The Rule of Law and the Law of Nature

by Russell Hittinger

First Principles
August 26, 2010

The rule of law is essential to a free society. But is the rule of law self-standing, independent from any other standard or source? If not, upon what does it depend?

Russell Hittinger addresses these very questions in the following piece, which examines the influence of a “higher law” in the American experience, beyond the immediate civil society and its discourse.

The prominence of higher law thinking at the time of the American founding is too well known to warrant more than a brief comment. Whatever may have been Thomas Jefferson’s theological convictions, he understood well enough that the “Laws of Nature” needed to be situated in reference to “Nature’s God.” Similarly, Alexander Hamilton asserted that the “Sacred Rights of Mankind are . . . written, as with a sunbeam, in the whole volume of human nature, by the hand of the Divinity itself, and can never be erased or obscured by mortal power.” From every American pulpit, and in every legislative assembly, the higher law was a familiar coin of discourse. Within a generation of the American founding, the higher law doctrine was prominent in the debate over slavery, especially after the Fugitive Slave Act (1850). Interestingly, most of the federal judges who believed that slavery violates natural law did not use the higher law doctrine as an excuse for usurping constitutional authority.

n his dissenting opinion in Scott v. Sandford (1857), Justice McLean reminded the majority that the much-vexed jurisdictional question of congressional authority over the territories did not entitle the Court to claim interpretive authority over the natural law. Chief Justice Taney had contended in the majority opinion that the appeal of the Declaration of Independence to “Nature’s God” should be interpreted in light of public opinion, thereby rendering the natural law inferior to human judgment. To the contrary, McLean responded, the slave “bears the impress of his Maker, and is amenable to the laws of God and man; and he is destined to an endless existence.” Although the Constitution gives the Court no authority to change the positive law of the Constitution, by the same token it does not hand over the higher law to the Court’s estimation of public opinion.

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When Justice Comes Naturally

by John O. McGinnis

Wall Street Journal
August 27, 2010

At the confirmation hearing of Elena Kagan earlier this year, various senators made a point of saying that, when it came to picking justices for the Supreme Court, they wanted to vote for nominees who were in the "mainstream" of constitutional thinking. It is an admirable goal, but the mainstream is hard to navigate these days, in part because the shorelines are so distant. On one side, where Republicans generally reside, there is the jurisprudence of originalism, where the meaning of the Constitution is fixed by the meaning of the text at the moment of enactment. On the other, generally inhabited by Democrats, there is the idea of a living Constitution, where meaning is updated by evolving moral principles.

In Constitutional Illusions & Anchoring Truths, Hadley Arkes tries find a path between these two extremes. In particular, he wants to recapture the natural-law tradition that grounds any reading of the Constitution in moral truths. Like believers in a living Constitution, he thinks that interpretation must go beyond the text and be informed by moral principles. Like originalists, he believes in an unchanging Constitution, because natural law—the first principles of individual conduct and political legitimacy—is part of the immutable order of things.

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Four Secrets to Law School Success

by Michael C. Dorf

FindLaw
August 23, 2010

With a job market that remains, at best, uncertain awaiting them at the end of their three years, new and returning law students are understandably anxious about what they can do to make the most out of their legal education. In the past, I have offered advice about the first-year curriculum and how to think like a lawyer. In this column, I share four lessons that I have learned in nearly two decades of law teaching.

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Justice Breyer Takes 'Originalists' to Task In a New Book

Wall Street Journal
August 23, 2010

When he was nominated to fill the Supreme Court's last vacancy, Stephen Breyer said he would strive to make the "law work for people." Eleven years later -- with a new opening on the court and controversy raging over the judiciary's role -- Justice Breyer wants to tell a broader audience how that should be done.

In a book slated for release next month, Justice Breyer -- among the more liberal members of the court -- gives a detailed insight into his philosophy of deciding cases, namely that the Constitution should be viewed in light of its overarching goal, which he sees as creating a participatory, democratic society. In the process, he offers a rejoinder to a longtime intellectual opponent, Justice Antonin Scalia, who advocates "originalism," or a more literal interpretation of the Constitution's meaning at the time of its writing.

Active Liberty: Interpreting Our Democratic Constitution explains Justice Breyer's approach and applies it to some of the most divisive topics that come before the court. These include everything from freedom of speech and privacy rights to affirmative action and last June's Ten Commandments cases, which addressed the constitutionality of religious symbols on government property.

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On Prop 8, it's the evidence, stupid

by Lisa Bloom

CNN
August 18, 2010

There's a big difference between a political debate about same-sex marriage and the recent hard-fought court challenge to the California ban, Proposition 8.

