Does a Judge Who Decides a Matter within the Construction Zone Enforce the Constitution? A Question About Construction

One of interesting questions in originalist constitutional theory is the relationship between theory and text.  Some originalists focus on originalist textual arguments, while some originalists argue, as a matter of theory, for originalism, but do so based on theory.  While this is a complicated matter, there is clearly room for both types of arguments.

This issue arises as to the practice of “construction.”  In originalist theory, some scholars draw a distinction between interpretation and construction.  Interpretation is the practice of determining the original meaning.  But what if, as these advocates of construction argue often happens, the original meaning runs out (that is, there is no original meaning as to an issue because the constitutional language is ambiguous or vague)?  Then, those scholars argue that the matter is within the “construction zone” and one must look outside the Constitution to answer it.  For these scholars, having to look outside the Constitution is not a choice that a judge makes.  It is simply the inevitable result of the original meaning running out.

In my own work with John McGinnis, we have been skeptical about construction and have argued that appropriate interpretive rules would avoid (or at least minimize) the need for construction.  But for purposes of this post, assume that we are mistaken and that construction is an important element of constitutional adjudication.

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What is the State of the American Mind? A Conversation with Mark Bauerlein

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Is the American Mind--the collective intelligence of what it means to live as independent citizens and individuals in America--increasingly being lost? That is the subject Mark Bauerlein discusses with Richard Reinsch in this Liberty Law Talk. Some have argued that we are Becoming Europe in fiscal and welfare state policies. Others have noted the rise of political correctness as a smothering force in our society. Many have long observed that our education system not only inadequately prepares young Americans in primary schools and colleges and universities for the competitive private sector, but that it is nearly oblivious to the American Founding…

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The Cuomo Pink Slip and the Cuomo Tax

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I cannot remember a time when New York’s Governor and New York City’s Mayor taken together pose a greater threat to liberty and prosperity.  Last week each proposed a dreadful policy. Governor Andrew Cuomo succeeded and Mayor Bill de Blasio failed. The different outcomes tell us a lot about what makes some statist proposals more likely to take effect and how to resist them.

Cuomo got his Labor Board to hike the minimum wage to $15 an hour for fast food workers throughout the state. I will not repeat my general arguments against substantial minimum wage hikes. But even minimum wage advocates concede that such sector specific wages will distort the labor market and create a less efficient mix of businesses. Moreover, any law that requires paying someone at McDonald’s in Troy, New York $15 an hour while someone working at Home Depot in New York City $9 an hour is patently irrational given the much higher cost of living in the city.

For his part, de Blasio proposed capping the growth of Uber in New York City ostensibly because the extra cars on the road were causing congestion, but in large measure because the taxi companies are some of his biggest supporters. Even if city streets were becoming more congested it is not economically rational to single out Uber. There is no reason to believe that the customers it serves are getting less benefit from driving around New York than those who take taxis or drive themselves.

What is interesting, however, is that the city council shelved this proposal.

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Israel and Double Standards: The Palestinian Refugees

Israel is subject to all sorts of double standards. This happens over and over again. One area where this is the case involves Israel’s treatment of its non-Jewish citizens. Israel is said to be an apartheid regime, even though it confers equal rights on its non-Jewish citizens. The harsh treatment by Arab states of non-Muslims is often barely mentioned. Another area involves the UN’s special rule for refugees. Many Israeli critics don’t realize that Palestinian refugees would not be considered refugees if they were former residents of any other place in the world. But because the U.N discriminates against Israel, many more Palestinians are treated as refugees. As Wikipedia states:

Palestinian refugees from 1948 and their descendants do not come under the 1951 UN Convention Relating to the Status of Refugees [which governs all other refugees], but under the UN Relief and Works Agency for Palestine Refugees in the Near East, which created its own criteria for refugee classification. The great majority of Palestinian refugees have kept the refugee status for generations, under a special decree of the UN, and legally defined to include descendants of refugees, as well as others who might otherwise be considered internally displaced persons.

But perhaps the greatest double standard is the attention that the world—especially Europe, the Muslim world, and the Left in the United States—pays to Israeli actions. If there is a conflict in Israel, it is front page news. In the many other places throughout the world, not nearly as much. Usually, this attention is focused on criticisms of Israel.

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A Libertarian View of Francis’ Laudato Si

3D render of moon with stars and a tree silhouette

Pope Francis’ encyclical Laudato Si (“Be Praised”) has been acclaimed by the international media as a call to action on global warming, to combat its threat to world survival. It has been praised in New York Times editorials and by Progressive Catholic intellectuals like E.J. Dionne on the Left while garnering scathing or dismissive responses from libertarian, free-market types on the Right. The papal document, however, is not fundamentally about climate change (who questions that weather changes?) or even global warming. (The Pope merely follows the scientific “consensus” and even qualifies it as a trend that “would appear” to “indicate” that…

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Dodd-Frank’s Frankenstein Creeps Forward

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Demand a Politics of Innovation

2016 is shaping up as an election in which one of our parties will emphasize the need for growth and the other will call for greater economic equality. These concepts are often seen in substantial tension with one another. In my view, however, if the government encourages innovation we can have both growth and greater equality in the relatively short run.

As I wrote in yesterday’s Washington Times for the celebration of Liberty Month:

In this age of accelerating technology, there is no more important policy than to encourage innovation. Innovation is the primary source of economic growth. New innovative businesses, like Google and Uber, transform our lives for the better. And innovation builds on innovation, compounding growth from generation to generation. As the Nobel Prize winning economist Bob Lucas once said: “Once one thinks about exponential growth, it is hard to think about anything else.”

Innovation in the modern era also tends to make us more equal. Innovation creates a stream of new ideas that are rapidly enjoyed by the great mass of people. Material goods are scarce, because individuals can by and large not enjoy the same material simultaneously. But ideas can be enjoyed by all. To be sure, some innovations are patented, but these patents expire. And, as better innovations come along, the old patents rapidly become less valuable. That is one reason that smart phones have so rapidly become available to people of modest means. Thus, the greater the supply of innovations, the great the common pool from which almost everyone can benefit quite rapidly.

We thus need to ask all Presidential candidates what they will do to promote innovation.

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