Scalia's Dissent in Abramski: Textualism, Purpose, and Politics

Justice Scalia is every conservative’s favorite member of the Supreme Court.  Conservatives on and off the Court speak enthusiastically about complying with the text of governing law and engaging in “objective interpretive method,” so that courts are not in the business of imposing their preferred politics on the Constitution and federal laws they apply.  So the question raised by a recent gun control case, Abramski v. United States, 12-1493 (June 16, 2014), is why Justice Scalia and the other three conservatives on the Court voted to overrule an appellate opinion adopting the view of a majority of lower courts that where straw buyers of guns represent themselves as the actual gun buyer they violate the federal statute prohibiting knowingly making false material statements related to lawfulness of the gun sale.  Abramski contended, and the dissent by Justice Scalia agreed, that if the person at the counter of the firearms store is eligible to own a gun, the statute authorizes the sale. Id. at 6. This view was thus that, so long as the person at the counter was legally eligible to own a gun, the sale is legal even if the person the gun was purchased for could not himself buy or own a gun.  Id. at 7. The majority noted that this “ambitious argument,” which assumes that it does not matter if the person for whom it was purchased is not eligible to own a gun, had not been accepted by any previous court.  Id.

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Equality, Liberty, and the Tenth Circuit Decision in Favor of Gay Marriage

Modern right-libertarians sometimes contend that contemporary courts place undue emphasis on trying to explicate the requirements of constitutional equality and, in so doing, undercut securing the proper scope of the liberty rights secured by the Constitution. What they miss is that the fundamental rights long since recognized as part of the constitutional order become vastly less meaningful if they are not accompanied by an equal commitment to fulfilling the Declaration of Independence’s promise “that all men are created equal.” This has been a problem from the beginning. From the days of the early American republic, all the states and the nation managed to adopt bills of rights, and we have always been enamored of the concept of “inalienable” rights; but, despite the Declaration’s lip service to human equality, the nation began by the Constitution’s embracing the “slavery compromise” to ensure the creation of the federal union, even as we abandoned our natural law ideals...

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Mormon Leader Says Speech is a Threat to Speech

It has become a theme of conservative religionists that there is a frightening new trend toward demonizing religious thought and expression and that this trend actually presents a significant threat to religious freedom.  The argument is common, but exemplary is Dallin H. Oaks’ suggestion that “[w]e are feeling increasing restrictions on unpopular views and unwelcome facts.” Transcript:  Hope for the Years Ahead, address at Utah Valley Univ., 16 April 2014, at 2.  The result, he says, is a threat to religious freedom. Though he is a prominent leader of an important American church, Oaks purported to speak only “on the basis of over 60 years as a participant or knowledgeable observer of church and state.”  This was not revelation, nor offered any claim to be.  He begins by acknowledging that the threat to free speech comes not from “formal free-speech doctrine,” but by limits indirectly imposed on “the extent of free speech enjoyed by citizens in their daily lives.”

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The Political Standing of Gays and Evangelicals

It has been almost two years since I reviewed a book by tea party constitutional guru, Cleon Skousen, The Five Thousand Year Leap:  28 Great Ideas That Changed the World (Ann. Ed. 2009).  See Cleon Skousen, the Tea Party, and Equal Rights Before the Law, April 12, 2012, in McAffee Machinations.  In that book Professor Skousen referred approvingly to the founding era’s harsh penalties for “the crime of ‘homosexuality,’” considering that it was—appropriately—viewed as a crime “against ‘the whole people,” virtually the equivalent of treason, cowardice, and desertion.

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Enforce the Law Act—So Much for Libertarian Values Favoring Personal Freedom, States’ Rights, and Restrictive Standing Rules

During this last week, the House of Representatives voted to enact the Enforce the Law Act by a vote of 233-181.  The bill is unlikely to be adopted in the Senate, but it lends itself to conservative “talking points” about the Obama Imperial Presidency, so it struck republicans in the House as a worthwhile move.  In the meantime, Senator Rand Paul, a potential candidate for the republican nomination as President, endorsed the attempt to counter the President’s choice of “writing his own laws whenever he feels like it.”  Paul also complained that if the President likes a law, “he enforces it,” but if “he doesn’t, he won’t enforce it.”  He concluded that the President thus needs to “be chastened, rebuked, and told that he needs to obey the constitution.”  (See Erick Dolan, Rand Paul backs bill that could lead to crackdown on states where voters legalized weed, Mar. 24, 2014--www.rawstory.com/rs/2014/rand-paul-bakcs-bill-that c…)

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Religious Liberty, Gay Marriage, and Sexual License

I recently attended a conference sponsored by a law school in this region. The conference held a couple of panel discussions that related to themes of religious liberty and the threats it arguably faces today.  When I returned home, I wrote—via e-mail—to an old friend who teaches at the sponsoring law school.  The following is a portion of the content of that e-mail, with my old friend’s name omitted:

. . .  My main excuse for going to the conference was that I’m teaching our law and religion seminar this semester and the conference had a couple of relevant panels. . . The conference, on the whole, was good fun and I was glad I went. . .

