Jim Oleske

@jimoleske

Professor, Lewis & Clark Law School. Teach constitutional law and torts, write on religious liberty and equal protection.

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Jim Oleske@jimoleske· Jul 14

FWIW, Wurman relies elsewhere on Magna Carta to make his argument. He cites it 4 times in his law review article, it appears in his congressional testimony and popular press pieces, and it was in his amicus brief:

Jim Oleske@jimoleske· Jul 14

From the Mahmoud v. Taylor section of the essay:

Given the specific nature of Justice Alito’s criticisms of Smith in Fulton, one might have expected his majority opinion in Mahmoud to foreground originalism and avoid dubious treatment of precedent. But as was the case in Smith, there is not a single sentence in Mahmoud about the original meaning of the Free Exercise Clause. Had the justices endeavored to discover that meaning, it is far from clear that a majority of them would have agreed with Alito’s interpretation in Fulton, as the evidence weighs heavily against the claim that the First Amendment was understood—either in the Founding Era or in the years surrounding the adoption of the Fourteenth Amendment—to secure exemption rights.

So perhaps it is not surprising that the Mahmoud Court instead turns to precedent, and what a turn it is. I have previously written that “[i]f Justice Brennan’s treatment of precedent in . . . his Sherbert majority gets an ‘F’ for honesty—and it does—Justice Scalia deserves an ‘F-minus’ for Smith.” Unfortunately, Justice Alito’s majority opinion in Mahmoud continues in that tradition and fails to reset the curve.

Jim Oleske@jimoleske· Jul 10

"Justice Thomas’s principal dissent in Trump v. Barbara rests on a discredited method: original-intent originalism" Yes, plus, he completely misreads one of the key pieces of background evidence he employs in building his argument about the 14th Amendment framers original intent:

The first authority Justice Thomas cites in his dissent for the proposition that birthright citizenship was understood in the 19th century to apply only to children born of parents domiciled in the United States is Tucker's Commentaries on the Laws of Virginia (1836). Thomas first cites Tucker on page 2 of his slip opinion and then comes back to him on page 8. Here are the two relevant passages from Thomas' dissent together:

Americans, consistent with their settler ethos, believed that citizens were the people who called a place home. Accordingly, domicile—a person’s legal home—played a key role in both state and national citizenship in America. A person was a “citizen” of the state where he had his “domicil.” Barber v. Barber, 21 How. 582, 599 (1859). When foreigners temporarily visited, their “national character” was unchanged. The Venus, 8 Cranch 253, 278–279 (1814). Such visitors were “strangers,” not “subjects.” Id., at 278. A person born here but domiciled in a foreign land was therefore considered “as much a stranger to the country as his father.” 1 H. St. George Tucker, Commentaries on the Laws of Virginia 57 (1836) (Tucker)....

“[A] child born of foreign parents is not, on principles of natural reason, necessarily to be considered as a citizen of the country where he is born.” 1 Tucker 57. If he was “born in the country,” but “both his parents were strangers not designing a permanent change of country,” then he was “as much a stranger to the country as his father.” Ibid.

Here's the problem: Tucker's "stranger to the country" view was not offered in his Commentaries as a description of the governing law in the U.S.

Quite the opposite, Tucker made clear that he believed (1) the "English law" on citizenship was "at variance with the dictates of natural justice and reason" he was espousing, and (2) the U.S. had adopted the English approach: "the people of the United States having adopted the same selfish principles of the English law." Id. at 60.

Jim Oleske@jimoleske· Jul 9

I knew Steinman wrote Total Eclipse of the Heart and Holding Out for a Hero, but I did not know the story of how he and Tyler connected. So perfect. www.ft.com/content/221c...

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In her 2023 memoir, Straight from the Heart, she described balking at the “sentimental” material RCA asked her to record. “I wanted to be wearing leather trousers and belting out bangers,” she wrote. Her favourite album at the time was Meat Loaf’s bombastic debut Bat Out of Hell, and she sent tapes to Jim Steinman, the flamboyant New York composer of that record. To the surprise of the suits who had laughed at her ambition, Steinman felt Tyler’s wind-tunnel vocals were a perfect fit for his over-the-top gothic rock melodramas.

He spent a few weeks reworking a “Wagnerian” song he’d written and invited Tyler to his manager’s New York office where he played her his “Total Eclipse” on a grand piano. “I knew this was the song I had been waiting for all my life,” she later said. Her recording went on to sell more than 6mn copies, topping both the UK and US singles charts, buoyed by a phantasmagorical video shot in a Victorian asylum packed with doves, candles, levitating, laser-eyed schoolboys and twirling ninjas. Produced by Steinman, the album on which it appeared, Faster Than the Speed of Night, entered the UK chart at number one.

