Here I Am, As a Judge
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HARVARD JOURNAL of LAW & PUBLIC POLICY VOLUME 42, NUMBER 1 WINTER 2019 FIRST PRINCIPLES OF THE CONSTITUTION THE THIRTY-SEVENTH ANNUAL FEDERALIST SOCIETY NATIONAL STUDENT SYMPOSIUM ON LAW AND PUBLIC POLICY—2018 THE PROPER ROLE OF “JUDICIAL ACTIVISM” The Honorable Clint Bolick.......................................................... 1 THE PRESUMPTION OF CONSTITUTIONALITY Edward Whelan ......................................................................... 17 THE DECLARATION OF INDEPENDENCE AND THE AMERICAN THEORY OF GOVERNMENT: “FIRST COME RIGHTS, AND THEN COMES GOVERNMENT” Randy E. Barnett ....................................................................... 23 A TALE OF TWO SWEEPING CLAUSES John Mikhail .............................................................................. 29 THE DECLARATION OF INDEPENDENCE: NO SPECIAL ROLE IN CONSTITUTIONAL INTERPRETATION Lee J. Strang ............................................................................... 43 THE EXECUTIVE POWER OF REVERSAL John C. Yoo ................................................................................ 59 FEDERALISM AND THE ORIGINAL FOURTEENTH AMENDMENT Kurt T. Lash ............................................................................... 69 PROTECTING THE ORIGINALIST CONSTITUTION John O. McGinnis ...................................................................... 81 ARTICLES JUSTICE SCALIA’S EIGHTH AMENDMENT JURISPRUDENCE: THE FAILURE OF SAKE-OF-ARGUMENT ORIGINALISM Craig S. Lerner ......................................................................... 91 EXPRESSING CONSCIENCE WITH CANDOR: SAINT THOMAS MORE AND FIRST FREEDOMS IN THE LEGAL PROFESSION Michael S. McGinniss ............................................................. 173 REFORMING AMERICAN MEDICAL LICENSURE Kevin Dayratna, Ph.D.; Paul J. Larkin, Jr.; & John O’Shea, M.D. ......................................................................................... 253 ESSAY BLOC PARTY FEDERALISM Michael S. Greve ...................................................................... 279 NOTE CATHOLIC JUDGES HAVE NO OBLIGATION TO RECUSE THEMSELVES IN CAPITAL CASES Ryan M. Proctor ...................................................................... 309 HARVARD JOURNAL of LAW & PUBLIC POLICY Editor-in-Chief RYAN PROCTOR Deputy Editor-in-Chief Articles Editors CHADWICK HARPER Managing Editors HAYLEY EVANS BRAD BARBER DANIEL JOHNSON WILL COURTNEY Executive Editors KEES THOMPSON ANNIKA BOONE GRAHAM CARNEY Deputy Managing Editors Assistant Articles Editors RYAN FOLIO NICOLE BAADE NICK AQUART CHANSLOR GALLENSTEIN CHASE BROWNDORF AARON HSU JORDAN GREENE HUGH DANILACK PARKER KNIGHT III KEVIN KOLJACK Articles Board GRANT NEWMAN BEN FLESHMAN DAVID RICHTER Notes Editors ANASTASIA FRANE SAM WILLIAMS AARON GYDE JOSHUA HA BRANTON NESTOR JAMES MCGLONE Events Manager JOHN MITZEL JACOB THACKSTON Chief Financial Officer JOEY MONTGOMERY ASHER PEREZ JASJAAP SIDHU Technology Manager DYLAN SOARES GRAHAM CARNEY Subscriptions Manager DOUG STEPHENS IV ASEEM JHA JOSHUA STOUT STEVE SZROM Communications Editor R.J. MCVEIGH Senior Editors DAVID BENGER BRIAN KULP JOEY MONTGOMERY STEVE SZROM ALEX CAVE JOHN LONGNECKER JASJAAP SIDHU MATTHEW WEINSTEIN DOUGLAS COLBY RYAN MAK DYLAN SOARES ANASTASIA FRANE JAMES MCGLONE DOUG STEPHENS IV JOSHUA HA JOHN MITZEL JOSHUA STOUT Editors PAYTON ALEXANDER ROBERT FARMER TREVOR LUTZOW ANDREW SMITH JOHN BAILEY CHANCE FLETCHER ERIK MANUKYAN ISAAC SOMMERS MAX BLOOM AYAKO FUJIHARA ERIC MIKALAUSKAS ANNA VANDE VELDE DAVIS CAMPBELL MARK GILLESPIE JOHN MORRISON SEANHENRY VANDYKE TODD CARNEY COOPER GODFREY JASON MUEHLHOFF AARON WARD NICK CORDOVA THOMAS HOPKINS TERRENCE OGREN TRUMAN WHITNEY TAYLOR CUSTER JOHN KETCHAM JAY SCHAEFER VINCENT WU JAMIN DOWDY STEFAN LEHNARDT STUART SLAYTON WENTAO ZHAI Founded by E. Spencer Abraham & Steven J. Eberhard BOARD OF ADVISORS E. Spencer Abraham, Founder Steven G. Calabresi Douglas R. Cox Jennifer W. Elrod Charles Fried Douglas H. Ginsburg Orrin Hatch Jonathan R. Macey Michael W. McConnell Diarmuid F. O’Scannlain Jeremy A. Rabkin Hal S. Scott David B. Sentelle Bradley Smith Jerry E. Smith THE HARVARD JOURNAL OF LAW & PUBLIC POLICY RECEIVES NO FINANCIAL SUPPORT FROM HARVARD LAW SCHOOL OR HARVARD UNIVERSITY. IT IS FUNDED EXCLUSIVELY BY SUBSCRIPTION REVENUES AND PRIVATE CHARITABLE CONTRIBUTIONS. The Harvard Journal of Law & Public Policy is published three times annually by the Harvard Society for Law & Public Policy, Inc., Harvard Law School, Cambridge, Massachusetts 02138. ISSN 0193-4872. Nonprofit postage prepaid at Lincoln, Nebraska and at additional mailing offices. POSTMASTER: Send address changes to the Harvard Journal of Law & Public Policy, Harvard Law School, Cambridge, Massachusetts 