Mary Wollstonecraft (1759–1797) was the author of acclaimed works about subjects including the education of children, political philosophy, and human liberty. She is perhaps best remembered for her great pioneering book, A Vindication of the Rights of Woman (1792), a key text in the rise and development of both feminism and liberal theory.

What is perhaps less remembered today is the fact that her landmark case for women's rights owed an important intellectual debt to the work of the political philosopher John Locke (1632–1704), who argued that the proper role of government was to protect humanity's preexisting natural rights.

Locke is sometimes mislabeled as a conservative by certain modern academics and pundits. But his ideas were deemed to be quite radical in their own day. And for the teenaged Mary Wollstonecraft, that Lockean radicalism was as welcome as the first taste of food after a grueling starvation.

The year was 1775 and Wollstonecraft was 15 years old. She was a brilliant and independent-minded young woman, increasingly outraged by the vile behavior of her drunk, domineering father. He abused Wollstonecraft's mother and maintained a strict, sexist hierarchy at home, favoring her brother while she was made to suffer.

It was at this low point in her life when Wollstonecraft first read Locke. Certain passages from his greatest work, The Second Treatise of Government (1689), caught hold of her mind and never really let go. A properly constituted social order "gives the husband no more power over [his wife's] life than she has over his," Locke wrote. "The power of the husband being so far from that of an absolute monarch that the wife has, in many cases, a liberty to separate from him, where natural right or their contract allows it, whether that contract be made by themselves in the state of nature, or by the customs or laws of the country they live in."

In her superb book, Romantic Outlaws: The Extraordinary Lives of Mary Wollstonecraft and Her Daughter Mary Shelley (2015), the historian Charlotte Gordon memorably described the far-reaching effect that Locke's ideas had on the teenaged Wollstonecraft:

She had always felt that her father had no right to tyrannize her family and that the preferential treatment he and her mother bestowed on [brother] Ned was unjust. Now, after reading Locke, she had an ethical foundation for her feelings. Not only was it her right to shape her own future; it was everyone's right. In fact, Locke's social contract made protest seem the only rational response to injustice; it was humanity's obligation to overthrow tyranny.

One of the reasons why Locke is sometimes mislabeled as a conservative today is because of his writings in favor of property rights, an issue that we now associate with conservative and libertarian thinkers. But it is worth remembering that Locke's whole case for property rights began with the idea that "every man has a property in his own person. This nobody has any right to but himself."

Is it any wonder that Locke's radical case for self-ownership would appeal to a young woman like Wollstonecraft, who longed to break free from the sexist laws and cultural strictures that held her back? Nobody was going to convince her that she did not have a right to her own body.

We might say something similar about the great abolitionist Frederick Douglass (1818–1895), who also drank deep from the principles of Lockean liberalism. "You are a man and so am I," Douglass wrote in his famous open letter to his former enslaver. "In leaving you, I took nothing but what belonged to me, and in no way lessened your means for obtaining an honest living. Your faculties remained yours, and mine became useful to their rightful owner." That is about as clear and effective a restatement of Lockean self-ownership principles as you are going to find.

Locke's influence on the American Revolution, particularly on Thomas Jefferson and the Declaration of Independence, is well-known. That Locke also had a key influence on both the women's rights and abolitionist movements is perhaps worthy of further remark.

The post When Mary Wollstonecraft Read John Locke appeared first on Reason Magazine.

One of the more interesting developments at the U.S. Supreme Court in recent years has been the rise of a kind of sporadic alliance in defense of civil liberties between Justices Sonia Sotomayor and Neil Gorsuch.

In 2018, for example, Gorsuch, joined by Sotomayor, blasted the Supreme Court for refusing to even hear arguments in Stuart v. Alabama, an important case about forensic evidence, criminal trials, and the Sixth Amendment right to cross-examine one's accusers.

Similarly, in United States v. Davis (2019), Sotomayor joined Gorsuch's majority opinion striking down a federal law that called for enhanced sentencing when a gun was used in connection with certain federal crimes because the law at issue was too imprecisely written to pass constitutional muster. "When Congress passes a vague law," Gorsuch wrote, "the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again."

Gorsuch and Sotomayor have also been on the same page in a number of Fourth Amendment cases, though Sotomayor's overall Fourth Amendment record is arguably stronger than Gorsuch's. In Torres v. Madrid (2021), for instance, the Supreme Court held that when the police shoot a fleeing suspect, it still counts as a "seizure" for Fourth Amendment purposes even if the suspect kept on the move after being shot. "The application of physical force to the body with the intent to restrain is a seizure," the Court held, "even if the person does not submit and is not subdued." Sotomayor joined that pro-civil liberties decision; Gorsuch, along with Justices Clarence Thomas and Samuel Alito, sided with the officers and voted in dissent.

