Liberty Law Blog

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.

Squaring the Progressive Constitutional Circle

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As I have discussed in previous posts and a recent paper, public choice has freed originalism from the countermajoritarian difficulty by showing that it is an interpretative method well suited to enforce a constitution that is in its formation and essence anti-majoritarian. But many scholars are resistant to the truths of public choice and continue to be attracted to the essentially majoritarian paradigm of Progressivism. Their difficulty is that the modern Court has often invalidated the actions of majorities without any substantial support in the text of the Constitution. Thus, scholars have attempted to square the circle to preserve the Progressive paradigm by showing that the Court’s actions can meet some definition of majoritarianism and do not reflect judicial usurpation of the political process. Here is a thumbnail sketch (and critique) of three of the most prominent attempts.

John Hart Ely and Democracy and Distrust. In my view the strongest way of meeting the countermajoritarian difficulty is John Hart Ely’s Democracy and Distrust.  Ely dismisses clause bound originalism but sees judicial review as justified when it reinforces and refines democratic outputs. Thus, anti-discrimination principles are to be enforced, because they prevent the political process from being distorted by racial and gender stereotypes. Similarly, free speech permits people to deliberate and thus reinforces democracy.

But Democracy and Distrust famously does not justify Griswold or Roe v. Wade, because it is difficult to see these decisions as reinforcing the democratic process rather than providing substantive rights. Thus progressives who today almost universally want to preserve a jurisprudence that expands what they consider to be core human rights need other theories to address the countermajoritarian difficulty. Continue Reading →