Why Justice Thomas is the GOAT

 Carrie Severino posts:

At the Eleventh Circuit Judicial Conference event, Judge Mizelle asked Justice Thomas about his tendency to write separate or dissenting opinions that question the wisdom of long-standing precedent:   “My granddaddy would always say, ‘boy, if it don’t make no sense, it don’t make no sense.’ I’m not going to reflexively go along with something simply because others have always gone along with it.” Justice Thomas has never been afraid to be bold in dissent or when issuing a separate opinion from the majority to clarify the Constitution’s original meaning.

The Key to Interpreting our Written Constitution

 We should hold to the line of the text of the Constitution. We should neither go below the line by subtraction from what it says, nor above the line by adding to the text.

In other words, as Justice Scalia used to say (and as I say all the time in class), "the Constitution says what it says, and it doesn't say what it doesn't say."

Great Free Speech Meme

 

 

 

 

From @SallyMayweather on X

Summer Reading and Film for Summer 2024

 

“Every record has been destroyed or falsified, every book rewritten, every picture has been repainted, every statue and street building has been renamed, every date has been altered. And the process is continuing day by day and minute by minute. History has stopped. Nothing exists except an endless present in which the Party is always right.” --George Orwell 1984 

Sound familiar? Please re-read 1984 over the summer break!

And here is a link to A Man for All Seasons, an Oscar-winning play/movie about compelled speech affirming the King's divorce and re-marriage. "Bake the cake or lose your head, Sir Thomas!" Also a great film for summer.

And one more recommendation for summer reading: CS Lewis, The Screwtape Letters. I will be re-reading Screwtape myself this summer.

Finally, a little bit of legal wisdom from Grant Gilmore, The Ages of American Law:

 “Law reflects but in no sense determines the moral worth of a society. The values of a reasonably just society will reflect themselves in a reasonably just law. The better the society, the less law there will be. In heaven there will be no law, and the lion shall lie down with the lamb. The values of an unjust society will reflect themselves in an unjust law. The worse the society, the more law there will be. In hell there will be nothing but law, and due process will be meticulously observed.”  

So, where are we in 2024? And where do you want us to be in 2034?

New York Times on The Great Sorting and Voting With Your Feet

 I like to joke that there are two things I read every day--the Bible and the New York Times--because it is important to keep up with what both sides have to say. 

Well, today's New York Times has an interesting article about what some have called "The Great Sorting" of the red and the blue. Here is a link.

And here are some money excerpts:

Americans are increasingly fracturing as a people, and some are taking the extraordinary step of moving to escape a political or social climate they abhor. Democrats have left Iowa, Texas and other red states as Republicans have moved out of California, Oregon and other blue states, often over their views on issues like abortion, transgender rights, school curriculums, guns, race and a host of other matters.

While there is no precise count of how many Americans have relocated because of politics and social issues, interviews with demographers and people who have moved or are considering moving, as well as a review of social-media postings and polling, show the phenomenon is real....

 In a poll in March for the Axios-Ipsos Two Americas Index, four out of 10 adults said they were somewhat or very likely to move to a state more aligned with their political beliefs. The survey found that a majority of adults, 54 percent, were likely to move if their state passed laws that negatively affected them. “I think what Americans are reporting is that politics is a factor in these very, very important residential choices,” said Justin Gest, a George Mason University government professor who advises the Two Americas Index.

 

Although some commentators view this as a troubling trend, I believe one of the great benefits of federalism in a divided and pluralistic Nation is its gift of political choice and foot-voting as a safety valve that allows each one of us to choose to be governed locally in a state that better reflects our deepest beliefs and values. If the Republic can be saved in these divided times of ours, its last best hope may be the safety valve of federalism and foot-voting.

As Michael Greve puts it in his great book, "Real Federalism": "Federalism offers an alternative. Instead of centrally designed and enforced regimes, federalism offers choice. Instead of a voice, it offers citizens an exit--and, in due course, better government." (p. 8) And: "Federalism protects the freedom that comes from having choices." (p. 6)

My Case Western Law Review Article on School Choice Has Been Published

Link:

 Why School Choice is Necessary for Religious Liberty and Freedom of Belief

 Here is the abstract: 

Abstract

The government school monopoly for funding K–12 education creates a coercive system that commandeers a captive audience of impressionable children for inculcation in secular ideas, beliefs, and values concerning matters of truth, moral character, culture, and the good life. The brutal bargain imposed on parents by this monopoly requires them to choose between the single largest benefit most families receive from state and local governments and educating their children in a curriculum that is consistent with the preferred educative speech of the parents. To choose the latter is to sacrifice hundreds of thousands of dollars of tax-funded support for K–12 education.

This coercive, take-it-or-leave-it system of funding education is inconsistent with both the letter and the spirit of the Free Speech Clause and the Free Exercise Clause. As John Stuart Mill observed, it results in a despotism over the hearts and minds of our precious offspring and eradicates the right of parents to control the education of their children. It violates the spirit of freedom of speech by forcing parents to substitute the preferred viewpoints of government officials for their own concerning fundamentally important ideas about history, government, justice, sexuality, gender identity, and many other topics arising in the course of K–12 education. Moreover, because the government school curriculum is strictly secular, this funding monopoly inherently forces religious parents to choose between their faith and their ability to afford to educate their children. Such religious discrimination is odious to both the letter and spirit of the Free Exercise Clause.

However, the Supreme Court has made clear that the government may adopt a “strictly secular” curriculum in the public schools and has no obligation to fund private K–12 schools. So, at least for the foreseeable future, the Court’s First Amendment jurisprudence will not relieve parents of the brutal bargain imposed on them by the government school monopoly. Thus, in the short term, parents must look to federalism and foot voting to achieve at least some degree of school choice. Many states have begun to enact at least some financial assistance supporting educational choice. What is more, one state— Arizona—has enacted legislation funding educational choice for every family in the state.

As support for the school choice movement grows in many states, families who live in these states will have access to the support they need to help pay the cost of educating their children in schools of their choice. Importantly, many families may choose to vote with their feet by relocating from monopoly states to states that support educational choice. We live in a very mobile society, and people move from one state to another for many reasons. For many families, moving to states that support school choice may be the best reason of all to vote with their feet. At the very least, it should be one important factor when families decide which job offers to accept and which to reject. The hearts, souls, and minds of our children matter a great deal, and parents should always do what they believe is best to train up their children in the way they should go.

 To end this Article where it began, the letter and spirit of the First Amendment deeply values freedom of religion, thought, and belief formation. If these values are to survive in our deeply divided, pluralistic Nation, parents must be free to choose an appropriate education for their children, without having to sacrifice the benefit of public funding of education. To put it succinctly, educational funds should be directed to children and their parents, not to strictly secular government schools. School choice is the civil rights and civil liberties issue of this present age, and one way or another—either in the courts or in the states—we need to get there.