• Archive for February, 2015

    The Conservative Justices, the Constitution, and the First Amendment

    by  • February 24, 2015 • Faculty Commentary, Faculty Scholarship • 0 Comments

    This post is based on The Conservative-Libertarian Turn in First Amendment Jurisprudence, 117 W. Va. L. Rev. 231 (2014), which Professor Heyman recently presented as the Third Annual C. Edwin Baker Lecture for Liberty, Equality, and Democracy at West Virginia University College of Law.

    Heyman_Steven thumb By Steven J. Heyman [Reposted from ISCOTUSnow]


    In recent years, a conservative majority of the Supreme Court has issued a raft of decisions that have cheered the right and dismayed the left. To name only a few, District of Columbia v. Heller (2008) declared that the Second Amendment guarantees an individual right to own firearms. Citizens United v. Federal Election Comm’n (2010) and McCutcheon v. Federal Election Comm’n (2014) struck down key limitations on the ability of corporations and wealthy individuals to dominate the political process. And Burwell v. Hobby Lobby (2014) held that, under the Religious Freedom Restoration Act, family-owned corporations have a right to religious liberty which permits them to deny contraceptive coverage to their female employees.

    Decisions like this clearly align with the political attitudes of the Justices. But I believe that these decisions also can be understood to reflect a deeper political and constitutional theory. To see this point, we must recognize that the conservative view of the Constitution is not monolithic, but includes two different strands. The first strand is a traditional conservative position which supports the government’s authority to enforce law and order and to promote traditional moral and social values. In contrast, the second strand is a libertarian position which emphasizes the need to protect individual freedom against government regulation. It is this second strand of conservative ideology that accounts for the decisions on gun ownership, campaign spending, and religious liberty that I have mentioned. This strand also underlies recent decisions that expand protection for property rights, cut back on affirmative action, and impose limits on the welfare state and the power of the federal government.

    As Citizens United and McCutcheon show, this conservative-libertarian view is also one of the most powerful currents in contemporary First Amendment jurisprudence. A leading case is American Booksellers Ass’n v. Hudnut (7th Cir. 1985), which struck down a feminist anti-pornography ordinance. Judge Frank H. Easterbrook ruled that the state may regulate sexually explicit material to protect traditional morality, but not to promote gender equality – a rationale that he condemned as a form of authoritarian “thought control.” Likewise, in R.A.V. v. City of St. Paul (1992), Justice Antonin Scalia treated a city’s ban on cross-burning as an impermissible effort to impose political correctness by punishing the expression of racist ideas. And in Boy Scouts of America v. Dale (2000), Chief Justice William H. Rehnquist ruled that the First Amendment right to freedom of association permitted the Scouts to deny membership to gay persons on moral grounds. In all of these cases – most of which were decided by a vote of five to four – conservative judges used the First Amendment to protect their conception of individual liberty against laws that sought to promote social values like dignity, equality, and community. (more…)

    Brown Delivers Keynote at IU Symposium

    by  • February 19, 2015 • Faculty Scholarship, Faculty Workshops/ Conferences • 0 Comments

    On February 12, the Indiana International and Comparative Law Review (IICLR) hosted its annual symposium at Indiana University’s McKinney School of Law, focusing on current trends in international criminal law. Professor Bartram Brown delivered the keynote address for this year’s main topic—“Is 2015 the Beginning of the End for the ICC and Guantanamo Bay, or a Turning Point for the Law and Practice of International Criminal Law?”

    Click here for a full schedule of the symposium, which featured panels on the Rome Statute of the International Criminal Court and on U.S. military commissions at Guantanamo Bay.

    According to its website, IICLR “is a student-edited law Journal devoted to the study and analysis of current international legal issues and events. Published continuously since 1991, the Review provides a specialized and unique format for students to take broad legal topics and shed an international and/or comparative light onto them.” The scholarship presented at the symposium is later published in a special symposium issue of the IICLR.