Daniel Penny and Alvin Bragg

Well, one month ago, I predicted that the Manhattan DA’s Office would read the statute to the Grand Jury thereby deliberately throwing the case, and that the charges against Daniel Penny would be dismissed.

Silly me! I had based my prediction on my own experiences with the same DA’s Office forty years ago this year. Once again, I find that America has changed dramatically in the course of my lifetime and, as always, for the worse.

Back in the 1980s, then as now, NYC was a corrupt democrat party machine-run one-party state. The democrats were liberals then, but they were cynical, corrupt, pragmatic liberals. Today’s democrat party sometime ago surrendered power to commie crazies like Bill de Blasio and professional race-baiters like Alvin Bragg.

The 1980s DA’s Office backed off and threw the case against me by informing the Grand Jury what the law actually says partly, I expect, because it was the right thing to do, but probably more significantly because it had been made clear to them that prosecuting me would bring down on their heads huge amounts of controversy and public criticism.

The 1980s guys were primarily pragmatists. Alvin Bragg is an ideologue whose career is built upon whipping up the emotions of his homies over all sorts of imaginary grievances. He can no more pass up the opportunity to depict that deceased deranged black criminal as a martyred victim than a rat can pass by a piece of cheese sitting on the trigger of a trap.

It is no fun, I can tell you, living with a possible upcoming criminal trial and facing big time legal costs for a defense, while contemplating (even a minority possibility of) conviction and imprisonment.

Happily, Daniel Penny’s Legal Defense Fund on GiveSendGo has, as of right now, amassed $2,883,009, and the law really is on his side. If he really goes to trial, the statute will for sure be read to that jury.

The Laws of New York > Consolidated Laws of New York > CHAPTER 40 Penal > PART 1 > General Provisions > TITLE C > Defenses > ARTICLE 35 Defense of Justification

SECTION 35.30
Justification; use of physical force in making an arrest or in preventing an escape

4. A private person acting on his or her own account may use physical
force, other than deadly physical force, upon another person when and to
the extent that he or she reasonably believes such to be necessary to
effect an arrest or to prevent the escape from custody of a person whom
he or she reasonably believes to have committed an offense and who in
fact has committed such offense; and may use deadly physical force for
such purpose when he or she reasonably believes such to be necessary to:

(a) Defend himself, herself or a third person from what he or she
reasonably believes to be the use or imminent use of deadly physical
force. …

Law & Crime:

[A] three-judge panel of a state appellate court found that certain invertebrate animal species, including bees, are legally contained under the same umbrella definition as “fish” under the terms of the Golden State’s homegrown Endangered Species Act.

Four different bumblebee species are facing dire odds in the country’s most populous state. That danger mostly comes from the activities of huge agricultural interests. In 2019, the California Fish and Game Commission moved to protect those bees, the Crotch, Franklin’s, Western, and Suckley’s cuckoo, by designating them as endangered, threatened, and candidate species under three sections of the CESA.

Almond growers, citrus farmers, cotton ginners, and other agricultural groups sued. They argued that the CESA does not allow the Commission to designate any insects as endangered, threatened, or candidate species because insects are not included in the statute’s enumerated categories of wildlife entitled to such legal protections.

The Commission countered, saying that the definition of fish can and should encapsulate bees and other similarly situated invertebrates because, in part, it already does in practice. At least one species of shrimp, snail and crayfish are listed under the CESA. The listing of the Trinity bristle snail is particularly instructive, the Commission argued.

That’s because the snail, the commissioners note, does not even live in the water and was categorized as “threatened” in 1980. The way the snail got on the list was by being classified as a “fish.” Since the bristle snail is a terrestrial species, the Commission argues, “fish” cannot be limited to animals that inhabit a marine environment.

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Read it and weep:

Almond Alliance of California et. al. v. fish and Game Commission et. al.

We conclude a liberal interpretation of the Act, supported by the legislative history and the express language in section 2067 that a terrestrial mollusk and invertebrate is a threatened species (express language we cannot ignore), is that fish defined in section 45, as a term of art, is not limited solely to aquatic species. Accordingly, a terrestrial invertebrate, like each of the four bumble bee species, may be listed as an endangered or threatened species under the Act. . . .

