Originalism vs Living Constitution: My Lecture

 

In case you are interested, here is a video lecture in which I discuss the Great Debate--Originalism vs. The Living (Common Law) Constitution:

Duncan Originalism vs Living Constitution:

https://unl.yuja.com/V/Video?v=6827926&node=29033304&a=188047276&autoplay=1

 

 I share it just in case you are interested in learning about the Great Debate about how to read the Constitution. And here are two good short articles on originalism vs the Living Constitution:

 

Strauss article (link); Sollum Article (link) 

 

 Finally, here is a quotation from Justice Gorsuch to the NYT (link) on his view of originalism:

     So what originalism is, is just the simple idea that you are entitled to rely on the written words in the Constitution. We the people, the American people, bothered to write it down. Write down the law. It was the first written constitution of its kind in human history. And so when it promises you a right to a jury trial, when it promises you a right to confront your accuser, when the laws enacted promised somebody by treaty certain rights, an originalist, a textualist, will take that seriously. And there’s going to be no pragmatic argument, no argument from efficiency. Nothing that can undermine that. Now, if you want to change the law, there are lawful processes for doing so, but the originalists and textualists, simply put, seek to honor written law.

It seems clear that he duty of a court is to follow the written law (as opposed to amending the written law).

Court Protects Girls' and Women's Sports: WEST VIRGINIA ET AL. v. B. P. J.

 NYT: 

The Supreme Court upheld West Virginia and Idaho state laws on Tuesday that bar transgender athletes from playing on girls’ and women’s sports teams, a decision with nationwide implications involving an issue championed by President Trump.

Justice Brett Kavanaugh, writing for the [6 tp 3] majority, said states “may maintain women’s and girls’ sports for biological females.”

 

Common sense and fairness prevails! 

"Justice Gorsuch Sketches The Post-Fulton Roadmap in Amish Septic System GVR"

We won't cover all this in class, but this is an  interesting prediction of where Free Exercise law may be heading.

Josh Blackman writes (link):

In January, a group of Amish people filed a cert petition. Mast v. Fillmore County challenged Minnesota's decision to require them to install a septic system. The Amish people objected to installing this system on religious grounds. They argued that the state violated RLUIPA. On Friday, the Court GVR'd Mast in light of Fulton. Justice Alito only concurred in the judgment to vacate the judgment, and remand. But he did not agree with the decision to remand in light of Fulton. He wrote, "The lower court plainly misinterpreted and misapplied" RLUIPA. I don't recall ever seeing a Justice concur in the judgment of a GVR, but not agree with the majority on the basis of the remand. He threw shade at the shadow docket!

Justice Gorsuch wrote a seven-page opinion concurring in the GVR. He agreed that the case should be reconsidered in light of Fulton. And he sketched out what should become the post-Fulton roadmap for Free Exercise Clause cases. Specifically, Justice Gorsuch highlighted three aspects of Fulton that apply in strict scrutiny cases–the standard of review that governs RLUIPA claims.

First, Justice Gorsuch explains that the government must establish its interest with specificity. This analysis must be "precise," rather than "broadly formulated."

Perhaps most notably, the County and courts below erred by treating the County's general interest in sanitation regulations as "compelling" without reference to the specific application of those rules to this community. As Fulton explains, strict scrutiny demands "a more precise analysis."593 U. S., at ___ (slip op., at 14). Courts cannot "rely on 'broadly formulated'" governmental interests, but must"'scrutinize[] the asserted harm of granting specific exemptions to particular religious claimants.'" Ibid. (quoting Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U. S. 418, 431 (2006)).

And the government must establish this interest with respect to the specific religious community. As I read Gorsuch, Philadelphia would be required to establish its interest with respect to the Roman Catholic Church. And Minnesota would have to establish its interest with respect to this specific Amish group.

Accordingly, the question in this case "is not whether the [County] has a compelling interest in enforcing its [septic system requirement] generally, but whether it has such an interest in denying an exception" from that requirement to the Swartzentruber Amish specifically. Fulton, 593 U. S., at ___ (slip op., at 14) (emphasis added); see also Holt v. Hobbs, 574 U. S. 352, 362–363 (2015) (RLUIPA requires courts to "scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants" (internal quotation marks omitted; emphasis added)).*

Second, Justice Gorsuch considers the sorts of exemptions the state gives to other groups.

Separately, the County and lower courts erred by failing to give due weight to exemptions other groups enjoy. For example, in Minnesota those who "hand-carr[y]" their gray water are allowed to discharge it onto the land directly. Minn. Admin. Rule 7080.1500, §2. So thousands of campers, hunters, fishermen, and owners and renters of rustic cabins are exempt from the septic system mandate.

Gorsuch explains that with strict scrutiny, the government must show why it cannot give the Amish the same exemption. And that rationale must be "compelling."