Fortunately, the Gorsuch-Sotomayor band was back together last week to make some noise in support of the Bill of Rights in a dispute that pitted property rights against police powers. As Reason's Billy Binion reported, the Supreme Court declined to hear a case challenging a lower court's "categorical rule" that "property destroyed in the exercise of [a state's] 'police power' is immune to claims under the Takings Clause, the U.S. Constitution's pledge that government cannot usurp private property without fairly compensating the owner."

Sotomayor, joined by Gorsuch, strongly implied that she thought the lower court's rule was unconstitutional, though she accepted that "further percolation" on the issue was needed before the Court should step in. "Where, as here, a person alleges a 'classic taking in which the government directly appropriates private property for its own use' or to pay an outstanding debt, like a tax lien," Sotomayor wrote, "the talismanic invocation of the State's 'law enforcement authority,' may be insufficient to avoid the requirement of just compensation." (Citations omitted.) Sotomayor then urged the lower courts that are "considering this issue to take care that due deference to state police powers does not eclipse constitutional rights."

Just as Gorsuch's Fourth Amendment record has its blemishes, Sotomayor's record on property rights has also been less than impressive at times. So it is doubly welcome to see these two justices back in the trenches together on this particular civil liberties front.

Elsewhere in the Law

Writing at SCOTUSblog, Anastasia Boden, a senior attorney at the Pacific Legal Foundation, has an interesting article about the Supreme Court's landmark 1926 decision in Euclid v. Ambler, in which, as Boden put it, the Court ruled in favor of a town's "power to pass comprehensive zoning, and against a local developer who had argued the town's plan exceeded the city's police power and destroyed the property's value." In effect, the Court's ruling was "the birth of modern zoning."

One of the things that has long fascinated me about Euclid v. Ambler is the fact that the opinion was authored by Justice George Sutherland, who is probably best remembered today for his role as a leading judicial foe of President Franklin Roosevelt's New Deal. In Euclid v. Ambler, however, Sutherland endorsed a view of regulatory authority that has been celebrated by liberal academics as "a model of pragmatic and well-balanced Progressive jurisprudence."

I suppose we might call it an irony of legal history: The intellectual leader of the Supreme Court's anti–New Deal bloc actually left a greater mark on the law by shoring up the immense power of city planners.

The post Gorsuch and Sotomayor Unite in Another Civil Liberties Case appeared first on Reason Magazine.

On November 3, the U.S. Supreme Court will hear oral arguments in a case that asks whether Colorado has unlawfully discriminated against a religious preschool because the school is barred from participating in the state's universal preschool program due to its refusal to accept LGBTQ families. In addition to involving multiple hot-button political and cultural issues, the case also has big implications for the future of federal antidiscrimination law.

St. Mary Catholic Parish v. Roy is not about a state law that directly prohibits a religious preschool from operating. Rather, at issue here is a government requirement that any preschool that wants to participate in the state's universal preschool program, and receive the public benefits that follow, must first satisfy various criteria, including that "each preschool provider provide eligible children an equal opportunity to enroll and receive preschool services regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability."

According to the Catholic preschools overseen by the Archdiocese of Denver, however, complying with that rule would force the schools to violate their religious beliefs. "It is undisputed that these preschools would otherwise be eligible [universal preschool] providers," the schools told the Supreme Court. "They are excluded solely because of their religious exercise—namely, their religious practices of ensuring that all enrolling families are supportive of the Catholic Church's teachings on sex and marriage and of treating enrolled four-year-olds in accordance with their biological sex."

These schools can point to a pair of recent Supreme Court precedents that will very likely count in their favor. In Espinoza v. Montana Department of Revenue (2020), the Court held that if a state provides educational subsidies that help parents send their children to private schools, the state "cannot disqualify some private schools solely because they are religious." Then, in Carson v. Makin (2022), the Court held that Maine's tuition assistance program violated the Constitution by excluding private schools that offered "sectarian" education. "A State's antiestablishment interest," the decision said, "does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise."

I would expect the outcome of St. Mary Catholic Parish v. Roy to follow in this same general pattern and hold something to the effect that when a state provides an educational public benefit, it must make some sort of accommodation for the religious views of the recipients.

