Best of the Blogs

What do we have this week? Over at the wonderful Mirror of Justice, you can follow a debate involving Michael Perry, Mike Scaperlanda, Robbie George, Robert Hockett and Rick Garnett  and others (I’ve linked to some but not all of the posts in the thread) on Pope Benedict XVI’s concern about the “dictatorship of relativism.”  Professor Hockett’s argument that terms like “relativism” and “tolerance” often mask conclusions rather than do much argumentative work reminded me of Steven D. Smith’s excellent new book, The Disenchantment of Secular Discourse. I just finished reading it and hope to  blog on it shortly.

At Public Discourse, Rob Vischer considers the Supreme Court’s recent decision in Christian Legal Society v. Martinez upholding a requirement at Hastings Law School that recognized student organizations may not exclude students based upon their refusal to accept the organization’s objectives or beliefs. Rob concludes:

The next challenge is clear: we must think seriously about how to help deepen our public discourse about discrimination and diversity to include recognition that associational diversity is a key component of religious and moral liberty, and that even if a university now has the right to make all groups accept everyone, it is a right best left unexercised.

At Ballkinization, Jack Balkin expresses concern over a decision Thursday by a district judge in Massachusetts v. HHS finding that the Defense of Marriage Act violates the Tenth Amendment. 

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Rediscovering the Privileges or Immunities Clause

The Privileges or Immunities Clause of the Fourteenth Amendment has been largely dormant since the Slaughterhouse Cases of 1873.  Courts generally treat the Clause as adding little or nothing to the Fourteenth Amendment’s two better-known provisions, the Equal Protection and Due Process Clauses.  However, Bruce Boyden argues  in a new paper on SSRN that the Clause actually does have a distinctive role to play in constitutional doctrine, specifically, by regulating conflicts between states over competing “status regimes.”

As Bruce explains, America’s prototypical “status regime conflict” related to the rights of northern blacks who traveled to pro-slavery states prior to the Civil War.  Much litigation resulted from the refusal of some southern and western states to recognize the rights of such travelers.  Based on a review of the debates arising from these antebellum cases and the history surrounding the adoption of the Privileges or Immunities Clause, Bruce argues that the Clause was intended to ensure that interstate travelers could retain the legal status they enjoyed in their home states notwithstanding entrenched national divisions over legal status questions.

For Bruce, the ongoing significance of this history is that the Privileges or Immunities Clause should continue to be seen as a device for resolving status regime conflicts. 

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Does Geography Affect Appointments to the Supreme Court?

It certainly used to.

Perhaps the most obvious examples are those from the early 19th century.  Appointments of new justices were once tied to the creation of new circuit courts.  And that was for good reason:  Circuit courts were not the intermediate courts of appeals of today (with few exceptions, the most notable of which were the “Midnight Judges” that served from 1801 until 1802); they were largely nisi prius courts, functioning alongside district courts, with only limited appellate review.  But they did not have their own judges.  Various combinations of justices from the Supreme Court and judges from the district courts sat to form the circuit courts.

When Congress created the Seventh Circuit in 1807, therefore, which consisted of the new states of Kentucky, Tennessee, and Ohio, it required that the new justice assigned to that seat hail from there.  The result was Jefferson’s appointment of Thomas Todd of Kentucky. 

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