Is Originalism the Law?: The Law Reform Criticism

There are three principal grounds for justifying originalism: (1) Interpretive: the original meaning is the actual meaning of the Constitution; (2) Normative: following the original meaning is normatively desirable, where the normative desirability might be social welfare or justice or popular sovereign choice; or (3) Legal: the original meaning of the Constitution is the law (the “Legality Argument”). In the past, I have expressed skepticism about the Legality Argument, noting that the jails are filled with people who violated statutes that conflict with the Constitution’s original meaning. Instead, I have argued that the rule of recognition in the United States allows…

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Scalia’s Genius and His Curse

ScaliaWhen our sensibilities were fed from different sources, it used to be said that, with spring, “the voice of the turtledove has been heard in the land.” But in these recent weeks the landscape has been filled with the sounds of “disinvitations” to speak and receive degrees at what used to be called our “better” colleges and universities. Colleges of the second rank may now be seeking to lift their standings by seeking out prestigious speakers to “disinvite.”

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Raising Arizona: Lessons from the Same-Sex Marriage Movement

A lot has been said about Arizona’s SB 1062, vetoed by Arizona Gov. Brewer. Some see it as a bellwether of “growing threats to religious liberty,” others as a debate “captured by utterly intolerant people on both sides” with many seeking “liberty for me, and [to have their] opponent ground into the dust.” Marriage equality advocates see SB 1062 as, at best, a “misguided attempt to preserve an outdated social order;” at worst, a license to discriminate.

Lost in the aftermath is the fact that SB 1062 was a very different animal from the primary context in which religious liberty exemptions have emerged—namely, same-sex marriage legislation.

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The Call of American Liberty

Books reviewed in this essay:

The New Deal and Modern American Conservatism: A Defining Rivalry, by Gordon Lloyd and David Davenport (Hoover Institution Press, 2013).

The Crusade Years, 1933-1955: Herbert Hoover’s Lost Memoir of the New Deal Era and Its Aftermath, ed., George H. Nash (Hoover Institution Press, 2013).

New power emerges out of confusion—and ours is a confused age. No dominant historical narrative supplies us with a common story, and without a common story we belong neither to each other nor to shared ideals. When a people are unscripted by history, the past becomes raw material, to be processed via key moral and political vocabulary by those who would willfully impose “new modes and orders,” to quote Machiavelli.

New Deal and Modern ACDisordered times produce the search for order and the desire to impose order. Gordon Lloyd and David Davenport are in the former category. Their book The New Deal and Modern American Conservatism seeks to revise our historical understanding of the rise and development of American conservatism by tracing it to Herbert Hoover.

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Government as an Incentive Problem

There is a tendency to liken modern parliamentary systems to the kind of one-man rule seen in most presidential regimes. The claim, made by Don Savoie and others, is that prime ministers are all-powerful. But it’s more accurate to see parliamentary systems as a kind of corporate government, with the PM as CEO and the party bigwigs as a not impuissant board. The CEO is fine as long as he seems to be able to lead the party into the next election, but if not he’ll find he’s not really in charge. As happened to Thatcher in 1990 and Jean…

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Regulating Autonomous Weapons on the Battlefield

A recent meeting in Geneva on the implementation of the Convention on Certain Conventional Weapons focused on regulating autonomous weapons. Autonomous weapons are systems that decide to deploy lethal force without direct human control. Imagine, for instance, drones guided by sensors and preprogrammed algorithms that would choose for themselves the time and place to release their deadly missiles.

There was substantial sentiment at the meeting for banning such weapons. Such a ban would prove an enormous mistake. It would harm the interests of the United States and make for a less peaceful world.

The first problem with such a ban is that it is difficult, if not impossible, to verify.  First, autonomous systems depend on AI programs, which, unlike nuclear weapons, are very easy to hide. Second, autonomy is a matter of degree: limited human oversight would be hard to distinguish from full autonomy. The lack of verifiability will empower rogue nations in the arms race that has characterized military competition from the beginning of civilization. In the world of tomorrow that arms race will be paced by robotics and machine intelligence.

Second, because of the West’s technological superiority, the West in general and particularly the United States have an advantage in developing these weapons.

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Herbert Hoover’s Righteous Crusade Against the New Deal: A Conversation with George Nash


Herbert Hoover's legacy is perhaps forever linked with the failure of the American economy under his presidency after the stock market crash of 1929 and his ensuing defeat by Franklin Delano Roosevelt in the election of 1932. Further adding to his difficulties is the charge that he was progressive-lite in his policies before and after the Great Depression. The proper foundation, it follows, for advocates of a renewed conservative focus is Calvin Coolidge, a President who cut budgets and taxes. This discussion with Hoover scholar George Nash begs to differ. Nash, who previously appeared on Liberty Law Talk to discuss the…

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More on Kurt Lash’s Theory of the Privileges or Immunities Clause and the New Orleans Riot

Recently, I blogged about Kurt Lash’s own blogging about his new book on the 14th Amendment. I wrote:

Kurt argues that the Privileges or Immunities Clause merely incorporates the Bill of Rights; it does not protect equality as to state privileges or immunities (as in John Harrison’s theory) or substantive rights as to state and natural law privileges or immunities (as in Randy Barnett’s theory).

Kurt wrote to me to clarify that in his view:

the Privileges or Immunities Clause protects all constitutionally enumerated personal rights, such as those listed in the Bill of Rights. It includes, for example, the equal protection rights of the Comity Clause as well as the enumerated right to habeas corpus.

Kurt is, of course, correct about his position, and I am happy to clarify his position.

That said, my claim that that Kurt’s interpretation “does not protect equality as to state privileges or immunities (as in John Harrison’s theory) or substantive rights as to state and natural law privileges or immunities (as in Randy Barnett’s theory)” is true. And while the other enumerated rights under the Comity and Habeas Clauses are important, as a matter of modern controversies it is here where the disagreements principally lie.

(I should note that the “equal protection rights of the Comity Clause” – if I understand Kurt’s position – forbid discrimination against out of state citizens, but do not provide general protection against racial or other similar forms of discrimination.)

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Greece the Establishment Clause: Thomas’s Church-State Originalism

“As an initial matter, the Clause probably prohibits Congress from establishing a national religion.” –Justice Clarence Thomas, in his concurring opinion in Greece v. Galloway

“Probably”? As if the May 5, 2014 Town of Greece v. Galloway decision, upholding prayers said at the beginning of legislative meetings, didn’t upset strict separationists enough, Justice Clarence Thomas’s radically originalist concurring opinion was enough to bring on shouts for an exorcism.[1] To the contrary, Thomas’s reasoning about the First Amendment establishment clause is the most rational way to preserve liberty, by recognizing the institutional principle of federalism as well as the individual right of religious free exercise. This becomes clear once we see this opinion in light of his earlier, lengthier establishment opinions.

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The Root of the Discretion to Kill

Holder Discusses Obama Administration's Counterterrorism Efforts

Holder Discusses Obama Administration’s Counterterrorism Efforts

President Obama announced a few days ago that he will release some parts of the secret memorandum by which the U.S. government authorizes itself to kill whichever U.S. citizens it deems terrorist enemies. He did so to give political cover to Senate Democrats disinclined to approve an appellate judgeship for David J. Barron, who authored that memo for the Justice Department’s Office of Legal Counsel. The document is a refined version of that by which the government authorized itself to kill U.S. citizen Anwar Al-Awlaki three years ago (which the New York Times summarized here.)

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