect of Wal-Mart and the First Presbyterian Church as conceptually identical free exercise claimants. As an expanding array of for-profit businesses sue to block enforcement of the HHS contraception mandate, there is a danger that our failure to distinguish them will weaken the protections for all institutional free exercise claimants. Except for some still largely uncontroversial questions of internal church governance, the “moral bedrock” of religious liberty is increasingly contested when invoked by institutions. Absent some categorical distinctions, we risk what Fred Schauer and others have called “institutional compression” through a process “of leveling down rather than leveling up.” Nevertheless, in the wake of Citizens United, courts may decide not to embrace potential paths of distinction. If the identity of the speaker doesn’t matter for purposes of free speech, it is tempting to say that the identity of the actor doesn’t matter for purposes of free exercise.
Foreclosing a for-profit business’s standing to raise free exercise claims entirely is not justified. However, in light of the differences between corporate political speech and corporate religious exercise, and in light of the enormous market power wielded by for-profit businesses in the provision of essential goods and services, including the paths by which to earn a livelihood, a court would be justified in interpreting free exercise doctrine to reflect institutional distinctions.
Sunday, April 21, 2013
Just a bit, from what I thought was a good piece by Ross Douthat, commenting on the argument one is hearing in some quarters that the Gosnell case confirms the merits of the pro-abortion-rights side's arguments:
The only things missing from this clean, airtight, entirely consistent argument are, well, all the dead babies in the Gosnell clinic — or the dead “precipitated fetuses,” to employ the language Gosnell and his associates used to euphemize their practice of delivering and then “snipping” rather than aborting in utero. Their absence is not necessarily a problem if you’re willing to argue that those babies were non-persons before delivery and became persons immediately after (in which case Gosnell is guilty of infanticide but a more competent late-term abortion facility wouldn’t be), or if you’re willing to argue, with Peter Singer and some others, that personhood is something that emerges gradually at some indeterminate time after birth (in which case Gosnell’s “snipping” wasn’t murder at all). The former, I think, is the more common form of pro-choice absolutism, and the latter belongs to the more philosophically-inclined fringe (although the debate over “born-alive” bills has moved the official consensus fringeward). But if you’re already committed to absolute support for abortion rights, either argument will suffice to justify treating Gosnell’s conduct as irrelevant to the broader abortion controversy.
What neither argument seems likely to do, however, is do much to persuade the many, many “pro-choice but …” people who aren’t already so committed, and whose support for abortion rights tends to waver most when they’re confronted with the reality of what abortion actually does to fetal life — in clean, well-funded facilities as well as filthy ones, and in the womb as much as on Gosnell’s operating tables. This is, of course, the central reason why the pro-life side assumes that mainstream reporters didn’t particularly want to cover the trial: Because the mainstream press leans pro-choice, because mainstream journalism is pitched to readers in the mushy middle on abortion, and because the practice of “after-birth abortion” makes fetal humanity manifest in ways that almost inevitably push that middle in a more pro-life direction. . . .
Saturday, April 20, 2013
Friday, April 19, 2013
The Murrah Bombing occurred 18 years ago today. Maria Ruiz Scaperlanda reflects on that day at her blog, Day by Day.
Jesus Wept - Memorial at the site of the OKC bombing.
I would not normally post this sort of thing, but in light of the dreadful recent events in my dear hometown of Boston, as well as the special circumstances and merits of the case, I believe it to be worth an exception.
My close high school friend, John Connolly, is running for mayor of Boston. John is at present a Boston City Councilor and his political focus to date has been on public education. John's views have never been a spot-on match for mine: we were debating opponents all through school (law professor nerditude is inescapable) and I have many memories of strongly felt and argued disagreements which persist to this day. But--or, I should say, And--there is much that I admire deeply about John, as a politician and as a man. I am confident that he would be an excellent mayor for a city with rich traditions and tough, strong bones--that he has a powerful vision for its future and the character to lead it well.
For New York area residents, John is hosting an event on May 1 at Patrick Conway's Pub and Restaurant down in mid-town. Write to me off-line if you might be interested in attending.
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