Effectiveness of mRNA Vaccination in Preventing COVID-19–Associated Invasive Mechanical Ventilation and Death — United States, March 2021–January 2022 | MMWR

But...liberty!  - Gorsuch, Thomas, Alito, Kavanaugh, Barrett

Effectiveness of mRNA Vaccination in Preventing COVID-19–Associated Invasive Mechanical Ventilation and Death — United States, March 2021–January 2022 | MMWR

“With All the Majesty of the Law”: Systemic Racism, Punitive Sentiment, and Equal Protection by Darren Lenard Hutchinson :: SSRN

“With All the Majesty of the Law”: Systemic Racism, Punitive Sentiment, and Equal Protection by Darren Lenard Hutchinson :: SSRN

Darren Lenard Hutchinson

Emory University School of Law

Date Written: March 18, 2022

Abstract

United States criminal justice policies have played a central role in the subjugation of persons of color. Under slavery, criminal law explicitly provided a means to ensure White dominion over Blacks and require Black submission to White authority. During Reconstruction, anticrime policies served to maintain white supremacy and re-enslave Blacks, both through explicit discrimination and facially neutral policies. Similar practices maintained racial hierarchy with respect to White, Latinx, and Asian-American populations in the western United States. While most state action no longer explicitly discriminates on the basis of race, anticrime policy remains a powerful instrument of racial subordination. Indeed, social scientists who study race find that contemporary racism is one of the strongest predictors of punitive sentiment. Specifically, persons who have strong implicit racial bias, racial resentment, or social dominance orientation are more likely to endorse harsh punishments. 

This research suggests that racism is inextricably linked with punishment. This connection could explain, in part, the continuation of deep racial inequality in criminal justice policies, despite the attainment of formal legal equality. The Supreme Court’s equal protection doctrine that focuses narrowly on intentional discrimination is ill-equipped to combat racism associated with criminal justice practices. A more robust and effective doctrine would recognize the relevance of historical racism to contemporary anticrime policies; incorporate insightful conceptions of racism elaborated by social scientists; and recognize the racist dimensions of punitive sentiment. Given the current conservative composition of the Supreme Court, advocates of racial justice could pursue federal and state legislative and executive remedies and state judicial remedies to combat systemic racism associated with criminal law and enforcement.

Keywords: criminal justice, racism, critical race theory, equal protection, constitutional law, racial resentment, social dominance, implicit bias, punitive sentiment

Suggested Citation:

Hutchinson, Darren Lenard, “With All the Majesty of the Law”: Systemic Racism, Punitive Sentiment, and Equal Protection (March 18, 2022). California Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=

Fifth Circuit Court of Appeals Allows Federal Government to Continue Using Best Available Science about the Costs of Climate Damage | Environmental Defense Fund

Fifth Circuit Court of Appeals Allows Federal Government to Continue Using Best Available Science about the Costs of Climate Damage | Environmental Defense Fund

(March 16, 2022) The U.S. Court of Appeals for the Fifth Circuit today lifted a lower court’s unprecedented restrictions on the federal government’s use of the most up-to-date information about the serious harms of climate pollution in its decision-making. The Court of Appeals found the Biden administration is likely to prevail on the merits when the case is fully heard.

“The Fifth Circuit’s decision is welcome news for the millions of Americans who are harmed by climate pollution. It means policy makers can continue using the best available information to protect people from the dangers caused by climate change, to strengthen our nation’s energy security, and to help develop more well-paying American jobs,” said Vickie Patton, General Counsel for Environmental Defense Fund. “The lower court’s ruling was profoundly flawed, contrary to law, and would have put people’s lives and health at risk. It should be overturned entirely when the case is heard on the merits.”

A federal district court judge in Louisiana issued a preliminary injunction in February restricting the Biden administration from using the measure known as the “social cost of carbon.” That measure reflects the best available scientific and economic analysis, based on extensive peer-reviewed information, to determine the monetary costs imposed by climate change. The government uses it to evaluate climate damage when establishing policies.

