Modern day “originalism” is a method (in my view, a narrow tool and not an expansive religion) of understanding the Constitution. No longer pursuing the fool’s errand of attempting to ascertain “original intent,” the modern-day originalist judge looks to the ordinary public meaning of the words of the Constitution at or about the time of the Founding to make decisions about the lives of litigants. This notion has within it an effort to understand the structure of our Constitution with reference to the writings of the Founders and the ordinary public meaning of the words they used. OK, the table has now been set.

While I am not a legal historian, I know something about legal history. I have long served as Chairman of the Board of the Historical Society of the United States Courts in the Eighth Circuit. In that capacity I have come to know and deeply appreciate distinguished (and always humble) legal historians such as Jeffrey Morris, John Wunder and Mark Scherer. These fellows have law degrees and PhD degrees in history. One of their history books has even been dedicated to me. Forgive the self-promotion, but it has a point beyond merely massaging my massive ego.

Now I turn to the essay that caught my eye and prompted this response. See How Originalism Changes Legal Analysis by law professor John O. McGinnis, in Law and Liberty. Frankly, it shocked me because it is nothing short of revolutionary when comes to federal district judges. Continue reading →

In the course of a typical day, I’ll be informed of how I’m sexist, racist, fascist, and a cuck, a libtard, a criminal lover and a rape apologist. People, right or left, seem to feel compelled to let me know how horrible I am, particularly bold and passionate law students who demand I explain my awfulness so they can tell me why I’m wrong. Fun times.

But every once in a while, someone gets so incensed by my awfulness that they vet my every expression, my posts here, my twits, in search of some way in which they can shut me up and close me down. On the one hand, it’s rather endearing that anyone would go through that much effort to silence me, to “win” by canceling me. On the other, it’s a sad reflection of the state of affairs.

To my surprise, an email arrived to inform me that someone who hated me enough to search back to 2015 came up with something of sufficient awfulness to get the Twitters to act. Continue reading →

I can still remember the first time I read the “looks like me” trope. It was from a guy on twitter, Anil Dash, who had a huge following for reasons that eluded me, and was attacking J.K. Rowling for not having written a character in the Harry Potter series who “looked like” Dash’s kid. I responded, “so write a book and make the characters whoever the hell you want.” How was it Rowling’s problem that her characters didn’t look like Dash’s kid?

But Kwame Anthony Appiah makes a more astute point. What does it mean to “look like me”?

The actor Eva Longoria, who appears in the film “Dora and the Lost City of Gold,” in which the principals are played by Latinx actors, has said she had to take the part because of what the film represented “for my community and for people who look like me.”

Continue reading →

A question posed: Most of this morning was spent writing a post about the question of whether it’s time to separate the “T” in LGBTQ. The issue is overwhelmingly mired in simplistic social justice dogma, making it impossible to “have a conversation” without invoking the outrage of the mob.

This comes as a by-product of the Democratic candidates forum on LGBTQ rights. Have we matured enough to have a serious discussion? Probably not, but if people care about doing what we can to end discrimination against both gay and transgender people, then we need to recognize that they present different issues and problems. Are we ready for this? Will I get ripped to shreds for my heresy? Do I need that aggravation? Continue reading →

She was coming off a 14-hour shift as a Dallas police officer. He was minding his own business in his own apartment, going about his life until she took it from him.

A white off-duty police officer who lived in Unit 1378 — directly below Mr. Jean — claimed that she mistakenly entered the wrong apartment after returning home from her 14-hour shift and believed Mr. Jean, who is black, was an intruder. Officer Amber R. Guyger, 30, fired her service weapon twice, striking him once in the torso.

Botham Jean was in his apartment when some random woman entered and “commanded” him to do something. It’s unclear what she claims to have commanded of Jean, but she says he ignored her. Of course he did, because he was in his own apartment and she was some crazy intruder. And she claims, now that she’s going to trial for murder, that she made a mistake of fact, thinking that he was in her apartment, which was one floor below, and he was the intruder. Texas has a very broad Castle Doctrine, and with two bullets from her service weapon, Botham Jean was dead in his own apartment. Oops, her mistake. Continue reading →

It’s become commonplace in the start-up business world to provide certain office perks for employees, such as healthy nut and grain bars, dipped in chocolate to kill the vitamins, or the Millennial version of Old Miss Frothingslosh, the stale pale ale with the foam on the bottom. It keeps employees at work and caters to their fond memories of mommy bringing Cheetos to them while they sat on the basement couch playing Mortal Kombat. Good times.

But do something nice and, naturally, it’s problematic.

I run a small but growing start-up and employ many young female employees. As is standard for the start-up world, we buy kitchen items for our staff, including snacks, beer and wine, paper towels and facial tissues. We have a board in the break area that we use to remind me what items we are getting low on.

My employees keep putting feminine sanitary items on that board. I quizzed building maintenance and found that these items are for sale in all the ladies’ restrooms for 25 cents each. Should I be buying these items with corporate money, and how can I justify it one way or the other?

— Atlanta

Continue reading →

Prefatory note: I received another batch of emails from my source “StickWeeks” on a private Discord server. Since I’ve had a strong suspicion Sheriff Roy or someone in his office has been tailing me this week, I’m releasing these emails to the SJ readership.

SHG: If you don’t hear from me this week, release the copy of the restraining order I sent you.—CLS

August 31, 2019
FROM: Templeton, Roy ([email protected])
TO: ALL DEPARTMENTS
RE: Opening Day in Knoxville

Good evening, everyone: Continue reading →

It took the jury all of 26 minutes to return its verdict. Not guilty.

A six-person jury found Jonathan Vanderhagen not guilty Thursday following a three-day trial in 41B District Court on a charge of malicious use of a telecommunications device for several Facebook posts last July regarding family Judge Rachel Rancilio of Macomb County Circuit Court in Mount Clemens.

Vanderhagen was held on half a million dollars bail for one count of the misdemeanor charge of malicious use of telecommunication services stemming from his Facebook posts about the death of his son. Continue reading →

The Niskanen Center used to be a libertarian think tank, until it decided manifest destiny applied. With that, the very smart Will Wilkinson took to the papers to argue against “assault weapons.” Fair enough, and there is no doubt that the matter of gun control is a huge issue in the country. Wilkinson is hardly the only smart guy who has taken the position that semiautomatic guns are a blight on America, a weapon that can no longer be tolerated and, all other issues aside, must be stopped.

But how his argument is framed is a problem.

Why an Assault Weapons Ban Hits Such a Nerve With Many Conservatives

The premise of Trumpist populism is that the political preferences of a shrinking minority of citizens matter more than democracy.

Continue reading →

Cathy Young took a deep dive into the Yale story of “napping while black,” seized upon as a battle in the war against racism at Yale. It revealed a few things of social significance about the outrage industry’s use of whatever fodder it could get its hands on, facts and nuance be damned. What it also revealed was how it manufactured villains, even though they may well be the victim of the story if the facts were known. Sarah Braasch may be such a victim.

Braasch sought the body cam video from the Yale Police Department to prove her case, to vindicate her actions, to end the concerted effort to destroy her for the sake of the social justice narrative.

I had spoken with the Ombudsman at the CT FOIA Commission assigned to my docket, and she had expressed her belief that she would be able to get Yale to release the YPD body camera footage to the public, which would have precluded the need for me to attend a hearing in Hartford on October 3^rd. Continue reading →