The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

President Trump Repudiates Discovery Doctrine, Favors Acquisition By Conquest

Once again, Trump manages to make obscure law great again.

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One of the most remarkable aspects of the Trump presidencies is how he makes so much obscure law return to the fore. It has been well documented how much of the Constitution Trump has implicated. Indeed, one could write an entire book about Trump and the Constitution. (I plan to write a trilogy on the topic.) But Trump also affects other aspects of the law.

The latest instance comes in comments Trump made about Greenland. Trump said:

"The fact that they [Denmark] had a boat land there 500 years ago doesn't mean that they own the land."

Of course, Trump is referring to the doctrine of acquisition by discovery. Chief Justice Marshall discussed this doctrine at length in Johnson v. McIntosh. Most 1Ls read this case in property. In this canonical decision, Marshall explained that European explorers "acquired" land in the Americas pursuant to the discovery doctrine. The discovery doctrine is the root of most property ownership of the United States. For whatever it is worth, the Vatican repudiated the discovery doctrine.

I'll admit I know little about the history to Greenland. I found an article (fittingly) titled "The Rediscovery of Greenland during the Reign of Christian IV." During the thirteenth and fourteenth centuries, there were Nordic settlements in Greenland. However, those settlements faded away by the early fifteenth century. Starting in 1605, the Danish king sent expeditions to Greenland. (This is likely the 500-year-old boat that Trump is talking about.) Danish claims to Greenland trace to this re-discovery.

Even as Trump rejects Denmark's claim to the land by virtue of the discovery doctrine, at same he asserted that the United States could acquire Greenland by conquest.

So far, Trump has not had much effect on my Property Law class, but that has now changed.

Free Speech

"The Buckley Principles," by Lee E. Goodman

"The core First Amendment principles of Buckley v. Valeo endure after fifty years."

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From an Institute for Free Speech symposium on the 50th anniversary of Buckley, which I'll be cross-posting over the next couple of weeks; this is by Lee E. Goodman, a partner at the Dhillon Law Group and a former Chairman of the Federal Election Commission:

I have been citing Buckley v. Valeo (1976) since I started practicing First Amendment law in 1990. Buckley has stood as the cornerstone of First Amendment jurisprudence in the field of campaign finance since 1976, so fundamental that every lawyer was expected to learn it and invoke it like a secular Bible.

No Supreme Court decision has been more significant in shaping the logic that constrains the government's efforts to restrict election campaign-related speech. Numerous Court decisions over the next five decades have built upon the principles established in Buckley, and it continues to guide First Amendment law to this day.

From the beginning, the decision was a thorn in the side of those who sought to restrict campaign speech in the name of "good government" and equitable objectives. Indeed, over the ensuing fifty years, there have been spirited efforts to reinterpret it, reverse it, and even to evade it by altering the First Amendment itself. Such advocates came close once, and only once, in McConnell v. FEC (2003), but have otherwise failed to displace Buckley's logic.

Free speech advocates have relied upon the speech protections established in Buckley and, in doing so, have successfully extended its logic to a broader realm of speech and speakers. The core principles set forth by the per curiam Court in Buckey have endured as the foundation for free speech rights and inspired a number of court decisions expanding free speech in election campaigns.

  1. Money is not speech, but a necessary tool of expression.

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Free Speech, Religious Offense, and a Transatlantic Divide

Balancing free expression and the dignity of religious believers in Europe.

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One of the most difficult areas in church–state law involves the conflict between freedom of speech and freedom of religion. In the United States, at least at the level of basic principle, that conflict has been largely resolved for decades. Ever since Cantwell v. Connecticut, we have accepted that people don't have a right to be free from criticism—or even offense—directed at their religious beliefs. Speakers may criticize religion, ridicule religious doctrines, and even confront believers directly, so long as they respect ordinary time, place, and manner restrictions and do not incite imminent violence.