In Other Legal News

Justice Elena Kagan made news a few months back when she defended her conservative colleagues on the Supreme Court from the oft-heard charge that they are totally in the tank for President Donald Trump. "I don't see this as a court that is just like, 'We're just going to rubber stamp what the current administration does.' You know, quite the opposite," Kagan said. "I think that that is a bad rap." In support of her argument, Kagan pointed to the fact that the Supreme Court had recently ruled against Trump on the two big issues that Trump himself valued the most: tariffs and birthright citizenship.

Kagan was in the news again on Tuesday, this time because she publicly blasted those same conservative colleagues for issuing decisions on voting rights and political gerrymandering that, in Kagan's words, have produced "a democracy that does not work as well as it should." According to Kagan, the Court's conservative majority "has kind of blinded itself to the very deleterious effects of their rulings on how the political system works."

Does this mean that Kagan has now stopped defending the conservative justices from the pro-Trump charge? Not at all. In fact, as The New York Times put it, "she reiterated her defense of the conservative-dominated bench from a July appearance and said it was a 'bum rap' to suggest the court had been too deferential to Mr. Trump."

I don't know about you, but I find Kagan to be a refreshing public figure in these simplistic, partisan times. She is a staunch legal liberal with clearly stated objections to what the Supreme Court's conservative majority is getting up to, yet she refuses to be associated with the laziest progressive attacks on the Court. How many people of comparable public stature these days are willing to call out the shortcomings of their own side?

The post A Religious Preschool Is Barred From a State's Universal Preschool Program. SCOTUS Will Decide What's Legal. appeared first on Reason Magazine.

The U.S. Supreme Court's 2026–2027 term just got a whole lot boozier. On Monday, the justices agreed to hear arguments later this year or next in the case of Department of Justice v. McNutt. At issue is whether the 1868 federal ban on distilling liquor at home is unconstitutional because it exceeds the lawful regulatory power of the federal government. If any modern Supreme Court case ever deserved its own drinking game, this one is it.

In April, the U.S. Court of Appeals for the 5th Circuit found the federal ban on home distilling to be unconstitutional because Congress lacked the proper authority to issue such a ban in the first place. It was not a legitimate exercise of the congressional authority "To Lay and collect Taxes," the appellate court reasoned, because "the purpose of a tax is to raise revenue for the government;" yet this law "amount[s] to an anti-revenue provision" that only "prevents distilled spirits from coming into existence." And if it does not exist, of course, the government cannot tax it.

The 5th Circuit also denied that the federal ban on home distilling could be saved by the government's appeal to the Necessary and Proper Clause, which says that Congress has the authority "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

But the federal ban on home distilling cannot be "necessary" to the execution of the enumerated taxing power, the 5th Circuit argued, because the provisions of federal law at issue "tax nothing, and are distinct from the regulation of distilling alcoholic products that is permitted by federal tax law."

Nor did the 5th Circuit find the ban to be "proper." "By purporting to ban activity without a plain connection to the exercise of Congress's taxation power," it held, "Congress has essentially—and 'improperly'—invaded the reserved police and regulatory power of the states."

The Trump administration lost this case at the 5th Circuit and has now successfully urged the justices to hear its appeal. In its petition seeking review, the Trump administration faulted the 5th Circuit for its overeagerness to "second-guess" the "legislative judgment" of Congress. Instead, the Trump administration argued, the federal judiciary owes a great deal more deference to the federal government's regulatory priorities in a case like this. "A law is necessary and proper if it is 'convenient' or 'useful' for carrying an enumerated power into effect, and 'plainly adapted' to that legitimate end," the Justice Department's brief argued. "That is the case here."

This case may lead to an interesting divide among the Supreme Court's more conservative members. In United States v. Comstock (2010), a 7–2 Supreme Court embraced the Necessary and Proper Clause as sufficient constitutional grounding for the Adam Walsh Child Protection and Safety Act, which had empowered federal officials to order the indefinite civil commitment of "sexually dangerous" individuals who had already finished serving their prison sentences. Chief Justice John Roberts joined the majority opinion in that case, while Justice Samuel Alito voted in concurrence. In other words, they both endorsed a broad view of congressional power under the Necessary and Proper Clause. By contrast, Justice Clarence Thomas, joined by the late Justice Antonin Scalia, voted in dissent. The Comstock ruling, Thomas protested, "comes perilously close to transforming the Necessary and Proper Clause into a basis for the federal police power that 'we always have rejected.'"

Are we about to see a similar Alito-Thomas split over the proper reach of federal power in this case? And what about Justices Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh? Will one or more of them play the Scalia part and similarly reject the Trump administration's broad reading of the Necessary and Proper Clause?

Stay tuned.

The post Trump Administration Urges SCOTUS To Uphold Federal Ban on Distilling Liquor at Home appeared first on Reason Magazine.