This is a strange post. I'm not sure it is even about constitutional or statutory interpretation in a recognizable way. It is a policy or moral argument shunted into Article III, and the merits are not even developed. "In a properly ordered society, however, the lives of children would never be placed below the vague notion of tribal sovereignty." Okay, well, that just assumed the conclusion of the argument in the premise.
This is a roundabout way of sneaking (clearly contested!) moral claims into the Constitution/ICWA. Intellectually, it is unsatisfying. You cannot just hand-wave questions about the Constitution's allocation of policy-making duties by citing Augustine and gesturing at "justice."
It is fashionable to assert that judges need to advance substantive justice without doing the conceptual work necessary to demonstrate that it would be a practicable shift in American governance. Again, citing Augustine, or Aquinas, or whoever, is not a get-out-of-argument free card; it is an appeal to authority. That is great if you are Catholic, but I take it the goal is to reorient the system of governance that guides three hundred million people who come from a rich tradition of resenting authority.
Great article! Congratulations, Emily!
Thanks Tahmineh!
Great post! Keep up the great work.
Thank you very much, Professor Vermeule!
This is a strange post. I'm not sure it is even about constitutional or statutory interpretation in a recognizable way. It is a policy or moral argument shunted into Article III, and the merits are not even developed. "In a properly ordered society, however, the lives of children would never be placed below the vague notion of tribal sovereignty." Okay, well, that just assumed the conclusion of the argument in the premise.
This is a roundabout way of sneaking (clearly contested!) moral claims into the Constitution/ICWA. Intellectually, it is unsatisfying. You cannot just hand-wave questions about the Constitution's allocation of policy-making duties by citing Augustine and gesturing at "justice."
It is fashionable to assert that judges need to advance substantive justice without doing the conceptual work necessary to demonstrate that it would be a practicable shift in American governance. Again, citing Augustine, or Aquinas, or whoever, is not a get-out-of-argument free card; it is an appeal to authority. That is great if you are Catholic, but I take it the goal is to reorient the system of governance that guides three hundred million people who come from a rich tradition of resenting authority.