Liberty Law Blog

The Child’s Right to His Father and Mother: the Unconstitutionality of the New Marriage, Part I

by David Upham / 3 Comments

Filed Under: , , , , ,

Print Friendly

In the marriage cases pending before the Supreme Court, the parties and amici defending the validity of California’s Proposition 8 and the Federal Defense of Marriage Act have argued that the Constitution permits the state and federal governments to reserve the status and privileges of marriage to “marriage,” as traditionally defined.  To my knowledge, no one in the cases has argued that the Constitution might prohibit the state and federal governments from abandoning this traditional definition.

There is good reason, however, to conclude that in one critical respect, the Constitution prohibits the redefinition of marriage.  On this Father’s Day, I will begin by sketching how the Due Process Clause, as strictly construed and originally understood, establishes a presumption in favor of the natural father and mother’s trusteeship over the child’s liberty.  In subsequent posts, I will explain how the old marriage has complemented this presumption, and how the new marriage unlawfully undermines it. Continue Reading →

Erdogan’s Majority Rule

by Theodore Dalrymple / 5 Comments

Filed Under: , , , ,

Print Friendly

Recent events in Turkey ought remind us, if we needed reminding, that freedom and parliamentary democracy are not identical, though many people mistake the one for the other. But if by parliamentary democracy we mean merely government legitimated by a majority of the votes every few years, there is no reason why such democracy should not lead to tyranny. Indeed, a democratic tyranny may be among the most insidious, if not necessarily the worst, of tyrannies, for it possesses the simulacrum of a justification for its oppression, namely the will of the majority. Continue Reading →

Friday Roundup, June 14th

by Richard Reinsch / 0 Comments

Filed Under: , , , , , , ,

Print Friendly

Many of those concerned about the effects of campaign activity on judicial legitimacy have assumed that citizens share the legal profession’s view that politics undermines judicial independence and hence judicial legitimacy.  Gibson’s research suggests, however, that public attitudes are more diverse and more complex.  While some respondents shared the legal profession’s strong concern about judicial independence, many others favored judicial independence from the executive but were skeptical of judicial independence from the community and its values. . . .  Many respondents believed that mechanical jurisprudence was either undesirable or unattainable, and there was strong support for a relatively politicized model of judging. . . . Moreover, although they valued judicial efforts to act impartially, they also believed that judges should in some sense reflect the views of their constituents.

  • Who taught you how to do this stuff? I learned it from your theories, practices, and illiberal condemnations while on campus. That’s what Peter Berkowitz tells us in this piece that connects the causal dots between the regnant liberalism of higher education and the Benghazi and IRS scandals.

The Fourth Amendment in the 21st Century

by Mike Rappaport / 6 Comments

Filed Under: , , ,

Print Friendly

Over at NRO, Andrew McCarthy criticizes Rand Paul’s new legislation that provides that:

1. The collection of citizen’s phone records is a violation of the natural rights of every man and woman in the United States, and a clear violation of the explicit language of the highest law of the land.

2. The Fourth Amendment to the Constitution shall not be construed to allow any agency of the United States Government to search the phone records of Americans without a warrant based on probable cause.

McCarthy first questions sarcastically whether people have natural rights to privacy as to their phone records (“A citizen’s “natural right” to telephone-usage records that are actually the property of third-party service providers? I wonder what Saint Augustine would have made of that.”) I am skeptical of natural rights, but putting that to the side I think McCarthy is on weak ground here. There is no reason to believe that natural rights would not apply to modern technology. That the records are the property of third party service providers is a better point. But in a world where it mattered who owned the records, perhaps people would insist on a contractual right to privacy in their records, which might change things.

Continue Reading →

What is Our War?

by Richard Reinsch / 1 Comment

Filed Under: , , , , ,

Print Friendly

The PRISM/NSA program of collecting call records of millions upon millions of Americans will surely dominate our national political conversation for the foreseeable future. The issue obviously touches privacy concerns we all have while hitting other uncomfortable spots. Release of the PRISM program obviously builds on the anxiety of the current scandals that have come to light in the Benghazi, IRS, AP and James Rosen surveillance fiascos, among others. Americans, it seems, are on a rendezvous with destiny of losing faith in the federal government as a whole because of the failures of its current leadership class found at the top of the administrative, diplomatic, and security departments and agencies. It can’t happen soon enough. Continue Reading →

The Progressives’ Creative, Parasitic, and Unsustainable Constitutional Jurisprudence

by David Upham / 2 Comments

Filed Under: , ,

Print Friendly

Today, Professor Rappaport posted the aptly-titled “Originalism for Me, but not for Thee,” concerning Professor Peter Jaworski’s fascinating new article, Originalism All the Way Down: Or, the Explosion of Progressivism.

The article reminded me of the approach to constitutional interpretation that Professor Robert Scigliano at Boston College taught in his class on the American Judiciary: Judges should interpret the Constitution the way they would like their own writings to be interpreted.

