One of the standard distinctions these days is between the old originalism and new originalism.
This article explores the tensions between Justice Scalia’s originalism and his lenient approach to the nondelegation doctrine. While I have only skimmed the piece, it appears to tell a story similar to the one that I would.
Justice Scalia wrote two significant opinions on the nondelegation doctrine – the doctrine that places limits on Congress’s power to delegate legislative power to executive branch agencies. One was his concurring opinion in Mistretta v. United States. In Mistretta, Scalia held that the delegation to the Sentencing Commission of the power to announce binding Sentencing Guidelines was unconstitutional. While Scalia was the only Justice who would have struck down the delegation, his argument was almost entirely focused on the unusual powers of the Sentencing Commission. Unlike other agencies, it did nothing else besides promulgating these guidelines. Thus, it was a junior varsity Congress.
The Fourth Amendments has two main clauses: a rights clause and a prohibition on certain types of warrants clause (the prohibition clause):
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Significantly, the two clauses are separated by an “and.” This “and” has led to an uncertainty about the relationship between the two clauses.
Lately, I have been exploring the original meaning of the Fourth Amendment, which I am finding to be a fascinating subject. The text of the Fourth Amendment is filled with significant interpretive questions.
Originalism continues to be debated among scholars. Serious work occurs in the academic journals but also in the blogs. If one is not reading the blogs, one simply misses a lot of what is important.
This is the title of an e book by Arnold Kling, who used to blog at our sister site and now blogs at Askblog. The book, which is well worth reading, argues that conservatives, libertarians, and progressives each have a different language that they use to analyze politics. According to Kling, conservatives view political issues as involving those who favor the institutions of civilization and those who seek to tear them down. Libertarians view political issues as a conflict between those who favor liberty and those who seek to impose coercion. And progressives view political issues as involving a situation where…
A while back I talked about the health care and health insurance market and how it is the result of tremendous government regulation. There are portions that involve competition, but they are limited by a variety of matters, including large distortions from licensing, regulation, tax exclusions, and government provided health care. The matters are so complicated, it is hard to get a handle on it. The transfers and redistributions are significant and hard to follow. But it is worthwhile just attempting to describe some basic aspects of this sector. One take on what is happening is the following story. It is my…
Over at National Review, Nicole Gelinas is critical of James Damore’s memo to Google. It is disturbing that a conservative magazine like National Review should decide to publish a piece making the points that this one does. If Damore can’t get a fair hearing for his views at National Review, then things are pretty bad. Gelinas takes the view that Google was wrong to fire Damore, because Google says it encourages internal dissent. But Gelinas then criticizes Damore’s memo. I agree that Google is being hypocritical here. But Gelinas’s critique of the memo is unfair and weak. Gelinas appears to have two…