Liberty Law Blog

ARTs and the Reconceived Family

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For some time now, three of the most powerful forces in society—technological science and the moral values of equality and freedom—have been applied to the redefinition and reworking of a fundamental human and social institution: marriage and the family. Same-sex marriage is the most recent wave in this transformative endeavor. Continue Reading →

Minding America’s Business

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We read in the Wall Street Journal (April 8, 2014) that the nation’s debate on how we Americans ought to deal with problems arising from China, Russia, and the Muslim world will be set by the contrast between such as Senator Rand Paul, who “is struggling to reconcile a libertarian’s skepticism of foreign entanglements with a party that still holds a good chunk of interventionist sentiment – and Texas Sen. Ted Cruz, aligning himself more with the party’s hawks, has called him out on the gap.”

We do not know whether this language, defining as it does international affairs as a choice between “interventionism” and “isolationism,” between “leading the world” and “leading from behind,” between military power and diplomacy, reflects what is in the mind of Rand Paul or Ted Cruz. Whether either of these contenders for the presidency have read or thought outside the framework set by this language, which reflects the mentality of our ruling class, is less important than it is for us to realize that this intellectual framework is false to reality and warps our capacity to understand the choices that face us in foreign affairs. Continue Reading →

Charles Koch’s Jefferson

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JeffersonTo whom does Jefferson belong in today’s political debates? The reality, it seems, is everyone. Quotes can be found on almost any topic expressing virtually any sentiment, in large measure because unlike so many others of his day, Jefferson saved everything.

That’s why I am rarely bothered by either side of the political spectrum quoting him. What does bother me, though, is when people who ought to know better think they can claim Jefferson, exclusively, enlisting his pen in their ideological causes.

Richard Eskrow ought to know better. Continue Reading →

David McCulloch’s 1776

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Recently, I read McCulloch’s book on the first year of the Revolutionary War and I wanted to recommend it to readers.

The book is interesting throughout, with some unexpected discussions such as that of the debate in Parliament about whether to engage in war with the colonials. The book focuses on three principal events – the siege of Boston, the New York City conflict, and the New Jersey campaign.

While the book is called 1776, it is really focused on George Washington’s 1776. It describes how Washington’s army secured a limited victory in Boston (despite Washington’s desire to pursue a different strategy that probably would have been a disaster). It shows how Washington blundered in New York – both at Brooklyn Heights and Washington Heights – and nearly lost not only his army but the support of some of his principal officers. And then it concludes with Washington’s victories at Trenton and Princeton. Continue Reading →

Money Talks

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TEDtalksAmericans have always been strivers. Since at least the 19th century we have been eager to file into lecture halls to be talked at by experts. Those obnoxious-seeming TED talks that I’ve tried to avoid are not a new feature of our national life. As others have pointed out, TED’s great-granddaddy is the Chautauqua, named for the rural meetings at Lake Chautauqua in New York state, which began in the 1870s and became a nationwide circuit of lectures and instructional assemblies. Continue Reading →

Why Clinton’s Redistribution was Worse than Obama’s

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Redistribution that is not actually felt by the losers at the time of its enactment is one of the most insidious features of the political order. Such legislation gives the illusion of a free lunch and disarms potential opponents who fail to recognize the costs that are coming. At least taxing Peter to pay Paul causes Paul immediate harm and prompts others to fear they may someday take Paul’s place. In contrast, silent redistributive legislation and regulation wreak havoc on democracy by undermining deliberation.

In this respect Bill Clinton was a much more dangerous politician than Barack Obama. To be sure, the current President never acknowledged that redistribution was one of the main purposes of Obamacare. Nor was he forthright about the policy’s redistributive effects. Misleading prospective losers, he promised, “If you like your plan, you can keep it.” But Obamacare’s costs have become clear relatively quickly, and the President’s party will pay a political price for them. Furthermore, Obamacare institutes new taxes to pay for some of its costs, even if these taxes were not transparent increases in the IRS tax rate schedules.

By contrast, one of Bill Clinton’s biggest redistributive scheme was almost completely hidden from the public eye. Continue Reading →

Originalism and McCutcheon: Part II — Possible Alternative Bases for Protecting Contributions

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In my first post, I discussed how one might conclude that the meaning of “abridging the freedom of speech” could cover laws that prohibited or restricted gifts earmarked for purposes of speech. In this post, I want to discuss a couple of alternative ways that one might use to protect such campaign contributions: (1) freedom of association and (2) contributions as the speech of the contributor. While I believe the arguments in my first post provide possible ways of protecting certain campaign contributions under the original meaning of the First Amendment, I am skeptical that either of these alternatives provide strong support for such protection.