If we were to apply the noscitur a sociis canon to the term invertebrate in section 45 to limit and restrict the term to aquatic species, as petitioners suggest, we would have to apply that limitation to all items in the list. In other words, we would have to conclude the Commission may list only aquatic mollusks, crustaceans, and amphibians as well. Such a conclusion is directly at odds with the Legislature’s approval of the Commission’s listing of a terrestrial mollusk and invertebrate as a threatened species. Furthermore, limiting the term to aquatic would require a restrictive rather than liberal interpretation of the Act, which is also directly at odds with our duty to liberally construe the remedial statutes contained therein. We thus decline to apply the statutory interpretation canon here.

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Ilya Somin, writing at (T)Reason magazine, says: “The ruling is not as ridiculous as it sounds.”

Which explains, of course, just how driveway puddles get to be “Navigable Waterways,” and growing wheat to feed animals on your own farm (Wickard v. Filburn) can be “Interstate Commerce.”

Clearly you don’t really have to be a full-fledged liberal statist to become this intellectually addled. This kind of extreme casuistical thinking can apparently be transmitted to soi disant Libertarian professors by mere contagion resulting from their hanging around the sort of intellectual pestholes known as law schools.

Fox News (not the Babylon Bee) reports on another democrat milestone in establishing Racial Equity.

Washington state lawmakers introduced a bill this month that would reduce penalties for drive-by shootings with the aim of “promoting racial equity.”

The bill, introduced by Democratic Representatives Tarra Simmons and David Hackney ahead of the state’s 2022 legislative session, would eliminate drive-by shootings as the basis for elevating a first-degree murder charge to aggravated murder in the first degree, which carries a mandatory sentence of life imprisonment.

Drive-by shootings were added to the list of aggravating factors for murder charges in 1995. Other aggravating factors include the murder of law enforcement officers, murders committed by inmates while they are behind bars, and murder-for-hire schemes.

Seattle police responded to a third shooting incident Tuesday evening in the 200 block of Yesler Way in the Pioneer Square neighborhood in September.

Seattle police responded to a third shooting incident Tuesday evening in the 200 block of Yesler Way in the Pioneer Square neighborhood in September. (Seattle Police Department)

The aggravating factor that the bill would eliminate reads: “The murder was committed during the course of or as a result of a shooting where the discharge of the firearm… is either from a motor vehicle or from the immediate area of a motor vehicle that was used to transport the shooter or the firearm.”

Rep. Simmons, who represents a district in western Washington, argued that “it’s clear that it was targeted at gangs that were predominantly young and Black.”

“I believe in a society that believes in the power of redemption,” she told Fox News Digital in a statement. “Murder is murder no matter where the bullet comes from but locking young people up and throwing away the key is not the answer.”

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Last night, as soon as I pasted in the URL for this John Derbyshire post on the Derek Chauvin verdict and hit POST, instantly, up popped a “THIS VIOLATES FACEBOOK COMMUNITY STANDARDS AND CANNNOT BE POSTED” notice.

Well, I have a work around: the URL to my post quoting Derbyshire will upload.

The jury’s verdict itself was absurd. Derek Chauvin did nothing wrong. The best case here was made by retired lawyer Harold Cameron over at Revolver News a week before the verdict came out:

When Floyd continued resisting arrest after being placed in handcuffs, Chauvin didn’t beat him with a baton. He didn’t taze him. He didn’t put in him a chokehold. He put one knee on what the prosecution is now optimistically calling Floyd’s “neck area” and waited for the ambulance to come save Floyd’s life … The worst that could be said is that he didn’t simply let Floyd go because he was still complaining about being unable to breath, just as he had been since the beginning of the encounter. The state’s case so far boils down to a collection of experts equating that to murder.

[ Derek Chauvin Did Nothing Wrong, April 13, 2021]

Hamilton also reminds us of the size discrepancy between Chauvin, who weighs a slight 140 lbs., and Floyd, 230 lbs. and all pepped up on chemical stimulants. If you have ever been involved in a close-quarters struggle for physical mastery with another adult, you’re impressed that Chauvin managed to subdue Floyd.

In the famous kneeling video, Chauvin has a look of being somewhat pleased with himself. I would have been, too.

Aside from that look of muted pride, I thought from the beginning, and still think, that Chauvin did not at all have the appearance of someone who was aware he was doing something wrong.

Come on: If you are doing something grossly wrong, something that might end another person’s life, you know you are, and it will show.