In other words, in American constitutional law, freedom of speech generally trumps claims that religious sensibilities have been wounded. The First Amendment does not contain a right not to be insulted.

The situation in Europe is more complicated.

The European Court of Human Rights holds that states have a legitimate interest in protecting believers from gratuitous disrespect directed at their religious beliefs. As far back as the Otto-Preminger-Institut case, the ECtHR has indicated that freedom of expression does not include a right to insult religious beliefs in ways that undermine social peace or the rights of others. This concern applies to both majority and minority religions. The underlying idea is not that religion is immune from criticism, but that the state may regulate expression that crosses the line from criticism into deliberate and unnecessary insult.

Europe today is experiencing deep disagreements about religion's role in public life. What counts as legitimate critique to one audience may register as degrading or contemptuous to another. As a result, courts in Europe, including the ECtHR, are increasingly asked to draw difficult lines between  public debate and pointless provocation.

I recently discussed this issue, among others, with Judge Ioannis Ktistakis of the ECtHR on a new episode of the Legal Spirits podcast. Towards the end of the episode, Judge Ktistakis identified this tension—balancing the right of believers to have respect shown to them and their beliefs against the competing right of free expression—as one of the major challenges facing the ECtHR today.

Readers interested in comparative church–state law may find the conversation illuminating, not only for what it reveals about the ECtHR's approach, but for what it tells us about the assumptions Americans often take for granted when thinking about free speech and religious freedom.

Criminal Justice

Justice Thomas, Joined by Justice Gorsuch, Argue for Broader Scope of Constitutional Ban on Ex Post Facto Laws

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Brief excerpts from today's concurrence in Ellingburg v. U.S., though the whole opinion is worth a read:

I join the Court's opinion in full because it correctly applies our precedent. I write separately to clarify the foundation of that precedent. This Court's 1798 decision in Calder v. Bull established that the Ex Post Facto Clauses forbid only those retroactive laws that impose "punishment" for a "crime." Over the 228 years since Calder, the Court has struggled to articulate what it means for a law to impose punishment for a crime, and thus to be subject to the Ex Post Facto Clauses.

The Court's more recent precedents have implemented Calder through two multifactor tests that turn largely on whether the legislature labels the law as criminal or civil. But in 1798, "punishment" for a "crime" would have been understood to refer to any coercive penalty for a public wrong. Many laws that are nominally civil today would therefore have been subject to the Ex Post Facto Clauses under Calder. I would restore Calder's approach to the Ex Post Facto Clauses….

Calder's understanding secures Ex Post Facto Clause protection in a wide range of contexts involving nominally civil laws. Those contexts include civil proceedings seeking fines for public offenses. See, e.g., Army Corps of Engineers v. Hawkes Co. (2016) (describing "civil penalties of up to $37,500 for each day [the challenger] violated the Act"). They include enforcement proceedings brought by administrative agencies. See Axon Enterprise, Inc. v. FTC, 598 U. S. 175, 196 (2023) (Thomas, J., concurring) (describing the 20th-century rise of such proceedings). And they include municipal sanctions like speeding tickets. "If one were to commit a minor traffic offense at a time the offense was to be punished by a $25 fine, and the government were to then amend the statute and impose a fine of $1,000,000 dollars, it would be nonsensical to treat that fine as non-punitive simply because the offense was processed civilly." Brief for Professor Beth Colgan as Amicus Curiae. Because all of these offenses impose punishments for public wrongs, Calder would treat them all as subject to the Ex Post Facto Clauses.

Three Very Short SCOTUS Unanimous Opinions In One Day, But No Tariffs

The Tariffs case is still cooking, but the Court is clearing the brush.

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Generally, at the end of June, there is a running angst for a pending significant case. It is unusual to have that sort of anticipation so early in the term, but here we are. In January, the Court has had three hand-down sessions. So far, eight signed opinions have been handed down. None of these cases have been particularly significant. And still not tariffs. The Court seems to have other priorities. You could imagine the Court saying that no other opinions will be issued until tariffs is released, but that has not been the plan.

