Goodbye, RBG

Posted on Categories Civil Rights, Feminism, Human Rights, Public, U.S. Supreme CourtLeave a comment» on Goodbye, RBG

The actual Justice GinsburgShe stood, at best, five feet, one inch tall. But as she got older, she looked shorter—age and frailty bending her small frame forward.

Even so, she was larger than life.

Now, if had he known her, Shakespeare surely would have penned these words for her: “Though she be but little, she is fierce.”

Most of you already know who “she” is. “She” is Justice Ruth Bader Ginsburg, and tonight, she died at the age of 87. She was a three-time cancer survivor. But a survivor, she was.

Cornell University had admitted her as an undergraduate, and she started classes mere months after her mother died. She ended up the highest-ranking female student in her class. And, during her first year of law school at Harvard as one of only nine women in a class of 500 men, she, the mother of a toddler, did her own studying and typed up notes for her husband Marty, a second-year law student who was undergoing treatment for testicular cancer. She juggled parenting a small child, pursuing her own rigorous studies, and managing her husband’s studies. When Marty graduated from Harvard Law and moved to New York for work, she followed, transferring to Columbia Law School. And ended up tying for first in her graduating class.

Considering her class rank and her achievements at two renowned law schools, you’d think she’d have no trouble finding a job. But you’d be wrong. As I’ve heard her say, she had three strikes against her: she was Jewish, she was a woman, and she was a mother. Fortunately, then, because no law firm would hire her, she eventually ended up working for the ACLU as a founding member of the ACLU’s Women’s Rights Project. There, she was the architect of the litigation strategy that chipped away at laws that discriminated on the basis of sex. In her view, neither women nor men should be constitutionally bound by societal roles made legal based on what “women” or “men” should be.

Only she never was able to convince the Court that sex discrimination cases should receive strict scrutiny, like other suspect classifications. Continue reading “Goodbye, RBG”

Milwaukee Journal Sentinel Runs Maniak’s Blog Post

Posted on Categories Civil Rights, Human Rights, International Law & Diplomacy, Media & Journalism, Milwaukee, Public, Student Contributor1 Comment on Milwaukee Journal Sentinel Runs Maniak’s Blog Post

August student blogger of the month and former Marine Robert Maniak (3L) recently wrote a powerful, moving post called Rules of Engagement that appeared on this blog. This morning, the Milwaukee Journal Sentinel and ran that post as an opinion piece. Congratulations to Robert. Be sure to check out Robert’s other blog posts here, here, and here.

Rules of Engagement

Posted on Categories Civil Rights, Human Rights, International Law & Diplomacy, Public, Student Contributor1 Comment on Rules of Engagement

Afghanistan was hot. An almost indescribable amount of heat meant that you were constantly sweating as everything you wore became soaked, so that you were never truly dry. I was there in 2014 as part of, what we thought at the time, was the U.S.’s withdrawal from the country. The unit I was a part of had the impossible task of maintaining the operation of Camp Bastion’s flight line, providing all the logistics that kept the aircraft and crews happy, while also keeping them safe.

Contrary to public assumption, and most recruiting commercials, the U.S. Marine Corps isn’t made of just infantry and aircraft units. There is a whole ecosystem of support jobs which keep everything moving along. My job was one of the less glamorous, less flashy, less likely to be publicized ones. I maintained air conditioners and refrigerators. And the unit I was assigned to wasn’t all that exciting either. We were a support squadron of the aircraft squadrons. We did not have any aircraft to maintain. Rather, we were supplied all the less glamourous logistics for the units that did fly.

Part of that logistic support was security. After the disastrous 2012 attack which killed two Marines and destroyed millions of dollars of aircraft, the airfield, which was nested inside the larger base, was subject to increased security protocols, limiting access to only those who had business there. This meant that in addition to doing our daily jobs, like vehicle and heavy equipment maintenance, we would also be tasked to stand post at the entry points for the flight line or be on stand-by as a quick reaction force in the event that someone breached the base fence and made the one-kilometer trek to the flight line. Continue reading “Rules of Engagement”

Bostock v. Clayton County: An Unexpected Victory

Posted on Categories Alumni Contributor, Circuit Splits, Civil Rights, Human Rights, Labor & Employment Law, Public, U.S. Supreme Court2 Comments on Bostock v. Clayton County: An Unexpected Victory

A photo of the White House with rainbow lights shown on it[The following is a guest post from Alexa Bradley (L’18).]