In politics, anything goes: Vague, sinister comments about same-sex marriage threatening children or undermining the sanctity of heterosexual marriage were prevalent during the Prop 8 campaign. In court, same-sex marriage opponents needed solid evidence to back up these and other claims.

Despite "able and energetic counsel," they never produced it. That's why they lost, resoundingly, in the federal district court. And that lack of evidence should dog opponents up through the chain of appeals that is now beginning, because appellate courts are required to review only the evidence in the court record and to give great deference to Judge Vaughn Walker's findings of fact. He was there, after all, presiding over the trial, and the appellate judges weren't.

And what a lopsided trial he presided over. All the anti-same-sex marriage arguments imploded when subjected to the rules of evidence.

"You don't have to have evidence of this point," counsel responded to the judge's question asking what support existed for their claim that "responsible procreation is really at the heart of society's interest in regulating marriage."

No, sorry, at trial, you do have to have evidence. Of this point and every point. (And since -- as even Supreme Court Justice Antonin Scalia once pointed out in another case -- the sterile and elderly are allowed to marry, it can't be all about procreation.)

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Constitutional Theory Debates in a Nutshell (Or a Lot of Them, Anyway)

by Orin Kerr

The Volokh Conspiracy
August 16, 2010

In Year Zero, a new constitutional provision is enacted that has two provisions, A1 and B1. In Year X, provisions A1 and B1 no longer seem to make as much sense as they did in Year Zero. Soon after, the Supreme Court interprets A1 to mean A2 and B1 to mean B2. A few decades later, American society has embraced A2 as a universal principle. A1 is not just unacceptable but neanderthal. In contrast, B2 has become quite controversial, and public opinion is now divided between B1 and B2.

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Finding what makes constitutions endure

The University of Chicago
News Office
August 13, 2010

When the government of Kenya wanted outside advice this year on drafts of the country’s new constitution, one of their consultants was University of Chicago Law School professor Tom Ginsburg, one of the world’s foremost experts on how to write an enduring constitution.

In a world where an average of 10 new constitutions are created each year, Kenya is not alone in its drafting struggles. In fact, Ginsburg’s Comparative Constitutions Project, which he co-directs with Zachary Elkins, a University of Texas political scientist, has found more than 900 national constitutions enacted since 1789. The researchers painstakingly coded that material into an extensive dataset, which is proving invaluable, both to scholars and to countries like Kenya that need practical help with their legal blueprints.

Advising those countries is a weighty business, Ginsburg says, because of the real risk that their constitutions might fail.

“Most constitutions die at a very young age and are replaced often,” Ginsburg says. “They are, it turns out, very fragile things.”

Another surprising finding of the project is that although the United States has the world’s most durable constitution, the American document does not offer other countries a reliable model for success. In fact, the work suggests that constitutions emulating more recent efforts from Mexico or India may stand the best chance of surviving.

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Free and fair

Washington Post
Editorial
August 9, 2010

There are two reasons to hail the adoption of Kenya's new constitution, which won about two-thirds of the vote in a national referendum last week. The first cause for celebration is that the vote itself, and the campaign preceding it, took place, for the most part, peacefully.

This was far from predictable in a country whose last presidential election, in 2007, devolved into horrific ethnic violence that claimed the lives of 1,300 people. But the major political parties that have been governing in coalition since the upheaval basically kept their promises to keep the voting free and fair.

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Elena Kagan Sworn in at Supreme Court

Associated Press
August 7, 2010

Elena Kagan has been sworn in as the 112th justice and fourth woman ever to serve on the Supreme Court. She'll be formally installed at the start of the court's new term in October.

Kagan Is Sworn in as the Fourth Woman, and 112th Justice, on the Supreme Court

New York Times
August 7, 2010

Elena Kagan was sworn in on Saturday as the 112th person, and fourth woman, to serve on the Supreme Court, continuing a generational and demographic transformation of the nation’s highest bench.

In keeping with tradition, Ms. Kagan first took the constitutional oath given to a wide array of officials and then the judicial oath administered to those wearing the robe. Joined by family and friends in the Supreme Court building, she swore to “administer justice without respect to persons, and do equal right to the poor and to the rich.”

The low-key formal ceremony came two days after she was confirmed by the Senate and a day after President Obama marked her ascension with a jubilant televised celebration in the East Room of the White House. She was Mr. Obama’s second successful nominee to the court, and her approval by the Senate was taken as a jolt of validation for a White House battered by political and economic troubles.

Succeeding Justice John Paul Stevens, the court’s retiring liberal leader, Justice Kagan, 50, presumably will not drastically change the philosophical balance on the divided court. But if she were to serve until she was 90, as Justice Stevens has, she would have four decades to shape the nation’s legal architecture, long after the man who appointed her left the White House. Even a shorter tenure would give her time to leave her mark.