02138. Yearly subscription rates: United States, $55.00; foreign, $75.00. Subscriptions are renewed automatically unless a request for discontinuance is received. The Journal welcomes the submission of articles and book reviews. Each manuscript should be typed double-spaced, preferably in Times New Roman 12-point typeface. Authors submit manuscripts electronically to [email protected], preferably prepared using Microsoft Word. Views expressed are those of the authors and do not necessarily reflect the views of the Society or of its officers, directors, editors, members, or staff. Unless otherwise indicated, all editors are students at the Harvard Law School. Copyright © 2019 by the Harvard Society for Law & Public Policy, Inc. PREFACE Over the past two years, the federal judiciary has increasingly come into public view. From the travel ban to the 2020 census to DACA, warring political factions have turned to the courts to settle their disagreements on fundamental national questions. The nominations of both Journal alumnus Neil Gorsuch and Brett Kavanaugh to the Supreme Court turned into highly publicized partisan political struggles, with both Justices being confirmed by narrow, nearly party-line votes. In such times, a proper understanding of the Constitution, the principles motivating it, and the role of judges in interpreting it is especially worthy of study. Scholars and judges from around the country addressed these issues and more in the Thirty-Seventh Annual Federalist Society Student Symposium in March 2018. This Issue of the Harvard Journal of Law & Public Policy includes eight Essays from the Symposium. Justice Clint Bolick of the Arizona Supreme Court and Mr. Edward Whelan debate the merits of the presumption of constitutionality in statutory interpretation. Professors Randy Barnett, John Mikhail, and Lee Strang discuss what role, if any, the Declaration of Independence should have in interpreting the Constitution. Professor John Yoo examines the President’s power to reverse the actions of his predecessors. Professor Kurt Lash makes the case that the Fourteenth Amendment did not, as is commonly argued, disrupt the basic principles of federalism originally enshrined in the Constitution. Lastly, Professor John McGinnis reflects on the amendment process established by Article V. The first Article of this Issue, by Professor Craig Lerner, continues the Symposium’s theme of examining the first principles of the Constitution and judges’ role in interpreting it. He considers Justice Scalia’s Eighth Amendment jurisprudence, arguing that the late Justice’s “sake-of-argument” originalism failed to reconcile original meaning with nonoriginalist precedents. In the next Article, Professor Michael McGinniss discusses the importance of freedom of conscience within the legal profession and outlines the threats that the ABA’s recently adopted Rule 8.4(g) of the Model Rules of Professional No. 1] Preface ii Conduct poses for socially conservative lawyers. Finally, Dr. Kevin Dayaratna, Mr. Paul Larkin, and Dr. John O’Shea argue that occupational licensing requirements needlessly contribute to the shortage of qualified medical professionals in America. This Issue also includes an Essay by Professor Michael Greve examining the effect of states sorting themselves into “red” and “blue” blocs on our system of federalism. The Issue closes with a Note by myself on whether, in light of Pope Francis’s recent revision of the Catechism of the Catholic Church, American Catholic judges have a moral obligation to recuse themselves from capital cases. I would like to thank the Journal and Symposium editors for all the effort they put into making this Issue a reality. This Journal could not exist without them. In particular, Deputy Editor-in-Chief Chad Harper played an instrumental role in Article selection and was always available to provide counsel or do anything I asked of him. Will Courtney admirably performed the roles of both National Symposium Editor and Managing Editor, each a daunting task in its own right. Brad Barber ably discharged the many duties of Managing Editor as well. David Richter frequently volunteered to take on additional work that was not required of him. The labors of all these editors testify to the value of the Journal’s contribution to legal scholarship. Ryan M. Proctor Editor-in-Chief THE FEDERALIST SOCIETY presents The Thirty-Seventh Annual National Student Symposium on Law and Public Policy: First Principles of the Constitution March 9–10, 2018 Georgetown University Law Center The staff acknowledges the assistance of the following members of the Federalist Society in preparing this Symposium for publication: National Editor Will Courtney Harvard Law School Executive Editors Rebecca Deucher Amanda L. Salz Georgetown University Law Center The