Arise, Ye Prisoners of Scalia

Businessman running to the future

The particular danger of conservatives’ turning to the courts to pursue preferred outcomes, even constitutional ones, is that doing so legitimizes the same strategy by constitutional liberals, who will—it bears repetition—sooner or later reassume control of the levers of judicial power. The time for warnings may soon give way to a season of regret: The liberal judicial ascendance is begun.

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The Case Against Disclosing Candidates’ Tax Returns

I have previously expressed very substantial reservations about Donald Trump’s candidacy, but decline to join in the criticism about his refusal to release his tax returns. While a norm has developed suggesting that citizens have a right to see tax returns of presidential candidates and indeed candidates for some other offices, it is a bad norm.  It invades privacy, discourages some people from entering politics, distracts from policy issues, and harms the prospects of those with complex financial affairs.

The secrecy of our tax returns from prying eyes is itself a valuable social norm that reflects the overriding fact that our earnings are our own, not the government’s. The government can scrutinize our tax returns but only for the purpose of showing what we owe. Strong laws protect the secrecy of our tax returns, showing the strength of privacy norms in this area.

Thus, countervailing factors would have to be strong enough to overcome this basic norm.  But in fact there are issues peculiar to political campaign that also militate against a norm for disclosure.

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Steam Shovels Went Away . . . but Our Enviro-Trendiness Never Will

steam shovel

You don’t expect to find profound political lessons in preschool, but of course they’re there. I found one yesterday, buried in the breezy prose of the 1939 classic Mike Mulligan and His Steam Shovel. If you haven’t read it in a while, you should.

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The Secret Lives of Right-Wing Professors: A Conversation with Joshua Dunn


This next edition of Liberty Law Talk is a conversation with Joshua Dunn on a new book that he has co-authored with Jon Shields entitled Passing on the Right. Dunn and Shields interviewed 153 professors across a range of disciplines who consider themselves conservatives and libertarians. Their findings paint a more moderate position on the types of challenges conservative academics face compared to much conventional thinking on this subject. Evidence that they are the victims of a systematic campaign of exclusion and persecution doesn't seem to exist. What does seem to exist is a host of other problems that must be carefully…

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The Problem of the Cities

Crumbling infrastructure in Detroit, Michigan

Ever since people began migrating in large numbers from America’s rural areas to its urban areas  in the 19th century, cities have presented unique challenges: sanitation, housing, transportation, education, public safety, and fire protection, to name just a few. Responding to these challenges typically entailed government intervention, the precursor to the Great Society and the modern welfare state.

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Michael McConnell on the Ninth Amendment

One of the puzzles in constitutional law has been the original meaning of the Ninth Amendment. Some years ago, during his unsuccessful confirmation hearings, Judge Robert Bork analogized our lack of understanding of the Amendment to the situation where the language of a constitutional provision was obscured by an inkblot. He argued that since we don’t understand the provision, we are in no better position to enforce it than if an ink blot covered it.

Over the years, various explanations have been offered for the amendment. Some have argued that it protects enumerated natural rights to the same extent as the enumerated constitutional rights.  Others have interpreted it to have a much less significant role.

In my view, the best interpretation of the Amendment is supplied by Michael McConnell in a relatively recent law review article. At the beginning of my scholarly career, I had come upon the same idea, but was persuaded not to write it up. My mistake, although I don’t think I would have done as good a job as McConnell does.

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Thinking about Property Rights Can Solve This

Retro Red Toilet sign on white brick wall

The public debate in America over access to public restrooms by transgendered people has largely been dominated by vague claims for morality, justice and fairness. The situation was further complicated by the Justice Department’s decision to send a Mafioso-style letter to public school districts to adopt policies allowing transgendered individuals to use bathrooms of their choosing or lose federal funding. It’s a deal they shouldn’t refuse. 

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The Ryan “contretrumps” and the Separation of Powers

UNITED STATES - MAY 12 - House Speaker Paul Ryan speaks at a news conference following his meeting with Republican presidential candidate Donald Trump. (Photo By Al Drago/CQ Roll Call)

Now that Donald Trump is their presumptive nominee, elected officials within the Republican Party are faced with the difficult question of how they should respond. Some are saying it isn’t at all difficult—the people have spoken, by golly!—but I beg to differ. It’s a genuinely hard political question that ought to be framed by philosophical, institutional, and constitutional considerations.

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It Isn’t 1964: Don’t Nationalize Decisions about Transgender Access

The Obama administration has ordered schools and government facilities to give transgender individuals access to facilities such as bathrooms and showers on the basis of the gender which they identify, regardless of their biological sex.  Ed Whelan has already shown in a series of persuasive posts how wrong the administration is in it its interpretation of Titles VII and IX of the Civil Right Act. Here I want to discuss another mistake: the impulse to nationalize rules about complex matters of social norms that are better handled by private and decentralized ordering.

Permitting transgender people to use facilities involves issues of respect for individual difference and the privacy of personal space. I am not sure how I would resolve these issues myself. It may well depend on circumstances, such as context and place. But we will make more sensible resolutions of these issues in the long run, if the businesses and localities are allowed to make their own decisions for private and public facilities respectively.  New social norms are likely to be shaped for the better, if individuals and groups are allowed to act freely without government intervention outside of preventing force and fraud.

The contrary view is that this is a matter of civil rights where national laws are needed based on philosophical premises. The analogy is to the discrimination against African Americans before the Civil Rights Act.  Indeed, for the left on such matters it is always 1964.

But the analogy to racial discrimination of that era is misleading.

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The President’s Power to Spend

In House of Representatives v. Burwell, yet another big case arising over the Affordable Care Act, U.S. District Judge Rosemary Collyer has ruled that the administration’s implementation of the Act’s subsidy provisions violates the Constitution. Lots of fun here; let’s start with the basics.

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