Wilson on “the free and independent man” as “an original sovereign”

In his lecture “Of the Nature of Courts,” James Wilson answers an objection to the extension of federal jurisdiction over state-party cases that it is “incompatible with the opinions, which [some] have formed concerning the sovereignty of states.” His answer highlights the centrality of individual consent to his understanding of the authority of the laws. Wilson’s answer also draws a connection between consent to the authority of laws and personal jurisdiction. Wilson writes:

In the introduction to my lectures, I had an opportunity of showing the astonishing and intricate mazes, in which politicians and philosophers have, on this subject, bewildered themselves, and of evincing, that the dread and redoubtable sovereign, when traced to his ultimate and genuine source, is found, as he ought to be found, in the free and independent man. In one of my lectures, I proved, I hope, that the only reason, why a free and independent man was bound by human laws, was this—that he bound himself. Upon the same principle on which he becomes bound by the laws, he becomes amenable before the courts of justice, which are formed and authorized by those laws. If one free and independent man, an original sovereign, may do all this; why may not an aggregate of free and independent men, a collection of original sovereigns, do this likewise? The dignity of the state is compounded by the dignity of its members. If the dignity of each singly is undiminished, the dignity of all jointly must be unimpaired. Is a man degraded by the manly declaration, that he renders himself amenable to justice? Can a similar declaration degrade a state?

adjudication-related considerations in Sheetz v. El Dorado

The Supreme Court’s recent decision in Sheetz v. El Dorado County (2024) features a unanimous opinion for the Court by Justice Barrett and separate concurring opinions by three other Justices (Sotomayor joined by Jackson; Gorsuch solo; and Kavanaugh joined by Kagan and Jackson). These separate opinions address themselves in different ways to the narrow scope of what was decided in the opinion for the Court.

The question presented was whether conditions imposed on building permits are exempt from regulatory takings scrutiny because they are imposed pursuant to legislation rather than administratively. The Court answers this question “no.”

Sotomayor (joined by Jackson) wrote separately to note that there is an antecedent question, one not addressed by the Court, which is “whether the permit condition would be a compensable taking if imposed outside the permitting context.”

Gorsuch wrote separately both to note that the Court’s opinion did not address another question and also to suggest that this question had an easy answer. This was the question “whether the Nollan/Dolan test [i.e. the test that governs the Takings Clause inquiry in this context] operates differently when an alleged taking affects a ‘class of properties’ rather than ‘a particular development.’” The easy answer to this question, implied Gorsuch, was “no.”

If this question was so easy, why didn’t the Court address it? It appears that at least three Justices have a different view than Gorsuch. Kavanaugh (joined by Kagan and Jackson) concurred “to underscore that the Court has not previously decided—and today explicitly declines to decide—whether ‘a permit condition imposed on a class of properties must be tailored with the same degree of specificity as a permit condition that targets a particular development.’” The reason to underscore the limited nature of the Court’s decision, presumably, is to prevent others from reading that opinion to have resolved the issue.

From this brief description of the scope of the opinions, the question naturally arises how the Court decided to calibrate the breadth or narrowness of this opinion. The answer to this question is not something that one tries to answer as a matter of constitutional interpretation. The answer turns instead on the nature of the judicial function within the particular place in the judicial hierarchy occupied by the Supreme Court of the United States, together with a justice’s understanding of how best to carry out that function as a single individual on a multimember appellate court with jurisdiction that is both limited and discretionary. To the extent that these kinds of understanding are informed by a distinctive theory, that would be a theory of adjudication rather than a theory of interpretation or law.

Pope Francis’s Remarks to International Federation of Catholic Universities

On January 19, 2024, Pope Francis was scheduled to deliver “a lengthy address” to the International Federation of Catholic Universities. Because he was a “bit short of breath,” he instead got right to the point of what he was going to say and then let his prepared text speak for itself. Here’s what he said viva voce:

I was planning to deliver a lengthy address, but I am a bit short of breath; as you can see, this cold is not going away! I am giving you the text so that you can read it for yourselves. I thank all of you for this meeting and for all the good that our Catholic universities do by communicating knowledge, the word of God and an authentic humanism. Never tire of persevering in the splendid mission of Catholic universities. It is not their confessional status that gives them their identity: that is one aspect, but not the only one. It is perhaps that clear humanism which makes people realize that human beings have values and that these need to be respected. This is perhaps the finest and greatest thing about your universities. Thank you very much.