Sorry it took so long. My response to Eugene and others raising the same
question is here:
http://balkin.blogspot.com/2013/12/hobby-lobby-part-iii-adoes-federal-law.html
As always, I welcome any critiques/suggestions from list-members, thanks.
On Wed, Dec 18, 2013 at 11:36 AM, Marty Lederman
The holidays have made it difficult to keep up but I did want to respond to
Michael. The notion that the distinguishing of Sherbert and Yoder were pure
legal fictions in Smith is unpersuasive.With respect to Sherbert, the
Court's reasoning is actually accurate and reflects the Court's
I also used to think that RFRA calls for improper judicial lawmaking (though
not unconstitutional lawmaking). But I then changed my views, for reasons I
described in more detail in my Common-Law Model for Religious Exemptions
piece, http://www.law.ucla.edu/volokh/relfree.pdf.
Here's the short
Eugene-- I am very familiar with your common law reasoning, which I do find
persuasive in terms of explaining to students the incremental developments of
constitutional law over time. I don't find it persuasive, however, in
explaining institutional competence. I also don't find persuasive the
But courts have made rules in the past regarding substantive
law as well -- what shall be a crime, what shall be a tort, what constitutes a
contract, what property rights are recognized, and so on. They continue to
make such rules in many areas, less so with regard to
Eugene- I take it you would not have overturned the Lochner line of cases?
Your defense of unaccountable, robust policy making by judges would revive the
federal court's role in those cases and reverse the reasoning of, eg,
Williamson v lee optical.You have also failed to articulate any
Marci,
Isn’t there a clear difference between a court’s overriding of the legislature,
and a court’s exercise of authority granted by the legislature? That
distinction would seem to make your Lochner and Lee Optical arguments
unpersuasive, as I think Eugene has pointed out numerous times.