Jim Oleske@jimoleske· Jul 7

Reading topside briefs in St. Mary's led me to go back to look for an interview I remember Doug Laycock giving as Court was in process of adopting his MFN theory in COVID cases, which led me back to a thread with this post about Ct's shadow docket order in Gateway City Church, precursor to Tandon:

Jim Oleske, Feb 28, 2021 tweet:

The consequences of overruling Smith sub silentio on the shadow docket and replacing it with a super-charged version of the most-favored-nation exemption theory will not be limited to the COVID cases.

Justice Gorsuch's Masterpiece concurrence indicates where this is going ...

Jim Oleske@jimoleske· Jul 2

Mike Ramsey: Although majority in Trump v. Barbara was "entirely right" about original meaning of Citizenship Clause, case is an "originalist disappointment" bc it "could have been the basis of a powerfully unified originalist statement" from all "originalist-oriented justices." Ramsey on dissents:

Justice Thomas, joined by Justice Gorsuch, argues that the clause implicitly requires that one’s parents be domiciled in the United States to come within the citizenship clause. But despite the length of his opinion and the range and depth of sources cited, I don’t see how he gets that requirement from the clause. He does call into question some of the majority’s account of the common law. But the primary question isn’t the pre-Amendment common law; it’s the meaning of “subject to the jurisdiction.” And he does not show why children of non-domiciled aliens present in the United States were not “subject to the jurisdiction” of the United States in the ordinary meaning of jurisdiction as expressed by Marshall in Schooner Exchange.

Justice Alito offers a different reading — he would read the clause to require that a U.S.-born child’s parents owe primary allegiance only to the United States. As I’ve argued elsewhere, there is some basis for associating allegiance with jurisdiction, so long as allegiance is understood as a duty of obedience. A person is under the authority of a sovereign (that is, the sovereign has jurisdiction over the person) if the person has a duty of obedience (that is, owes allegiance) to the sovereign. But as Marshall explained in Schooner Exchange — as recounted by the majority in the quite above — aliens present in sovereign territory did owe temporary allegiance to the territorial sovereign, and thus were subject to sovereign jurisdiction. To be sure, aliens also owed allegiance their home-country sovereign as a result of their citizenship/subjectship in that country, as Alito says. But that doesn’t mean they didn’t also owe allegiance to the temporary territorial sovereign. They did, while temporarily in sovereign territory. And in any event, the constitutional language is “jurisdiction” not “allegiance.” Like Justice Thomas, Justice Alito doesn’t show how aliens present in U.S. territory would not be subject to U.S. jurisdiction …

Jim Oleske@jimoleske· Jul 1

Justice Jackson, yesterday:

Douglass declared that his own aim was to “‘show that nations should have memories.’”58

In the time since Douglass’s prescient observation, Americans have come to learn that fading memories are not theonly danger. The distortion of historical facts—retellingsthat reimagine and repurpose past events to lend credence to misbegotten aims—may be an even greater threat.

Yet here we are. The Government, the principal dissent, and a handful of revisionist commentators now vigorouslypromote an interpretation of the Citizenship Clause that diverges sharply not only from what the text says, but alsofrom the historical record as interpreted by the keepers of“the call of remembrance” (trained historians).59 What is more, this alternative account pitches Black Americansagainst immigrants when the advocates who promoted the Fourteenth Amendment did no such thing. Freed Blacks fought for the shared humanity of all people. And the Great Emancipator eventually foresaw that the only path forward that could prevent a return—in any form—to slavery andrace-based subordination was to link the fates of all.

Jim Oleske@jimoleske· Jun 30

Narrator: Justice Barrett is the most "serious originalist" on the Court, and she joined the Chief's majority opinion concluding that "there is scant evidence" for Swearer and Wurman's "dramatically revisionist view."* * This is not to say Barrett is a consistent originalist. None of them are.

Tweet from Amy Swearer reading:

Even a month and a half ago, fellow *conservative* scholars were publicly deriding @ilan_wurman, @kurtlash1, and me as hacks making trash arguments with which No Serious Originalist would agree.

Today the Court's most serious originalists cited each of us multiple times.

Quote tweeting Ilan Wurman writing:

year and a half ago a federal judge in Washington basically said the Trump Administration view was borderline sanctionable. That view just got 4 votes on the U.S. Supreme Court.

Jim Oleske@jimoleske· Jun 28

Curious as to whether Robert George will find time to share his thoughts about this, and what it reflects about the American right in the Trump era, especially given the attention George has paid to those on the left that he warns "devour their own."

Screenshot of tweet in which influential Trump ally, Mike Davis, writes "fuck off" in response to a tweet by the Conference of Catholic Bishops warning of a "moral crisis" in "revoking the legal status of hundreds of thousands of people" when "returning to their country of origin is not a safe or reasonable option."