Chauvin’s entire affect in that video was of someone who’s done an unpleasant job, and believes he’s done it rather well.

How does that square with the charges as presented? Following the verdict, Jared Taylor just referred readers to Judge Peter Cahill’s instructions to the jury before they deliberated [Read: Judge’s instructions to Derek Chauvin trial jurors, Washington Post, April 19, 2021]

He quoted several phrases taken from those instructions, which Judge Cahill in turn took from the statutes under which Chauvin was charged, and asked:

Did the prosecution really prove beyond a reasonable doubt that Mr. Chauvin “intentionally inflicted substantial bodily harm”? That he was “perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life”? That he “consciously [took] chances of causing death or great bodily harm”? Was this “[un]reasonable force in the line of duty in effecting a lawful arrest or preventing an escape from custody”?

Jared, ever the punctilious gentleman and scholar, added: “I wasn’t in the courtroom, so I can’t answer these questions …”

But he knows perfectly well, of course, that they answer themselves: No, absolutely not.

So, to quote from Lady Ann, another virgin has been tossed into the volcano to appease the hungry god.

RTWT

Our Law is based on the English Common Law, and the pertinent case is The King v. Hodgson, “a knave who feloniously and maliciously starts a ‘chain reaction’ of acts dangerous to human life must be held responsible for the natural fatal results of such acts.” — 1 Leach 7, 168 Eng. Rep. 105 (1730), which principle was upheld in Commonwealth v. Almeida. –362 Pa. 596, 68 A.2d 595 (1949), cert. denied, 339 U.S. 924 (1950).

In the liberal stronghold of the Atlantic, Minnesota Law Professor Alan Z. Rosenshtein warns his fellow lefties that the time of liberal goals being legislated from the bench is drawing to an inevitable close.

[T]he Warren and early Burger Courts painted a vivid, alluring picture of what justice by judiciary could look like. And even if liberals understood, deep down, that those two decades were an aberration in American legal history, the Court has given them just enough victories since then to keep the dream alive. For lawyers and law professors, there is also the simple matter of professional vanity: If the Supreme Court is the vanguard of American justice, then judges, and thus the lawyers who argue before them and the scholars who analyze (and, when necessary, chastise) them, are the nation’s most important profession—the priests and elders of the civic religion that is American constitutionalism.

Fundamentally, though, many liberals loved the Supreme Court for the same reason they loved the law: a vision of universal harmony and justice brought about by reason and persuasion, not the brute forces of political power. Victory in the political arena is always incomplete and uncertain, not to mention grubby. Politics appeals to our baser instincts of greed and fear and competition—which, of course, is why it is so powerful. By contrast, law—whether through “neutral principles” or “reasoned elaboration” or elaborate moral theories, to name a few of the core organizing ideas of 20th-century legal theory—holds out the promise of something objective, something True. To win in the court of the Constitution is to have one’s view enshrined as just, not only for today but with the promise of all time.

But eventually liberals lost faith that the Court would interpret the Constitution in their favor. What started as a trickle of disillusionment grew throughout the 1980s and ’90s and became a torrent when Roberts became chief justice in 2005 and led the conservative wing to undermine a number of liberal legal priorities, from gun control to campaign-finance law to voting rights. Although many liberal lawyers still dutifully fight in federal court to protect rights where they can, they do so with the increasing understanding that they are simply delaying the inevitable. And legal scholars have gradually given up on the Court as a guarantor of constitutional values, advancing theories of popular constitutionalism or progressive federalism to serve as a counterweight to the Court’s conservative transformation. Whatever was left of the Court’s sacred aura as above partisan politics was ripped away by Mitch McConnell’s denial of a vote to Merrick Garland in 2016 and the bitterness of the confirmation hearings over Brett Kavanaugh two years later.

The clearest sign that many liberals are giving up their remaining idealism about the Court is that, for many moderate Democrats (not to mention those on the progressive left), court packing has gone from a fringe theory to not just a viable option but a moral imperative if Joe Biden wins in November and the Democrats take back the Senate.

RTWT

Fuzzy, but Rittenhouse is identifiable.

The liberal Chicago Tribune strokes its chin, and pondering Kyle Rittenhouse’s chances in court, leans heavily in the direction of conviction.