What is the cause of the delay? Who knows. But let me offer some speculation. The longer this case goes, the more likely that Trump wins, at least in part. There is a stay in place, and new tariffs continue to be imposed. As the Court takes more time, the remedial issue becomes more complicated by the day. At the outset, the plaintiffs sought a preliminary injunction in light of irreparable harm. And as the Court takes more time to write and review, that irreparable harm becomes greater. This ruling does not need to be a ruling for the ages, so iterative rounds of revisions have a diminishing return. After the case was argued, I put the odds at 51/49 that Trump loses. I've now flipped to 51/49 that Trump wins, at least in part.

The three cases decided today were all very short and were unanimous.

Berk v. Choy was a 9-0 reversal. The majority opinion by Justice Barrett was 11 pages.

Ellingburg v. United States was a 9-0 reversal. The majority opinion by Justice Kavanaugh was 5 pages.

Coney Island Auto Parts Unlimited, Inc. v. Burton was a 9-0 affirmance. The majority opinion by Justice Alito was six pages long. Indeed, I watched the argument in Coney Island, which may have been the shortest oral argument in the modern era.

I can't recall a day with three majority opinions that were all unanimous and all so short. Also, I would note that Williams & Connolly was counsel in Coney Island and Ellingburg. Today was a good day for the Lisa Blatt and Amy Saharia.

Politics

"Lest We All Drown in a Sea of Slop"

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From Kelleher v. Town of Brookfield, decided earlier this month by Judge Brian Murphy (D. Mass.):

Plaintiff's Complaint is more than 100 pages long, often repeating itself or presenting information piecemeal and out of order, to some sort of titanic effect. While the Court appreciates that there is a long history between these parties and that Plaintiff is a pro se litigant and so entitled to a fair amount of leeway, "[e]ven pro se litigants are bound by the Federal Rules of Civil Procedure," including Rule 8's requirement that pleadings be "short" and "plain," with allegations that are "simple, concise, and direct."

Of course, the Court is well aware that attorneys, too, have long and often violated this rule (sometimes at great profit). See, e.g., Trump v. New York Times Co. (M.D. Fla. 2025) (excoriating experienced counsel for submitting a complaint that was "decidedly improper and impermissible"). However, particularly as artificial intelligence makes the production of language cheaper and faster—undoubtedly a boon to those that have historically been unable to afford garrulous counsel—it will become increasingly incumbent upon courts to insist that parties respect our limited bandwidths, lest we all drown in a sea of slop.

The Court would not make an example out of this case. However, moving forward, the Court would ask that Plaintiff (or any other prospective filer) do his best to write plainly and precisely, trusting that the Court reads closely and is unmoved by too much rhetoric.

Free Speech

$300K Settlement Against Michigan State Over Elected Officials Allegedly Orchestrating Public Criticism of (and Racism Allegations Against) Professor

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Besides the monetary settlement, MSU Trustee Dennis Denno signed a document stating,

Trustee Rema Vassar signed another stating,

While I maintain my rights to advocate for students and engage in robust debate on matters of institutional governance, I understand that the manner in which advocacy occurs matters, and I reaffirm my commitment to conducting board-related activities in ways that respect all members of the university community.

I remain committed to supporting students who seek to exercise their voices on campus while also acknowledging the complexities that arise when student advocacy intersects with faculty governance and board dynamics.

I did not intend to cause Dr. Lipton personal or professional harm and appreciate and respect Dr. Lipton's advocacy on behalf of MSU's faculty.

Moving forward, I hope all parties can focus on the important work of serving Michigan State University and its diverse community.

Here's my post on the legal issue from June:

[* * *]

Did Elected Officials Violate First Amendment by Orchestrating Public Criticism of (and Racism Allegations Against) Their Critic?

