Search Results

ILYA SOMIN: A Flawed “Popular Constitutionalist” Rationale for Disobeying Supreme Court Decisions: Harvard law Prof. Mark Tushnet and political scientist Aaron Belkin urge President Biden to disobey “gravely mistaken” Supreme Court rulings. Doing so would set a dangerous precedent likely to be abused by the right, as well as the left.

Since it’s the left that depends on unelected institutions to implement policies unpopular with voters, this is a particularly unwise position for lefties. I look forward to seeing President Trump and/or President DeSantis using these theories when in office, just for the entertainment value.

ILYA SOMIN: How School Choice Can Mitigate Harmful Culture War Policies in Public Education:. “Current culture wars are just one more manifestation of the reality that public education routinely devolves into indoctrination and imposition of majoritarian ideology on dissenters. But school choice can help mitigate that problem. . . . By its very nature, public education creates opportunities for the politically powerful to indoctrinate children in their preferred ideology, while locking out or severely restricting alternative viewpoints. . . . The danger of such indoctrination is the main reason why John Stuart Mill opposed state control of schools, even though he favored public subsidization of education for those unable to afford it.”

ILYA SOMIN: Proposals for Improving Dialogue and Reducing Ideological Polarization in the Legal World.

When it comes to law schools, perhaps the single most important thing they can do to improve cross-ideological dialogue is curb ideological discrimination in faculty hiring. There is extensive evidence of hiring discrimination against conservative and libertarian legal academics. As a result, many top institutions have very few, if any, faculty who aren’t on the political left. This is particularly true of public law fields, and others that are ideologically contentious. For obvious reasons, faculty play a major role in setting the terms of intellectual debate in any educational institution. Greater ideological diversity on the faculty would improve the quality of discussion at law schools, and increase the range of ideas that get meaningful consideration.

This is not a call for affirmative action for conservative or libertarian academics, which is a terrible idea. Simple nondiscrimination is all that is needed to simultaneously increase ideological diversity and improve faculty quality. Like racial and ethnic discrimination, ideological discrimination predictably reduces quality, as less-qualified candidates with the preferred views often get hired in preference to better-qualified dissenters.

I also do not claim that, absent discrimination, we would have law school faculties that “look like America” when it comes to the distribution of ideologies. Far from it, most likely. For a variety of reasons, left-liberals would still be overrepresented relative to their percentage of the general population. But the proportion of conservatives and libertarians would likely be significantly higher than is currently the case.

But if having institutions that “look like America” — or maybe for state institutions it’s “look like” their home state — is a good idea, then why isn’t it a good idea for law schools?

JOANNE JACOBS: Do good citizens listen to leaders? “Ilya Somin was taken aback by the worksheet his seven-year-old daughter brought home from school, he writes on Facebook. ‘Some of these are highly dubious!'”

ILYA SOMIN: A Broader Perspective on “My Body, My Choice.” “It frustrates me that many who propound the principle when it comes to abortion ignore or even oppose it in other contexts. Many on the political right are also inconsistent when it comes to issues of bodily autonomy. In this post, I explain why abortion is a relatively hard case for the ‘My Body, My Choice’ principle.”

ILYA SOMIN: Guns and Judicial Protection of Constitutional Rights that Put Lives at Risk.

Unlike other forms of substantive liberty, the carrying of arms for that purpose [self-defense] often puts others’ lives at risk…. And the use of arms for private self-defense does not warrant federal constitutional protection from state regulation.

This argument ignores social science evidence suggesting that extreme gun bans like those of DC and Chicago cost at least as many innocent lives than they save. Still, gun rights probably do cause at least some deaths that might otherwise have been prevented.

In that respect, however, they are no different from numerous other constitutional rights. Justice Breyer’s argument in McDonald is actually very similar to Justice Antonin Scalia’s dissent in Boumediene v. Bush, where Scalia warned that giving habeas corpus rights to War on Terror detainees “will almost certainly cause more Americans to be killed.” That argument didn’t move Breyer, who voted with the majority to extend those rights. Similarly, the enforcement of Fourth Amendment rights and Fifth Amendment rights allows at least some violent criminals to escape punishment, which in turn leads to some number of murders that might otherwise have been prevented. Pro-lifers certainly argue that the right to abortion kills far more people and in a far more direct way than gun ownership does. . . .