Could prosecutors show that Rittenhouse, 17, of Antioch, committed an unlawful act that provoked attacks on him? If so, the law holds that he would have to show he exhausted his chances to flee or otherwise avoid being harmed before shooting, attorneys said. And whomever was the aggressor, Rittenhouse would have to show he reasonably believed he had to shoot to prevent his death or serious injury. …

Videos show that Rittenhouse was among numerous civilians armed with rifles who interjected themselves into the protests, property destruction and looting that followed Blake’s shooting. Kenosha County prosecutors have charged Rittenhouse with murder, first-degree reckless homicide and four other counts. …

Liberal commentators have argued that Rittenhouse needlessly killed two people after wading heavily armed into unrest over police violence against African Americans. New York Times columnist Jamelle Bouie wrote that, “Rittenhouse should not have been there, and we should agree — all of us — that the shooting should not have happened.”

It is interesting that liberals consider Rittenhouse agreeing to protect a friend’s business and property from looting and destruction amounts to “interjecting himself” and “[he] should not have been there,” while they seem to see no problem at all in persons rioting and committing arson being there. All the culpability for the “shooting [that] should not have happened” belongs to Kyle Rittenhouse, not to the rioters who attacked him.

Once again, we find that Leftism constitutes a systematic inversion of values and of reality.

RTWT

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Wisconsin Right Now has an interesting report bearing on the issue of provocation.

The criminal complaint charging Kyle Rittenhouse with two counts of homicide leaves out a key point: Why Joseph Rosenbaum, a convicted sex offender, was chasing the 17-year-old in the first place.

Two eyewitnesses interviewed by Wisconsin Right Now say Rosenbaum was enraged because Rittenhouse, and others, were using fire extinguishers to put out an arson fire in a dumpster that Rosenbaum, and others, were trying to push toward police squad cars.

They also believe that Rosenbaum may have been determined to rob Rittenhouse because the teenager seemed like the “weak” member of the herd and had walked off by himself. They think this because they say Rosenbaum, 36, “intricately” tied his shirt around his face, they believed to conceal his identity. Whether that would have been the case is obviously an unknown, but it was their perception.

The two eyewitnesses, Justice and Dylan Putnam, were willing to put their names to it. Videos also back up pieces of what they told us. There’s video of Rittenhouse with the fire extinguisher, video of Rosenbaum pushing the burning dumpster, and, of course, video of Rosenbaum chasing Rittenhouse down and cornering him behind a car before Rittenhouse opened fire.

“Kyle took a fire extinguisher from someone,” said Justice Putnam, who added that she saw him trying to put out the arson fire in the dumpster. “That started the altercation.”

RTWT

Wouldn’t it be hilarious to listen to a prosecuting attorney trying to argue that Rittenhouse “provoked” his attackers by trying to put out an arson fire?

Commentator “Austrian” writes, at AR15.com forums:

By now the majority of you will have seen or heard of the pair of engagements in Kenosha, Wisconsin (hereinafter the “Engagements”) between one Kyle Rittenhouse and a number of other individuals, some recently departed, others now unfortunately unable to operate a keyboard with any efficiency, particularly when proper capitalization is required of their typewritten text. In the wake of these encounters it is quite something to see the degree of bad information, misinformation, and disinformation that has showered the socialinterwebsitetubes, particularly from a tactical and legal perspective.

On the tactical side, it is surprising that matters seem so distorted, since the Engagements must rank among the most comprehensively filmed deadly force CQB incidents in some years (and one of the only engagements in recent memory involving an AR system). In fact, despite the poor lighting conditions, the mobile nature of the camera operators (none, to my knowledge, trained combat photographers), and the chaos of small unit action that will be familiar to anyone who has been in the midst of it, it is possible to view the most cogent parts of the engagement in vivid detail, from multiple camera angles, and with stereo sound. On the legal side, well, many new expert commentators may lack a formal law degree, but they did stay at a Holiday Inn Express (7887 94th Ave, Pleasant Prairie, Wisconsin, 53158) and probably ordered several on-demand Better Call Saul episodes the night before the Engagements besides.

Given the sudden merger of two subjects of great interest to me, and a five hour phone call I had with an old acquaintance now an employee of the Federal Government of the United States based not far from Wisconsin, I could not but look into the Engagements more carefully. Having done so, I could not but type up my analysis. Having done so I could not but seek a forum for publication.

