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08/09/2018

William Foster: Why Janus Is Indefensible on Neutral Principles
Michael Ramsey

William Foster (Student - Walter Payton College Preparatory High School) has posted Why Janus Is Indefensible on Neutral Principles on SSRN.  Here is the abstract:

In Janus v. AFSCME, the Supreme Court ruled that government employees may not be forced to pay anything to a union against their will. Such compulsion, the Court said, violates First Amendment free speech rights. This decision, however, lacks a firm basis in the law. As a purported exercise of neutral judgement power, the Court's reasoning makes little sense. It hyper-scrutinizes one bit of precedent while uncritically accepting others, with no satisfying explanation for this disparity. And its analysis of original meaning is cursory and evades the key issues. Ultimately, the Janus decision cannot be justified on neutral principles: neither original meaning nor precedent can adequately explain it.

It opens with this quote from Justice Scalia (from 1996):

And so, what comes with all of this sophistry? All sorts of rights that clearly did not exist at the time of the adoption of the Constitution and the Bill of Rights exist today … This is not, I caution you, a liberal versus conservative issue. Conservatives are fully as prepared as liberals to create new rights under this evolutionist theory of the Constitution.

I believe this is the first paper from a high school author featured on this blog.  I think it raises some challenging questions.