Today a panel of judges on the Fifth Circuit issued a stay of that injunction. The Fifth Circuit ruling means policy makers can continue relying on the social cost of carbon to protect people from climate pollution while the case works its way through the judicial system

# # #

One of the world’s leading international nonprofit organizations, Environmental Defense Fund (edf.org) creates transformational solutions to the most serious environmental problems. To do so, EDF links science, economics, law, and innovative private-sector partnerships. With more than 2.5 million members and offices in the United States, China, Mexico, Indonesia and the European Union, EDF’s scientists, economists, attorneys and policy experts are working in 28 countries to turn our solutions into action. Connect with us on Twitter @EnvDefenseFund

Mia Bay and Mae Ngai Win the Bancroft Prize - The New York Times

Mia Bay and Mae Ngai Win the Bancroft Prize - The New York Times

By Jennifer Schuessler

March 16, 2022, 8:00 a.m. ET

An innovative study of Black Americans’ struggle against discrimination in transportation and a sweeping examination of Chinese migration to goldfields across the Anglophone world in the 19th century have won this year’s Bancroft Prize, which is considered one of the most prestigious honors in the field of American history.

Mia Bay’s “Traveling Black: A Story of Race and Resistance,” published by the Belknap Press of Harvard University Press, was described by the jury as “a major intervention in our understanding of the civil rights movement and the everyday life of racial domination,” which draws on “exhaustive and imaginative research in trade publications, litigation records, memoirs, oral histories and the press.”

Reviewing the book for The New York Times, Jennifer Szalai called it a “superb history” that turns “the question of literal movement” into “a way to understand the civil rights movement writ large.”

The second winner, Mae Ngai’s “The Chinese Question: The Gold Rushes and Global Politics,” published by W.W. Norton, was praised by the jury as “an extraordinary book” that “brilliantly shows us how much of the white Anglo-American world came to view the Chinese as a racially unassimilable and threatening people.”

Jackson recusal questions betray the high court’s bigger problem | Courthouse News Service

I have advocated that the Supreme court declare that the Code of Judicial Conduct apply to it.

But the Justices have said no.  28 USC 455 governs the question of recusal.  Even if it applied Brown Jackson would be free to sit on the upcoming federal custodian of the key. GWC

Jacnkson recusal questions betray the high court’s bigger problem | Courthouse News Service

WASHINGTON (CN) — As the Supreme Court nomination of Judge Ketanji Brown Jackson moves to the Senate for consideration, some lawmakers are already urging Jackson to withdraw, should she win confirmation, from an upcoming major case involving her alma mater. 

Jackson has longstanding ties to Harvard University, which is at the center of a challenge to affirmative action the court will hear next term. She attended Harvard for undergrad and law school, and she has been on the university’s Board of Overseers since 2016. 

Harvard’s Board of Overseers is one of two governing boards, which, according to the university’s website, “plays an integral role in the governance of the university.” Members of the board counsel the university on priorities, plans and strategic initiatives. 

Senators John Cornyn of Texas and Josh Hawley from Missouri are among Republicans meanwhile who are already suggesting, according to Washington Post reporting, that this record could represent a conflict of interest for Jackson,. Hawley went so far as to say she should recuse. 

Ethics experts say the issue is a toss-up. 

On one hand, if confirmed, Jackson would have a duty to sit unless she had a clear-cut conflict of interest in the case. It’s not clear that Jackson was directly involved in any admissions decisions related to affirmative action policies. 

However, it would also be easy to look at Jackson’s six years on the university’s board and come to the conclusion that she could have had some influence on admissions policies at some point. The question of whether she actually did might be moot. 

“The perception is that she played an integral role in certain advisory functions,” Gabe Roth, the executive director of Fix the Court, said in a phone call. “So a reasonable observer might think that she has a bias in the case because she either participated in admissions policies or she is biased in favor of Harvard.” 

Roth said that perception could be a reason to recuse regardless of whether she was actually involved in admissions decisions related to the case. 

“The bottom line comes down to what it says in federal law which says that any judge or justice shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned,” Roth said. “The fact that we're even having this conversation implies that there is a question out there as to whether or not there she has a bias, fair or not.”

But a justice’s recusal is not without consequences itself. When a justice steps down from a case, unlike with other courts, there is no one to take their place. One idea that was proposed by the late Justice John Paul Stevens was to call back retired justices if a recusal left the bench without a full roster.

Catholic Discordance: Dialog or Division - March 17

Reminder - Catholic Discordance: Dialog or Division - March 17

Massimo Borghesi - a moral philosopher at the University of Perugia - has published CATHOLIC DISCORDANCE - Neoconservatism vs. the Field Hospital Church of Pope Francis.