The days in which same-sex couples could marry on Sunday and be fired on Monday are no longer.

Gone, too, are the days in which a transgender employee could be fired for giving themselves the gift of living their life as the person they were always meant to be. On June 15, 2020, in Bostock v. Clayton County Board of Commissioners, the United States Supreme Court ruled in a 6-3 decision that Title VII’s prohibition of workplace “sex” discrimination clearly encompasses discrimination based on one’s sexual orientation or transgender status because “homosexuality and transgender status are inextricably bound up with sex.” This long-awaited decision was an unexpected victory for the LGBTQi community, of course, but also for the sanctity of Title VII.

Before I get into the weeds of the Bostock opinion, a little background may be helpful. I’ll first explain Title VII and some of the early Supreme Court case law interpreting “sex.” Then, before I explain the opinion itself, I’ll explain how the circuit courts had interpreted “sex” when it came to claims involving sexual orientation and transgender status. Finally, after explaining the majority opinion, I’ll unravel the dissenting arguments.

 Title VII Background
Title VII was enacted by Congress in 1964 to address the pervasive problems of employment discrimination and to ensure that, among the other enumerated characteristics, an employee’s “sex” was not relevant to their selection, evaluation, or compensation. According to Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986), Congress drafted Title VII in broad terms to “strike at the entire spectrum of disparate treatment between men and women.” Since Title VII’s passage, the Court has been tasked on a number of occasions with clarifying the scope of protection provided by Title VII’s ban on “sex” discrimination.

For example, in 1971, the Court held in Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (per curiam), that an employer who hired men with school-aged children but would not hire women with school-aged children had engaged in sex discrimination in violation of Title VII. The Court’s decision in Phillips created the “sex-plus” theory of discrimination. Sex-plus discrimination is found when an employer, explicitly or in effect, classifies an employee on the basis of sex plus another characteristic, such as “women who have children.” So, in Ms. Phillips’s case, her employer discriminated against her because she was (A) a woman, who had (B) school aged children. Thus, her employer’s decision was motivated, in part, by Ms. Phillips’s sex, which violates Title VII.

In 1978, the Court considered in Los Angeles Department of Water & Power v. Manhart, 435 U.S. 702 (1978), whether Title VII permitted an employer to require women to make larger contributions to the pension fund than men. The employer argued that the policy was justified because women are likely to live longer than men, so women would receive more over time from the pension fund. However, recognizing Title VII’s clear focus on the individual rather that a group, the Court rejected the employer’s justification. The Court reasoned that it may be true that women, as a whole, live longer than men, but an individual woman may die as early as a man, and that the individual, therefore, is the proper focus for Title VII. Thus, the Court held that an employer engages in sex discrimination in violation of Title VII when the employer uses generalizations or assumptions about an entire class of employees that results in individual disparate treatment.

In 1986, the Court held in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), that claims of workplace sexual harassment fall under the umbrella of “sex discrimination” claims contemplated by Title VII, and in 1989, the Court held in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), that discrimination on the basis of an employee’s failure to conform to expectations of gender norms – or sex-stereotyping – constitutes “sex” discrimination in violation of Title VII.

Finally, in 1998, in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), an opinion written by the late Justice Antonin Scalia, the Court found that Title VII’s prohibition on “sex” discrimination applies to cases of workplace harassment between members of the same sex. In so holding, Justice Scalia explained “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Id. at 79.

In considering the above-cited opinions, one central theme seems to ring through: “sex” must be interpreted broadly.

This theme becomes unavoidably clear when considered with Congress’ abrupt response to the Court’s holding in General Electric Co. v. Gilbert. 429 U.S. 125 (1976).  In Gilbert, the Court found that a company plan that provided nonoccupational sickness and accident benefits to all employees but did not provide such benefits for any absence due to pregnancy did not constitute sex discrimination. In response, Congress passed the Pregnancy Discrimination Act of 1978, which explicitly overturned Gilbert and expanded Title VII’s definition of “sex” to cover “pregnancy, childbirth, and related medical conditions.” 42 U.S.C. § 2000e(k). Congress’ swift action to overturn Gilbert sent a clear message to the Court – the protected characteristics enumerated in Title VII are to be afforded broad interpretations.

