Law: July 2007 Archives

As I was posting my latest post in my Christianity and Politics series at the conservative philosophy blog Right Reason, I thought it might be nice to put together a post here linking to all the posts in the series. I will update this post as I add posts there. Posts 7 and 8 are tentatively titled, and I may even restructure what I hope to cover in remaining posts.

1. Introduction: Christian and Politics (Guest Blogging)
2. Augustine on Civil Government: The Two Cities
3. Augustine on Civil Government: Two Further Preliminaries
4. Augustine on Civil Government: Authority
5. Augustine on Civil Government: The City of God and Compromise
6. Christian Political Political Participation
7. Religious Motivations in Politics
8. Religion and the First Amendment

Jan Crawford Greenburg has a nice post looking at some of the overblown rhetoric about the last Supreme Court term. Much of the criticism of this last term, from both legal scholars and legal reporters, has been wildly inaccurate, conveniently forgetting important details and drastically misrepresenting the reasoning of the majorities. This is true from both the left and the right, but I'm in agreement with her that there really has been a pretty strident panic on the left. What's particularly strange about it is that it's a reaction to a few small steps in a direction opposite of what the Warren Court and Rehnquist Court had virtually made seem inevitable, and those who have come to see the pretty radical direction of the post-FDR Supreme Court as guaranteeing leftward movement eternally have now recognized that when Republican presidents actually appoint conservative judges it has an effect.

The reality is that the five-person majority isn't remotely monolithic. Justices Scalia and Thomas are originalists. They insist on giving arguments from the original meaning of the law in question or relevant section of the Constiotution. In Thomas' case, later judicial decisions that he thinks were wrongly decided have little value in interpreting what the Supreme Court should say. Scalia is much more inclined to allow precedent to have some value given that it throws the legal system into disorder if you overturn precedent willy-nilly. But he's still somewhat resistant to such moves. They don't agree on everything, not even in theory, but they tend to argue on the basis of original meaning (Scalia usually in terms of what an informed audience at the time would have understood, while Thomas usually seeks to discover the original intent of those who came up with the language in question. Often these will lead to the same result.)

But Justice Kennedy is more results-oriented. He has principles, but they are moral and political principles, not legal principles. He overturns laws and precedents when he thinks a moral issue is at stake. He rarely gives arguments based on original meaning or original intent unless he's trying to garner votes from Scalia and/or Thomas. He cites precedent when he thinks it will get him votes from other justices. But the parts of his opinions that seem to do the most work for him (i.e. the ones that use the strongest language and argue about how high the stakes are) are the kind of thing you'd expect to see in a political election or a congressional debate. They aren't legal arguments. Many of his principles are conservative, often moderately conservative, but some of them are clearly in line with the liberal wing of the Court (e.g. on whether abortion in general should be legal, whether the government can take your property so a developer can build a Wal-Mart, on the rights of gay people to have sex, on detainee rights and executive power).

Then there are the two newest justices. Chief Justice Roberts and Justice Alito are definitely conservative, and they have usually agreed at least in part on the results with Justices Scalia and Thomas and often enough with Justice Kennedy to frustrate Justices Stevens, Souter, Ginsburg, and Breyer. But they are a different kind of justice. They are conservative not in the sense of going for politically conservative results whenever it suits them (as Kennedy would do if he were more morally and politically conservative than he is) and not in the sense of sticking with the original meaning of the law in question or the Constitution. They give much a higher place to precedent.

From 2008 Central:
Tancredo is trying to keep the immigration issue alive. At his news conference Wednesday, he unveiled an immigration bill that would crack down on employers who hire illegal immigrants and limit citizenship to children born to at least one parent who is also a U.S. citizen or lawful resident.
Wait a minute. Wouldn't that be unconstitutional? From the 14th Amendment:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

He isn't proposing an amendment. He thinks it would be constitutional to do this. How so? I had to Google around to find his explanation, but here it is. He relies heavily on "and subject to the juridiction thereof", claiming that children of illegal immigrants aren't subject to the jurisdiction of the United States. I can think of lots of things that the contrast between those under U.S. jurisdiction and those not could come to, but the idea that children of illegal immigrants are not under U.S. jurisdiction is one of the least likely. Doesn't it raise problems for enforcing laws if illegal immigrants aren't under U.S. jurisdiction? Then why would their children not be?

Update: This post is about Tom Tancredo and the constitutionality of his proposal. Comments should be about that.

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