It is a history of the rise to prominence of conservatism in the U.S. Catholic Church. 

The Danger of Escalation in Ukraine — Jerome A. Cohen | 孔傑榮（柯恩）

The Danger of Escalation in Ukraine — Jerome A. Cohen | 孔傑榮（柯恩）

By Jerome A. Cohen

After a largely sleepless night worrying about what China ought to be doing to try to end the tragic and increasingly dangerous crisis over Ukraine, I awoke to this impressive warning by Ashford and Shifrinson that outlines the many possibilities for the current conflict quickly developing into World War III. I hope that elites in all relevant countries give it a careful reading. Yet it is curious that the authors make little mention of the possible role of China in extinguishing the fire.

Thus far Ukraine has cast Xi Jinping and his government in a very poor light. Have they been disingenuous in portraying their relations with Putin and his government on the eve of invasion? Were they duped? Did Xi Jinping know more about Putin’s plans and agree to more than he shared with even his own foreign minister? Since the war’s outbreak, the PRC has resembled the proverbial deer caught in the headlights, bobbing, weaving and waffling unpersuasively in an attempt to cope with multiple pressures. It is time now for it to adopt a bold, statesmanlike position and vigorously pursue the role of mediator to which it has made occasional vague reference. China has much to gain from such an effort even if mediation were to fail.

Successful mediation will not be easy, even first to achieve an effective ceasefire throughout Ukraine. Settlement terms will be harder to come by but should be achievable with the cooperation of the Western powers. For example, Ukraine could become, at least for the foreseeable future, the Switzerland of Eastern Europe. Zelensky and his government should remain in place and independent but commit to abstaining from NATO. They should also recognize the loss of Crimea and provide for a special autonomous regime within Ukraine for the two eastern provinces. Such distasteful concessions should make it possible for Russia to accept the humiliating failure of its disastrous policy. Western sanctions would obviously be diminished in accordance with progress made in implementing the terms of settlement.

China’s serious efforts to help end the war would have benefits that extend far beyond the Ukraine crisis.

`Independent State Legislatures - a grave threat to voting rights. - Jamelle BouieThe New York Times

Opinion | The Supreme Court Did the Right Thing. I’m Still Worried. - The New York Times

by Jamelle Bouie

State legislatures are, and always have been, creatures of state constitutions, bound by the terms of those constitutions and subject to the judgments of state courts.

This has important implications for the nature of state legislative power. The federal Constitution may give state legislatures the power to allocate electoral votes and regulate congressional elections, but that power is subject to the limits imposed by state constitutions.

Imagine what could happen if that were not the case. Imagine, instead, that state legislatures had plenary power over federal elections, which would allow them to overrule state courts, ignore a governor’s veto and even nullify an act of Congress. State legislatures would, in essence, be sovereign, with unchecked power over the fundamental political rights of those citizens who lived within their borders.

This change would both unravel and turn the clock back on our constitutional order, with states acting more like the quasi-independent entities they were before the Civil War and less as the subordinate units of a national polity.

Texas Supreme Court shuts down challenge to restrictive abortion law | Courthouse News Service

The United States Supreme Court, in Whole Women's Health on August 30, 2021  refused to enjoin enforcement of the Texas `fetal heart beat' law known as SB-8 which virtually outlaws elective abortions by setting a limit of six weeks post conception.  Then in October it granted certiorari before judgment.  It also agreed to hear a direct challenge to Texas  by the Biden administration  which had won a preliminary injunction against the Texas law by United States District Judge Robert Pitman.  The Supreme Court granted cert in that case, then dismissed the grant as "improvident" when it sharply narrowed the Whole Women's Health providers challenge.  The injunction was stayed by the Fifth Circuit so the case technically remains alive but it is a zombie. 

The cases' complex history is chronicled by the Center for Reproductive Rights.

On December 10 the Supreme Court allowed only one part of the suit by  Whole Women's Health to survive.  Only Texas medical disciplinary authorities remained as defendants.  They could, conceivably `enforce the law' by disciplining a physician who performed an abortion for a woman whose pregnancy was beyond the six week limit..

The United States Supreme Court a week later returned the case to the Court of Appeals for the Fifth Circuit - not to the District Judge who had issued the preliminary injunction.  The Fifth Circuit did not refer the case back to Pitman.  Instead it referred the case to the all Republican Texas Supreme Court for its advice on whether Texas law permitted such a licensing action to be taken.   Sonia Sotomayor wrote a scathing dissent from the Supreme Court's refusal to grant an emergency order staying the referral to the Texas high court.