How We Got Here
This is the landscape of Supreme Court decisions against which Bostock must be understood. Continue reading “Bostock v. Clayton County: An Unexpected Victory”

SBA Statement in Support of BLM and Against Racial Injustice

Posted on Categories Civil Rights, Criminal Law & Process, First Amendment, Human Rights, Legal Profession, Marquette Law School, Milwaukee, Public, Race & Law, Student ContributorLeave a comment» on SBA Statement in Support of BLM and Against Racial Injustice

Logo of Student Bar AssociationTo Our Peers, Professors, And Administrators:

Marquette University Law School Student Bar Association writes to you today to address the tragedy that we as a community and a country have faced in the last three weeks. Not one of a pandemic, but rather the state-sanctioned murders of Black Americans. Namely, Ahmaud Arbery, Nina Pop, Breonna Taylor, George Floyd, and countless others. Their deaths are not novel, and we would be remiss to categorize them as such. Their deaths are the tragic manifestation of a long-standing system of racial oppression that continues to unjustly claim the lives of Black Americans.

We want to be loud and exceptionally clear: SBA believes Black Lives Matter. We are an anti-racist organization, and we condemn every form of racism. We stand in solidarity with the members of the Black Law Student Association, the Black community of Marquette University, and the Black community around the world.  Continue reading “SBA Statement in Support of BLM and Against Racial Injustice”

Once We Know, We’ll Know What To Do

Posted on Categories Civil Rights, Public, Race & Law1 Comment on Once We Know, We’ll Know What To Do

In a Facebook post last Saturday, after reading “What protesters say is fueling their anger,” I wondered what I could do to help eliminate racism, which is causing so much harm to our collective humanity.  I wasn’t sure what to do first.

As a law professor and member of the Sports Lawyers Association (including 2 years as its president and 18 years on its board of directors) for 30+ years, I’ve had the good fortune of getting to know and work with many persons of color as students and professional colleagues.  I’ve become friends with many of them.  During the past couple days, I learned that I didn’t know some of them very well.

On Sunday, I read a Facebook post by a former student stating: “Black people need your empathy. Put yourself in my shoes. I jog nearly everyday in the suburbs of North Dallas, but I run with my dog because I know that I somehow appear ‘less intimidating’ to the general public as a black man running with our family pet. . . . I have three kids – two of which are boys. I fear the day that I am forced to have the conversation with them that many Americans see them as a threat simply because of the melanin in their skin. . . . [O]ver the summer before I went to college, I had a police officer pull a gun on me in the 90s when he pulled me over simply because he said I didn’t ‘belong in this neighborhood’ where I actually grew up. He said ‘give me a reason’ to pull the trigger. I was merely a teenager with a gun pointed at the left side of my head during a traffic stop. I recall that day like it was yesterday.”

I responded: “Very sorry you personally experienced such horrifying racism (like so many others). It’s appalling, and NO human being should be subjected to and have to live in fear of it happening again! I hear you and strongly agree that racism must be publicly condemned, most especially by whites.”

He replied: “Thank you. I appreciate your awareness of the situation. . . . Have an intentional conversation with your own friends and family, on my behalf.”

Continue reading “Once We Know, We’ll Know What To Do”

A Community Lawyering

Posted on Categories Alumni Contributor, Civil Rights, Legal Practice, Milwaukee, Public, Race & LawLeave a comment» on A Community Lawyering

(Gratitude to Rodrigo Sanchez for assistance in compiling data on 53206.)

The Shriver Center in Chicago provides training on a particular model of community-based lawyering.  They define “community lawyering” as “using legal advocacy to help achieve solutions to community-identified issues in ways that develop local leadership and institutions that can continue to exert power to effect systemic change.” The concept grew out of the older ideas of community organizing generally pioneered by Saul Alinsky’s work in 1930s and 40s Chicago, where, broadly speaking, the goal is to promote the empowerment of citizens, i.e. members of the community, to address problems and effect change. These ideas were applied to the practice of law at least as far back as 1970 in the form of a Yale Law Journal article where Stephen Wexler outlined a number of ways in which effective lawyering in an impoverished community is different from the traditional practice of law.

