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From the UK Telegraph, H/T Freakanomic:

Climate change belief given same legal status as religion. An executive has won the right to sue his employer on the basis that he was unfairly dismissed for his green views after a judge ruled that environmentalism had the same weight in law as religious and philosophical beliefs.

Any Court assessing whether a series of beliefs is actually a “Religion” has always troubled me, so I am not sure if I find this ruling totally implausible. After all, millions of people in Red Sox Nation worship at the feet of a Huge Green Idol, and reject the Pelagian heresy that any BoSox players took steroids.  By the way, congratulations to the greatest sports franchise ever, the New York Yankees, on their 27th World Series. Let’s go for #28!

Kermit Roosevelt III has posted an article titled  The Indivisible Constitution on SSRN reviewing Professor Tribe’s The Invisible constitution. (H/T Legal Theory Blog). Here is the abstract:

In The Invisible Constitution, Laurence Tribe argues that many of our most deeply-held constitutional convictions are not to be found in the words of the Constitution itself. They are, instead, part of what he calls the invisible Constitution. This review essay argues that although that claim is true, it is not worth spending a book on. Moreover, its very truth-the fact that certain “invisible” constitutional propositions are as central and well-established as textual ones-undermines the value of treating the “invisible” Constitution as a qualitatively different entity.

Guy Fawkes Night is an annual celebration on the evening of 5 November. It marks the downfall of the Gunpowder Plot of 5 November 1605, in which a number of Catholic conspirators, including Guy Fawkes, attempted to blow up the Houses of Parliament, in London, United Kingdom.

Every see V for Vendetta? You know the story. Some other coverage here and here.

Please don’t report me to flag @ whitehouse.gov for celebrating this holiday. Kthxbye.

Professor Nelson Lund (one of my favorites from GMU) posted to SSRN his forthcoming article in Constitutional Commentaries, titled, Judicial Review and Judicial Duty: The Original Understanding. In this article he critiques Phillip Hamburger’s Law and Judicial Duty. (H/T Legal Theory Blog)

From the Abstract:

What we call “judicial review” was not established in Marbury v. Madison, or by American courts. It had existed in English and then American law for centuries, not as some kind of peculiar power but rather as a corollary of the judicial duty to decide cases according to the law of the land. While that duty sometimes required judicial courage in the face of political threats, this was not its most difficult or pervasive demand. The real challenge was the requirement that judges purge their decision-making of the influence of their own wills, which required them to set aside their own views about natural law, God’s will, sound policy, and even justice itself.

Phillip Hamburger’s Law and Judicial Duty advances and defends these claims with subtlety and detailed evidence. He carries his historical study up through the end of the eighteenth century, and thus has little to say about subsequent changes in the understanding of judicial review and judicial duty. But there are obvious implications for our contemporary debates about the proper role of judges and about the distinction between law and politics. This review touches on those debates, and suggests that a broadened political role for the federal judiciary may have been more clearly foreseeable than the leading proponents of our Constitution thought it wise to acknowledge during the ratification debates.

This paragraph really jumped out at me:

Nevertheless, Hamburger argues that the central achievement of English judges was the development of an intellectual and moral discipline through which fallible human beings could resist these temptations, and strive with considerable success to purge judicial decisions of the influence of individual will.

None of us could think they always succeeded, and neither did they. But however often they may have failed, due to human weakness, there was no recognized exception from this judicial
duty, even in what Obama called “those 5 percent of cases that
are truly difficult.” Nor were these judges unaware of theories resembling Obama’s. At least as early as the fourteenth century,
the common law approach to judicial duty faced a fundamental
challenge from academically minded lawyers (especially those
influenced by continental jurisprudence) who believed that
judges had an obligation to follow natural or divine law when it
conflicted with human law.
Without denying that natural and divine law had a higher authority than any human law, and without denying that English law was undoubtedly imperfect in many ways, English judges strongly resisted the conclusion that they ever had a right or duty to go against the law of the land while exercising their judicial office. Similarly, these judges denied that other external sources of law—such as civil, ecclesiastical, or international law,  and even treaties —were obligatory in English courts unless and until they were incorporated in the law of the land (as had been done in some areas, such as maritime law).

So is it possible for Judges to put aside their personal will to objectively, and formalistically apply the law? Did English Judges figure this out? Very interesting.

It is a short read. Definitely worth the time. Professor Lund is a scholar extraordinaire, and I deeply respect his work, even if I do not always agree.

Very interesting article. SSRN (H/T Legal Theory Blog)

Professor Richard Primus of Michigan considers BHO and JGR’s flubber of the Constitutional Oath as a means to justify why departures from the text of the Constitution are permitted, and thus why the District of Columbia should be entitled to representation in Congress.

And from the paper:

Constitutional expectations are intuitions about how the system is supposed to work. They arise from a combination of experience, socialization, and principle. Obviously, Americans do not all share a single, precisely defined set of expectations. Indeed, conflicts among rival sets of expectations help to account for many disagreements about constitutional law. Over a relatively broad domain, however, informed Americans share expectations about the rules of government. Those expectations are often closely related to the constitutional text, but the text does not always capture them precisely. On the contrary, our shared expectations go well beyond the strict textual requirements of the Constitution.

And:

The argument that the Act is unconstitutional has a reasonable basis. Article I, Section 2 says that the House of Representatives “shall be composed of Members chosen every year by the people of the several States.”29 The District of Columbia is not a state. Accordingly, the constitutional objection runs, admitting D.C. to the House would ignore the written requirements of Section 2. And that cannot possibly be acceptable.30 Yet this argument is not as tight as it seems, because our system for electing Members of Congress already—and uncontroversially—deviates from Section 2 on a regular basis. If we were more aware of those deviations, the argument that Section 2 requires excluding D.C. might have less weight. But like the practice of inserting the President’s name in the inaugural oath, our accustomed departures from the text of Section 2 have become well integrated into our constitutional expectations. We tend not to notice them.

Finally:

Suppose, however, that constitutional expectations were to shift on the issue of representation for D.C., just as they earlier shifted on the question of whether the Constitution requires the same racial equality regime in the District that it requires everywhere else. Suppose, in other words, that large majorities of American officials came to believe that our basic constitutional values demand letting the residents of Washington D.C. vote and be represented. A different set of textual readings would then seem natural. To be sure, the new received wisdom in American law would not necessarily be the one that I have suggested about the meaning of “composed.” Perhaps a different textual reconciliation would emerge. Or perhaps the prevailing explanation would not take the form of hard textualism at all. Constitutional lawyers might simply learn to shrug their shoulders at the mismatch between the language of Section 2 and the fact of representation for D.C., just as they now overlook the practice of letting criminal defendants waive jury trial. If pushed, they might say that mature respect for the constitutional text means reading it in a reasonable way rather than a crabbed and literal one. But one way or another, the text would not prohibit the practice.

I like Professor Primus. I met him at the Constitution in 2020 Conference and was very impressed by his work.  Definitely check out this article.