Progressive Originalism

The March 14 edition of the Wall Street Journal carries an interesting story regarding efforts to use “progressive originalism” in upcoming precedent-potential cases. The Journal reports that the Center for Constitutional Accountability, a progressive public interest law firm run by Doug Kendall, and several liberal-leaning legal academics have undertaken a sustained effort to revive the Privileges or Immunities Clause of the 14th Amendment. The Journal reports:

So-called progressive originalism departs from the conservative strain by shifting focus from the 18th-century constitutional text to the three Reconstruction amendments ratified after the Civil War. . . . Viewed through the Reconstruction prism, the “Constitution turns out to be way more liberal than conservative,” says Yale law professor Akhil Reed Amar, a leading proponent of progressive originalism. . . . By applying methods blessed by conservatives to the neglected texts and forgotten framers of the Reconstruction amendments, liberals hope to deploy powerful new arguments to cement precedents under threat from the right and undergird the recognition of new rights.

The Journal’s report struck me as particularly interesting when juxtaposed alongside an article authored by Marquette alumnus Keith Alexander (BA ’98, MA ’00) and published recently in the Texas Review of Law and Politics. In developing an argument regarding the federal partial birth abortion ban, Alexander focuses on the original meaning of the 14th Amendment’s Equal Protection Clause:

Continue ReadingProgressive Originalism


When Fr. Richard John Neuhaus, a priest of the Archdiocese of New York and editor-in-chief of the journal FIRST THINGS, passed away in January, numerous glowing tributes to his life and work poured forth.  Appreciation for his contributions emerged from all sectors — leaders from America’s religious, political, and academic communities praised his intellectual work and his pastoral nature. Yesterday, Judge Edith Jones of the U.S. Court of Appeals for the Fifth Circuit delivered a lecture at the University of Minnesota School of Law entitled “The Influence of Richard John Neuhaus on Religion in the Public Square.” Her thoughts, and hopefully those of others as well, will analyze and honor the tremendous impact Fr. Neuhaus had specifically on America’s law and jurisprudence. His 1984 book The Naked Public Square: Religion and Democracy in America coined the phrase that defined the effort by some to drive religious dialogue and values out of America’s public discourse. The book is the starting point for efforts by people of faith to defend moral and religious arguments in public policy discussions (Westlaw finds over 250 uses of the phrase in its journals database).

In 1996, his journal, FIRST THINGS, published a symposium entitled “The End of Democracy? Judicial Usurpation of Politics”. Contributors included Robert Bork, Chuck Colson, Robert George, and Hadley Arkes. The symposium began with a very straightforward and intentionally shocking question question: “The question here explored, in full awareness of its far-reaching consequences, is whether we have reached or are reaching the point where conscientious citizens can no longer give moral assent to the existing regime.” The editorial introducing the symposium gave a tentative answer as well: “What is happening now is the displacement of a constitutional order by a regime that does not have, will not obtain, and cannot command the consent of the people.” The symposium launched a heated debate about the role of judges in a constitutional republic, and remains a standard reference point in the modern intellectual discussion of “judicial activism.”

Continue ReadingRIP, RJN

Misinformation Comes in All Forums

I am close to being a first amendment absolutist. While some of the stuff that we see in the course of judicial elections tries my commitment, I am opposed to almost all regulation of campaign speech. As we face another Supreme Court election in Wisconsin, I fear my commitment may be tried again (although it is, at this point, unclear whether there will be much of a race).

I am a judicial election agnostic. I have often said that campaign speech in judicial election will often make me, as someone who studies and loves the law, cringe. But just when I am ready to dismiss the idea of elected judges, I think of the last confirmation battle over a Supreme Court or controversial lower court nominee and I am back on the fence.

Let me try to illustrate this in what may be seen as a provocative way.

Continue ReadingMisinformation Comes in All Forums