Whereas the traditional lawyering model sets up an adversarial dynamic between parties, community lawyering may engage alternative systems of relational power or power sharing aimed at ultimate reconciliation or compromise, founded on a recognition of common interests between parties.  (See Ross Dolloff & Marc Potvin, Community Lawyering—Why Now?, 37 Clearinghouse Review 136 (July–Aug. 2003)).  Whereas traditional lawyering may entail simply spotting issues that can be resolved through litigation or formal legal recourse, community lawyering can approach citizen-identified problems as opportunities to engage stakeholders in a broader conversation in the hope of building authentic, trusting relationships.  Whereas the traditional lawyer model is that of a litigator, negotiator of claims, and counselor to the client, the community lawyer’s focus may be to “develop inside the client population a sustainable knowledge base that allows the population to build foundations for opportunity from within,” to identify and defeat the causes of poverty.  Whereas in the traditional lawyering model the attorney is the “voice” of the client before the court, in a community lawyering model, the strategy and policies are accountable to the voice of the population being served.  The lawyer assists a community in identifying a structural barrier (access to economic resources, housing, sustainability, stability, employment opportunities, political voice, etc.) and then helps build capacity within the community to take action (through organizing, relationship building, advocacy, policy development, traditional case work, etc.).

The Legal Aid Society of Milwaukee applied for and received a grant funded by the Wisconsin Trust Account Foundation to introduce its related but unique approach of embedding lawyers into communities called “neighborhood lawyering,” focused on two targeted communities in Milwaukee.  Continue reading “A Community Lawyering”

The Unprofessionals

Posted on Categories Alumni Contributor, Civil Rights, Constitutional Law, Judges & Judicial Process, Legal History, Political Processes & Rhetoric, Public, Race & Law, U.S. Supreme Court1 Comment on The Unprofessionals

In the decade after the American Civil War, Congress ratified three Amendments (the Thirteenth, Fourteenth, and Fifteenth) and passed five civil rights statutes (the Freedmen’s Bureau Act of 1866, the Civil Rights Act of 1866, the Civil Rights Act of 1870, the Civil Rights Act of 1871, and the Civil Rights Act of 1875) in an attempt to integrate African Americans into society and provide them with the full rights and privileges of citizenship.  From rights to vote, hold property, and contract, to rights of access to the courts, public infrastructure, and the marketplace, these enactments represented a dream of reconstruction that strove toward a more universal application of the ideals of the Declaration of Independence.  In striking down and interpreting these laws, the decisions of the Supreme Court played a crucial role in curtailing the promise of this older civil rights movement.  The Court’s undermining of the laws led to the legal segregation, discrimination, terrorizing, denial of due process, lynching, murdering, exploitation, and injustice that characterizes the African American experience in the century that followed.

The highlight reel that we all study in Constitutional Law class includes:

Continue reading “The Unprofessionals”

Marquette Lawyer Magazine Looks at the Milwaukee Public Schools—and Seemingly Timeless Societal Problems, Especially Segregation (Post 2 of 3)

Posted on Categories Civil Rights, Marquette Lawyer Magazine, Milwaukee Public Schools, Public, Race & LawLeave a comment» on Marquette Lawyer Magazine Looks at the Milwaukee Public Schools—and Seemingly Timeless Societal Problems, Especially Segregation (Post 2 of 3)

Judge John W. Reynolds sitting in a chairA previous blog post discussed a pair of stories in the Summer 2019 Marquette Lawyer magazine and concluded by quoting one of them: specifically, an observation by Professor David Strauss of the University of Chicago, based on the Boden Lecture at Marquette Law School by Duke’s Professor Ernest Young, that “in the end, there is only so much the law can do to save a society from its own moral failings.” This post takes up a second pair of stories in the magazine, from which one might draw the same conclusion.

While it remains a fact about the large majority of schools in the Milwaukee area now, segregation of Milwaukee school students by race was the subject of great energy—attention, advocacy, and controversy—in the 1960s and 1970s. Two pieces in this summer’s Marquette Lawyer focus on the Milwaukee education scene of that earlier era.