The Supreme Court has for at least the last half century recognized a doctrine of freedom of association. People often speak about this doctrine as if it were a distinct right. But an examination of the First Amendment reveals no express right to “freedom of association.” Thus, it is not clear how the First Amendment protects freedom of association.

It is possible that one might be able to derive some kind of freedom of association right from the original meaning of the First Amendment. Some people argue that freedom of association derives from freedom of speech whereas others claim it comes from freedom to petition and assemble. I could imagine an argument for freedom of association that is similar to the argument I made in my first post (for how one might derive protection for contributions for speech purposes). But the point is that deriving this protection would itself require a good deal of work and is therefore unlikely at this point to provide the needed originalist support for constitutionally protecting contributions.

Another possible basis for protecting campaign contributions is to view them as the speech of the contributor. That is, the contribution expresses the contributor’s support for the candidate. I am skeptical of this argument. I used to question whether symbolic conduct was speech, but Eugene Volokh has provided evidence that certain types of symbolic conduct, such as burning people in effigy, constituted speech for purposes of the First Amendment. But that does not mean all conduct did and I doubt that giving money is properly viewed as symbolic.

The Fog of Pragmatism

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Jonah Goldberg, as is his wont, notes that the Lefties always seem to think that “ideology” is what other people have. People who agree with them are “reasonable” and “practical.” The latest example of this conceit is Ezra Klein’s new blog. As Goldberg notes, Lefties:

Cheat by denying their ideological motivations — even to themselves. Indeed, it is a constant trope of liberalism to believe — dogmatically, ideologically — that they are just empiricists and fact-finders doing what is right and good in a battle against dogmatic ideologues on the right. The more honest approach would be to simply admit your biases upfront and defend the principles that inform your biases. Instead they prefer to make arguments grounded in the assumption that the liberal “frame” is really a perfect window onto reality.

FranklinI often teach Benjamin Franklin’s Autobiography. And one passage always strikes me as particularly apt in describing this phenomenon. Discussing the Dunkers, Franklin has a nice metaphor for this phenomenon:

This modesty in a sect is perhaps a singular instance in the history of mankind, every other sect supposing itself in possession of all truth, and that those who differ are so far in the wrong; like a man traveling in foggy weather, those at some distance before him on the road he sees wrapped up in the fog, as well as those behind him, and also the people in the fields on each side, but near him all appears clear, tho’ in truth he is as much in the fog as any of them.

The more things change, the more they stay the same.

One of the “Most Activist Judges We Have Right Now”

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When Justice John Paul Stevens retired from the U.S. Supreme Court in 2010, Senate Judiciary Chairman Patrick Leahy complained that “We have right now a very, very activist, conservative activist, Supreme Court. . . . I would hope that the president’s nominee can get us back away from that.” Leahy was, presumably, quite happy with the nomination of Elena Kagan to succeed Stevens.

Justice Ruth Bader Ginsburg

Justice Ruth Bader Ginsburg

Justice Clarence Thomas

Justice Clarence Thomas

Justice Samuel Alito

Justice Samuel Alito

In her short time on the bench, Justice Kagan has closely followed the voting pattern of Justice Ruth Bader Ginsburg. On the other hand, Justice Clarence Thomas has been singled out by Senator Leahy as one of the “most activist judges we have right now,” and by activist he meant judges who “would strike down a law passed by the people and substitute something of their own,” and Justice Samuel Alito has been denounced as a pivotal figure in the “divisive” and “activist conservative bloc” on the Roberts Court.

So which of these justices most often votes to strike down laws “passed by the people”? The answer is

Continue Reading →

Indiana’s Current Dilemma: College Readiness versus STEM Readiness

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In my previous post, I discussed the true meaning of Common Core’s “College Readiness” and I showed—using the words of Common Core’s own authors—the low level of its college-readiness definition and of its high school content in mathematics.

But what about the plus (“+”) standards? As already mentioned, those “+” standards go beyond what every student is supposed to study. Perhaps, if students take all those, too, they will be prepared to study calculus in college and have a reasonable chance of success in STEM? No such luck, says Jason Zimba, the Bennington professor and lead writer of the math standards. Continue Reading →