Torturing Prudence

The knock on the CIA is that its interrogation program, exposed as ineffective and abusive in the Senate Select Committee on Intelligence’s recent report, was lawless. But the agency’s worst excesses may have resulted from the attempt to be excessively lawful. Such a paradox can only come about when what Edmund Burke called “the first of…

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…

The Meaning of Decadence

[Update: According to the Washington Post, yesterday Paramount Pictures, the maker of Team America, pulled that film—a 2004 puppet animation…

From the Blog

Mike Rappaport
University of San Diego School of Law

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…

The Commerce Power and Constitutional Structure: Counterarguments

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

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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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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