Liberty Law Blog

Friday Roundup, March 7th

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  • Don’t miss this essential new report from James Copland and Isaac Gorodetski on the exciting government entrepreneurs who practice Regulation by Prosecution?

The Progress of Originalism as an Academic Field

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The Center for the Study of Constitutional Originalism at the University of San Diego recently had its Fifth Annual Hugh and Hazel Darling Foundation Works in Progress Conference. The videotape for the conference should be available in the near future. While we are waiting, I thought I would offer an excerpt of my remarks at the beginning of the conference, discussing the progress of originalism as an academic field.

It is a real pleasure to see how this conference has grown over time. . . .

The success of the conference is no doubt a reflection of the success of originalism as an academic area. Originalism continues to grow, showing all the indicia of a prospering academic field. Every year, it produces a large number of articles. And now, there are a growning number of books on originalism that have recently been published or are scheduled for publication, such as those by Jack Balkin, Frank Cross, Kurt Lash, Sai Prakash, Justice Scalia and Bryan Garner, and my own work with John McGinnis. And of course there tend to be symposia on these works, with the symposia on Jack Balkin’s book constituting its own mini-field.

The subject of originalism also continues to attract scholars, including younger ones who are developing new theories. Stephen Sach’s piece for this conference – offering a new theory of originalism (Originalism as a Theory of Legal Change) – is a significant example.

That new theories are regularly being proposed means, of course, that there may be a large number of different theories out there. While some have argued that this aspect of originalism is a problem for the argument of constraint – which it might or might not be – it is a sign of success in an academic field, showing interest, new ideas, and progress. Continue Reading →

Will Indiana Cut-and-Paste Its Way to Common Core Serfdom?

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As a college professor and former head of a K-12 school, I know when a student is giving me the runaround. Here is one scenario I have been through more than once: I hand back a student’s paper—clearly written in a rush—that is bleeding with my markings on typos, incomplete sentences, contradictory statements, and bizarre punctuation. The student looks at the grade, gasps, and then exclaims, “Oh, my gosh! How could I have done such a thing? I handed in my rough draft by mistake. But here is my final draft!” (which the student just happens to have in his book bag).

Just such a scenario is unfolding in Indiana as the state school board tells citizens that the “new” standards in mathematics and English, unveiled a couple of weeks ago and meant to replace the Common Core, were only meant to be a draft Continue Reading →

Charter Schools: A Democratic Move toward Liberty

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New York Mayor De Blasio has been waging a war against charter schools – a reactionary attempt to protect the interests of teacher unions at the expense of poor and minority children. Happily De Blasio has already suffered a reversal of fortune at the hands of his own party and that reversal provides good news  about the structure of democratic politics and its capacity to sustain liberty enhancing reforms.

On Tuesday, the governor of New York State, Andrew Cuomo, also a Democrat, attended a rally of charter school supporters in Albany—an obvious riposte to De Blasio’s decisions to take money and property away from charter schools. Cuomo has ambitions to be President and it shows that even Democrats who count public unions as part of their coalition cannot ignore the crisis in public education and the need for reform.

Because the decline of public schools is rooted in no small part in centralized bureaucracy and in the power of teacher unions, solutions take the form of injecting more competition by such means as charter schools, vouchers and merit pay. These forms of competition are liberty enhancing and can help improve standards and increase innovation, particularly in big cities, where the jurisdictional competition afforded by different suburbs is absent.

One might think that teacher unions and bureaucrats as powerful interest groups could thwart these reforms, because they help only diffuse and relatively powerless groups like parents and students. Continue Reading →

Narcissistic Polity Disorder: Treating the Advanced Case

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Last week, during one of the back-to-back snowstorms nature has inflicted on New England in much the manner of a chain smoker lighting one cigarette from the end of another, a snow plow backed into my fence, knocked a section of it over and slunk off like a shame-faced thief into the night. Something similar happens when a feckless American foreign policy invites aggression. Continue Reading →

Does Obamacare Secure the Blessings of Liberty?

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During oral arguments in NFIB v. Sebelius, the Solicitor General of the United States, charged with defending the Affordable Care Act, made the argument that the law actually promotes liberty. As I retell in Unprecedented,  Solicitor General Verrilli drew together a connection between freedom and health care security.