Rittenhouse prevailed in at least four physical encounters, at least one if not two of which involved contests for control of his weapon by larger, presumably stronger assailants. …

Legal Analysis:

Engagement 1:

Reasonable belief…

In the initial encounter with Short Bald Subject, Rittenhouse can be seen turning at least once to face the pursuing Short Bald Subject after Short Bald Subject hurled an object at Rittenhouse. In that quick turn it is possible that Rittenhouse brought his rifle barrel to bear. Short Bald Subject seems to hesitate, but continues to come on just as strong thereafter, charging Rittenhouse at full tilt. I would be at pains to articulate an argument that Rittenhouse did not reasonably believe that force was necessary to avoid a physical confrontation.

..that he faced imminent…

You don’t get a lot more imminent than an adult male charging you at full tilt, especially as close as Rittenhouse permitted Short Bald Subject to approach (1.0-1.5 meters from the look of it).

…danger of death or great bodily harm…

It is entirely reasonable, within the context of civil unrest, mob action, and a lack of any real police presence, to expect that a full on physical fight with a determined adversary will result in your great bodily harm. I would expect that Rittenhouse’s own exposure to police cadet programs and training would make this reasonable belief by him easy to establish based on what he may have learned in such programs, but anyone watching the news or even vaguely aware of the propensity for mob violence in cities facing unrest (and Kenosha in particular) would be reasonable in fearing great bodily harm or death if they are jumped in that context. Ironically, Rittenhouse’s own words in the prior video interview, that he was armed because he might have to go “into harm’s way” is a good piece of evidence vis-a-vis his state of mind at the time.

…and, that the use of deadly force is necessary to prevent said harm.

Again, Short Bald Subject was not stopping for anything. Given the video evidence of Short Bald Subject’s disposition at the Ultimate station earlier, I suspect any third party will be able to safely infer that the prison-hardened Short Bald Subject did not intend to give Rittenhouse an over-the-knee spanking. …

Engagement 2:

Reasonable belief…

In the video of the chase immediately before Engagement 2 Rittenhouse can be clearly seen looking behind him, obviously registering the number of pursuers he faced. If he had any doubts about their intentions the blow delivered to the rear of his head by White Shirt (a Misdemeanor Battery in Wisconsin) should have made them clear. When Rittenhouse fell to the ground and turned to face his attackers he had a view of at least a dozen individuals approaching him, including the four primary assailants.

..that he faced imminent…

While Red Backpack is deterred by the sight of the barrel of the rifle coming to bear and therefore receives no fire, in each of the cases where Rittenhouse used deadly force (Light Pants, Huber, Grosskreutz) Rittenhouse fires when contact is either imminent or already initiated.

…danger of death or great bodily harm…

An attempted drop kick to the head (White Pants), a skateboard-wielding assailant fighting for control of Rittenhouse’s weapon (Huber), and a handgun carrying assailant that fakes surrender to try and gain tactical surprise (Grosskreutz).

Nearby an individual with a blunt instrument held upward. A group of pursuers who had chased Rittenhouse two or three blocks already shouting out things like “Get his ass!” and who swarmed on him when he fell.

…and, that the use of deadly force is necessary to prevent said harm.

Rittenhouse’s attackers were undeterred by the presence of and then even the discharge of his weapon. Still two of them (Huber and Grosskreutz) attacked. …

Tactical conclusions:

Effective slings are essential elements of weapon retention in CQB and the correct setup is a huge equaliser even against melee encounters with larger adversaries. This is a lesson for me in particular. I have resisted sling systems in the past.

Don’t rely on firearm discharges or pointing to deter opponents determined to close distance with you.

Not that you needed reminding, but rifle stopping power is far superior to handgun stopping power. All three subjects Rittenhouse scored clear hits on were out of the fight immediately. One (Grosskreutz) melted down even though he had ample means to continue the fight. Grosskreutz is only alive today because of Rittenhouse’s amazing (perhaps even naive) restraint. I don’t know of any tactical instructor that wouldn’t counsel a follow-up shot to center mass on Grosskreutz immediately after the arm-strike.

If attacking an individual armed with a firearm do not flinch no matter what. If you commit to grappling with a rifle or pistol holder you have to see your attack through. Four larger, assailants, one armed with a blunt instrument (skateboard) and one with a handgun were unable to subdue a nearly prone Rittenhouse because they shied from the muzzle blast at key moments. Had Grosswreutz followed through with his initial charge after the fatal center mass hit on Huber, Rittenhouse would likely have been subdued.

