Liberty Law Blog

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

To Keep America Will Be to Keep Its Balance

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Many long posts ago, this website hosted a discussion of Michael Greve’s wonderfully illuminating Upside Down Constitution. A key part of the thesis was the degree to which local self-governing political bodies in America have steadily ceded administration to national agencies, not as the helpless victims of a national takeover, but as willing, nay eager participants in the national redistribution of our common wealth.

Without a consideration of basic principles, of basic notions of right and wrong, of moral and philosophic ideals, this transfer of self-governance from the local to the national, becomes very hard to criticize. Continue Reading →

Do We Deserve the Constitution of 2014?

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Replacing the US Constitution of 1787 began in the 1930s, slowly and imperceptibly, always with bipartisan support. Now it rushes to completion, unmistakably. Democrat President Barack Obama’s proclamation: “I can do anything I want,” only exaggerated the reality of the 2014 constitution, which the Republican leadership of the House of Representatives re-confirmed quickly Continue Reading →

Conference on Richard Epstein’s The Classical Liberal Constitution

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Last Monday, a conference was held at NYU on Richard Epstein’s new book The Classical Liberal Constitution.  Epstein’s book is in some sense his magnum opus — at least as to constitutional law — setting forth in 700 pages his classical liberal view of the Constitution and its development.  It is a beautiful book and well worth reading.

My presentation at the conference discussed whether the book could be classified as following an originalist methodology.  I conclude that it cannot.  The entire conference is available on video.  For the panel I participated in see, here.  (I start talking at the 30 minute mark.)

For the other two panels, see here and here.