Philosophical Absolutes and the Constitution

In his lucid and compressed account of the argument of Damon Root’s new book Overruled, the excellent libertarian judicial scholar Ilya Somin has done us the service of presenting in a pithy and powerful way the libertarian vision of the proper place of the Supreme Court in our constitutional system. The key conflict these days…

The Cost of Liberal Compassion: A Conversation with William Voegeli

What does it mean to turn politics into an exercise of compassion? That’s the question William Voegeli invites us to…

Jonathan Gruber Republicans

“The stupidity of the American electorate,” Obamacare architect Jonathan Gruber repeated to his Democratic colleagues, was essential to passing that…

From the Blog

Mike Rappaport
University of San Diego School of Law

Is Original Methods Originalism Based on a Normative Argument: A Response to Jack Balkin

Over at Balkinization, Jack Balkin has a response to the Liberty Forum on Steve Smith’s…

How Politics Makes Us Stupid – Vox Edition

Recently, I have taken to reading the website Vox, started by Ezra Klein based on…

Is the Tide Turning on the Rape Culture Crusade?

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

John O. McGinnis
Northwestern University School of Law

Nelson Rockefeller– The Ozymandias of New York State

This is the saddest story of a billionaire ever told. The grandson of the richest…

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…

Michael S. Greve
George Mason School of Law

State Attorneys General Make It Rain

Since my last post on state attorneys general George Will has chimed in on Oklahoma Attorney General…

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…

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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Decisional Originalism: A Response to Critics

I’m sincerely honored that Mike, Will, and Steve (whose expertise in these matters, both individually and collectively, greatly exceeds my own) would make the effort to comment on my essay.  The comments advance powerful objections to “decisional originalism,” as I’ve reluctantly called it.  Even so, I’m not persuaded– not yet anyway-- to abandon the idea. …

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