RTWT

HT: Vanderleun.

#BREAKING: Looting happening now at Lululemon Store in Walnut Creek's Broadway Plaza https://t.co/oFV0lmV8yp pic.twitter.com/9OYA7dtb4L

— KRON4 News (@kron4news) June 1, 2020

Jennifer van Laar, at Red State, explains what Justice as administered by minority left-wingers elected with George Soros-funding looks like.

Last week we brought you the story of Nichelle Holmes, a Deputy District Attorney in California who made social media posts proclaiming “We want more than a citation for vandalism” for the couple who painted over a Black Lives Matter mural in her jurisdiction. The office has now charged the couple with a “hate crime.”

Holmes’ boss, Diana Becton, is in her first term as elected District Attorney, one of a number of district attorneys heavily supported by lefty billionaire George Soros. Sources tell RedState that as soon as Becton took over she implemented major changes in the way the office was run and in the way crimes were charged and how aggressively cases were prosecuted. One recent change, which I’ll address further in a moment, has to do with charging people for “looting,” which is basically stealing during a state of emergency (i.e., protests or riots).

Becton is BFF’s with St. Louis’ Kim Gardner and Chicago’s Kim Foxx, who’ve been in the news for their terrible policies. This week she co-authored a Politico op-ed with Gardner, Foxx, and two other Soros-funded DA’s explaining their philosophy and 11-point plan for further ruining America’s cities.

The quintuplet started off by sharing their completely inane understanding of the origins of our justice system (apparently not understanding that criminal legal systems pre-date the colonization of North America):

“Our criminal legal system was constructed to control Black people and people of color. Its injustices are not new but are deeply rooted in our country’s shameful history of slavery and legacy of racial violence. The system is acting exactly as it was intended to, and that is the problem.

“We should know: We’re Black, we’re female, and we’re prosecutors. We work as the gatekeepers in this flawed system. And we have some ideas for how to fix it.”

Say what? And the fact that they’re the gatekeepers is scary as hell – not because of their skin color or their gender (wait, is gender actually a thing anymore?), but because they want to remove the blindfold from Lady Justice’s eyes.

Instead, these prosecutors place a duty to enact societal change upon their deputies and believe they must “rectify past wrongs”:

The decisions that prosecutors make can either work to rectify the inherent harms in the legal system or perpetuate them. Part of our responsibility, as elected public servants, is to be self-aware and recognize that we are part of the problem. It is our moral and ethical duty to start advancing racial equity-minded policies—and community advocates and voters should hold us accountable for doing so.

Working from within, we have begun the steps to rectify past wrongs. We are implementing policies that include declining to prosecute minor offenses, overturning wrongful convictions, refusing to take cases from officers with a history of racial bias and expunging marijuana convictions. And we are currently working within our own offices to make the system fairer and more just.

Becton, the Contra Costa County DA, is already putting “racial equity-minded policies” in place and enforcing them in her office. The following “Looting Guidelines” document was provided to RedState by a confidential source and verified as authentic by a separate source familiar with the office’s policies. [see below]…

So, let’s get this straight. Deputy District Attorneys and/or the county’s law enforcement officers are supposed to go through a flow chart, including a psychological and financial analysis, to determine if looting charges should be filed?

This is what’s happening in the Bay Area right now.So, let’s get this straight. Deputy District Attorneys and/or the county’s law enforcement officers are supposed to go through a flow chart, including a psychological and financial analysis, to determine if looting charges should be filed?

This is what’s happening in the Bay Area right now.

And if the property owner points a gun at looters, these DAs will indict for assault.

HT: Vanderleun.

Adrian Vermeule, Ralph S. Tyler, Jr. Professor of Constitutional Law at Harvard Law School.

He looks cherubic and harmless, doesn’t he? Well, he rejects the framers’ goal of limited government, preferring the promotion of morality and “the common good.”

He expressed his new vision of illiberal Dworkianism in a recent editorial in the Atlantic, titled “Beyond Originalism.”

Originalism comes in several varieties (baroque debates about key theoretical ideas rage among its proponents), but their common core is the view that constitutional meaning was fixed at the time of the Constitution’s enactment. This approach served legal conservatives well in the hostile environment in which originalism was first developed, and for some time afterward.

