Liberty Law Blog

Eliminating Inequality?

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So President Barack Obama and the Democratic Congressional leadership are going to end inequality? A half century after President Lyndon Johnson’s attempt to eliminate poverty, progressives aim higher. While cynics may think the real goal is changing the subject from Obamacare, most progressives actually have kept the faith. Eliminating inequality guarantees the moral high ground, especially with a supportive media who also desperately want to believe and who will faithfully transmit whatever theme their political allies send their way. Continue Reading →

American Liberty and the “Pursuit of Happiness”

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In reflecting further on the issues raised by Ted McAllister’s emphasis on the American historical experience of liberty in this month’s Liberty Law Forum, I find myself returning again to consider the meaning of a particular phrase of the Declaration of Independence: “the pursuit of happiness.” I have written about this before in other places, but McAllister’s highlighting of historically lived experience, brings out the significance of this passage even further. Continue Reading →

Free Trade as an Instrument of Pax Americana

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Free trade not only creates economic benefits but advances the security of the United States. It is clear that today we have become less willing to bring about a Pax Americana though military strength.  The disillusion with the results of wars in Afghanistan and Iraq, the sharp cuts to the defense budget, and most of all, the ever growing entitlement state makes it more difficult to project for the long term American force on the world.

But even in the absence of force, free trade can help make the globe safer and the United States more secure. By connecting individuals in different nations through the web of commerce, trade makes war less likely by giving more people a greater stake in avoiding the disruptions of conflict. This insight goes back to Adam Smith and David Hume who celebrated “la douce commerce.” A more modern insight is that democratic nations are less likely to disturb world peace. Given that wealth tends to promote democracy, free trade helps on that front as well. Finally, free trade puts more people in contact with American goods, including its information laden goods, like entertainment. It thus constitutes the most effective form of soft power.

The efficacy of free trade as an alternative mechanism to military strength  for maintaining security makes it all the more disappointing that the President Obama is not pressing hard for it, particularly because it is he who has cut the defense budget and done nothing to reform the entitlement state that enervates our capacity to sustain long term military engagements. And free trade is indispensable for the achievement of his own particular policy goals, most importantly the pivot to Asia. Continue Reading →

President Taft on “the Danger of a Third Presidential Term.”

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After serving two terms in office, with some reluctance, President Theodore Roosevelt decided not to run for an unprecedented third term, keeping with the tradition started by George Washington. Though, that decision was not an easy one. He stepped aside for two main reasons: first, he had (begrudgingly) made a pledge not to run for a third term, and second, he personally selected William Howard Taft, his longtime friend and confidant, as his successor with the understanding that Taft would continue his progressive policies. Even until the Republican Convention, Teddy considered throwing his hat into the ring, but stood by his pledge. Continue Reading →

The Artifice of the Rule of Law

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It will not have escaped the notice of many that men and women tend to differ in their opinions on many matters, for example on the jurisprudence of rape. Women, however liberal or lenient they may be in their attitude to other crimes, however much they disbelieve in principle in retributive justice, tend to be not only punitive with regard to rape but (at least nowadays) to favor the relaxation of the rules of evidence in cases of rape and other sexual crimes. Men, on the other hand, believe that rape must be proved in the same way as any other allegation must be proved.

The subject came up at a dinner party that I was at last night. Continue Reading →

Liberté, Egalité, Non Merci

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The home and birthplace of John Adams—and his son, John Quincy Adams, diplomat, president, legislator and, most important, translator of the indispensable The Origins and Principles of the American Revolution, compared with the Origins and Principles of the French Revolution, more on which presently—sits on Hancock Street in Quincy, Massachusetts. The next time a U.S.-French Presidential duo desires a photo-op at the home of a historic American executive, they might skip Monticello and visit the Adams manse instead. Continue Reading →

The “Law of the Land” Clause of Magna Carta, the Supremacy Clause, and Judicial Review

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During a recent trip to the National Archives, I saw one of the earliest known copies of Magna Carta in existence. And I remembered one of my favorite parts of Magna Carta, the “Law of the Land” clause:

No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny of delay right or justice.

This pronouncement, that neither life, liberty, nor property can be taken except by the “judgment of his peers or by the law of the land,” is the constitutional predecessor of our Due Process Clause. This also served as a basis for some notion of judicial review. Some argue that this history provides for a substantive component of law, rather than a mere procedural aspect. Continue Reading →

Slave Property in the Old South

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This quarter, I assigned Liberty, Equality, Power in the U.S. history survey.

I might try another book next year because it’s getting to be too expensive for the students.

Anyway, it’s a solid book. Reading over the chapter on “The Old South, 1790-1850,” I stumbled over this bit, describing the deep South:

“Slaves under the task system won the right to cultivate land as ‘private fields’—farms of up to five acres on which they grew produce and raised livestock for market. There was a lively trade in slave-produced goods, and by the late 1850s slaves in the lowcountry not only produced and exchanged property but also passed it on to their children.”

Interesting history here. I know that slaves kept garden plots and sometimes had money. But here we have the actual ownership of land. Would this be a case of the labor theory of property at work? Property ownership is derived from mixing one’s labor with the land. Surprising to see it at work in the Old South. Interesting to ponder what that tells us about the South and about human nature under the conditions of life there.

Obama’s Retreat From Free Trade

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Vice President Joe Biden signaled by his comments last Friday at a House Democrat retreat that the administration is not going to push hard for fast track trade authority to conclude a deal with other Pacific Ocean nations or the EU. If President Obama fails to press for this authority, it will prove a loss for freedom, economic growth, and national security and become one of his most harmful second term mistakes. Already it demonstrates that he is a very different kind of Democrat from Bill Clinton, who worked relentlessly to conclude NAFTA even against the wishes of most of his party, because he saw its obvious economic and geopolitical advantages.

There is no proposition about which more economists agree than that free trade creates wealth among nations— advanced industrial nations, emerging markets, and the least developed nations all alike. And this is hardly surprising:  reducing trade barriers empowers liberty, allowing people to sell their goods and services to the people who most want them, regardless of whether a national border separates buyer and seller. The arguments for free trade today are as strong as those made by Adam Smith and David Ricardo. Perhaps they are even stronger given the unparalleled opportunities for innovation in our age of technological acceleration. The broader the geographical area for sales, the greater the incentives to innovate. Continue Reading →

Announcing Josh Blackman as Guest Blogger for February and March

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I am excited to announce that Josh Blackman will be blogging here for February and March. I look forward to many engaging posts. A little bit about Mr. Blackman:
Josh is an Assistant Professor of Law at the South Texas College of Law who specializes in constitutional law, the United States Supreme Court, and the intersection of law and technology. Josh is the author of Unprecedented: The Constitutional Challenge to Obamacare. You might recall the fine review of Josh’s book we featured a few months back. Cato discussed the book in an onsite forum when it was published.
Josh is the founder and President of the Harlan Institute, and the founder of, the Internet’s Premier Supreme Court Fantasy League. He also blogs at