The much-ballyhooed $13 billion settlement between the Department of Justice and J.P. Morgan looks like an EU Treaty: pages of burble, plus various annexes. DoJ press release with full text etc. here. As near as I can tell, JPM admits to having had sex in a federally sponsored whorehouse—with private parties, government parties, and parties in between (Freddie and Fannie). JPM’s partners had no idea what was happening to them; they innocently relied on JPM’s assurances that the firm was at all times wearing its due diligence condom. I express no view on the merits (except that in my book they’re all guilty and deserve what’s happened to them). Two questions, though: Continue Reading →
Liberty Law Blog
Same sex marriage is already not accorded legal status in Indiana. So why all the fuss?
For the uninitiated, the issue of same sex marriage is dominating Indiana’s political discourse. Opponents of legally defining same sex unions as marriages are pushing a state constitutional amendment that would prevent Indiana from giving legal recognition to same sex marriage. Some versions of the amendment would prevent legal sanction of civil unions as well. Although Indiana already has statutes defining marriage as between a male and a female, many fear that, one day, the courts may manufacture a constitutional right to same sex marriage. In several states, including Iowa and most recently New Jersey, state courts declared same sex marriage a constitutional right, taking this important public policy issue issue away from the legislature or the voters. The legitimate worry is that Indiana could be next. Continue Reading →
The sesquicentennial of the Gettysburg Address on November 19 requires us to ponder the legacy of the Civil War and Lincoln. This is not some nostalgic romp reenacting Pickett’s charge, but perhaps the decisive political moment of our times. For the best, President Obama will not participate in the official celebration.
This uncharacteristic modesty is appropriate, for Franklin Roosevelt already delivered the Progressive interpretation of Gettysburg and Lincoln’s remarks on the 75th anniversary of the battle, July 3, 1938. FDR’s interpretation of the Address and of the meaning of liberty, equality, and constitutionalism generally have so permeated contemporary thinking that we must confront the original source of these errors in order to free ourselves to understand Lincoln as he thought and acted. Continue Reading →
When ordinary Americans reflect at all on their political tradition, the Gettysburg Address invariably stands at the center of those thoughts. Yet there is reason to doubt whether it ought to occupy the same rarified air as the Constitution, the Declaration of Independence, the Federalist, or other celebrated documents in American history. The Gettysburg Address has displaced these other works from their centrality in the American mind, but it shouldn’t. Continue Reading →
On the afternoon of November 19, 1863, President Abraham Lincoln delivered a brief address at the dedication of a national cemetery on Gettysburg’s battlefield. The solemn ceremony took place four and a half months after Union forces turned back the army of the Confederate States on July 1-3 in the bloodiest engagement of the Civil War. The battle claimed the lives of nearly eight thousand soldiers. Lincoln’s carefully crafted address was barely 272 words in length and required approximately two minutes to deliver. It is widely acclaimed as one of the most poignant and eloquent speeches in American letters. Continue Reading →
Recently, Mitch Berman and Kevin Toh have published an article entitled “On What Distinguishes New Originalism from Old: A Jurisprudential Take.” While I don’t know Toh’s work, Berman is a well respected scholar who is a critic of originalism, having penned a widely read article entitled “Originalism is Bunk.” I like Mitch, but I have serious concerns about this new article and so I thought I would write a couple of posts about it.
The article covers a lot of ground in relatively brief space and is quite dense, but its main points can be summarized. A common theme in originalist scholarship is to draw a distinction between the old and the new originalism. The most common distinction is that the old originalism advocated original intent and the new originalism supports original public meaning. Berman and Toh argue instead that the old originalism focused on theories of adjudication – that is, how judges should decide cases – whereas the new originalism is concerned with theories of law – that is, how the law of the Constitution should be understood.
Both aspects of this claim are interesting and the assertion about the new originalism seems novel. Yet, in both cases, I think the claims are mistaken. Finally, Berman and Toh also discuss the theory that John McGinnis and I defend in our new book. I also believe that Berman and Toh mischaracterize that theory.