If we allow government to set aside constitutional rights whenever they “put… others’ lives at risk,” we soon won’t have many constitutional rights left. I also object to Breyer’s and Scalia’s more selective invocation of risks to life in cases involving rights for which they have little sympathy, while simultaneously ignoring very similar considerations when the right at stake is one they value more highly…

Breyer tries to limit his argument to “substantive liberty rights,” which may exclude procedural rights such as those protected by the Fourth Amendment or habeas corpus. However, it’s not clear why life-threatening procedural rights should be any more vigorously enforced than similarly risky substantive rights.

Plus: “One can argue that guns inherently threaten life, while only a small percentage of exercises of free speech rights or criminal procedure rights do the same. But it is equally true that only a small percentage of gun owners ever use them to commit crimes. In both situations, the case for regulation rests on the theory that we must restrict a wide range of people in order to forestall the relatively small minority who cause great harm.”

ILYA SOMIN ON the Seattle “CHOP” Takings Case. “As I see it, the key question here is whether the City’s actions were closely enough connected to the CHOP activists’ violations of the owners’ property rights to be considered as assistance “sufficiently direct and substantial” enough to qualify as a taking. Given the scale of the city’s alleged assistance to the private occupiers, I tentatively think the answer is yes. The city authorities apparently provided extensive aid to the CHOP activists both by giving the material assistance, and by allowing them to use city property. And it was foreseeable they would use these resources to violate local landowners’ property rights.”

ILYA SOMIN: Pitfalls of Statutory Term Limits for Supreme Court Justices. I don’t know if term limits are a good idea, but I’m sure they can’t legitimately be done by statute.

I think we’d be better off going to an elected Supreme Court than going to term limits.

ILYA SOMIN SAYS NO, BUT I’M NOT SO SURE: Does Yale Law School’s Antidiscrimination Policy on Subsidies for Student Employment Discriminate on the Basis of Religion?

Here’s the thing: a neutral antidiscrimination rule that happens to impinge on religious organizations isn’t “discrimination” against religion. However, its is religious discrimination when you are enforcing or expanding such a rule because of hostility to religion (as may be the case at Yale), and being deliberately indifferent to the interests of religious people in a way that you wouldn’t be for any other group with a minoritarian perspective also would be (as may be the case at Yale). Yale hasn’t provided detailed guidance on how it’s going to apply its antidiscrimination policy and what exceptions if any will be made, so we will just have to see how it works out. Meanwhile, the Law School, like all law schools, discriminates on the basis of race in admissions, so I’m not buying the line that principled opposition to discrimination allows for no accommodations for perceived social needs.


ILYA SOMIN: Is Originalism a Theory? Is Living Constitutionalism? “Legal scholar Eric Segall argues originalism doesn’t qualify as a constitutional theory because originalists disagree on too many things. His case is overstated. But if it’s correct, the same criticisms applies to living constitutionalism.”

Give Trump two more Supreme Court appointments, and Segall will be all-in for preserving the Framers’ intent.

Flashback: A Living Constitution On The Right? Be careful what you wish for, lefties.

UPDATE: I have some thoughts on what originalism is, and isn’t, here.

IT’D BE A START: Ilya Somin at the Volokh Conspiracy says that overturning the Chevron doctrine would not gut the Administrative State—but it would strengthen the Rule of Law.


ILYA SOMIN: Why We Shouldn’t Give Special Credence to the Political Views of Young People and Victims. “Kids today do know something that the rest of us don’t: what it’s like to be kids today. But the rest of us do remember what it was like to be kids. If children really were special repositories of virtue, then it is doubtful so many people would recall their school days as the lifetime peak of personal meanness — both receiving and giving.”

Yes, junior high is an emotional hellscape because it’s filled with teenagers.