The Meaning of Decadence

Last month, when hackers invaded the personal and medical information of every employee of Sony Pictures, and then threatened to bomb any theater that screened the studio’s new movie, The Interview, the reaction was clueless. It was a Seth Rogen comedy about the assassination of Kim Jong-un, and the hackers were presumed to be the North…

Shocked, Shocked that Federalism is Occurring Here

The New York Times has been running a multi-part story—with countless additional internal links—on the connections between (Republican) state attorneys…

The Currency of Destruction

When Gary Becker put forward his idea of human capital in 1964, it was to address the effects of knowledge…

From the Blog

Mike Rappaport
University of San Diego School of Law

Is the Tide Turning on the Rape Culture Crusade?

For a time now, the crusade to declare a rape culture on campuses and to…

The Commerce Power and Constitutional Structure: Counterarguments

In my prior two posts here and here, I discussed why even the narrowest view of…

Constitutional Structure and the Modern Commerce Power

In my previous post, I wrote of how a broad commerce power is inconsistent with…

John O. McGinnis
Northwestern University School of Law

New Policies Needed to Help Workers Displaced by Machines

Perhaps the biggest technology story of the year is also the most general—the recognition that…

Two Cheers for Increasing Contribution Limits to Political Parties

One of the criticisms of the Cromnibus is that it very substantially raises the amount…

Should We Fear Our Machine Overlords?

This year has brought renewed optimism about the prospects for strong artificial intelligence and new…

Michael S. Greve
George Mason School of Law

Shocked, Shocked that Federalism is Occurring Here

The New York Times has been running a multi-part story—with countless additional internal links—on the…

Congress at Work. Really!

Yesterday, the House of Representative passed a massive $1.1 trillion spending bill to keep government—most…

Arbitrator of the World

I’ve long wanted to understand and maybe write about international commercial arbitration. It’s of enormous…

Liberty Law Forum

SCourt

Meanings or Decisions? Getting Originalism Back on Track

For what is the point of drawing up dumb, silent statements of laws, if anybody may attach a new meaning to the words to suit his own taste, find some remote interpretation, and twist the words to fit the situation and his own opinion? John Locke For originalists, must the guiding criterion of constitutional interpretation be…

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Responses

Between the Original Decision and Abstract Originalism: An Unbiased Approach to Original Meaning

Introduction It is an honor to participate in this forum with my colleague Steve Smith and with Will Baude and Steven Sachs – all of them friends. Steve Smith’s essay continues his criticism of the new originalism in favor of the old originalism – a position that Steve previously defended in his paper “That Old-Time…

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Originalism and the Positive Turn

For more than a decade, the “New Originalism” has been identified with a focus on the Constitution’s original meaning (not its original intent) and with the admission that original meaning won’t perfectly constrain judges. Steven Smith challenges that version of originalism. The challenge should be rejected, but in the course of rejecting it we may…

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Saving Originalism’s Soul

What shall it profit originalism, to gain academic adherents but lose its soul? As Steven Smith tells it, the “new originalism” has made a disastrous Faustian bargain, with Jack Balkin playing Mephistopheles. It may have gained sophistication and intellectual respect, but it’s lost its ability to resist falsehood and manipulation—and lost the firm roots that…

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