But originalism has now outlived its utility, and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation. Such an approach—one might call it “common-good constitutionalism”—should be based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate. In this time of global pandemic, the need for such an approach is all the greater, as it has become clear that a just governing order must have ample power to cope with large-scale crises of public health and well-being—reading “health” in many senses, not only literal and physical but also metaphorical and social.

Alternatives to originalism have always existed on the right, loosely defined. One is libertarian (or “classical liberal”) constitutionalism, which emphasizes principles of individual freedom that are often in uneasy tension with the Constitution’s original meaning and the founding generation’s norms. The founding era was hardly libertarian on a number of fronts that loom large today, such as freedom of speech and freedom of religion; consider that in 1811, the New York courts, in an opinion written by the influential early jurist Chancellor James Kent, upheld a conviction for blasphemy against Jesus Christ as an offense against the public peace and morals. Another alternative is Burkean traditionalism, which tries to slow the pace of legal innovation. Here, too, the difference with originalism is clear, because originalism is sometimes revolutionary; consider the Court’s originalist opinion declaring a constitutional right to own guns, a startling break with the Court’s long-standing precedents.

These alternatives still have scattered adherents, but originalism has prevailed, mainly because it has met the political and rhetorical needs of legal conservatives struggling against an overwhelmingly left-liberal legal culture. The theory of originalism, initially developed in the 1970s and ’80s, enjoyed its initial growth because it helped legal conservatives survive and even flourish in a hostile environment, all without fundamentally challenging the premises of the legal liberalism that dominated both the courts and the academy. It enabled conservatives to oppose constitutional innovations by the Warren and Burger Courts, appealing over the heads of the justices to the putative true meaning of the Constitution itself. When, in recent years, legal conservatism has won the upper hand in the Court and then in the judiciary generally, originalism was the natural coordinating point for a creed, something to which potential nominees could pledge fidelity.

But circumstances have now changed. The hostile environment that made originalism a useful rhetorical and political expedient is now gone. Outside the legal academy, at least, legal conservatism is no longer besieged. If President Donald Trump is reelected, some version of legal conservatism will become the law’s animating spirit for a generation or more; and even if he is not, the reconstruction of the judiciary has proceeded far enough that legal conservatism will remain a potent force, not a beleaguered and eccentric view.

Assured of this, conservatives ought to turn their attention to developing new and more robust alternatives to both originalism and left-liberal constitutionalism. It is now possible to imagine a substantive moral constitutionalism that, although not enslaved to the original meaning of the Constitution, is also liberated from the left-liberals’ overarching sacramental narrative, the relentless expansion of individualistic autonomy. Alternatively, in a formulation I prefer, one can imagine an illiberal legalism that is not “conservative” at all, insofar as standard conservatism is content to play defensively within the procedural rules of the liberal order.

This approach should take as its starting point substantive moral principles that conduce to the common good, principles that officials (including, but by no means limited to, judges) should read into the majestic generalities and ambiguities of the written Constitution. These principles include respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to “legislate morality”—indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority. Such principles promote the common good and make for a just and well-ordered society.

To be sure, some have attempted to ground an idea of the common good on an originalist understanding, taking advantage of the natural-rights orientation of the founding era. Yet that approach leaves originalism in ultimate control, hoping that the original understanding will happen to be morally appealing. I am talking about a different, more ambitious project, one that abandons the defensive crouch of originalism and that refuses any longer to play within the terms set by legal liberalism. Ronald Dworkin, the legal scholar and philosopher, used to urge “moral readings of the Constitution.” Common-good constitutionalism is methodologically Dworkinian, but advocates a very different set of substantive moral commitments and priorities from Dworkin’s, which were of a conventionally left-liberal bent.

Common-good constitutionalism is not legal positivism, meaning that it is not tethered to particular written instruments of civil law or the will of the legislators who created them. Instead it draws upon an immemorial tradition that includes, in addition to positive law, sources such as the ius gentium—the law of nations or the “general law” common to all civilized legal systems—and principles of objective natural morality, including legal morality in the sense used by the American legal theorist Lon Fuller: the inner logic that the activity of law should follow in order to function well as law.