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Senate Confirms Kagan for Court

Wall Street Journal
August 6, 2010

The Senate on Thursday confirmed Elena Kagan on a 63-37 vote to become an associate justice of the U.S. Supreme Court, with a handful of Republicans joining almost all Democrats in making her the fourth woman to serve on the high court.

When the court's new term starts in October, Ms. Kagan, 50 years old, will join Justices Ruth Bader Ginsburg and Sonia Sotomayor as the first trio of women in the court's history.

Fifty-eight Democrats and independents, as well as five Republicans, voted for Ms. Kagan. Thirty-six Republicans and one Democrat, Sen. Ben Nelson of Nebraska, voted against her.

The five Republicans who supported Ms. Kagan were Sens. Susan Collins and Olympia Snowe of Maine, Lindsey Graham of South Carolina, Richard Lugar of Indiana and Judd Gregg of New Hampshire.

With the Senate vote, President Barack Obama continues to put his stamp on the top court, following last year's confirmation of Justice Sotomayor, another relatively youthful woman who could serve for decades.

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Kenyans celebrate approval of new constitution

Washington Post
August 6, 2010

Kenyans overwhelmingly approved a new constitution that promises to address the core problems of governance, such as corruption and tribalism, that have plagued this country throughout its post-colonial history.

Nearly 70 percent of Kenyan voters backed the new draft, the nation's election authority announced Thursday, citing official tallies from most polling stations.

The constitution's supporters declared that Kenya had entered a new era.

"Saying that we have won is an understatement," Energy Minister Kiraitu Murungi told reporters. "Kenya has been completely reborn."

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Scalia Was Right

by James Taranto

Wall Street Journal
August 5, 2010

For the first time, a federal judge has held that the Constitution mandates the legal redefinition of marriage. The California Supreme Court had reached a similar conclusion in 2008, and voters responded by amending the state constitution via a ballot measure known as Proposition 8. If yesterday's ruling is eventually upheld by the U.S. Supreme Court, it would mandate same-sex marriage nationwide. The Los Angeles Times describes the ruling in Perry v. Schwarzenegger:

California 'has no interest in differentiating between same-sex and opposite-sex unions,' U.S. District Chief Judge Vaughn R. Walker said in his 136-page ruling. . . .

Previous court decisions have established that the ability to marry is a fundamental right that cannot be denied to people without a compelling rationale, Walker said. Proposition 8 violated that right and discriminated on the basis of both sex and sexual orientation in violation of the equal protection clause, he ruled.

"Walker stayed his ruling at least until Friday, when he will hold another hearing," the Times reports. Presumably it will be appealed to the Ninth U.S. Circuit Court of Appeals. That circuit is notoriously liberal, so one would expect the ruling would be likelier than not to be upheld, whereupon it would go to the Supreme Court.

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Kenya Stakes Reinvention on Constitution Vote

New York Times
August 3, 2010

Ever since independence in 1963, Kenya has been ruled by a winner-take-all political system that has exacerbated ethnic divisions and steadily turned the country into one of the most corrupt on the continent.

On Wednesday, that could change.

Starting before dawn, this nation, a linchpin in sub-Saharan Africa, will vote on a new constitution that seeks to address the flawed political dynamics that exploded after the disputed 2007 presidential election.

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‘Law & Order’ Probably Doesn’t Like You

by Stanley Fish

New York Times
August 2, 2010

Nothing personal. But now that Dick Wolf’s “Law & Order” has called it a day — or rather a 20-year run — it is time to notice what may be its most remarkable feature; not the brilliant formula that offers both the comfort of predictability and the promise of constant surprise (an episode almost never ends up where it seems to be going at the beginning), not the ability of the show to survive major cast changes without missing a beat, not the considerable accomplishment of making the arcane vocabulary of the law ( “fruit of the poisonous tree,” “asked and answered,” “prejudicial,” “allocute,” “goes to relevance”) as familiar to TV viewers as the jargon of sports, but the extraordinarily long list of professions, classes and category of persons it doesn’t like.

Begin with rich people. “Law & Order” hates rich people; they are arrogant, they are condescending, they consume conspicuously, and, worst of all, they believe they are above the law. In one episode, a Britney-Spears-type starlet is informed of a $400,000 blackmail demand made by paparazzi. She retorts, “$400, 000 is less than I spend on sweatpants.” In another episode (“Venom”), a 64-year old woman who is bent on protecting her 27-year old husband says to one of the district attorneys: “You have no idea of what a woman in my position can do.” Actually they have a very good idea. Time and again wealthy people manipulate the system by getting well connected friends to intervene in cases or by hiring high-priced lawyers who know how to put up procedural roadblocks forever.