Even so, I was disappointed at some of what I heard at the panels I attended. Let me supply a single example. One of the panelists, a member of the faculty at the sponsoring school, had been discussing the facts and legal issues raised by the current religious freedom law suit involving Hobby Lobby, and its claim for a free exercise exemption from complying with requirements for health insurance under the Affordable Care Act. Hobby Lobby asserted that the requirement that health insurance policies include a provision for obtaining prescriptions for contraception required it to act in a way that violated its religious conscience. The discussion related to whether a corporate employer engaged in a business open to the public, and employing people who do not share the religious views of the business operators, could invoke the employer’s religious conscience to argue for an exemption from the law’s requirements.

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Rick Perry, Religious Freedom, and Prayer in Public Schools

Governor Rick Perry remains a potential 2016 presidential candidate, and he just made a rousing speech at the CPAC conservative conference.  Perry will almost certainly be ready to go, especially if other potential candidates fall off.  One of his central themes has always been that he is Fed Up—the name of his book—with the federal government going beyond the powers it was granted in Article I, and imposing what amount to foreign views on state and local governments.  Illustrative is his stand on public school children saying prayer in school each day.  He would have the Supreme Court reverse ground, recognizing the authority of states to secure what should be a basic right of parents and children:  the right to pray in school. And if the Court will not reverse ground, Perry advocates amending the Federal Constitution to recognize this as a basic constitutional right.  So he is convinced that the national decision to end public school prayer not only misreads the Constitution and overrides what should be a local decision, but also robs Americans of their right to establish their own relationships with God.  The net result, says Perry, is that we reinforce the modern tendency to embrace secularism and moral relativism.

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The LGBT Community’s Right Against Invidious Discrimination and the Proper Scope of the Right to the Free Exercise of Religion

The Culture Wars continue unabated, and sometimes the fight is only resolved in court—but, sadly, individual constitutional battles often embody conceptual confusion as much as an authentic dispute of the nation’s fundamental values.  The classic example is the newly enacted legislation in Arizona designed to protect the religious freedom of individuals and businesses who see it as a religious duty not to do business with members of the LGBT community.  The law clarifies that, if the individual or business owner believes that a law forbidding discrimination violates their deeply-held religious beliefs, the government would have to show that the challenged law furthered a compelling state interest in the least restrictive way possible.

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Nevada and the Dam Breaking on the Same Sex Marriage Debate

There’s an old saying that, despite occasional claims that courts are just “umpires” who decide what the law requires and follow it, it is still true that courts do follow the election returns.  As the nation has evolved, quite dramatically in recent years, to embrace the idea of marriage equality, judges have increasingly found themselves not wanting to be on the wrong side of history.  For at least the last twenty-five years, the Supreme Court could have considered and sought to resolve, once and for all, the constitutional debate over state laws that ban gay marriage. But even in addressing clearly related issues, the Court has often seemed to go out of its way to avoid giving any signals on how the gay marriage debate would be resolved.  And, of course, we are all still waiting for the Court to take the right case and determine the constitutional merits of state laws, and even state constitutions, that reject marriage equality.

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Some First Things of Constitutionalism

The comments were originally delivered at "The Natural Law Challenge to Conservative Jurisprudence," a conference hosted at the William S. Boyd School of Law in April. Professor McAffee's talk on legal positivism was in response to Dr. Hadley Arkes' talk on natural rights as the foundation for constitutionalism. 

I first want to try to make clear that, with the differences of perspective I have with Professor Arkes, the perspectives we share are at least as important. So it’s worth taking a minute to summarize what they seem to be. I think we agree that the founders were deeply identified with the notions of natural law & natural rights. Indeed, the founding materials reflect widespread agreement that securing the authentic, natural rights of people was one of the purposes of the social contract that, when written, became the Constitution. Thus we share the view that when the written constitution includes what we call a bill of rights, to the extent that the rights to be protected are those regarded as natural rights, 1 constitutional interpreters do the Constitution a disservice if they look exclusively for historical evidence about the intended or expected applications of the constitutional rights provisions. Evidence from history—and even common law practice and precedent—are more likely to be relevant to the task of interpreting the scope of the “positive rights.”

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