Professor Scigliano’s maxim, however, is unworkable for the judge who undertakes to “creatively interpret” the Constitution, an approach expressly celebrated by future Justice Ruth Bader Ginsburg. Continue Reading →

Originalism for Me But Not for Thee

by Mike Rappaport / 1 Comment

Filed Under: , ,

Print Friendly

Peter Martin Jaworski (Georgetown University) has posted Originalism All the Way Down: Or, the Explosion of Progressivism (Canadian Journal of Law and Jurisprudence, Forthcoming) on SSRN.

Here is the abstract:

At least on its face the very same problems of interpretation apply to the written judgments of the Supreme Court as apply to written constitutions and statutes. Whenever the meaning of a ruling, or some part of it, is not immediately apparent — maybe because the still-standing precedent is decades old and written in a manner that would now be anachronistic, or because the Justice writing the opinion was laconic — should we try to discern what the Justices intended or meant to say? Should the guide, instead, be what a reasonable person would understand by the text at the time of the promulgation of the relevant ruling? If the ruling still stands, but is decades old, shall we breathe life into it by reading it in accordance with contemporary values? Shall we make use of records of oral argument, or what Justices may have said extra-judicially, or will we restrict ourselves to the text of the ruling alone? Continue Reading →

Through the PRISM Glass

by Greg Weiner / 1 Comment

Filed Under: , ,

Print Friendly

In the last several years, a U.S. citizen has had an infinitely higher chance of being killed by a Mexican drug cartel than by either a foreign- or domestic-bred terrorist.  These cartels are sophisticated networks that depend on high-tech communications.  Their roots run deep into American society.  They are international in scope.  They target civilians indiscriminately.  Surely programs like PRISM could help to identify their communications, suppliers and customers and generally disrupt their operations.  Why not—on the general theory that PRISM is justifiable because it saves American lives—turn the NSA loose on them? Continue Reading →

Politics is the Mind Killer: Rational Reasons for Being a Political Hack

by Mike Rappaport / 4 Comments

Filed Under: , ,

Print Friendly

Politics is the Mind Killer. This is the title of one of my favorite posts on the web. In this post, Eliezer Yudkowsky talks about how people seem to be so irrational when it comes to politics. In two posts, I hope to talk a bit about this.

One way that we exhibit irrationality about politics is by behaving inconsistently. We often come across as partisan hacks. How can we distinguish between a principled person and a partisan hack? This is a tough question. But at least one way is to determine whether one is switching one’s position when the other party is doing the thing one dislikes. Many Republicans opposed large government, but still supported George Bush’s expansion of Medicare drugs. Many Democrats opposed George Bush’s wars in Iraq and Afganistan, but do not criticize Obama’s actions in Afganistan. This makes one look like a partisan hack.

My guess is that these people do not perceive themselves as partisan hacks. If one confronted them with the evidence, how might they respond? One possible justification is that the liberal trusts the liberal President more. And therefore he gives the liberal President the benefit of the doubt. If President Obama is ordering these national security activities, he must have a good reason for it.

Another justification might be that the conservative is less inclined to criticize the conservative President, because he wants the conservative President to remain in office. While President Bush behaved in a liberal way by exanding Medicare concerning prescription drugs, this compromise might have been thought to have been necessary for the President to maintain popularity and stay in office – and therefore to secure other conservative programs.

Thus, there were rational reasons for these people to support their President, even though they might otherwise have disagreed with his actions on policy grounds.

Libertarians are known as being especially principled. While there are many possible explanations for this aspect of libertarianism, one possibility raised by this post is simply that libertarians are rarely in power. Thus, they do not give their leaders the benefit of the doubt and they do not make compromises to stay in power.

In my next post on this subject, I want to think a bit about some of the nonrational or preference based reasons for acting like a hack.

Is the European Central Bank Constitutional?

by Michael S. Greve / 1 Comment

Filed Under: , ,

Print Friendly

Today (Tuesday) and tomorrow, Germany’s Federal Constitutional Court (FCC) will hear argument in yet another case over yet another innovation adopted by the EU in the wake of the continuing sovereign debt crisis. Cases of this sort have become annual events. In 2011, the FCC dealt with the Greece bailout; in 2012, with the European Stability Mechanism (ESM). The key issue this time around is the European Central Bank (ECB) and more precisely, the permissible scope of its “outright monetary transactions” (OMT)—that is, bond purchases or sales in secondary markets, or what we call “Open Market” transactions. No dramatic decision is to be expected—certainly not before September, when Germany goes to the polls. (By uniform consensus among the European elites, the EU project is too important to be injected into national electoral politics.) Still, the case is worth watching, both because the financial markets have the usual jitters and because the case highlights, yet again, increasingly disturbing features of the European project. Continue Reading →

1 2 3 4 5 6 7 8 »