Liberty Law Blog

Did Thatcher Leave a Legacy of Freedom?

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ThatcherIt was Robert Louis Stevenson who said: “Man is a creature who lives not upon bread alone but principally by catchwords.” Refining our thoughts with qualifications can get tiring, so we recur to slogans to capture a reality that is almost always complex.

Alas, what should be the shorthand of thought often turns out to be the short-circuit of thought. When we think of Margaret Thatcher, for example, we think of free-market reforms—whether we are for such reforms or against them, whether we welcome or abominate them.

Is this right? Was Mrs. Thatcher’s legacy one of free markets, of laissez-faire? I am far from sure. Continue Reading →

Originalism and McCutcheon

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Mike Ramsey writes that the opinions of the plurality and Justice Thomas in McCutcheon v. FEC do not employ an originalist methodology. Regarding Justice Thomas’s opinion, Mike writes:

The question is not whether, as a matter of some abstract principle, contributions are or are not speech.  I doubt there is a single answer to that question, and I doubt even more strongly that we can reach agreement upon one.  But in any event, that isn’t the question an originalist asks.  The question is (or ought to be) whether “the freedom of speech” in the founding era included campaign contributions.  (I’m not sure we can answer that question either, based on the historical record, but that is a separate problem). Whether the founding era’s view makes analytic sense to us (or to any individual Justice) should be irrelevant.

Mike is certainly correct that one needs historical evidence and originalist analysis about this matter.  Unfortunately, there is relatively little written on the original meaning of the freedom of speech, with the principal exception in recent years of several pieces by Eugene Volokh.  (I have toyed with writing on the subject, but have not done so as of yet.)  It is difficult for the justices to write originalist opinions without such scholarship.  Thus, they either rely on doctrine, as Chief Justice Roberts’s plurality opinion does, or argue for a change in doctrine, assuming the general doctrinal framework, as Thomas’s concurrence does.

How would one analyze the question from an originalist perspective?  Let’s put aside for now whether there is an enumerated power to support the legislation, an issue I plan to discuss in a future post.  Do the aggregate limitations at issue in McCutcheon abridge the freedom of speech? Continue Reading →

Is the Roberts Court the Least Activist Court in History?

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Earl Warren

Chief Justice Earl Warren

John Roberts

Chief Justice John Roberts

A few months ago, Justice Ruth Bader Ginsburg explained why she needed to stay on the Court in part by claiming “if it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history.” Justice Ginsburg was needed to help lead the dissenters and push back against judicial activism. It is a nice story, but has little relation to the truth. In fact, the Roberts Court has a credible claim to being the least activist Court in the history of the United States.

Continue Reading →

Thick Originalism as a Constraint on Ideology

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My last post described the most important recent trend in originalism—the thickening of meaning by reference to the pervasiveness of the Constitution’s legal background. Legal rules at the time of the Framing help clarify its ambiguities and make more precise its occasional surface vagueness. The most important implication of the thickening of originalism is to challenge ideologically comprehensive originalism—the use of an ostensibly originalist vision of Constitution to suggest that it almost invariably favors one ideology.

By putting the Constitution’s legal background front and center, thick originalism makes a comprehensive victory for any ideology less likely for three reasons. First, the legal background is a complex one given by the tradition of law, including the common law and in some cases the law of nations over centuries. This law is very unlikely to line up with any contemporary ideology, not least because of complexity and its accretion in a past even more distant than that of the Framing itself.

Second, in one sense the common law background of the Constitution is distinct from and in opposition to the Enlightenment thinking that gave rise to modern ideology. Bernard Bailyn, the famous historian of the ideas behind the American Revolution once stated: “English law—as authority,  as legitimizing precedent, as embodied principle, and as the framework of historical understanding—stood side by side with Enlightenment rationalism in the minds of the Revolutionary Generation.”

