The Sixth Annual Originalism Works-in-Progress Conference

Every February, the Center for the Study of Constitutional Originalism at the University of San Diego holds the annual Hugh and Hazel Darling Works-in-Progress Conference.  The conference brings together many of the leading originalist scholars, both advocates and critics of originalism.  This year’s conference – the Sixth – is being held on February 20-21 at the University of San Diego.  Here is the line up of paper presenters and commentators: Ian Bartrum(UNLV), Two Dogmas of Originalism Commentator:Larry Solum (Georgetown) William Baude(Chicago), Is Originalism the Law? Commentator:Matt Adler (Duke) Richard Ekins(Oxford), Constitutional Interpretation as Statutory Interpretation Commentator:Fred Schauer (Virginia) James Ely(Vanderbilt), The Contract Clause: Origins and Early Development Commentator:Michael McConnell (Stanford) David Moore(BYU), The Broader Founding and International Law Commentator:David Golove (NYU) Christina…

Read More

We Are All Dangerous and We All Have Rights

melting potIn his sane and thought-provoking Liberty Forum essay about immigration, Richard Samuelson argues that “America’s very essence” may well be “at risk” because of “two challenges to our status as a nation of immigrants.” They are “the rise of the mega-state” favored by Progressives, and “the rise of a post-national ideal” that “threatens to undermine the understandings that have made assimilation a duty and an obligation.”

Read More

American Capitalism Created the Computational Revolution

innovators-9781476708690_lgWalter Isaacson is one of our greatest biographers. He has written three superb portraits of men who in large measure defined their age—Benjamin Franklin, Albert Einstein and Steve Jobs. Isaacson has both the empathy and knowledge to make subjects as varied as a universal sage, a scientific genius, and an entrepreneurial visionary come to life. He has now written The Innovators, a group sketch of people who have created our world of ubiquitous computation.

It is a finely etched and exciting picture. We learn that Ada Lovelace, Byron’s daughter, was the first to understand that computational machines could do any logical operation with the right instructions: she is the grandmother of software. And William Shockley was so paranoid that, even after winning the Nobel prize, he obsessed over who on the Nobel committee might have tried to prevent him from getting it. Isaacson also skillfully weaves important themes through the book, such as the ability of many innovators to do, in the words of the Countess Lovelace, “poetic science,” combining aesthetic sensibility with analytic acumen to create new products.

Unfortunately, in his explanations of what drives progress in technology and innovation, Isaacson slights the role of markets and of America.

Read More

When Common Law Rights are Constitutionalized

One important methodological issue involves the question of how to interpret common law rights that are made part of the Constitution.  Common law rights had different features than constitutional rights.  In particular, to what extent does a common law right, which in at least certain ways was subject to change or adjustment, become frozen when it was made part of the Constitution?  The issue is an important one because so many of constitutional rights, especially those in the Bill of Rights, were initially common law rights.

There are at least three possible positions one might have about this issue:

1. Static: When the common law right is constitutionalized, it becomes fully frozen, as if it were written law. To determine the meaning of the right, one looks to the common law in 1789. The existing decisions regarding the common law constitute the full meaning of the right.

2. Dynamic: Although the common law right was written into the Constitution, it did not change its character. Instead, it remains as flexible as a common law right. Under this interpretation, one might see something like the living constitution view in the Constitution.

3. Intermediate: When the common law right was constitutionalized, it changed its character, but it did not become fully frozen as if it were written law. Under this view, one treats the right as a common law right as of the time it was enacted, but does not give it a dynamic effect with changing circumstances.

While I have not fully made up my mind, these days I lean towards the intermediate position.  Let me try to explain why.  There is a lot to say about this, but I will try focus on some of the essentials. 

Read More

A Sanctions Shell Game

There “is a role for Congress,” says a spokeswoman for the White House’s National Security Council, “in our Iran policy.” This is big of her, seeing as how “our” Iran policy consists largely of sanctions imposed by the legislative authority of Congress. A great deal hangs on the spokeswoman’s cavalier use of the word “our.” The suggestion is that the nation’s disposition toward other nations is a constitutional plaything, belonging solely to “us,” which is to say to the executive, and to be shared at “our” discretion. Imagine a comparable audacity—or is it to be called magnanimity?—from a congressional spokesperson: “There…

Read More

Let Corporations Shift Fees in Shareholder Suits

In Sunday’s New York Times, Gretchen Morgenson bemoans the Delaware Supreme Court’s recent decision permitting corporations to adopt bylaws that shift the costs of unsuccessful shareholder litigation to those who bring the suit. Such rules allow a corporation that prevails in a shareholder suit against corporate malfeasance to collect attorneys’ fees.  She quotes only experts who share her views that Delaware law should be amended to prevent such fee shifting provisions.

But my initial review of the issue suggests that it would be a mistake to immediately prohibit such bylaws.  Substantial agency problems arise between the class action lawyers who typically bring such shareholder suits and the shareholders who are supposed to benefit.

Read More

Administrative Law Without Congress

Administrative Law—both in its New Deal and its modern, post-Chevron version—rests on legislative supremacy. In other words, it assumes that there’s a halfway functional Congress. What if there isn’t? What happens when Congress fails to update ancient statutes and, when legislating at all, enacts convoluted statutes (such as Dodd-Frank or the ACA) that no one can make sense of? What if everyone starts taking it for granted that Congress is hopeless? Ashley Parrish and I explore the question in a forthcoming article in the GMU Law Review. (Mr. Parrish, a dear friend and frequent co-conspirator, is a partner at King &…

Read More

Here Comes Everybody

We will soon know if the U.S. Senate changes hands, but I’m not one of those waiting with bated breath. I had lunch with a prominent conservative columnist a while back. “It’ll be different in November,” he exulted. “We’ll take the Senate!” “And then what will happen?” I asked. “We’ll pass legislation and send it up to Obama,” he answered. “And then what will happen?” I asked.

My friend thought that the most arrogant and narcissistic President the country has ever seen would blanche before Mitch McConnell. Count me a skeptic. We have gridlock this year, and we’ll very likely have gridlock in 2015, whatever happens in November.

Oh, I know there’s the Senate’s advise and consent role, when it comes to judicial appointments. Conservatives like to pretend that that’s important. All it means is that, with divided government, we won’t see Justice Eric Holder. So we’ll see Justice Elena Kagan. Tell me what’s the difference.

Read More

Who’s Afraid of Consumer Credit? A Discussion with Todd Zywicki

CCredit

The market for consumer credit has been subjected to an ever increasing amount of federal regulation since the 2008 crisis. The Dodd-Frank Act created the Consumer Financial Protection Bureau to intervene in consumer credit markets and protect us from the rapacious lenders who devour household income and place consumers in unmanageable levels of debt through stealth and manipulative business practices. The predictable results have been a marginal increase in the cost of credit and its decreasing availability to lower income consumers as the CFPB’s rules price them out of this market. Todd Zywicki, co-author of Consumer Credit and the American…

Read More

The American: Not Ugly, Not Quiet

Hoover

George Nash, the dean of Herbert Hoover scholars, wrote about our 31st President most recently in the Wall Street Journal, commemorating the centenary of Hoover’s heroic World War I disaster-relief efforts in Europe. Nash described how, in 1914, a young and successful London-based mining engineer made his move “to ‘get in the big game’ of public life.”

Nash’s words capture a do-gooding impulse, but one that is mixed with personal ambition. This interesting alloy should be familiar. It puts Herbert Hoover in a long line of Americans in whom self-improvement and world-improvement seem inextricably tied—a line stretching back in our history, at least to Benjamin Franklin, and forward into our time.

Read More