Under strict scrutiny doctrine, the County must offer a compelling explanation why the same flexibility extended to others cannot be extended to the Amish. As Fulton put it, the government must offer a "compelling reason why it has a particular interest in denying an exception to [a religious claimant] while making [exceptions] available to others." 593 U. S., at ___ (slip op., at 15). Or as this Court has said elsewhere, it is "established in our strict scrutiny jurisprudence that a law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited." Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 547 (1993) (internal quotation marks and alteration omitted);see also Holt, 574 U. S., at 367 ("[T]he Department has not adequately demonstrated why its grooming policy is substantially underinclusive"); O Centro Espírita, 546 U. S., at 436 ("The Government's argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions").

Next, Gorsuch makes a fascinating move. The Court must consider other jurisdictions that have exempted people of faith.

Relatedly, the County and lower courts failed to give sufficient weight to rules in other jurisdictions. Governments in Montana, Wyoming, and other States allow for the disposal of gray water using mulch basins of the sort the Amish have offered to employ. App. to Pet. for Cert. 73–74.Given that, the County in this case bore the burden of presenting a "compelling reason why" it cannot offer the Amish this same alternative. Fulton, 593 U. S., at ___ (slip op., at15). To be sure, the County stresses the fact that the "record contains no evidence of a single, properly working mulch basin system in Minnesota." App. to Pet. for Cert. 74. But that is not enough.

Minnesota must show why they cannot follow the rules from other jurisdictions.

It is the government's burden to show this alternative won't work; not the Amish's to show it will. "[S]o long as the government can achieve its interests in a manner that does not burden religion, it must do so." Fulton, 593 U. S., at ___ (slip op., at 13).

I don't think this principle follows from Fulton. But it could potentially be a game-changer for Free Exercise cases. States that are overly protective of religious liberty will now set the floor for states hostile to free exercise claims. California would have to follow Texas.

Third, the state must demonstrate that its policy is narrowly tailored "with evidence." Not "supposition." And Justice Gorsuch favorably cites Tandon v. Newsom, which favorably cites Judge Sutton's Neace decision: the state cannot assume that people of faith are less trustworthy. than others who receive exemptions.

But strict scrutiny demands more than supposition.The County must prove with evidence that its rules are narrowly tailored to advance a compelling state interest with respect to the specific persons it seeks to regulate. Here, that means proving that mulch basins will not work on these particular farms with these particular claimants. Again, if "the government can achieve its interests in a manner that does not burden religion, it must do so." Fulton, 593 U. S., at ___ (slip op., at 13) (emphasis added); see also Tandon v. Newsom, 593 U. S. ___, ___ (2021) (per curiam) (slip op., at 3) ("The State cannot 'assume the worst when people go to worship but assume the best when people go to work'" (quoting Roberts v. Neace, 958 F. 3d 409, 414 (CA6 2020) (per curiam))).

I think Justice Gorsuch has sketched a three-part roadmap for Free Exercise Clause claims after Fulton. Lower courts, take notice.

Fifth Circuit en banc in Classroom Ten Commandment Case

Stephanie Barclay writes

 

Money quotation:

 But the Founding-era hallmark of a religious establishment was mandatory attendance at religious services, not mere exposure to religious content. In Louisiana and Texas, students are not being required to pray, to affirm religious belief, or to participate in any religious observance, or asked to view others undertaking these exercises. They are being exposed to a display of text – text that, whatever its religious significance, the states contend has historical importance to the development of American law.

Any governmental acknowledgment of religion could be characterized as “coercive” to someone who disagrees with it. That is precisely the open-ended, policy-driven inquiry that Kennedy rejected in favor of historical analysis.

Nebraska Lawyers are Courageous: Meriwether v Hartrop

 Meriwether v Hartrop is a case about competing narratives, competing versions of the truth. Is biology a social construct? Can a man become a woman by identifying as a woman? Can a woman become a man by identifying as a man? Or is biology (and faith) real and inform us that gender is fixed at birth regardless of personal choice and identity?

Meriwther believed his version of the truth. Is his version a reasonable understanding of reality? If so, can his government employer compel him to say things he believes are untrue? To borrow from 1984, does he have the right to hold to his belief that 2 plus 2 make 4? Or must he say 2 plus 2 make 5?

If he had been a coward, it would have been so easy to use compelled pronouns and protect his job and his livelihood. But he chose to be a courageous leader, and declined to say something he believed to be untrue.

Here is a way to think about it. If you shared Meriwether's views about biology and gender, what would you do if you were at a meeting of student group leaders, and the person who called the meeting said "Let's start this meeting by introducing ourselves and sharing our pronouns?" Would you set aside what you believe to be true and share your pronouns to appease those who hold the competing narrative about biology and gender? Would you sacrifice what you believe to be true in order to be "nice"? Does being nice require you to appear to embrace a narrative you believe is untrue?

Courage is contagious; when you take a stand for truth it makes it easier for the next person to do so. But cowardice is also contagious. And the Law College's mission statement makes courage part of our mission.

So be courageous. And to paraphrase Charlie Kirk's advice, live large, love God, find love, get married, and have as many children as God gives you. Marriage and children are wonderful gifts to make life on this planet full of love and joy.

Be seeing you!