In one, Alan Borsuk, the Law School’s senior fellow in law and public policy, writes about the decision issued in January 1976, by U.S. District Judge John W. Reynolds, which ordered that the Milwaukee Public Schools be desegregated. “A Simple Order, a Complex Legacy” touches upon the legal history of school desegregation cases, Reynolds’ 1976 ruling itself, and the legacy of that Milwaukee ruling. To borrow a phrase from Professor Young’s Boden Lecture, there is scarcely “an optimistic, onward-and-upward feel” to the account. Continue reading “Marquette Lawyer Magazine Looks at the Milwaukee Public Schools—and Seemingly Timeless Societal Problems, Especially Segregation (Post 2 of 3)”

New Marquette Lawyer Magazine Sees Past Problems as Shedding Light on Future Challenges (Post 1 of 3)

Posted on Categories Civil Rights, Constitutional Interpretation, Federalism, Judges & Judicial Process, Legal History, Marquette Lawyer Magazine, Popular Culture & Law, Race & Law, Speakers at Marquette, U.S. Supreme CourtLeave a comment» on New Marquette Lawyer Magazine Sees Past Problems as Shedding Light on Future Challenges (Post 1 of 3)

This cover of the summer issue of the Marquette Lawyer. The Summer 2019 issue of Marquette Lawyer features three pairs of stories with an underlying common theme that can be summed up by one of the headlines: “In Search of Better Outcomes.” This issue of the Marquette Law School semiannual magazine overall has a substantial historical orientation, but it also speaks strongly to current realities and issues—as has become even clearer since the magazine hit the streets a few weeks ago. Simply put, learning about the past helps in understanding the present and considering the future. This post takes up one pair of articles: the cover story and a reaction to it.

The cover story, “Dying Constitutionalism and the Fourteenth Amendment,” is an edited version of the Robert F. Boden Lecture given at Marquette Law School in fall 2018, by Ernest A. Young, the Alston & Bird Professor at Duke Law School. While the Fourteenth Amendment later would be crucial to the growth of constitutional protections and the extension of civil rights—the linchpin of America’s “second founding,” as it is sometimes called—Young focuses on the first 75 years after the amendment was ratified in 1868. It was a period of broad suppression of civil rights, particularly those of African Americans—the Fourteenth Amendment not working much to the contrary.

Young’s purpose is not so much historical as jurisprudential: He presents his essay as a cautionary tale about “living constitutionalism,” demonstrating that, while that mode of constitutional interpretation was not the Court’s stated approach in those 75 years, it could have been: For “every one of [living constitutionalism’s] modalities strongly supported the compromise or even abandonment of the amendment’s core purpose of freedom and equality for black Americans.” Simply stated, the history of the use of the amendment is a reminder that “social progress is not inevitable, that social forces can push constitutional meaning in bad as well as good directions, that living can turn into dying constitutionalism if we are not very, very careful,” Young writes.

In a comment on Young’s lecture, David A. Strauss, Gerald Ratner Distinguished Service Professor of Law at the University of Chicago and author of The Living Constitution (Oxford 2012), says that the early failures under the Fourteenth Amendment need to be reckoned with by those who are proponents of living constitutionalism. He writes that Young’s lecture shows that “in the end, there is only so much that the law can do to save a society from its own moral failings.”

A future post will discuss another pair of articles in the magazine that would support the same reaction. Click here to read both Young’s lecture and Strauss’s comment.

Israel Reflections 2019–Immigration, Racism, & Refugees

Posted on Categories Civil Rights, Human Rights, Immigration Law, International Law & Diplomacy, Public, Race & LawLeave a comment» on Israel Reflections 2019–Immigration, Racism, & Refugees

On our first full morning in Tel Aviv, we turned to some (other) hard issues facing different parts of the population in Israel. Our first speaker was Mazal Bisawer, a PhD candidate and student leader at Tel Aviv University. Mazal spoke to us about the Ethiopian population in Israel—a minority within a minority—most of whom immigrated to Israel in the 1970’s and 1980’s. We’ve had visits with other Ethiopian Jews over the years (see blogs from 2017 here and 2015 here) dealing with the issue of diversity in Israel. And even on the main street in Tel Aviv, the concept of refugees is front and center with this beautiful mosaic:

Refugees mosaic

Shayla Sanders identified with Mazal’s comments:

