« Problems With Vermeule, Part 6: Dworkin, the Level of Generality Problem, and the Fourteenth Amendment
Chris Green
| Main | Problems With Vermeule, Part 7: Meaning, Application, and Euclid
Chris Green »


Josh Blackman on Last Week's Supreme Court Decisions
Michael Ramsey

At Volokh Conspiracy, Josh Blackman assesses two Supreme Court decisions from last week, Ramirez v. Collier and Houston Community College System v. Wilson:

Justice Kavanaugh Is Not Going To Lay A Hand On Employment Division v. Smith (on Justice Kavanaugh's concurrence in Ramirez)

Houston Community College v. Wilson Reaffirms That Elected Officials Have Free Speech Rights (on the unanimous opinion in Houston CCS v. Wilson)

As he describes, both opinions rely heavily on historical practice.  (See also this post on Ramirez from Mark Movsesian: Tradition and Compelling Interests in Religion Cases.)

I have several quick thoughts.

First, using tradition as part of constitutional interpretation is consistent with originalist principles as Justice Scalia understood them -- I discuss his use of post-ratification practice (often long-post-ratification practice) here.  I am a little less sure that it is consistent with textualist originalism.

Second, in any event, the decision in Wilson seems consistent with originalism because there isn't (to my knowledge) any practice pointing in the opposite direction.  Wilson objected to the Community College System's decision to censure him for his speech.  But no historical practice indicates that "the freedom of speech" included the right to be free from censure, as opposed to being free from actual adverse consequences.  

Third, as to Ramirez, this was a statutory claim under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), which requires accommodation of religious practices absent a compelling state interest.  But I don't see what enumerated power allows Congress to regulate a state's treatment of state prisoners, unless Congress is enforcing rights under the Fourteenth Amendment.  The Court didn't address whether the state's treatment of Ramirez violated the free exercise clause.  Without finding the state's conduct unconstitutional, the application to RLUIPA to Ramirez's situation seems dubious at best.  I'm surprised Justice Thomas, who dissented on other grounds, didn't make this point at least as an aside.