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Fertility's New Legal Front

Wall Street Journal
August 3, 2010

Advances in reproductive technology that were the stuff of science fiction just a few decades ago are wreaking havoc on a corner of the Social Security system—survivor benefits for some children whose parents have died.

Every year, more babies are born stemming from sperm or embryos that have been stored for months or years. In some cases, one parent has already died, usually the father.

Although the federal government generally must pay monthly benefits to children when parents die, the law is murky on whether it has to do the same for a child conceived after a parent's death. Sometimes, the Social Security Administration pays, sometimes it doesn't. So far, the decision has largely depended on the laws in the state in which the deceased parent lived.

"We're in a brave new world here.…Technology has gone far beyond where the law ever dreamed it would," said Sonny Miller, a lawyer in Minnesota and a member of the legislative committee of the Minnesota bar association's probate and trust law section.

State laws on posthumous birth—or the birth of a child after the death of a parent—vary widely. Eleven states explicitly allow recognition of a parent-child relationship that begins with posthumous conception. The laws of most states, however, define the parent-child relationship more traditionally. For the relationship to exist, a parent must be alive at the time of conception.

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The Temptation of Elena Kagan

by Ronald Dworkin

New York Review of Books
August 19, 2010

Recent Senate Judiciary Committee hearings on Supreme Court nominees have been a waste of everyone’s time, a parade of missed opportunities. In 1995 Professor Elena Kagan, then of the University of Chicago Law School, explained why:

When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public…. Such hearings serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government. Neither can such hearings contribute toward an evaluation of the Court and a determination whether the nominee would make it a better or worse institution.

She offered clear advice. Though nominees should not declare their voting intentions about specific cases on the horizon, she said,

a nominee can say a great, great deal before making a statement that, under this standard, nears the improper. A nominee, as I have indicated before, usually can comment on judicial methodology, on prior case law, on hypothetical cases, on general issues like affirmative action or abortion.

Her own confirmation hearings in late June were a Galilean moment. How much of her 1995 statement would she recant? Almost all of it, it turned out. She said that Senator Orrin Hatch of Utah had persuaded her, in a private meeting before the hearings, that the “balance” of her earlier statement was “a little off.” So, contrary to her own advice, she would not “grade” either the justices of the present court or the Court’s past decisions, she would not speculate about hypothetical cases, and she would certainly not discuss “general issues like affirmative action or abortion.” On the contrary, she vowed to say nothing from which the public might draw even any general assumptions about the political impact she might have on the Supreme Court.

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Living It Up

by Adrian Vermeule

The New Republic
August 2, 2010

Book Reviews of
Keeping Faith with the Constitution
by Goodwin Liu, Pamela S. Karlan, and Christopher H. Schroeder

The Living Constitution
by David Strauss

Justice Holmes described the Constitution as an “organism,” and some people say that “we have a living constitution.” What do such metaphors mean? Two new books lay out two different accounts of living constitutionalism: “constitutional fidelity” in the first book, “common-law constitutionalism” in the second. These living constitutionalisms have a common enemy—originalism, roughly the idea that the Constitution should be read according to the public meaning the founding generation understood it to have. But once that enemy is slain, the two versions of living constitutionalism face new challenges. In the case of constitutional fidelity the challenges are insuperable, while for common-law constitutionalism they are merely daunting.

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Kenyans to Vote on Controversial Constitution

Wall Street Journal
August 2, 2010

Kenyans will vote on a controversial new constitution in a referendum on Wednesday—the latest step in a series of efforts by the nation's leaders to bring political change to their country to quell tribal tensions.

The U.S., eager to bring stability to a regional powerhouse and a strong ally in its fight against terrorism, maintains a new constitution is central to that effort. U.S. officials, including the Kenya ambassador, Michael Ranneberger, and Vice President Joseph Biden, who visited Nairobi in June, have spoken at length about the importance of the draft and the need for change. More than 1,300 people were killed in ethnic violence in the country in early 2008.

"A new constitution, if it is adopted, will strengthen Kenya's democratic institutions," said Johnnie Carson, the U.S. assistant secretary of state for African affairs in a recent interview. "We believe this is an opportunity for fundamental change, but the decision for that change is in the hands of Kenyans."

The draft provides for a more decentralized democracy that checks the power of the president and establishes two houses of parliament. The current system of government allows for an imperial presidency, where the executive branch holds most of the power. Historically, whatever tribe has held executive power has become the primary beneficiary of any government largesse.

The document also tackles the controversial issues of abortion, Islamic courts and land distribution. It allows, for example, the state to seize property for the benefit of the state, and gives parliament the mandate to enact land reform to address inequities and corruption.

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