John Roberts's Refusal to Defend Federal Statutes
s-gerber at onu.edu
Thu Sep 8 08:35:45 PDT 2005
I'll respond to both Sam Bagenstos and Frank Cross via this post. I'll
reply briefly, both because I hope folks will read the full treatments
mentioned in my prior post and because I'm in the middle of preparing for
class. (FYI, I know Mark Tushnet at least read my Thomas book. He kindly
cites it in several places. Consequently, Mark is immune from my criticism
of legal elites!)
It's easy to oppose affirmative action and support privacy, which I do, on
liberal originalist grounds. With respect to affirmative action, the
Declaration of Independence commits the regime to a Lockean liberal
approach to government: the Constitution protects individual, not group
rights. That's why Justice Thomas opposes affirmative action.
Another central tenat of Lockean liberalism is that government should be
limited (charged chiefly with protecting individual rights). Privacy is
CENTRAL to this conception of government.
With respect to abortion, the answer to that depends on when life begins.
If life begins at conception, the Constitution can't protect abortion
because the fundamental law of nature in Lockean liberalism is the
preservation of life. If life doesn't begin at conception, a woman has a
natural liberty right to choose abortion (up to the point when the fetus is
All of this is discussed in the previously-mentioned sources.
At 09:52 AM 9/8/2005 -0500, Samuel Bagenstos wrote:
>Prof. Gerber's comment, as usual, makes me very curious. I wonder if he
wouldn't mind explaining, for the benefit of the list, whether, if one can
be an originalist opponent of affirmative action, one could also be an
originalist defender of Griswold and Roe. I'm actually very interested in
what would be the distinction, from an originalist perspective, between the
>Samuel R. Bagenstos
>Professor of Law
>Washington University School of Law
>One Brookings Drive
>St. Louis, MO 63130
>Personal Web Page:
>Disability Law Blog: http://disabilitylaw.blogspot.com/
>>>> Scott Gerber <s-gerber at onu.edu> 9/8/2005 9:43 AM >>>
>I respectfully suggest that Marty Lederman is oversimplying the original
>intent approach to constitutional interpretation. As I demonstrate in my
>book FIRST PRINCIPLES: THE JURISPRUDENCE OF JUSTICE THOMAS (NYU Press,
>1999; expanded ed. 2002), Justice Thomas employs originalism in his
>opposition to affirmative action (albeit liberal originalism). I explain
>the difference between conservative originalism and liberal originallism in
>TO SECURE THESE RIGHTS: THE DECLARATION OF INDEPENDENCE AND CONSTITUTIONAL
>INTERPRETATION (NYU Press, 1995). There is an article about my theory of
>originalism in one of the recent issues of the Harvard Journal of Law and
>Public Policy (it's not written by me, but rather about my theory).
>Legal elites have probably read none of the three above-cited sources.
>Ohio Northern University
>Marty Lederman writes [in part]:
>And, if it's the case that Roberts had such strong views about the
>constitutionality of federal affirmative action, I think we can also assume
>this: that his constitutional understandings and commitments are not
>determined by plain (or "original") meaning, or by original intent -- not
>that he has ever suggested otherwise.
>Ohio Northern University
>Ada, OH 45810
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Ohio Northern University
Ada, OH 45810
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