Jim Oleske@jimoleske· Jun 25

Apparently he did in the university proceedings, but it's not clear he's claimed it (yet) in the criminal proceedings. Here's how the Columbus Dispatch reported on the incident, the panel's findings, and the self-defense argument:

Jim Oleske@jimoleske· Jun 23

After offering a critique of those three recent decisions, the piece "then situates the Court’s LGBTQ jurisprudence within the broader march towards securing equal dignity and equal citizenship for all Americans. Those goals were prominent in

the push for the 1875 Civil Rights Act, the promise of which was ultimately deferred for nearly 90 years, and they reemerged in the fight for Title II of the 1964 Civil Rights Act and in the Court’s subsequent treatment of sex discrimination. The same themes animated the Court’s key decisions on LGBTQ rights from 1996 to 2015—decisions that increasingly advanced the cause of expanding access to civil rights. But the promise of that jurisprudence has now given way to a disturbing pattern of gerrymandered decision making in which the Court has consistently discounted harm to LGBTQ people.

Jim Oleske@jimoleske· Jun 23

Posted an updated, near-final version of this piece on SSRN: Mahmoud, Skrmetti, and 303 Creative: Ignoring Original Meaning, Rewriting Precedent, and Discounting Harm to LGBTQ People papers.ssrn.com/sol3/papers....

In the end, the story is a profoundly disheartening one for members of
the LGBTQ community. The hope a decade ago that they might have secured an equal right “to define and express their identity” free from government action that “demeans and stigmatizes” them has been replaced by an understandable suspicion that the highest court in the land is now willing to marginalize their interests without a principled explanation. Along the way, the Court has abruptly rewritten some precedents (the key move in Mahmoud), ignored others (the key move in Skrmetti), and even stooped to fabricating factual findings (the key move in 303 Creative), all while neglecting the interpretive methodologies to which the current majority has elsewhere declared fealty.

Jim Oleske@jimoleske· Apr 29

After hovering between $118 and $120 most of the day, Brent oil has rather quickly jumped over $122. I believe this is a 25-year high.

Jim Oleske@jimoleske· Apr 29

Twenty-nine days later, my lack of understanding of the stock market persists. Brent Oil is back over $119, and the S&P is somehow up 10% since the last time Brent was above $119.

Screenshot of CNBC ticker for Brent Oil showing it up 7% today to 119.08

Jim Oleske@jimoleske· Apr 29

Kagan:

just three Terms ago the Court upheld a vote-dilution challenge to a districting map in a case much like this one—preserving Section 2 as a tool to prevent racially discriminatory redistricting. See Allen, 599 U. S., at 17. “[W]e decline to adopt,” the Court said then, “an interpretation of §2 that would revise and reformulate” our “§2 jurisprudence [of]nearly forty years.” Id., at 26. Nothing has changed in the three years since. Yet today, the majority does “revise and reformulate” . . . and destroy. It avails itself again of the tools used before to dismantle the Act: untenable readings of statutory text, made-up and impossible-to-meet evidentiary requirements, disregard for precedent, and disdain for congressional judgment. And in that way it greenlights redistricting plans that will disable minority communities—in Louisiana and across the Nation—from electing, as majority communities can, “representatives of their choice.”§10301(b). What if the districts in which minority citizens exercise voting power are sliced up, and the pieces appended to districts in which they can play no meaningful role? The majority tells us that the inability to make out a Section 2 claim will just be a mark of the Nation’s progress, and therefore “cause for celebration.”

Jim Oleske@jimoleske· Apr 28

Ed Whelan Short Takes on Trump DOJ, cont'd:

Jim Oleske@jimoleske· Apr 24

Second memo:

Jim Oleske@jimoleske· Apr 24

First memo:

Jim Oleske@jimoleske· Apr 8

Missed this Justice Jackson response to Justice Thomas last year: www.supremecourt.gov/opinions/24p...

Like other §1983 skeptics, JUSTICE THOMAS seems to
view the paucity of early §1983 lawsuits as evidence that
the statute was originally understood to do very little. But
other explanations come to mind, too—such as the fact that
filing civil rights lawsuits during the Jim Crow era could be
quite perilous, especially for the people whom the statute
was originally meant to benefit. Many would-be plaintiffs
had reason to fear that filing a lawsuit would lead to physical or economic reprisals.9 Add to that the difficulty of finding a lawyer, prevailing before often-hostile juries, and (if

Jim Oleske@jimoleske· Apr 8

Curious as to why stocks are still up over 2% with this as the top story on the Wall Street Journal:

Screenshot of Wall Street Journal homepage:

Iran Tightens Its Grip on Hormuz Despite Cease-Fire
Trump demanded opening the strait; Iran is limiting ship traffic

Jim Oleske@jimoleske· Apr 6

Thanks. Turning back to Lash's claim that @jamellebouie.net incorrectly said he had "affirmed the traditional reading" in 2021, is this excerpt you previously posted (w/ my yellow highlighting added here to your red underlining) from "The Origins of the Fourteenth Amendment's Citizenship Clause"?