[Subtitle:] "[P]ublic condemnations, op-eds, and official complaints … through proxies are independent constitutional violations" if the officials "engaged in conduct that was motivated by the plaintiff's protected speech and had the requisite chilling effect on First Amendment activity."

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Religion and the Law

Religious Employment and Title VII: Part 2—Reading the Exemption Textually

A textualist interpretation of Section 702 shows that the exemption applies when a religious employer confines employment to people who fit the employer's religious observances, practices, and beliefs.

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In this second post summarizing our new article, we explain how textualism offers a compelling interpretive lens for reading the religious employer exemption of Title VII. Besides revealing the liberty-equality tensions discussed in Part 1, a close reading of Section 702's text vividly reveals the exemption's meaning and scope.

Here is Section 702's relevant language:

This subchapter shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

Notice the opening phrase, "This subchapter shall not apply." Subchapter denotes Title VII and shall expresses a mandate.

Section 702 covers a "religious corporation, association, educational institution, or society." Title VII does not define these terms, but each had an established usage when Congress adopted the statute. Our article concludes that the exemption applies to a wide range of religious organizations—from churches and synagogues to religious schools to soup kitchens and other faith-based organizations.

Next, Section 702 applies when a religious organization's employees "perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities." The term activities is unqualified by design. Originally, Title VII limited the exemption to employees who carry out "religious activities," but that qualification was later struck by a 1972 amendment. Section 702 covers all employees of a religious organization, regardless of whether they are engaged in religious activities.

We come to the decisive phrase. Section 702 applies "with respect to the employment of individuals of a particular religion." Each word matters.

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Free Speech

Buckley v. Valeo: A Retrospective Series

The introduction to an Institute for Free Speech symposium, which I'll be cross-posting over the next couple of weeks.

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By David Keating, the President of the Institute for Free Speech:

Fifty years ago this month, the U.S. Supreme Court issued its landmark ruling in Buckley v. Valeo. Fortunately for the free speech clause of the First Amendment, the Court invalidated crucial parts of the extensive 1974 amendments to the 1971 Federal Election Campaign Act (FECA).

To mark the January 30 anniversary of Buckley, the Institute for Free Speech and the Volokh Conspiracy today begin publishing a series of essays on the opinion, which will run through the anniversary date. We at the Institute recognize that this anniversary provides an opportunity to examine how Buckley safeguards the First Amendment rights that protect our ability to criticize, challenge, and ultimately improve our government.

And the pre-Buckley world looked quite different. Before FECA, U.S. campaign finance was largely unregulated. The 1974 amendments imposed restrictions on contributions and expenditures. Buckley largely upheld contribution limits but ruled that spending limits were unconstitutional.

Had the Court upheld the law in its entirety, Congress undoubtedly would have enacted even stricter laws to squelch critics. Numerous provisions of the pre-Buckley FECA posed a true threat to free speech, so it's not an exaggeration to say the decision saved that fundamental right.

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Three Flawed Opinions In Bost v. Illinois State Board of Elections

The majority and dissent’s understanding of standing turned on their visions of democracy. The concurrence does not fare much better.

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Bost v. Illinois State Board of Election is one of the most difficult standing opinions I've encountered. This case is at once simple and extremely difficult. I've been struggling with Bost since I covered it in my Supreme Court simulation class this past semester. I found the Court's ultimate resolution unsatisfying and unpersuasive.

The question presented in Bost was whether a candidate for the House of Representatives has standing to challenge an Illinois law that permits the counting of mail-in ballots that are received after election day. Both the District Court and the Seventh Circuit found that Representative Michael Bost lacked standing. Bost, a Republican, serves in a gerrymandered district, where his margin of victory was significant. The lower courts found that there was no realistic chance that the late-arriving ballots--even if they all went for the Democratic candidate--could make a difference in the outcome of the race. As Justice Jackson wrote in dissent, Bost "never alleges that untimely ballots are more likely to break against him and in favor of his opponent." And the lower courts found that the candidate does not have an interest in padding his margin of victory.

