Liberty Law Blog

There Will Be Blood, Our Own

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“Combining the unbridled tongue with the unready hand.” Thus did Theodore Roosevelt define statesmanship at its worst. This is what America’s bipartisan ruling class is giving us.

The Obama Administration tried buffering last week’s announcement that it is reducing the US Army’s size to below its levels of 1940 (when the world’s population was less than one third what it is today) by suggesting that it would concentrate on mastery of the sea and of space. Continue Reading →

The Problem of Identity Politics

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The race for Texas governor offers a chance for substantial debate on policy. The leading Republican, Greg Abbott, is for limited government on economic matters, supports greater restrictions on abortion and is more conservative on social issues. The leading Democrat, Wendy Davis, is for somewhat more expansive government than Texas now has, favors abortion rights, and is less conservative on social issues.

But campaign coverage has instead focused on the biography of Davis and the comments of a singer supporting Abbot. Davis is being attacked for discrepancies in the biography she put forward and for her behavior in a marriage that ended in divorce. Abbot is being assailed for the incendiary and reprehensible comments of Ted Nugent. These disputes do not tell us much, if anything,  about how either candidate would perform as governor, or the efficacy of the policies they have proposed. The candidates’ previous experience in the offices of Attorney General (Abbott) and state senator (Davis) seems far more relevant. To be sure, both candidates seem to have invited these controversies; Davis by making her biography a central part of her campaign and Abbott by welcoming Nugent’s support, not for his understanding of policy, but because of his celebrity.

The focus of the campaign, however, reveals much about modern politics.  It demonstrates that much of political debate is not about what policy objective is preferable or what results a candidate’s agenda will have. It is instead about making citizens feel comfortable about themselves and indeed morally superior to others. Continue Reading →

Toobin’s Disgrace

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clarence-thomasJeffrey Toobin’s recent article in The New Yorker, “Clarence Thomas’s Disgraceful Silence,” is itself disgraceful. Toobin noted that, as of February 22, eight years have passed since Justice Thomas last asked a question during a Supreme Court oral argument. Toobin finds Thomas’s silence “bizarre” and “downright embarrassing, for himself and for the institution he represents.” Continue Reading →

Clarifying Originalism: A Response to Randy Barnett

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(This post is written jointly by John McGinnis and Michael Rappaport).

We were surprised and puzzled by Randy Barnett’s post complaining that we had not fairly represented his views on originalism in our book Originalism and the Good Constitution. His focus was on a few brief paragraphs in the introduction that could not comprehensively discuss these issues, but in any event we do not believe our comments were inaccurate or disrespectful. We believe that Randy has misinterpreted our discussion.

1. Randy first objects that we refer to originalists who believe in construction as “constructionist originalists.” Randy criticizes this as an “argument by labeling.” Randy states: “I call myself an originalist (of the original public meaning variety). Period.” But there are many theories of originalism and not all of the original public meaning theories embrace construction. A term was needed to refer to these theories and we do not believe there is anything derogatory about the term constructionist originalism. Some people refer to these theories as the new originalism, but there are new theories of originalism, including ours, that do not embrace construction. Hence the need for a more specific term.

2. Randy also objects to our assertion that theorists who believe in contruction argue that interpreters are only bound by the original meaning when it is clear. Randy writes that he “propose[s] no such ‘clear statement’ approach to constitutional interpretation.” But we did not use the term “clear statement,” nor were we implying it. One of the main differences between our original methods view and the view of advocates of construction is that original methods believes that close cases – where the evidence just slightly favors one interpretation (what we call a 51%-49% situation) – should be resolved based on the stronger interpretation whereas advocates of construction seem to believe that construction should resolve that situation. Thus, in our view, advocates of construction apply construction rather than interpretation in cases where the evidence is close, thereby applying interpretation only when the evidence is clear. Even those who adhere to construction have used the term “clear” in this sense. Continue Reading →

The Declaration’s Grievances and the Constitution

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In a detailed historical review of Timothy Sandefur’s new book entitled The Conscience of the Constitution, Adam Tate raises the practice of federalism as a principled method that representatives used in the early republic for handling difficult issues. Rather than face political paralysis or endure efforts at national coercion via constitutional provisions regarding slavery or religious freedom, for example,  Tate notes that the Founders looked to the states and their separate interests as the best solution. So Tate argues that there was no natural rights code of law with exact specifications nationally applied.

If we were such a republic, then why were natural rights not relied upon in the tough cases and appealed to with precision? If there was consensus on natural rights as the baseline, then surely it would have governed these disputes, rendering them noncontroversial. More plausible is that the natural law and natural rights were seen as an ultimate source of law, but what this meant in concrete application was not firmly agreed upon by the Framers. As a result, particular resolution of constitutional questions via a detailed code of natural rights wasn’t ventured. Continue Reading →

Would a Ban on Kosher Slaughter Be Constitutional, and Valid Under RFRA?

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In Poland, according to an animal protection law, animals must be stunned with a stun-gun prior to slaughtering. The European Convention for the Protection of Animals for Slaughter permits EU member countries to exempt religious slaughter from the stunning requirement. However, the Polish Parliament voted against granting the exemption. However, such a slaughter would not satisfy the rules of Kosher, which proscribe a very specific manner to kill an animal in accordance with Jewish Law.  As a result, it is effectively illegal to make kosher meat in Poland. Unsurprisingly, several slaughterhouses are violating the law, and doing it anyway.

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This Republic of Federalism

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Timothy Sandefur’s The Conscience of the Constitution contributes to the debate over the best way to limit the powers of the United States government in order to secure liberty. Sandefur, a lawyer and legal scholar, believes that Conscience“American constitutional history has always hovered in the mutual resistance of two principles: the right of each individual to be free, and the power of the majority to make rules.” (1) For Sandefur adherence to the natural rights theory of Declaration of Independence manages the tension between the two principles. Continue Reading →

Authors of Obamacare Submit Brief Telling D.C. Circuit What Obamacare Means

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In Halbig v. Sebelius–a case that considers whether the Obamacare exchanges operated by the federal government can provide subsidies–seven members of Congress submitted an amicus brief telling the D.C. Circuit what the law really means. Senators Baucus, Harkin, and Reid, and Representatives Levin (MI), Miller (CA), Pelosi (CA), and Waxman (CA) insist that congress never intended to limit subsidies to state-run exchanges.

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Judge Bork’s Unstoppable Ideas

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I had the good fortune to be asked recently to contribute to a memorial symposium on Judge Robert Bork’s work in the University of Chicago Law Review’s online forum. My essay showed that he was a prime catalyst for both originalism and law and economics—two movements that push law back toward being once again an instrument of social well being.   These dual, dynamic contributions made him the most important figure of the intellectual legal right in the latter half of the twentieth century.  And his ideas could not be defeated by the Senate vote that denied him a seat on the Supreme Court.

I noted: Continue Reading →