Verilli continued, “There is an important connection.” He paused for emphasis. “A profound connection, between that problem and liberty. And I do think it’s important that we not lose sight of that.” These were comments likely aimed at Justice Kennedy, who has grounded his ve the opportunity to enjoy the blessings of liberty . . . “In a very fundamental way, this Medicaid expansion, as well jurisprudence in the protection of individual liberty and dignity interests. Continue Reading →

Why is Brown So Important?

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Will Baude recently raised the question, why is the result in Brown v. Board of Education so important? He writes:

In the abstract, a legal interpretive theory ought to be able to say “theories generate results; results don’t generate theories.” In other words, it is a mistake to judge an interpretive theory simply by the moral goodness of the results it produces: If one had a theory of moral goodness sufficient to judge all of the results of an interpretive theory, one may as well just use it directly. Law’s promise is the ability to transcend moral disagreement.

And yet in practice almost every constitutional theorist feels the need to say that Brown is right. The two exceptions I can think of are Adrian Vermeule and Earl Maltz, though my very very small sample size suggests that the next generation of law students may not view Brown as similarly canonical.

This is a complicated question, but part of the reason people place so much emphasis on Brown is that they make it more important than it was. They treat the issue of Brown’s constitutionality as identical with the issue of Jim Crow’s unconstitutionality. If denying Brown meant that Jim Crow was constitutional, that is an extremely uncomfortable result. Of course, one might counter (as Will suggests) that the validity of a legal theory differs from the desirability of its results, but in the context of arguing for or against originalism, the view that originalism would allow such an enormous evil as Jim Crow just appears to be extremely problematic.

It is therefore important to note that the issue of the constitutionality of Brown is not the same as the unconstitutionality of Jim Crow. Even if Brown was not the original meaning, that does not mean that most of Jim Crow was constitutional. This is a true for a variety of reasons. Continue Reading →

The Wizard of Oz and Gone with the Wind

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At the Academy Awards, it was noted that this was the 75th anniversary of the Wizard of Oz, which was nominated for best picture and won awards for best song and best original score. The 1939 Academy Awards have long been considered to have been one of the strongest years, including classic movies such as Dark Victory, Goodbye Mr. Chips, Mr. Smith Goes to Washington, Ninotchka, Of Mice and Men, Stagecoach and Wuthering Heights.

But the winner that year was, of course, Gone with the Wind. It was a little peculiar that the 75th anniversary of that movie went unmentioned, even though Gone with the Wind is clearly one of the leading films of all time, receiving 10 academy awards and according to Wikipedia “becoming the highest-earning film made up to that point,” a record it “retained for over a quarter of a century . Adjusted for inflation, it is still the most successful film in box-office history.”

The likely reason for the omission of Gone with the Wind is that the film does not accord with modern sensibilities about matters of race, and clearly presents slavery, if not in a positive light, than in a far less negative light than it deserves. This would have clashed with an Academy Awards that conferred a best picture award on 12 Years a Slave (and two significant awards on Dallas Buyers Club).

Still, the Academy might have felt comfortable mentioning Gone with the Wind for a couple of reasons in addition to those mentioned above – to note its “feminist” portrayal of Scarlett O’Hara and to comment on Hattie McDaniel’s Academy Award (the first for a black actor).

Mr. de Blasio’s Reactionary School Policies

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Mayor Bill de Blasio of New York has a lot of dubious policies. He is blocking some developers from building homes until they build the kind of homes he prefers. He wants to raise taxes to pay for programs that the state would otherwise fund. But by far the worst of de Blasio’s policies is his declared war on charter schools, which is actually a defense of an ancien regime of unearned privilege.

During the mayoral campaign, de Blasio promised to halt the growth of charter schools and require those that were already in place to pay rent to the city But why should one form of public schools be singled out for paying rent, when the city provides the buildings for all other kinds of public schools gratis, particularly when charter schools do not pay out the kind of defined benefit pensions that burden the taxpayer?  De Blasio made his declaration in the form of personal attack on a leader of New York charter school movement, saying ““There is no way in hell that Eva Moskowitz should get free rent, O.K.?.” True to his word, de Blasio last week used his power to deny Success Academy Charter Schools which Moskowitz runs the right to city facilities that Mayor Bloomberg had granted. Even more alarmingly, de Blasio also cut $210 million from the city budget that over 5 years would have built facilities for many new charter schools.

Through competition, charter schools are likely to improve education for children in poor and minority families—the very groups that Mr. De Blasio says government should help. Continue Reading →