Chief Justice Roberts authored the majority opinion, which was joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh. Justice Barrett concurred in the judgment, joined by Justice Kagan. The Chief found that the candidate has standing because he is a candidate: "As a candidate for office, Congressman Bost has standing to challenge the rules that govern the counting of votes in his election." Justice Barrett, by contrast, found that the candidate has a pocketbook injury, and would not have created a "bespoke" rule for candidates. She wrote, "Bost has standing because he has suffered a traditional pocketbook injury, not because of his status as a candidate."Justice Jackson dissented along with Justice Sotomayor, finding that any purported injury was self-imposed in light of Clapper.

Who can challenge the rule?

As a general rule, candidates have standing to challenge election rules because those rules directly regulate the conduct of candidates. For example, a rule requiring that a certain number of signatures must be collected imposes a burden on the candidate. A rule requiring disclosure of contributions also imposes a burden on the candidate. Also, as a general rule, regulations that make it harder to cast votes can be challenged by voters. For example, requirements to sign absentee ballots in a certain way, or restrictions on where ballots can be dropped off, will impose costs on voters. Voters would have standing to challenge these rules.

 

But what about regulations that make it easier for voters to cast votes? Such is the case in Illinois, and many other states. The relevant law permits the state to count mail-in ballots that were mailed before election day but were received after election day. No voter would have standing to challenge this permissive rule of inclusion. The law imposes no burden--only a benefit. (Policies like DACA are exceptionally hard to challenge in court because they primarily provide benefits.) Voters could not base a claim on an interest in avoiding voter fraud. Voters do not have a generalized interest in the fairness of an election. 

As a result, the only party that could conceivably challenge this rule would be a candidate. In the worst-case scenario, imagine that there is a very tight race, and the margin of victory turns on counting these late-arriving ballots. At that point, the losing candidate would have standing to challenge whether those ballots should be counted. We saw similar claims raised in the wake of the 2020 election. But as the 2020 election demonstrated, the Supreme Court wanted absolutely nothing to do with eleventh hour litigation. From a practical perspective, it would make some sense for candidates to file a pre-enforcement challenge against the rule. But bringing suit before the election raises a host of problems. 

Put aside the standing analysis for a moment, and consider the timing. A person is a "candidate" for a fairly limited period of time. That span would run from when the person is certified to appear on the general election ballot and concludes when that election has a certified winner. This period will usually last less than a year, sometimes only a few months. It is extremely unlikely that a pre-enforcement challenge would move quickly enough to go from the district court to the Supreme Court in that span. Invariably, as the litigation trickles up to the Supreme Court, the complaint filed based on a past election will become obsolete, assuming the candidate ever runs for reelection. In Bost, the complaint was filed in May 2022 based on the 2022 election. Now, we are gearing up for the 2026 midterms. The world has changed since then. Indeed, boundaries can be redrawn, political sentiments can shift, and a politician's popularity might change.

The Standing Puzzle 

Candidates will generally have standing to challenge election rules. After all, most ballot access rules directly affect the candidate. But the Illinois law was different, insofar as it regulated voters. There was a somewhat comical exchange during oral argument in which Justice Kavanaugh asked, repeatedly, if the candidate was the "object" of the regulation.

CLEMENT: Look, if it helps me to say they're the direct object, I'll say it. But I do kind of think it's a -

JUSTICE KAVANAUGH: They're an --an object.

JUSTICE KAGAN: It might help you with some people and not with other people.

CLEMENT: Yeah. (Laughter.)

The majority did not address the argument that Bost is the object of the Illinois law; Justice Jackson expressly rejects that argument under FDA v. AHM. Thus, Bost had to argue something of an indirect injury.