She spoke broadly about police brutality against young Ethiopian men and emphasized that while only 2% of the population in Israel, Ethiopian young people make up 60% of the population in juvenile detention facilities. I was struck in this moment with a sickening, yet somehow validating sense of déjà vu. I recognized these statistics. I know that African Americans in the US face a similar plight. In hearing her speak to some of these issues, I heard some of the same emotions I myself experience when discussing racial issues here in the US. I heard in her the same passion I feel when discussing instances of injustice against my people. I heard her pain when she told us how people would say that Ethiopians should feel lucky to only be experiencing minor levels of racism because they are the only group of black people not brought by force into a country and compelled into slavery. I felt her frustration when she emphasized that speaking out on these issues, she is often met with the same reaction as if she had stated a belief in little green aliens and UFOs… I have myself been written off as a radical idealist who plays the race card all too frequently. I have been faced with those who would rather police my tone than address and confront the truth in my statements. So, imagine my utter lack of shock when our very own tour guide immediately dismissed Mazal as radical and gave an open invitation to our tour group to take her opinion with a grain of salt not granted to any of the other speakers we had seen thus far.

Continue reading “Israel Reflections 2019–Immigration, Racism, & Refugees”

On Originalism and the First Amendment

Posted on Categories Civil Rights, Constitutional Interpretation, Constitutional Law, First Amendment, Political Processes & Rhetoric, Public, U.S. Supreme CourtLeave a comment» on On Originalism and the First Amendment
Political cartoon from 1888 showing little demons with names like "garbled News," "Paid Puffery," and "Boastful Lies" emerging from the mouth of a printing press.
The Evil Spirits of the Modern Daily Press (Puck Magazine 1888)

On October 18, 2018, I participated in a presentation entitled “Free Speech and Originalist Jurisprudence” at the University of Wisconsin-Stout along with Professor Alan Bigel (UW-Lacrosse).  The event was part of Free Speech Week sponsored by the Center for Study of Institutions and Innovation.  What follows is a copy of my prepared remarks.

“In December 1783, George Washington gave a toast at a dinner celebrating the formal dissolution of the Revolutionary Army.  He did not use his toast to offer a tribute to individual liberty.  Nor did he sing the praises of limited government.  Instead, his toast was a simple expression of what he hoped the future would bring to our new nation. He raised his glass and he said: “Competent powers to Congress for general purposes.”

I wrote that in a 2012 blog post, and I received an immediate and angry response from a lawyer who denied that George Washington ever said such a thing, and who rejected the idea that George Washington ever supported a powerful national government.  This well documented historical fact did not fit within the reader’s understanding of the original intent of our U.S. Constitution — and therefore the reader simply could not believe that the quotation could be accurate.

The response of this reader reflects the fact that, for many persons, originalism is primarily a culturally expressive theory – a theory that expresses a culture that reflects conservative political views, moral traditionalism, and a tendency towards libertarianism. (Jamal Greene, Nathaniel Persily & Stephen Ansolabehere, “Profiling Originalism,” 111 COLUMBIA L. REV. 356, 400-402 (2011)).

However, originalism as a theory was not invented in order to provide a vehicle for cultural expression.  Instead, the goal of originalism is to provide an interpretive method for objectively defining the meaning of the U.S. Constitution.

Originalism is an interpretive theory that understands a legal text to retain the meaning it had at the moment when it was enacted or ratified, until such time as the law is amended or repealed. (Chris Cooke, “Textualism is Not Strict Constructionism is Not Originalism,“leastdangerousblog.com, July 8, 2018).  It holds that the discoverable public meaning of the U.S. Constitution at the time of its initial adoption should be regarded as authoritative for purposes of later constitutional interpretation. (Keith Whittington, “Originalism: A Critical Introduction,” 82 FORDHAM L. REV. 375, 377 (2013)).

There is an abundant historical record supporting the conclusion that the United States Constitution was promoted by a core group of political leaders in order to strengthen the national government, and that the Constitution was understood by the people during the ratification debate to do just that.

In rejecting this historical record, the lawyer who responded to my blog post revealed that he was more devoted to his favored myth of original meaning than he was to objectively weighing the available evidence of actual meaning. Continue reading “On Originalism and the First Amendment”