Chief Judge Pryor's Story Lecture: "Politics and the Rule of Law"

"Proposals like court-packing and living common goodism, based on the notion that judicial decisions should be driven by substantive outcomes, undermine rule of law."

You can now read Chief Judge Pryor's Story Lecture. Here is the overview:

Both the liberals who advocate court-packing and the conservatives who advocate living common goodism have succumbed to the false notion that the nation should depend on the judiciary to resolve our political controversies. They fail to appreciate why the Constitution assigns the judiciary the modest role of resolving cases based only on law, and they fail to appreciate why the Constitution assigns other branches the authority to develop policies that promote the common good. The democratic process is hard work, especially in a constitutional republic with separated powers and dual sovereigns, but the Founders understood that doing the hard work of politics through consensus-building and compromise is the better way to promote the common good.

Pryor brings a lot of clarity to conservative debates about living constitutionalism and common good constitutionalism.

Comments

[Rev. Arthur L. Kirkland]

Now that it has been established that Judge Pryor goes out of his way to hire Black people-hating clerks, it appears we can expect a steady diet of all things Pryor from this White, male, conservative blog.

Still wondering why modern America rejects conservative ideas in the marketplace of ideas?

[javadoc]

I haven’t looked at the comments here in a long time. I see that they are lightly moderated, or not moderated at all.

[wreckinball]

So are you a black tranny?

[TwelveInchPianist]

“Still wondering why modern America rejects conservative ideas in the marketplace of ideas?”

Here’s some video of Arthur’s team getting completely outclassed at the netflix walkout. Were you at this protest Arthur?

[DaivdBehar]

No. Artie is a white Boomer who needs to be replaced by a black tranny, a diverse. Diversity, after all, is the strength of our nation.

[DaivdBehar]

I am not listening to this lawyer garbage. Did the judge mention that Article I Section 1 gives all lawmaking power to the Congress, that judicial review is an insurrection against the constitution? If not, he is dismissed, as someone who cannot read the plain high school English of the constitution.

[Gandydancer]

^^^^^^^^^^^^^^^^^^^^^^^^
Waste of brain cells warning
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Kookland is performing his usual weird trick emitting baseless assertions and conclusional nonsense supported by a music video or two. No need to click the link.
^^^^^^^^^^^^^^^^^^^^^^^^

[Bob from Ohio]

Another 30 comments about a clerk coming in.

[LawTalkingGuy]

I’ll spare you, as I’ve said my piece today. Maybe the next time Josh gushes over Pryor I’ll say something.

[Rev. Arthur L. Kirkland]

” Another 30 comments about a clerk coming in. ”

Because if there is anything the Volokh Conspiracy and its fans strive to avoid, it is repetition?

[Gandydancer]

As long as you’re around we’ll have a full supply of pointless repetition.

[Stephen Lathrop]

Dual sovereigns? Is that a thing? I guess he means sovereignty divided among the states and the federal government, but I never heard it referred to that way. Has it been going on all along, and I just missed it?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

IANAL and I’ve heard it often enough in discussions of separate state and federal prosecutions not being double jeopardy.

[LawTalkingGuy]

Yeah, there was a surprisingly high profile challenge to the dual sovereignty doctrine itself in 2019, Gamble v. United States. (High profile not because of the actual issue, which was important, but because stupid online progressives thought conservatives were going to get rid of it to somehow protect Trump)

[Krayt]

Stephen J. Gould, an evolutionary skeptic and biologist, called religion and science “Non-Overlapping Magesteria”.

He was trying to be nice.

Anywho, dual sovereigns are Yea-Overlapping Magesteria* in that you can be tried for the same crime at both levels, and, more importantly, at the Federal level, as a gotcha, if the state case declares you innocent, using the usual lawyerly workaround for pesky enumerated rights getting in the way.

* I pondered what should be the opposite of Non, and considered Ursa. Jerry Seinfeld might get it.

[Gandydancer]

Gould was not remotely a nice person, so I doubt that claim about him.

[Goat]

It’s a thing. Con Law and Poli Sci professors like to make lame jokes about “duel sovereigns.”

[Brett Bellmore]

Should be a thing.