Today that court answered - the statute forbids any state officer from enforcing the ban.  The state Supreme Court has now held that such disciplinary action is barred by the law.  Texas medical providers are thus left to hazard the onerous burden of defending an unlimited number of private punitive enforcement actions for which they may be compelled to pay in each case a minimum of $10,000 plus attorneys fees under SB8.

- GWC

Texas Supreme Court shuts down challenge to restrictive abortion law   | Courthouse News Service

Texas Supreme Court shuts down challenge to restrictive abortion law  

The federal case against Texas’ near-total abortion ban met its end Friday when the state’s high court, answering a question from the Fifth Circuit, held that licensing officials cannot enforce the law and therefore cannot be sued.

AUSTIN, Texas (CN) — The Texas Supreme Court ruled Friday that medical licensing officials cannot enforce the state’s six-week ban on abortions, ending a federal challenge to the controversial law.

After the U.S. Supreme Court allowed abortion providers' case against licensing officials to continue and remanded the case back to the Fifth Circuit, the New Orleans-based appeals court asked the all-Republican Texas high court if the licensing officials can enforce the state’s near-total abortion ban.

In answering no, the federal case comes to an end since licensing officials were the last remaining defendants in the suit.

“Senate Bill 8 provides that its requirements may be enforced by a private civil action, that no state official may bring or participate as a party in any such action, that such action is the exclusive means to enforce the requirements, and that these restrictions apply notwithstanding any other law," Justice Jeffrey Boyd wrote in the court's 23-page opinion.

He added, "Based on these provisions, we conclude that Texas law does not grant the state-agency executives named as defendants in this case any authority to enforce the Act’s requirements, either directly or indirectly.”

Texas Attorney General Ken Paxton, a Republican, took to Twitter to applaud Friday’s ruling.

“Today I secured a major victory in the Texas Supreme Court,” he wrote. “This measure, which has saved thousands of unborn babies, remains fully in effect and the pro-abortion plaintiffs’ lawsuit against the state is essentially finished.”

The Center for Reproductive Rights acknowledged the end to the lawsuit it helped bring. 

“Today’s ruling will result in dismissal of the remaining portion of the challenge to the six-week ban, meaning SB 8 will likely remain in effect for the foreseeable future,” the group said.

Nancy Northup, the group’s president and CEO, said in a statement that the ban has gone unchecked by the courts.

Four Supreme Court Justices Cosign Theory That Threatens Fair Elections//Talking Points Memo

Four Supreme Court Justices Cosign Theory That Threatens Fair Elections//TPM

by Kate Riga

Liquidating the Independent State Legislature Theory by Michael Weingartner :: SSRN

Anyone with a passing knowledge of U.S. constitutional history would know that when the Constitutional refers to Legislatures of the states that means state law, not a Legislature acting independent of a State's Constitution in ways its Courts reject.  But you don't have to heed that history if you are a highly motivated member of the unreviewable United States Supreme Court.  You bloody say what you have a mind to say.  And if you can get four others to come along with you, that settled it.

- GWC

Liquidating the Independent State Legislature Theory by Michael Weingartner :: SSRN

Abstract

Following the 2020 Presidential election, an obscure and potentially revolutionary constitutional theory re-emerged. The so-called “independent state legislature doctrine” theory posits that the Constitution vests state legislatures with plenary power to craft rules for Congressional elections and to direct the appointment of presidential electors, unbound by state constitutions and free from review by state courts. Though the Supreme Court rejected this theory in the past, in 2020 four Justices signaled their seeming approval.

The debate over the independent state legislature theory pits textual arguments against the longstanding practice of states throughout our history. Every state constitution dictates the procedure by which state legislatures may enact election laws, and state constitutions are full of provisions which regulate nearly every aspect of federal elections from voter registration to congressional redistricting to absentee voting. Nearly all these provisions were enacted with the affirmative participation of state legislatures, and since the Founding they have, though state court review, constrained the authority of state legislatures when enacting election laws.

