Tag: constitutional law

A Pelican Ate a Lemon and the Kindness Test

Mark Davis1 Comment

The Pelican State, Louisiana, just passed a law requiring the display of the Ten Commandments in public schools. The posters have a specified size and must be paid for by private donations. The purpose of the law is a blatant attempt to get religion back in public schools but the legal convolutions for trying it out once again are rather interesting, though I don’t think the reasoning will work.

Here’s an NPR interview with Matt Krause of the First Liberty Institute that defends religious liberty cases and supports the new law. He specifically singles out Kennedy v. Bremerton School District as showing a path forward for the Decalogue to reappear on schoolhouse walls. In Kennedy, a football coach would go pray at the 50-yard-line after games. He didn’t gather students with him or utter prayers over a loudspeaker. He just prayed alone. The school district fired him because they were nervous about the separation of church and state and the appearance of endorsement by the school system due to an employee acting religious. SCOTUS, however, used a balancing test between the coach’s First Amendment rights and the school’s desire for non-endorsement and concluded that the school system went too far. Krause thinks that the suspension in Kennedy of a hard delimitation gained from Lemon v. Kurtzman and the adoption of a weaker “history and tradition” standard creates a gap that the Decalogue can sneak through.

I doubt it. The balancing in Kennedy sheds little light on schoolhouse Ten Commandments posters which were ruled against in Stone v. Graham. In Stone, a strict “Lemon test” was applied to the display and it was found to have no secular purpose.… Read the rest

An Exegetic Theory of Liberty

Mark Davis1 Comment

A modest proposal:

Congress shall make no law interfering with medical decisions except in the case of public health and in the regulation of the practice of medicine.

But now we immediately face daunting challenges about the meaning of these terms. What are the limits of a “medical decision?” What are the limits of the public health clause? Can the regulation of the practice of medicine impinge on medical decisions if, for example, a procedure is regulated out of availability? Does this create an immediate tension between the preamble and the restrictive clauses?

Let’s take a version of Putnam’s concerns about meaning. What is a neutrino? Many people would simply shrug and admit that they don’t know. Some would recall something like a particle that can pass through stuff. A few of these who have some physics or are widely read might say that they are very light particles that emerge from neutron decay and are needed to balance the nuclear decay equation. This last series of images might include thoughts about giant underground detector baths of water or mineral oil or something. In general, though, we can conclude that defining something that is physical, measurable, but incomplete is a daunting task.

Legal theories have this kind of amorphous semantics, especially with regard to concepts like “liberty.” We certainly have some indelible images like “your liberty ends at my nose” but that doesn’t create a very effective template for legal decision trees. Does a stand-your-ground law preserve my liberty to self-defense or is it an excessive application of force when the two parties’ joint right to life is better preserved by a duty to retreat? Dobbs v. Jackson Women’s Health Organization lays out the problem of defining liberty:

“Liberty” is a capacious term.

… Read the rest

Flailing in the Think Tanks

Mark Davis1 Comment

Despite my best efforts to find some depth in modern intellectual conservatism, instead about the best we get is just about the worst imaginable. Much discussed is the Atlantic piece by Harvard Law professor Adrian Vermeule who argues for what he calls “common good constitutionalism” that asserts that an authoritarian assurance in defining a moral basis for legal decisions is best for all of us. Individual concepts of life and liberty be damned:

…that each individual may ‘define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life’ should be not only rejected but stamped as abominable, beyond the realm of the acceptable forever after. So too should the libertarian assumptions central to free-speech law and free-speech ideology—that government is forbidden to judge the quality and moral worth of public speech, that “one man’s vulgarity is another’s lyric,”  and so on—fall under the ax. Libertarian conceptions of property rights and economic rights will also have to go, insofar as they bar the state from enforcing duties of community and solidarity in the use and distribution of resources.

Vermeule’s opening salvo is that the doctrine of originalism that conservative legal thinkers have hewed to has shown little progress in reversing the trend towards greater and more expansive liberties. These freedoms, without paternalistic guidance, take us down the slippery slope of moral turpitude. We need stronger hands at the tiller who can properly control the minds of the mob for their own good. In reality, though, Vermeule is just a “Catholic integralist” in disguise, which is to say he is promoting a kind of theocracy where law is subservient to the best guesses of Catholicism.… Read the rest