An election rule that does not regulate the candidate creates very different logistical hurdles. Or at least it creates difficult hurdles for Republicans. There is an asymmetry, as Democratic governments favor looser election integrity rules while republican governments favor tighter election integrity rules. Accordingly, the burden will invariably fall on the right side of the aisle. It is thus a bit of an anomaly in Watson v. RNC that Mississippi, a deep red state, is defending its mail-in ballot rule against a Republican challenge.

If we just keep things simple, of course the candidate has standing. Every candidate in Illinois will have to employ staff to monitor the counting of ballots after election day. That is an entirely foreseeable pocketbook injury that every politician will incur. Standing, QED. 

But if you dig a bit deeper, the question is tougher. First, under Clapper, this injury can be viewed as self-inflicted. Nothing Illinois has done requires the member to pay poll watchers and other staff after election day. The Democrat-controlled state tells the Republican member to "trust us" to ensure a fair election process. (You can perhaps sense my cynicism.) Second, under Alliance for Hippocratic Medicine, is it necessarily foreseeable that the late-arriving ballots in that race will actually make a difference? If the member has a landslide victory, then those ballots will be irrelevant, and will not cause a cognizable injury. Bost has one of the few gerrymandered Republican districts in the state, which is packed with Republican voters to ensure that Democrats in other districts will win. (I doubt there are any Republican candidates in Illinois who would ever be in a close-enough election where the untimely ballots would make a difference; gerrymandering ensures all the margins are lopsided.) It's not enough that the rule could affect someone's election; the rule has to affect Bost's election. To use AHM as an example, there might be some pregnant women who suffer complications from using mifepristone, but the Court found it too remote that one of the plaintiffs would have to treat that patient. (If politicians have an interest in fair elections, why don't doctors have an interest in seeing healthy pregnancies come to term?)

There are obvious responses to these arguments. First, the Court can take judicial notice of how important it is for candidates to ensure the integrity of an election, and to promote a general sense that elections are fair. (The Court likely has doubts of how Illinois election officials would behave if not being monitored.) Second, federal judges should not be in the business of prognosticating ex ante the outcome of a race in light of past races. If ever there was a political question, this is it. As a result, courts should just presume that there will be an injury. 

Back to the other side. Bost's argument dispenses with the requirement that the plaintiff bears the burden of establishing every facet of standing, and an injury in fact cannot simply be presumed. Lurking in the background is the "nightmare scenario" where this rule can only be challenged in the heat of an election where the Justices would decide the outcome. During oral argument, the Justices demonstrated they are still suffering from PTSD from the 2020 election. What a mess! As I said, I have been struggling with this case for months. 

Three Flawed Opinions 

The three opinions in Bost did little to resolve this standing puzzle. Chief Justice Roberts authored the majority opinion, which was joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh. The Chief's opinion was only ten pages long. The shortness is a tell. When the Chief writes something so short, you are being served a John Roberts blue plate special. On the first read, everything makes sense and the answer seems so obvious. But when you read the responses, you realize the majority opinion is built on smoke and mirrors. The Lady Gaga song "Abracadabra" plays in my head when I read a Roberts opinion.

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Donald Trump

The Art of the Deal Goes to Norway

Great Moments in Twenty-First Century International Diplomacy

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President Donald Trump apparently sent the following letter to prime minister Jonas Gahr Støre of Norway:

Dear Jonas: Considering your Country decided not to give me the Nobel Peace Prize for having stopped 8 Wars PLUS, I no longer feel an obligation to think purely of Peace, although it will always be predominant, but can now think about what is good and proper for the United States of America.

Denmark cannot protect that land from Russia or China, and why do they have a 'right of ownership' anyway? There are no written documents, it's only that a boat landed there hundreds of years ago, but we had boats landing there, also.

I have done more for NATO than any other person since its founding, and now, NATO should do something for the United States. The World is not secure unless we have Complete and Total Control of Greenland. Thank you! President DJT

President Trump also reportedly directed that this letter be shared with multiple NATO member ambassadors.

Conservatism

The Difference Between Populism and Conservatism

Yuval Levin offers a useful way to understand the difference.