The New Originalism
Let me start with the Berman and Toh claim that the new originalism is defined by its focus on theories of law. This is a startling claim. While Berman has in his own work been interested in such theories, that is not how new originalist theories have been understood. Nor, in my opinion, is that what such theories are about. Continue Reading →
Earlier today, the Supreme Court denied cert in Martin v. Blessing, involving U.S. District Judge Harold Baer’s (S.D.N.Y.) habit of selecting class counsel who promise to reflect a racial and gender “matrix.” (Earlier posts here and here.) Justice Alito’s separate statement appears here. Judge Baer appears to be one of a kind, and the Supreme Court does not sit as a court of error revision—even when, as here, the “error” is blatant illegality.
It is incumbent upon the Second Circuit, Justice Alito concludes, to tell Judge Baer to cut it out. The signal should suffice. In a Circuit that’s off the reservation on many class action matters, it probably won’t.
No one would contradict me, I suspect, if I were to assert that human beings are not always wholly consistent. Indeed, those who are much more consistent than average are apt to excite our fear or condemnation rather than our admiration. To be faithful to a bad principle is worse than having no principle at all. And, as Emerson said, consistency is the hobgoblin of little minds.
Yet by what other law than that of non-contradiction are we supposed to argue? Argumentation cannot just be a cacophony of incommensurable assertion, with the one who shouts loudest, speaks longest or employs the best phrases, taking the honors. And this is so even if Gödel was correct, and there is no entirely consistent system of logic without necessity to assume, without proof, the truth of some of its suppositions.
Yet there are contradictions and contradictions. I mention this because I am going to write about the death penalty, a subject about which almost everyone is contradictory, including me. Continue Reading →
Well before incurring 2013’s embarrassments vis a vis Egypt, Syria, Saudi Arabia, Israel and Iran, Obama &co. had lost confidence in their ability to deal with the problems coming America’s way from the Middle East. Long since having blurred the lines between “politics as a game of perception and policy as the pursuit of national objectives” (Bret Stephens), and trying to cut their PR losses at home, the Obamians decided to “pivot” US policy away from the Middle East to more tractable and important regions – principally the Western Pacific. Continue Reading →
The University of San Diego’s Originalism Center will be holding its Fifth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference on February 21-22, 2014 at the University of San Diego Law School. The paper presenters and commentators for the conference are now available and I thought I would share it with the readers of this blog. Over the last several years, the conference has discussed some of the best work on originalism being produced by scholars.
1. Christopher Green (Mississippi), Loyal Denominatorism and the Fourteenth Amendment: Reconstruction History
Commentator: John Harrison (Virginia)
2. Stephen Sachs (Duke), Originalism as a Theory of Legal Change
Commentator: Richard Fallon (Harvard)
3. Larry Solum (Georgetown), The Fixation Thesis: The Original Meaning Of The Constitutional Text
Commentator: Mitch Berman (Texas)
4. Ilya Somin (George Mason), The Original Meaning of Public Use
Commentator: Michael McConnell (Stanford)
5. Yvonne Tew (Columbia), Originalism at Home and Abroad
Commentator: Bradley Miller (Western Ontario)
6. David Upham (Dallas), Interracial Marriage and the Original Understanding of the Privileges or Immunities Clause
Commentator: Jack Balkin (Yale)
7. Christopher Yoo (Penn), The Unitary Executive at the Constitutional Convention: James Wilson and the Creation of the American Presidency
Commentator: Jack Rakove (Stanford)
In addition to the authors and commentators, the members of the Originalism Center should also be in attendance. The members include:
Larry Alexander, Laurence Claus, Donald Dripps, Michael Ramsey, Michael Rappaport, and Steven Smith.
The conference is open to the public and all scholars who are interested in originalism are invited to attend and participate in the conference by reading the papers and joining the discussion.