Common-good constitutionalism is also not legal liberalism or libertarianism. Its main aim is certainly not to maximize individual autonomy or to minimize the abuse of power (an incoherent goal in any event), but instead to ensure that the ruler has the power needed to rule well. A corollary is that to act outside or against inherent norms of good rule is to act tyrannically, forfeiting the right to rule, but the central aim of the constitutional order is to promote good rule, not to “protect liberty” as an end in itself. Constraints on power are good only derivatively, insofar as they contribute to the common good; the emphasis should not be on liberty as an abstract object of quasi-religious devotion, but on particular human liberties whose protection is a duty of justice or prudence on the part of the ruler.

RTWT

The framers were, of course, conscious that the new Republic would be composed of thirteen colonies, founded at different times by different groups of people for different reasons with differing cultures, economies, and dominant religious denominations. They were living in a time in which the disastrous European Wars of Religion loomed large in memory, and they had drawn the rational conclusion that attempts by the State to control the conscience of the individual with regard to opinion and forms of conduct not impacting others were both tyrannical and futile.

Professor Vermuele thinks otherwise. Having ascended to an eminent position in the modern academical meritocratic order, he considers himself wiser than Madison, Jefferson, Washington, Franklin, and the other framers, and he obviously believes his own contemporary apprehension of morality and “the common good” is better than theirs, and superior as well to that of the 330 million other living Americans whom he is prepared to instruct and coerce.

Personally, I am no more interested in being ruled by Platonic Guardians of the Roman Catholic Integralist bent than I am by being ruled by bien pensant left-wing sophisters like the late Ronald Dworkin.

Judges Andrew Adams, Sabrina Bell and Bradley Jacobs.

NPR describes an unfortunate situation involving three Indiana judges where things got a bit out of control that might happen to anyone:

Back in May, three Indiana judges got into a fight. It was the crescendo of an incident brimming with colorful details: a gaggle of judges drinking the night before a judicial conference, a failed attempt to visit a strip club called the Red Garter, a brawl in the parking lot of an Indianapolis White Castle.

The altercation apparently started sometime after 3 a.m., when one of the judges, Sabrina Bell, raised a middle finger at two men yelling from a passing SUV, and ended after one of those men shot two of the judges.

In between, the three judges took a number of actions that “discredited the entire Indiana judiciary,” according to an opinion posted by the Indiana Supreme Court this week, suspending the judges.

The court found that the three — Andrew Adams, Bradley Jacobs and Sabrina Bell — had “engaged in judicial misconduct by appearing in public in an intoxicated state and behaving in an injudicious manner and by becoming involved in a verbal altercation.” Adams and Jacobs engaged in further judicial misconduct “by becoming involved in a physical altercation for which Judge Adams was criminally charged and convicted.”

The document lays out the events as soberly as possible, but the details remain spicy:

“While in town to attend a statewide educational conference for judicial officers, 10 hours before the program convened, Respondents walked the streets of downtown Indianapolis in a heavily intoxicated state. When Judge Bell extended her middle finger to a passing vehicle, neither Judge Adams nor Judge Jacobs discouraged the provocation or removed themselves from the situation.”

The three had ended up at a White Castle after trying to go to a strip club at 3 a.m. and finding it closed. A fourth judge went into the White Castle, while Bell, Adams and Jacobs stood outside.

Two men in the passing vehicle, Alfredo Vazquez and Brandon Kaiser, parked their car after the gesture from Bell.

Bell and Vazquez traded further insults. A physical altercation ensued among the four men, with Adams and Vazquez allegedly hitting and kicking each other as Jacobs and Kaiser wrestled on the ground. Kaiser then allegedly pulled a gun and shot Adams once in the stomach and Jacobs twice in the chest.

Adams and Jacobs were both seriously wounded and required emergency surgeries; Jacobs was hospitalized for two weeks.

Bell tried to stop the fighting by pounding on the door of White Castle for help and calling 911 once shots were fired.

While at the scene, Bell was recorded on video telling police detectives something akin to “I feel like this is all my fault,” though the opinion notes that Bell “was intoxicated enough that she lacks any memory of the incident.”

Kaiser, who allegedly shot Adams and Jacobs, has been charged with 14 crimes related to the brawl, including four charges of felony aggravated battery, according to The Indianapolis Star.

The court suspended both Jacobs and Bell for 30 days without pay. Adams, who pleaded guilty in September to one count of misdemeanor battery, is suspended for 60 days without pay. He was sentenced to 365 days in jail but was required to serve only two.

In the White Castle incident, the court said, the three judges “gravely undermined public trust in the dignity and decency of Indiana’s judiciary.”

RTWT