This Article operationalizes this history by applying James Madison’s analytical framework of “constitutional liquidation,” recently endorsed by the Supreme Court in Chiafalo v. Washington to resolve whether states could control the votes of presidential electors. This framework posits that the meaning of indeterminate constitutional text may be liquidated—that is, settled—by longstanding and broadly accepted historical practice. Applying that framework here reveals that, while the constitution’s text may be unclear as to the role of state constitutions in regulating federal elections, subsequent practice and the acquiescence of state legislatures, Congress, and the public has settled the Constitution’s meaning and rejected the independent state legislature theory.

Keywords: textualism, originalism, separation of powers, civil rights, founding era, elections, voting, election law, voting rights, federalism, state constitutional law, constitutional law, legal history, historical gloss, independent state legislature doctrine, state legislature, congress, supreme court

Suggested Citation:

Weingartner, Michael, Liquidating the Independent State Legislature Theory (September 25, 2021). Available at SSRN: https://ssrn.com/abstract=4044138 or http://dx.doi.org/10.2139/ssrn.4044138

Ben Ferencz/Law Not War – The Jackson List - John Q. Barrett

Ben Ferencz

As Russian armor advances in Ukraine - this time as invader - John Barrett, biographer of Robert Jackson, chief prosecutor at Nuremberg, pays tribute to one of Jackson's aides.  102 year old Ben Ferencz has learned and teaches the lessons of war.  War No More. - GWC

Ben Ferencz/Law Not War – The Jackson List

On March 2, 2022, Sergiy Kyslytsya (@SergiyKyslytsya), Ukraine’s ambassador to the United Nations, spoke to the U.N. General Assembly.

Ambassador Kyslytsya deplored Russia’s criminal aggression against Ukraine. He called for the U.N. to stand against Russian aggression. Then he pulled out his phone and played a video of Benjamin B. Ferencz.

Ben Ferencz, who turned 102 years old today, fought in World War II as a U.S. soldier.

Following the war, Ben was a prosecutor at Nuremberg of Nazi mass murder.

Ben Ferencz has been, ever since, a global teacher. His message, learned in the horrors of war fighting, as an investigator at liberated Nazi concentration camps, and as a Nuremberg prosecutor, is simple and profound. It is the message that is before all of our eyes, seeing war in Ukraine:

War brings only suffering and death.

War is the supreme international crime.

We must choose law not war.

#LawNotWar

*      *      *

Here is video of Ambassador Kyslytsya’s March 2 speech at the U.N. He plays the video of Ben Ferencz starting at time counter 11:45:
https://www.c-span.org/video/?518313-4/ukraine-ambassador-remarks-un-general-assembly-debate.

For more information on Ben Ferencz, here are resources, including many that are Ben himself—

• From the Jackson List archive, three posts about Ben: https://thejacksonlist.com/?s=%22Ben+Ferencz%22+birth;
• video excerpts of Ben’s 1947 opening statement at Nuremberg in the Einsatzgruppen case: https://www.youtube.com/watch?v=b67B-MoKG_o;
• a November 2005 interview of Ben: https://www.youtube.com/watch?v=e-8m5YHt__4;
• a Ben Ferencz TED Talk from 2017: https://www.youtube.com/watch?v=Zwa4zRWDsvI;
• the trailer of the 2018 documentary film, “Prosecuting Evil: The Extraordinary World of Ben Ferencz” (available on Netflix): https://www.youtube.com/watch?v=meDbZemxuK4;
• on Amazon Prime Video, the 2019 film “Law Not War,” about Ben: https://www.amazon.com/Law-Not-War-Benjamin-Ferencz/dp/B082G8KCDV;
• Ben’s website, a treasure house of his writings and speeches: https://benferencz.org/; and, of course,
• you should follow @BenFerencz on Twitter.

Happy Birthday, Ben.

Thank you for being humanity’s lawyer and teacher.

Thank you for being a hero, dear friend, and permanent inspiration to me and so many others.

Wang Yi and PRC "mediation" if "necessary" — Jerome A. Cohen | 孔傑榮（柯恩）

Wang Yi and PRC "mediation" if "necessary" — Jerome A. Cohen | 孔傑榮（柯恩）

By Jerome A. Cohen

I think PRC mediation is urgently “necessary” now from China’s perspective as well as those of the combatants. China’s international standing has been badly damaged by its appearance as a silent partner in Russia’s war. If China could now emerge as a successful mediator – a very tall order in the circumstances – it could establish a new and more positive image in the world. Blessed are the peacemakers! Both the Chinese language and Western languages endorse the wisdom of seeking to turn a vice into a virtue. Even a good faith mediation effort that failed would improve the PRC’s status.