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In a recent interview with Ezra Klein of the New York Times, Yuval Levin of the American Enterprise Institute offered a useful way to understand the difference between conservatism and populism.

One way to think about the difference is about whether your politics begins from what you care about most — what you love — or whether it begins from what you fear and what you hate. To me, as a young person, conservatism was appealing, and has remained appealing, because it's fundamentally rooted and begins from what we love in the world. It is a defense of what I take to be best about the world.

What is best about the world is always threatened. It's always challenged. It's challenged just by the realities of human nature. Sustaining it requires work. It requires moral formation and political action. And that's the work that conservatives at their best do — we conserve the preconditions for a flourishing life in a free society.

But if the reason you have for entering politics, first and foremost, is to combat the left, to oppose what you don't like, then your politics are going to be different than that.

Now, look, to defend what you love means fighting people who oppose it. And politics is argument, and it's always contestation.

But I think it matters a lot whether fundamentally the reason that drew you in is itself the fight or whether the reason that drew you in is a commitment to something you love, is fundamentally conservative, is about wanting to preserve the good.

Unfortunately, as Levin notes, populism seems more dominant on the political Right than conservatism at the moment.

The larger issue, exploring the extent to which Donald Trump has accomplished anything lasting during his second term, is worth a listen or a read. As is usual, Levin is filled with valuable insights.

Today's Words of Wisdom

Treasury Secretary Scott Bessent's brilliant - irrefutable! - defense of the President's emergency powers.

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From The Economist:

Scott Bessent, Donald Trump's treasury secretary, defended the president's plan to impose tariffs on European countries that oppose his bid to take over Greenland. [Ed. note: See co-blogger Ilya Somin's post on why taking over Greenland is, simultaneously, "evil, illegal, and stupidly counterproductive" - the great authoritarian trifecta.] Citing the president's authority to impose tariffs in an economic emergency, Mr Bessent argued that America needed to control Greenland to prevent conflict in the Arctic: "The national emergency is avoiding a national emergency."

The man is a genius!  It's the emergency that can never end! Eight words that, in their terseness and inherent circularity, recall the great works of Samuel Beckett and Eugene Ionesco. Bravo, Mr. Secretary. Now that we understand what is at stake, we can all finally get behind the important work of destroying the NATO Alliance, attacking our friends and allies, and imposing authoritarian rule on the people of Greenland.

Religion and the Law

Religious Employment and Title VII: Part 1—Civil Rights Law and the Tensions between Liberty and Equality

Understanding Title VII as a law designed to advance both liberty and equality helps to illuminate the statute's religious employer exemption.

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Last month, the BYU Law Review published our article entitled Religious Employment and the Tensions between Liberty and Equality. We appreciate this opportunity to offer a five-part series summarizing the article's key points.

Religious employment is a vital aspect of religious freedom. A church needs employees who are fully committed to the church's religious mission and who live by its religious standards. Religious fidelity is indispensable to a religious organization's success. Competence alone will not do.

Title VII of the Civil Rights Act of 1964 contains an exemption for religious employers. Sometimes called Section 702, it provides that Title VII does not apply to a religious employer "with respect to the employment of individuals of a particular religion." Deciding when it applies has divided federal circuits and other courts.

We begin with textualism—the theory of legal interpretation that, as Justice Scalia and Bryan Garner explained, "begins and ends with what the text says and fairly implies." (The article also examines legislative history, for those who are interested.) Reading Section 702 through a textualist lens reveals that the exemption authorizes religious employers to select employees for religious reasons free from the demands of Title VII, so long as they have a religious reason for doing so.

Some resist interpreting Section 702 as a liberty-enhancing provision out of a misreading of Title VII. They view Title VII as an uncompromising guarantee of employment equality. But close attention to the statute's text and structure reveals something more nuanced—and surprising. Title VII is not the uniformly equality-enhancing statute that many assume.

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