Burke, Paine, and Obergefell

Many supporters of a policy of same-sex marriage, and even many supporters of a constitutional right to same-sex marriage—there is a difference—have felt compelled to disavow the shoddy analysis-cum-emotivism by which Justice Kennedy imposed that conclusion. What the euphoria over newly released Supreme Court decisions seems always to obscure is that the same method will…

My Reactions to King v. Burwell

I am a strong opponent of Obamacare.  But once I realized that a decision in King v. Burwell denying subsidies…

We Must Be Forced to Be Free

Many things will be said in the coming days about the Supreme Court’s holding in Obergefell v. Hodges, better known…

From the Blog

Mike Rappaport
University of San Diego School of Law

My Reactions to King v. Burwell

I am a strong opponent of Obamacare.  But once I realized that a decision in…

Departmentalism versus Judicial Supremacy – Part IV: The Argument Based on the Constitution Being a New System

In my last post, I noted that the advocates of departmentalism do not rely on…

Departmentalism versus Judicial Supremacy – Part III: Some Thoughts on the History

In my previous post, I noted that any obligation of the executive and Congress to…

John O. McGinnis
Northwestern University School of Law

The Incautious Justice Kennedy

While many have celebrated the result in Obergefell v. Hodges, fewer have praised the craftsmanship…

The Sharing Economy versus the Centralized State

Taxi drivers in France rioted yesterday to prevent Uber from competing with them.  They attacked…

Why Democratic Justices are More United than Republicans

It has been reported that this term is shaping up to be one of the…

Michael S. Greve
George Mason School of Law

The SCOTUSCare Chief

I spent most of my post-King yesterday trying 1) to suspend disbelief; 2) suppress laughter;…

Musings on Our Ersatz Legislature

The United States Supreme Court decides only about 80 cases per term. (Why 80? There are…

Perfect Ten

At long last the U.S. Department of the Treasury has taken an action for which…

Liberty Law Forum

USA Constitution Parchment

How Constitutional Originalism Promotes Liberty

What approach to constitutional interpretation best protects liberty? My task in this essay is to answer that modest question. Ultimately, there is no definitive answer that applies to all times and all places. But under the circumstances of the United States for the foreseeable future, originalism is likely to be the best bet. Both the…

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Responses

What “Liberties” Does the Constitution Protect?

In his famous, breakthrough speech at the Cooper Union in New York, Lincoln remarked on those black slaves who had not thrown in with John Brown. Even though, as he said, they were “ignorant”—even though they had no formal education—they had the wit to see that the schemes of this crazy white man would not…

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The Use and Abuse of Originalism

Ilya Somin’s thesis in his Liberty Forum essay is modest and hedged. Confining himself to “the circumstances of the United States for the foreseeable future,” he argues only that, among the “plausible competitors,” originalism is “likely to be” the theory of constitutional interpretation that best protects the components of  “ ‘negative’ liberty defended by most…

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Originalism and Legislative Deliberation

The point of Ilya Somin's able and humane Liberty Forum essay is to show libertarians how to deploy originalism as a doctrine to maximize “negative liberty” in America. He doesn’t claim to establish that negative liberty is good, or that its maximization accords with living in the truth or with dignity. It’s enough to say…

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