But what is “mediation”? The term embraces a multitude of possible roles. Certainly there is no need for a third party merely to pass messages back and forth between the combatants since they have proved capable of conducting direct discussions. At the other end of the mediation spectrum, this is not a situation where the third party can exercise irresistible pressures upon the combatants to accept its proposed terms of settlement. Yet Russia’s need for PRC support to resist the impact of international sanctions gives Beijing considerable sway over the outcome if it chooses to act strongly despite the sensitivity of their “rock solid” relations.

The challenge, of course, is to find a plausible basis for settlement that will give sufficient “face” to Russia’s withdrawal without detracting from Ukraine’s earned respect for its independence and the Western world’s massive rejection of wars of aggression.

The problem now is not to avoid revival of the Cold War, since the Cold War is plainly already revived. The problem is how to end a Hot War that can become a broad catastrophe if mishandled.

Adrian Vermeule's Common Good Constitutionalism challenges conservatives and progressives

 

 Far be it from me to derogate from the study of the civil law, considered (apart from any binding authority) as a collection of written reason, No man is more thoroughly persuaded of the general excellence of its rules and the usual equity of its decisions, nor is better convinced of its use as well as ornament to the scholar, the divine, the statesman and even the common lawyer.

1 William Blackstone, Commentaries on the Laws of England *5

 

Adrian Vermeule’s new book Common Good Constitutionalism takes on the two dominant strains of American constitutional thinking – originalism and “progressive and developing Constitutionalism”.  He sees the former as an illusion and the latter as “instrumentalized law” in the service of a “relentlessly liberationist project”.  He is not seeking balance.  His objective is restore to the center of our jurisprudence the classical tradition which he finds has been sleeping but never renounced in our law.

Both originalism and `progressivism’ are ultimately rootless.  Originalism indeterminate because neither expected meaning nor original public meaning provides anything more than an opportunity for personal preference, “ultimately resting on nothing more than social acceptance of …norms created by officials authorized to do so by a conventional rule of recognition”. Progressivism fails because it is “an instrument of the will rather than the reason…as a means to liberate the will from all unchosen constraints.”

 

Common good constitutionalism in contrast adapts in each circumstance to unchanging basic principles of jus civile, the “deliberate ordering of positive law to the common good”.  The approach is “historical without being originalist”.  “[B]ackground legal principles do not evolve like “living constitutionalism” but are adapted “to local circumstances and changing conditions”.  Good law can, thus, be objectively determined and measured, taking into account the social nature of mankind, rather than the individualism underlying `progressivism’.

 

Vermeule  uses the common good – a Catholic meme  - as the touchstone.  The classical tradition, he explains, “embraces the view that law is ordered to the common good…[that] it is law’s nature to be so ordered”.  The “positive law” is located ‘within a larger objective order of legal principles and can only be interpreted in accordance with those principles.” It is a take no prisoners approach – and in elegant fashion he makes a powerful case.

 

Originalism – the dominant  approach today is predominant on the right where it was formulated to disrupt the “progressive legal theorizing of the Warren and Burger Courts”.  But there are also left manifestations.  Vermeule asserts originalism is  in a “decadent phase”.  It is trapped between a “normative” stance – that we are bound by the expectations of the drafters – and a “rhetorical posture” - inherently indeterminate `original public meaning'.  Determining the “specific expectations” of the Founders is a blind alley because it is incapable of application to changed circumstances.  Shall - as the drafters expected - liberty and property not extend to women? To African slaves and their children? 

Divorced from such expectations “abstract originalism” is trapped by a search for meaning which is inevitably shaped by the policy preferences of the interpreter.  Originalism of this latter sort has no boundary and becomes indistinguishable in that sense from the liberal “living Constitutionalism” of Yale’s Jack Balkin, who Vermeule suggests is well aware of the trap set.

Vermeule relies substantially on Ronald Dworkin’s observation that originalism, unable to "specify the level of generality at which meaning is determined", is forced to retreat to “public meaning”.  But that is itself “ambiguous”  and independent of the intentions or expectations of the drafters. So the choice between expected meaning and public meaning can only be made “on the basis of normative principles of political morality” grounded  in semantic content.  But the meaning of due process, equal protection of the law, or cruel and unusual punishment cannot be fixed.  As Georgia State’s Eric Segall says – the justices of the Supreme Court are not judges of the law because they cannot determine the law in order to be driven by it.

