Why Berkeley and BYU Should be Loud and Proud about It

The University of California, Berkeley emerged again as a bastion of protest against perceived fascism. Alt-Right leader Milo Yiannopoulos was invited by the Berkeley College Republicans to speak on the campus, only to be blocked by protestors and violent rioters. President Trump, in true late-night form, tweeted: No free speech, ‘NO FEDERAL FUNDS?’

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The President’s Conduct Is No License for Others’ Unlawfulness

On this President’s Day there is a lot to criticize about the behavior of our current President.  Although other Presidents have certainly not conducted themselves with dignity (think Bill Clinton), President Trump’s demeanor and decorum during his news conference was more a throwback to his days as a reality TV star than a performance befitting a head of state.  Presidential dignity promotes the stability of our union.

And while other Presidents have told more consequential falsehoods (think “If you like your plan you can keep it”), few have made statements that are so transparently false at the time they are made, such as the President’s claim about the relative strength of his electoral college victory. Presidents must rely on their credibility to take unpopular and contestable actions in times of crisis and President Trump is in danger of squandering his.

Some of the President’s executive orders, like that on immigration, have been issued without sufficient deliberation and his remarks in their defense have been intemperate insults rather than measured criticisms of the substance of their rulings.

But the behavior of the President is no license for lawlessness and the violation of long standing political norms. Yet that is what some of his opponents have claimed with the support from intellectuals.

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Caveat Venditor & Market Failure in the Academic Job Market

adjunct faculty

The Chronicle of Higher Education published the speech Kevin Birmingham delivered last October upon receiving the Truman Capote Award for his book, The Most Dangerous Book: The Battle for James Joyce’s Ulysses. In his speech, Birmingham decried the widespread employment of adjunct faculty members, particularly in the humanities, as “exploitation” and “injustice.”

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Split and the Snowflake Generation

Film Review Split

Horror movies don’t get the respect of dramas, comedies, or even superhero movies, but in some ways they are the most daring kind of storytelling. Unlike romantic comedies or action movies, horror films are allowed to be unpredictable. Characters we’ve come to like bite the dust. Everybody knows that Spider-Man is not going to go down but in The Exorcist (1973), the leading character, a priest, does. In Drag Me to Hell (2009), a young woman who was heartless to a poor old woman gets sucked into the netherworld by demons. In Sinister (2012), one of my favorites, a writer played by Ethan Hawke realizes too late that his fascination with watching grisly movies he found in the attic of a new home is letting a sinister force into his house. That sort of thing won’t happen to Captain America.

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Constitutional Norms Matter

Washington DC Capitol dome close up with American flag flying

American constitutionalism is famously about written rules. Our constitutions are filled with “thou shalt nots.” So much so that many unfortunately jump to the conclusion that the entire point of a constitution is to impose limiting rules. And certainly for several decades, the American experiment with written constitutions stood out for the ways in which it bound government officials with legally enforceable rules.

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America, What’s Left of It: A Conversation with Patrick Deneen

conserving americaPatrick Deneen joins this edition of Liberty Law Talk to discuss his latest book, Conserving America? Essays on Present Discontents.

The Ninth Circuit’s Astounding Reasoning

A hallway in the James R. Browning Courthouse of the 9th Circuit Court of Appeals.

Imagine a President encountering legal headwinds as he took action to preserve the safety of the nation. Imagine a citizenry forced to consider the justifications of officers of two separate branches of the federal government, both claiming institutional powers of review.

No, this isn’t last week, but rather a constant state for 1930s Supreme Court jurisprudence, during which Justice George Sutherland (1862-1942) served as model of probity.

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Democrats Need a New Supreme Court Nomination Playbook

The old Democratic playbook on Republican Supreme Court nominations will no longer work for the Gorsuch confirmation hearings. Democrats used to spend much of their time talking about the importance of precedent and demanding that nominees follow it. The point, of course, was to protect one particular precedent above all—Roe v. Wade—and more generally keep alive the precedents favoring liberalism that were minted in the Warren and to some extent Burger  and even Rehnquist eras.

But this approach no longer fits the times. One reason is multiplication of precedents that the Democratic base wants overruled. Citizens United is the best example. Hillary Clinton was even going to make its overruling a litmus test of her judicial appointments. But there are others too. Senator Schumer has already complained in the context of this nomination about Shelby County v Holder, which found a portion of the Voting Rights Act unconstitutional. And few cases enraged the left like Hobby Lobby, which held that closely held corporation had religious freedom rights under the Religious Freedom Restoration Act.  More generally, given that liberals have not been a majority on Court in several generations, there is growing body of precedent they do not like.

And much of the Democratic party too is changing to become more openly radical. Thus, its base is not satisfied with simply standing on past precedent while hoping that the Court will drift their way. It wants the Court to be a more active partner in progressive social change.

This creates a dilemma for Democrats. The very important advantage of prioritizing precedent is that that appears to make them adherents of following the law, where the law is defined as the past case law of the Supreme Court.

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An Institutional Analysis of the Present Political World

What are we witnessing these days?  Clearly we are witnessing a war of sorts, but who is it between and what are the weapons?  In a broad sense, it is between conservative and liberals, but only in the broad sense.  Many conservatives oppose Trump, and many Democrats in the rust belt supported him.  So it is complicated. Perhaps it is easier to look at the matter from an institutional perspective.  Which institutions are supporting Trump and which are opposing him? If one looks at American society, it is clear that most of the governments are controlled by Republicans.  At the federal level,…

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When Faction and Solidarity Intersect

Two groups of business people. Isolated over white background

In The Federalist #10 James Madison famously observes that the “most common and durable source of factions has been the various and unequal distribution of property.” But Madison discusses numerous other sources of faction as well:

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