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I am very pleased to present this very special JoshCast. Professor Michael Krauss of the George Mason University School of Law and Rabbi Bruce Aft of Congregation Adat Reyim participated in a discussion on Judaism and the Law sponsored by the George Mason Jewish Law Students Association. Many thanks to Corey Carpenter for recording the event.

[podcast format=”video”]https://joshblackman.com/podcasts/aft-krauss-discussion.m4a[/podcast]

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P.S. Yours truly  is referenced by Professor Krauss at 1:26:10. Professor Krauss, I’m still working on an answer to your question.

On SSRN (H/T Legal Theory Blog):

This paper contends that Justice Anthony Kennedy did not initiate a libertarian jurisprudential revolution following Lawrence v. Texas. The article begins with an overview of constitutional fundamental rights jurisprudence and examines similarities with libertarian theory.

The paper then assesses the legal decisions of Justice Kennedy but concludes that Justice Kennedy is not a libertarian. This provides the basis for critiquing Professor Randy Barnett’s assertion that Justice Kennedy was the instigator of a libertarian revolution in U.S. Supreme Court jurisprudence. The fact that Justice Kennedy is not a libertarian is apparent from his reasoning in the recent partial birth abortion case, Gonzales v. Carhart. The paper concludes by questioning the practical application of rigid libertarian theory to real-world judicial decision making while, at the same time, expressing concern regarding Justice Kennedy’s reasoning in Carhart.

When I see Barnett, Libtertarian, and Kennedy in one article, I’m interested.

The author takes Barnett head-on:

Randy E. Barnett proclaimed that Justice Kennedy initiated a libertarian constitutional revolution in the Court by determining that a criminal statute unconstitutionally infringed upon a right not characterized as fundamental, thereby “[bireaking free . . . of the post-New Deal constitutional tension between the ‘presumption of constitutionality,’ on the one hand, and ‘fundamental rights,’ on the “15 other ….

Part III focuses on the contention that Justice Kennedy’s opinion in Lawrence instigated a “libertarian revolution.”‘This section argues that Kennedy’s opinion may be libertarian but it is also consistent with liberalism.’ 2 Part III assesses Barnett’s initial contention and later re- treat’ 3 from the assertion that Justice Kennedy initiated a libertarian revolution in Lawrence. This article reasons that the fact that Justice Kennedy may not strongly adhere to a particular set of principles is not peculiar in a common law system. In such a context, it may be imprac- tical to even try to implement a jurisprudence that strictly adheres to any philosophical theory, particularly a theory that is as inflexible as libertarianism. This article concludes that Justice Kennedy values liberty-but a liberty more commonly accepted in popular opinion than the rigid liberty associated with libertarianism.

I find it surprising that the author did not cite Helen Knowle’s new book,The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty, once. Knowles wrote an entire book about Kennedy’s views on liberty. I saw Knowles present her new book at Cato a few months ago and I was quite impressed.

For those interested, Ilya Shapiro has a review of this book forthcoming in the Harvard Journal of Law & Public Policy.

This morning I blogged about the Constitutional Accountability Center’s Amicus Brief in McDonald. I mentioned that this brief brought together odd bed-fellows, uniting the likes of Randy Barnett and Jack Balkin.

Both libertarians and progressives agree to revive the Privileges or Immunities Clause. But beyond that, I don’t think there is much agreement.

As Ilya Shapiro and I argue in Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment the libertarian and the progressive vision of the Privileges or Immunities clause is quite different. Libertarians seek to ground Privileges or Immunities in Negative Rights, deeply rooted in our Nation’s history and traditions. Progressives seek to ground it in Positive Rights based on a modern traditions.

If you read the CAC Brief, it is noticeably bereft of any definition of the substantive rights protected by the Privileges or Immunities clause. Neither positive nor negative types of rights. This can only be explained by a compromise of necessity between the disparate interests.

But, David Gans of CAC just blogged on Balkinzation and tipped his cards, and in my estimation, cracked open Pandora’s Box. He wrote:

Finally, a shift to the Privileges or Immunities Clause could even inure to the benefit of aliens in other ways. Take the right of protection – unquestionably one of the Privileges or Immunities that the framers of the Fourteenth Amendment considered a fundamental right of all citizens protected by the Privileges or Immunities Clause, as well as a right of all persons secured by the Equal Protection Clause. The Court has ignored this text and history in cases like Deshaney v. Winnebago County and Castle Rock v. Gonzales, holding that the Due Process Clause does not require state and local governments to protect anyone against threats of harm, even when the government turns a blind eye to known violence. Taking text and history seriously would not only require overruling DeShaney, it would also demand that all persons, citizens as well as aliens, be afforded the right to protection.

Gans made the same point about the right of protection and Deshaney and Castle Rock in a Georgetown Lecture I blogged.

I do not know if the “right of protection” is “unquestionably” one of the Privileges or Immunities. But, Deshaney and Castle Rock are positive right cases. They impose on the government the obligation to do something (without casting any normative judgment). A “right of protection,”Deshaney v. Winnebago County and Castle Rock v. Gonzales were never referenced in the CAC Brief.

This is revealing of the Progressive vision of the Privileges or Immunities Clause in the future. I’ll blog about this some more.

Update: For an alternate perspective, check out this article from Roger Pilon discussing the right of protection as a Privilege or Immunity.

I’m that guy. I wore a suit to class every day. I just didn’t feel right going to school without a coat and tie.

But Georgia Supreme Court Justice George Carley has got me beat. From the ABA Journal and the Atlanta Journal Constitution:

At the 2009 Federalist Society National Lawyers Convention, Professor Richard Epstein gave me 8 minutes of his time. Professor Epstein is one of my favorite Professors, and I was starstruck the entire interview. I asked him about McDonald, the Hillary Movie Case, his thoughts on Andy Stern and the SEIU, and more. Definitely check it out.

[podcast format=”video”]https://joshblackman.com/wp-content/uploads/2009/11/JoshCasts-Interview-with-Richard-Epstein.m4a[/podcast]

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