Per the original understanding of state and federal spheres of authority, there was very little room for dual sovereigns to result in double jeopardy violations, because if an act was subject to federal jurisdiction, it was beyond state jurisdiction, and visa versa.

Of course, the 10th amendment is observed only in the breach these days, so jurisdiction is almost co-extensive.

[Noscitur a sociis]

Per the original understanding of state and federal spheres of authority, there was very little room for dual sovereigns to result in double jeopardy violations, because if an act was subject to federal jurisdiction, it was beyond state jurisdiction, and visa versa.

Can you elaborate on this claim, which strikes me as pretty obviously wrong? I would note that the Crimes Act of 1790 proscribes several offenses which would seem pretty difficult to commit without simultaneously violating state law.

[Dilan Esper]

Brett also doesn’t understand that his villain is the interconnectivity of national (and eventually global) commerce. That’s what really expanded the commerce power.

In 1787, if you bought a fruit from a local vendor or a cabinet from a local cabinetmaker, it was grown or made in-state from in-state materials. There was no jurisdictional hook for the federal government to regulate that transaction.

In 2021, that fruit has traveled across state lines, and it was grown with fertilizer and perhaps even seeds that crossed state lines and treated with pesticides that crossed state lines. And that cabinet has shipped in from China and uses wood that came from Malaysia or Thailand or something. So now there are jurisdictional hooks.

And that’s what expanded the commerce power. The Supreme Court took it to some extremes, but even in a world where, say, Ashcroft v. Raich comes out the other way, the vast vast majority of interactions in the United States do involve interstate commerce and are within the reach of the federal government.

[Michael P]

No, what really expanded the commerce power was FDR’s threat to pack the Court because some of the justices wanted to follow the Constitution instead of a wannabe fascist.

[Brett Bellmore]

So, I’m looking at it right now. A large part of it consists of statements along the lines of, “[I]f any person or persons shall, within any fort, arsenal, dockyard, magazine, or in any other place, or district of country, under the sole and exclusive jurisdiction of the United States, commit the crime of”. Or, “[I]f any person or persons shall commit, upon the high seas, or in any river, haven, basin, or bay, out of the jurisdiction of any particular State,” Or, “upon the high seas,”

IOW, if they commit the crime where the federal government, constitutionally, has jurisdiction, and states don’t.

More of them go after topics that the federal government reasonably could claim jurisdiction over based on explicit constitutional text, (“crimes against the laws of nations”) or claim N&P authority to defend federal operations.

It was nothing like the reach of modern federal law.

[Noscitur a sociis]

More of them go after topics that the federal government reasonably could claim jurisdiction over based on explicit constitutional text, (“crimes against the laws of nations”) or claim N&P authority to defend federal operations.

Yes, and in exercising this authority Congress penalized conduct, such as certain types of forgery or assault, that also would typically be a state crime. Which suggests that as early as 1790, there was in fact quite a bit of “room for dual sovereigns to result in double jeopardy” issues.

[MP]

Originalism demands respect for the moral perspective of the Founding generation that ratified our Constitution and for the succeeding generations that amended it.

Bollucks. Originalism says nothing about what’s moral. Not today. Not in 1791. Not ever. It only demands respect for meaning and process, and neither of those have a moral component.

[wreckinball]

“They fail to appreciate why the Constitution assigns the judiciary the modest role of resolving cases based only on law”

Weird that the J6 judges seem to think otherwise. That if a protestor has “wrong think” they should be held indefinitely without bail

[Noscitur a sociis]

Which defendants do you have in mind?

[I Callahan]

Any that are still in jail as of now. There is no constitutional reason they should be.