 

So what is the “common good” which today lies cloaked in “the language of `fundamental fairness ‘and similar formulations”?  It is “not the sum of individual goods, but the indivisible good of a community ordered to justice, belonging jointly to all and severally to each”.  Judges therefore should and must be guided in their judgments by “justice, peace, and abundance” as the “legitimate ends of government”.

 

Vermeule will encounter sharp resistance to his elegant formulations as he addresses a series of iconic holdings regarding alcohol, hourly wage workers, same sex marriage, and scruples about contraception.

To demonstrate classical law’s forgotten compatibility with our law Vermeule relies on opinions of the late 19th and early 20th centuries regarding the `police powers' said to reside in the states.   He discusses a majority opinion approving of a Temperance movement-driven  state `prohibition' constitutional provision in Kansas, an opinion for the Court upholding a Utah statute limiting hours of work for miners, the majority in Jacobson v. Massachusetts approving mandatory smallpox vaccination, and Harlan's dissent in Lochner -which struck down New York legislation regulating hours of labor

 Harlan’s opinion for the court in Mugler v. Kansas (1887) upheld the Kansas state constitutional bar on intoxicating liquors “except for medical, scientific, and mechanical purposes”.  Vermeule highlights Harlan’s declaration that

No one may rightfully do that which the law-making power, upon reasonable grounds, declares to be prejudicial to the general welfare.

In 1898 Harlan joined the majority in Holden v. Hardy "upholding an eight hour day (state) law for miners" in Utah.  The Court there wrote:

Of course, it is impossible to forecast the character or extent of these changes, but in view of the fact that, from the day Magna Charta was signed to the present moment, amendments to the structure of the law have been made with increasing frequency, it is impossible to suppose that they will not continue, and the law be forced to adapt itself to new conditions of society, and, particularly, to the new relations between employers and employees, as they arise.

In 1905 Harlan, writing for the Court, upheld a Massachusetts law imposing fine or imprisonment for refusal to be vaccinated against small pox. Harlan explained that "Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is then liberty regulated by law." Jacobson v. Massachusetts, quoting Crowley v. Christensen, 137 U. S. 86.

Vermeule of course embraces Harlan's dissent in Lochner v. New York (1905).  The court voided on substantive due process grounds a New York law limiting bakers hours as violating liberty of contract.  Harlan, furnishing the title of Verneule's book, wrote that "there are manifold restraints to which every person is necessarily subject for the common good".  Such language is notably missing from the Supreme Court's recent decisions striking the Surgeon General's anti-eviction order in Alabama Association of Realtors, and NFIB v. Department of Labor striking the OSHA test or vaccination Emergency Temporary Standard.  Nor is there even a hint of such "common good" concerns in the many "shadow docket" emergency orders striking limits on gatherings at Churches due to the risk of disease transmission.

President Jimmy Carter’s Attorney General Griffin Bell dissented in U.S. v. Jefferson County, 380 F.2d 38 (C.A. 5 1967) that the goal of racial integration – rather than mere desegregation (the elimination of legal barriers) was doomed to failure.  He compared it to failed sumptuary and eleemosynary laws – such as prohibition – and other commands to virtue.  Such measures ultimately failed in the face of a social movement by homosexuals to gain the freedom to marry.  But Vermeule sees in Obergefell v. Hodges, the 2005 decision mandating recognition of same sex marriage, an act of liberal will, contrary to natural law:

“Obergefell should have been decided the other way” because “that marriage can only be the union of a man and a woman fits the telos of the institution…the common good through reproduction, the sine qua non of a continuous political community and of a flourishing, fully human polity”.   Obergefell is “the valorization of will at the expense of the natural reason”.

Vermeule's stance, seeking to impose sexual mores fading in the public mind,  will doubtless draw much criticism.  But it seems to me to be the least consequential of his arguments.  That ship has sailed.  Although some, like the Roman Catholic Catechism at No. 2357 still treat homosexuality as “intrinsically disordered” the broader trend in the society is toward acceptance.  Vermeule similarly laments the Bostock v. Clayton County decision recognizing discrimination against transgender persons as protected by the Civil Rights Act of 1964 prohibition of discrimination based on sex.  But this lament too seems fruitless – even the bathrooms at Fordham are now labeled “All Genders”.  Any attempt to reimpose the former prohibition seems destined to fail, though exceptions to general anti-discrimination laws will likely be allowed by a Court composed of six conservative Roman Catholics (though one - Gorsuch -has moved next door to the Episcopal Church).

