Originalist Ideology and the Rule of Law

This essay contends that one of the basic tenets of the New Originalism -- the so-called contribution thesis -- compromises our underlying commitment to the rule of law. By locating some binding substantive content of constitutional language in a historical record beyond the text itself, originalism undermines the fundamental concepts of formal legality and public accessibility. With these issues in mind, the essay concludes that originalism is not a philosophical account of how the Constitution has meaning in our legal system, but is instead a judicial ideology intended to promote the constitutional policy judgments of an earlier generation

Salazar v. Buono: Sacred Symbolism and the Secular State

This Colloquy piece comments on some doctrinal and theoretical implications of the Supreme Court\u27s recent decision in Salazar v. Buono

Gravitino cosmology in supersymmetric warm inflation

In supersymmetric models of warm inflation, the large temperature of the radiation bath produced by the dissipative motion of the inflaton field may induce a significant thermal abundance of potentially dangerous gravitinos. While previous discussions of this problem focused on gravitino production only at the end of warm inflation, similarly to conventional reheating scenarios, we study the full evolution of the gravitino abundance during and after inflation for simple monomial potentials, taking into account the enhanced gravitino and possibly gaugino masses due to supersymmetry breaking during inflation and the smooth transition into a radiation-dominated era. We find, on one hand, that the continuous thermal production increases the gravitino yield, although, on the other hand, `freeze-out' occurs at temperatures much lower than previously estimated. Moreover, for sufficiently strong dissipation, which allows for sub-planckian inflaton values, the lower radiation temperature significantly alleviates and possibly solves the gravitino problem, with a baryon asymmetry being nevertheless produced through dissipative effects. Our analysis may also be relevant to standard reheating as an oscillating inflaton will also change the gravitino mass, potentially modifying the produced gravitino yield.Comment: 18 pages, 12 figures. Published version Phys.Rev.

Emotional intelligence and optimistic cognitive style in certainty in career decision making

The current study tested whether Trait Emotional Intelligence variables and Optimistic Cognitive Style together predicted feelings of certainty in career decision making. Few studies have examined the effects of trait emotional intelligence or life style orientation on career choice, and no study has been found that combined both the life orientation (optimism) and the trait emotional intelligence domains and facets: this current study examined the relative weights of these facets and lifestyle orientation in relation to career certainty. Participants were from a convenience sample of 142 university students who completed a paper-and-pencil survey containing the following measures: the Life Orientation Test-Revised (assessing optimism, the Trait Emotional Intelligence Scale (TEIQue), and the Career Decision Scale (CDS).It was found that optimism and the four main domains (of wellbeing, self-control, emotionality, and sociability) and several of the subscales of the TEIQue correlated significantly with career certainty. A unique significant predictor of Career Certainty was found to be Stability-Impulsivity (a facet in the Self-Control domain of the TEIQue) but optimism was not a factor in predicting career certainty when the stability-impulsiveness factor was accounted for. Self-control- stability (low impulsiveness) predicted career certainty. It would seem that stability in thinking and action helps career commitment (certainty). Implications are drawn for career development counselling and suggestions made for future research

Searching for Cliven Bundy: The Constitution and Public Lands

On April 5th, 2014, BLM temporarily closed over 500,000 acres of public land in Clark and Lincoln Counties in order to impound cattle grazing there in violation of a federal district court order. These cattle belonged, principally, to Cliven Bundy and his family—ranchers from Bunkerville, Nevada—who had stopped paying BLM permitting fees in the early 1990s. In anticipation of the roundup, the Bundys put out a distress call to militia-like groups around the country, and seven days later, an armed crowd confronted federal and state officers in the desert near Gold Butte. Another week later, federal authorities backed down, citing “serious concern[s] about the safety of employees and members of the public.” Then, two years later, Cliven Bundy’s sons, Ammon and Ryan, led a 41-day occupation of the Malheur National Wildlife Refuge near Burns, Oregon. An Oregon jury refused to convict the Bundy brothers, and—citing “flagrant” prosecutorial misconduct—Judge Gloria Navarro dismissed with prejudice all charges stemming from the Nevada showdown. To some, the Bundys are heroic republican farmers in the best Jeffersonian tradition—taking a principled stand against tyrannical federal overreach. To others, they are welfare cowboys—tragically exploiting subsidized common lands on a fabricated constitutional pretense. To many in law enforcement, they are simply outlaws—blowing a dog whistle for domestic terrorist groups like the Sovereign Citizens in a dangerous game of chicken with federal agents. According to friends, Cliven Bundy is a quiet, private man and sincerely believes in the righteousness of his cause, and in the legal case he thinks he can make. In truth, however, the logic of that argument is often difficult to make out, and courts and commentators alike have generally dismissed it out of hand. In this essay, I hope to piece Bundy’s legal position together as completely and plausibly as I can—to make the best case I can on his behalf—before turning a critical eye on his claims

Nonpublic Reasons and Political Paradigm Change

(Excerpt) The first Part of this Article discusses the historical conception of the liberty of conscience, argues that this idea was the central theoretical justification for the religion clauses at the time of the founding, and suggests that we can plausibly read the constitutional text as protecting the right to debate and vote for nonpublic reasons. Part II sketches Rawls\u27s arguments and argues that-the language of duty notwithstanding-these arguments basically appeal to consequentalist kinds of reasons. It then presents an original structural account of the value of nonpublic reasons in political discourse, and looks to both Thomas Kuhn and the theory of natural selection as illustrative analogs. The third and final Part briefly recounts the New York City Catholic schools controversy as a historical example of a productive political interaction between public and nonpublic reasoning

Nonpublic Reasons and Political Paradigm Change

(Excerpt) The first Part of this Article discusses the historical conception of the liberty of conscience, argues that this idea was the central theoretical justification for the religion clauses at the time of the founding, and suggests that we can plausibly read the constitutional text as protecting the right to debate and vote for nonpublic reasons. Part II sketches Rawls\u27s arguments and argues that-the language of duty notwithstanding-these arguments basically appeal to consequentalist kinds of reasons. It then presents an original structural account of the value of nonpublic reasons in political discourse, and looks to both Thomas Kuhn and the theory of natural selection as illustrative analogs. The third and final Part briefly recounts the New York City Catholic schools controversy as a historical example of a productive political interaction between public and nonpublic reasoning

Wittgenstein\u27s Poker: Contested Constitutionalism and the Limits of Public Meaning Originalism

Constitutional originalism is much in the news as our new President fills the Supreme Court vacancy Antonin Scalia\u27s death has created. Public meaning originalism is probably the most influential version of originalism in current theoretical circles. This essay argues that, while these New Originalists have thoughtfully escaped some of the debilitating criticisms leveled against their predecessors, the result is a profoundly impoverished interpretive methodology that has little to offer most modern constitutional controversies. In particular, the fact that our constitutional practices are contested-that is, we often do not seek semantic or legal agreement-makes particular linguistic indeterminacies highly problematic for approaches grounded in historical public meaning. Here I highlight two underappreciated sources of such indeterminacy: intentional contemporary ambiguity and incidental evolutionary vagueness. Neither of these indeterminacies are susceptible to the New Originalist method, and, when added to the well-known problem of intentional vagueness, these issues leave public meaning originalism incapable of constraining judges in many of our most controversial cases