[Noscitur a sociis]

That seems a touch hyperbolic. For instance, the pretrial detention of this guy strikes me as pretty defensible:

https://www.cadc.uscourts.gov/internet/orders.nsf/1F0E814B6A5DF71885258773004CD245/$file/21-3052LDSJ.pdf

[Cal Cetín]

The liberal justices of the Supreme Court managed to drop some wisdom on us, albeit in dissent. In this case it’s Marshall and Brennan giving a dissenting opinion against the law under which the Capitol defendants are now held:

“This case brings before the Court for the first time a statute in which Congress declares that a person innocent of any crime may be jailed indefinitely, pending the trial of allegations which are legally presumed to be untrue, if the Government shows to the satisfaction of a judge that the accused is likely to commit crimes, unrelated to the pending charges, at any time in the future. Such statutes, consistent with the usages of tyranny and the excesses of what bitter experience teaches us to call the police state, have long been thought incompatible with the fundamental human rights protected by our Constitution. Today a majority of this Court holds otherwise. Its decision disregards basic principles of justice established centuries ago and enshrined beyond the reach of governmental interference in the Bill of Rights.”

https://www.law.cornell.edu/supremecourt/text/481/739

This case was about alleged Mafia members, who from some points of view may be considered almost as dangerous as the people from Jan. 6.

[Noscitur a sociis]

Well, like most positions the were exclusively subscribed to by Marshall and Brennan, that position seems both very dumb and very obviously wrong.

[Cal Cetín]

Even a blind squirrel can find a nut.

Founding-era practice, often buttressed by constitutional provisions, was that bail was a right in noncapital cases – and even in capital cases unless the evidence (of the underlying crime) was strong.

[Gandydancer]

…the pretrial detention of this guy strikes me as pretty defensible:

Not to me. So, defend it.

https://lawandcrime.com/u-s-capitol-siege/my-mom-thinks-im-special-guy-indicted-for-assaulting-capitol-cops-with-a-baseball-bat/

Despite the url, there’s no indication that Gieswein hit anyone with the bat. Or even did any property damage. He’s entitled to bail. Why isn’t he getting it?

[Cal Cetín]

Nothing about the poor old 9th Amendment?

[Gandydancer]

In the Q&A, iirc.

[Cal Cetín]

The one issue I can think of where plenty of originalists disagree with the most prominent common-gooder – Adrian Vermeule – is over the regulatory state.

Many originalists want courts to declare key aspects of the regulatory state unconstitutional and in violation of the authority of…the courts.

Vermeule, along with the liberal scholar Cass Sunstein, recently published *Law and Leviathan* to *defend* the concept of the administrative state.

In traditional left-right terms, this means that it’s the originalists who are defending a right-wing position and Vermeule who is defending the left-wing position (though of course he wants his side, not leftists to run the administrative state – still, Vermeule was willing to cooperate with a leftist in defending a stereotypically leftist position).

[I Callahan]

They fail to appreciate why the Constitution assigns the judiciary the modest role of resolving cases based only on law, and they fail to appreciate why the Constitution assigns other branches the authority to develop policies that promote the common good.

Heh! If only this really were happening…

[Cal Cetín]

Common-good constitutionalism may or may not be a good idea, but that which Pryor refutes doesn’t look like common-good constitutionalism:

https://iusetiustitium.com/myths-of-common-good-constitutionalism/

[AmosArch]

I don’t remember the ‘common good’ or ‘common good constitutionalism’ being an especially prominent argument of contemporary conservatives or an especially large group and certainly not as prominent as court packing has been to leftists. The ‘common good’ actually seems more like a progressive euphemism than any sort of term the right would use. Is the good judge trying to seem neutral by drawing a false equivalence?

[Cal Cetín]

Thomas Aquinas referred to the common good – he really wasn’t what you’d call a woke lefty type.

https://www.newadvent.org/summa/2090.htm

[Michael P]

I’m not sure that a 13th Century Italian is a very good guide to word usage in modern English. Even Geoffrey Chaucer, whose English is rather hard to follow for most English speakers today, postdated Aquinas.

[AmosArch]

Didn’t know 800 years ago is considered contemporary.

[Sarcastr0]

No True Conservative, eh?

[mydisplayname]

An awesome phrase: “the Constitution assigns the judiciary the modest role.”

Nothing could make me happier than the recognition of the Court that its role is modest. This — modesty — is the key both to Roe v. Wade and to the multitude of “crises” that the nation now faces. Do we want our courts to speak with a brash “clarion” voice or do we want the Court’s trumpet to sound with a tranquil, somber voice?

Heck, at a bar tonight, the clarion voice was ejected while the Officers and elected remained. Is that a bad thing?