 

But in other respects Vermeule will win praise and affection from “progressives”.  High on that list is his view that ““health, safety, security, , and a right relationship with the environment” expresses “the goods of peace, justice, and abundance”.   

In two respects Vermeule, as a prominent conservative jurist, parts company with his accustomed cohort.  His approach to text is Aristotelian, and his embrace of the modern administrative state warm.  Regarding text he turns to the concept of Epikeia – derived from Aristotle- the equity of the statute –“a virtue pertaining to legal justice that adjusts the application of the law from its literal text to track a reasonable account of the common good.” 

Vermeule’s embrace of the administrative state is dramatic, saying “our administrative law is built around juridical principles that are part of the larger domain of political morality, yet retain their distinctive character as legal morality”.  But, turning to Madison’s abhorrence of combining legislative, executive, and judicial power as a source of tyranny  John Roberts in the 2013 City of Arlington case lamented the growth of the federal bureaucracy and the Code of Federal Regulation as a threat of tyranny that would leave the founders “rubbing their eyes”.  Roberts said “[a] court should not defer to an agency until the court decides, on its own, that the agency is entitled to deference.” (emph. added)

 Vermeule in contrast  invoking Ulpian’s vision of jurists as “priests” says “After all, broad deference to administrative determinations is itself a juridical principle, rooted in political morality, that can serve the common good.”

As the Supreme Court continues its march through the forest of precedents it seems determined to overturn it will find itself embroiled in public controversy the likes of which it has not seen since 1842's Prigg v. Pennsylvania which commanded states not to interfere with efforts to recapture slaves. 

The Court now addresses  the Democratic administration of Joe Biden the agenda of which it has already challenged: 

- in the Texas SB 8 abortion decision – exempting Texas from the doomed Roe v. Wade decision, 

- spurning the Department of Health and Human Services anti-eviction mandate, and 

- blocking the Department of Labor from enforcing the Occupational Safety and Health Administration’s COVID vaccination or test Emergency Temporary Standard.  

In none of these decisions was the common good a substantial factor.  In NFIB v. Department of labor the recent challenge by large businesses to the OSHA vaccine or test Emergency Standard the Supreme Court majority [6-3] in an unsigned opinion declared determination of the public good to be beyond their scope.  Rather than, as is customary in injunctive relief cases, make a public interest determination the Court, noting the government’s claim that the rule would save thousands of lives and many more from hospitalization declared  

It is not our role to weigh such tradeoffs. In our system of government, that is the responsibility of those chosen by the people through democratic processes.

Vermeule would disagree – seeing the common good as the purpose of it all.

 

-         George Conk

-         March 10, 2022 - revised

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Emmett Till Antilynching Act | passes Senate, awaits Biden signature

Text - H.R.55 - 117th Congress (2021-2022): Emmett Till Antilynching Act | Congress.gov | Library of Congress

Lynching - the vigilante killings of African Americans and others - is about to become a federal crime.  150 years ago the United States Supreme Court in the Cruikshank case held that the post-Civil war Enforcement Act could not reach Ku Klux Klan crimes because the 14th Amendment limited only State action, not private killings.  But now an anti-lynching bill is poised to become law.

In our history over 4,000 people - an estimated 72% Black - were murdered by mob violence. The National Memorial for Peace and Justice reports and remembers.

President Joe Biden will soon sign the measure.  It provides:

Section 249(a) of title 18, United States Code, is amended by adding at the end the following:

“(5) LYNCHING.—Whoever conspires to commit any offense under paragraph (1), (2), or (3) shall, if death or serious bodily injury (as defined in section 2246 of this title) results from the offense, be imprisoned for not more than 30 years, fined in accordance with this title, or both.

“(6) OTHER CONSPIRACIES.—Whoever conspires to commit any offense under paragraph (1), (2), or (3) shall, if death or serious bodily injury (as defined in section 2246 of this title) results from the offense, or if the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, be imprisoned for not more than 30 years, fined in accordance with this title, or both.”.