The Constitution itself was product of those same minds caught between the traditions of the common law and the axioms of the Enlightenment. Continue Reading →

Post-Modern Marriage and Our Relational Longings

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Marriage and parenting may be disappearing in large parts of sophisticated Europe and Japan, but not so much among our high achievers. It’s true that our elitists don’t think that marriage is required for sexual enjoyment or even to validate romantic love. They’re accepting of same-sex marriage to avoid being judgmental or hateful. Marriage equality is part of “multicultural diversity.” And so it’s an issue about which it’s no longer possible for decent people to have diverse opinions.

Our meritocracy based on productivity embraces diverse lifestyles, and nobody believes that women were born to be anything but free and equal individuals just like men. And so parenthood and marriage have to be freely chosen, allegedly part of that mysterious power that one has to define one’s personal identity. Except when it comes to the responsible imperatives of personal productivity, the talk of our successful sophisticates often seems stuck in the Sixties. But not so much their behavior. Continue Reading →

The Road to Progressive Dhimmitude

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Barack Obama Sworn In As U.S. President For A Second TermIn the recent Hobby Lobby Case, Justices Elana Kagan and Sonia Sotomayor said that corporations that don’t want to pay for abortions should simply not provide any health insurance: “But isn’t there another choice nobody talks about, which is paying the tax, which is a lot less than a penalty and a lot less than — than the cost of health insurance at all?” Dissenters from the official line must pay a tax. That sounds familiar. Continue Reading →

Constitutional Politics in the States

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Zackin book cover

I have just returned from the annual confab of the Midwest Political Science Association. The MPSA is not my favorite haunt (the folks there tend to like putting the science into political science), but I was delighted to be part of a panel discussion of the important new book by Emily Zackin, Looking for Rights in All the Wrong Places.


Continue Reading →

How I Learned to Stop Worrying and Love Substantive Due Process – Sort of

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Robert H. Bork

Robert H. Bork

It is something of a rite of passage for the libertarian-minded to go through a flirtation with Ayn Rand. Her work is popular and accessible enough to lure students in at a young age and provide their first introduction to ideas on liberty. I went through a similar flirtation with Robert Bork. Continue Reading →

Thickening Originalism

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The most important recent development in originalism has been the recognition that the Constitution was not created ex nihilo but against a pervasive legal background. As result, its interpretative context is profoundly infused by law. This recognition has led to at least four different ways in which originalism has been thickened.

First, whole clauses in the Constitution are not comprehensible without understanding a complex body of preexisting domestic law, including rules of interpretation, of which most modern readers would be oblivious. A fine example of the importance of this approach is the article Preemption by Caleb Nelson. Here Nelson shows that the phrase “anything in the law notwithstanding” which appears at the end of the Supremacy Clause in Article VI, is not just verbal filler but a familiar kind of legal signal called “non-obstante” clause. It was added to the Constitution to block a rule of interpretation that required courts to harmonize prior statutes with subsequent statutes even if on their face there was an appearance in conflict. This discovery has real bite: it indicates that there is no general presumption against preemption.

Second, it is not only domestic rules that form the background for fixing constitutional meaning. In The Law of Nations as Constitutional Law, Anthony Bellia and Brad Clark suggest that provisions, like the President’s power to send and receive ambassadors, and the Congress’s authority to declare war, can be understood only by reference to background principles of the law of nations. This article too has much contemporary relevance since it justifies application of the settled principles of the law of nations to override state law to protect such Article I and Article II powers of the federal government.

Two other examples of thickening originalism may even have more far reaching consequences because they are not focused on specific clauses, but are of general application. Continue Reading →

Wills and the Individual Conscience

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As David Conway has noted in this space, the past week has seen quite a brouhaha in the United Kingdom over the Law Society’s decision to issue guidelines for sharia-compliant wills.

The controversy has sparked commentary here as well. But there appears to be considerable confusion on this matter, resulting in some very ill-considered assertions—ones that could backfire on time-honored conservative principles. The message here must remain: “Look before you leap.” Continue Reading →