A Bien Pensant Pope

Pope Francis waves from the Speakers Balcony at the U.S. Capitol building following his speech to a joint meeting of Congress (Photo By Douglas Graham/CQ Roll Call).

The Pope’s recent address to a joint session of Congress was greeted ecstatically, though (or perhaps because) it was notable mainly for its secular rather than for its religious pieties. It was the speech of a politician seeking re-election rather than that of the spiritual leader of a considerable part of mankind; as such, it seemed like the work not of a man intent upon telling the truth, however painful or unpopular, but that of a committee of speech-writers who sifted every word for its likely effect upon a constituency or audience, appealing to some without being too alienating of others.

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The Price of Civilization

children and dead

Is it possible to have civilization without killing?

J.R.R. Tolkien and George Martin approach this question in very distinct ways but they seem to agree the answer is “no.” Both believe that civilization needs the office of the knight: Because some seek power maliciously, others must unite ferocity and gallantry. “Fantasy” may be their genre, but there is a certain realism that runs through the civilizational stories these two authors have produced.

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Don’t Further Politicize the Court

Rick Hasen has called for making Supreme Court appointments  an important part of 2016 political campaign. What is distinctive about his argument is that he drops all pretense of appointing justices based on their jurisprudence or methods of legal analysis. He just wants a series of left-liberal results that he characterizes as civil right decisions, although some of these results, like overruling Citizens United, actually take away civil rights exercised against the majority. He wants to further politicize the Court.  He is kind enough to quote me as arguing for depoliticization: The Court should act apolitically by applying the same formal methods in highly contested constitutional cases that it does in garden variety cases, such as the bankruptcy code.

Hasen dismisses this possibility and in particular the most important tool for doing so– originalism. But his arguments are very weak. He observes that at times Scalia and Thomas—both originalists—disagree. But of course no methodology eliminates all disagreement, even if  it depoliticizes that disagreement by forcing justices to look at the empirical facts rather than to their preferences. And in any event Scalia and Thomas have some of the highest rates of agreement of any two justices on the Court.

Hasen also argues that terms like equal protection are sufficiently vague to permit alternative legitimate methods of giving effect to the Constitution.  But he makes no effort to legitimate or even describe these methods other than to argue that they can help achieve what he views as good political results.

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A Nonoriginalist Challenge to Birthright Citizenship for Illegals – Part I: Embracing Legal Immigrants

With immigration – both legal and illegal – being the subject of debate these days, I thought I would blog a few posts on the issue generally and on the Fourteenth Amendment’s Citizenship Clause in particular.  To sum up my positions, I strongly favor legal immigration, I believe the original meaning of the Constitution requires birthright citizenship for the children of illegal aliens born in the United States, but I believe that a reasonably strong nonoriginalist argument can be made against such birthright citizenship for illegal immigrant children.

To begin, I favor legal immigration. The United States is a country of immigrants and it has been greatly enriched by such immigrants. The nation should allow large number of immigrants to enter its borders. Sadly, the welfare state probably makes it necessary to allow fewer immigrants in, but still large numbers should be admitted.

Not only do I favor immigrants based on public policy reasons, I also sympathize with them. I think of myself as coming from a family of immigrants, with three quarters of my grandparents being immigrants. And my wife, and her family, are also immigrants.

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The American Revolution and the Pamphlet Debate: A Conversation with Gordon Wood

Pulling Down the Statue of King George III at Bowling Green in Lower Manhattan.This next edition of Liberty Law Talk is a conversation with the great American Founding historian Gordon Wood on a new two volume collection entitled the American Revolution: Writings from the Pamphlet Debate that he has edited for Library of America. We discuss these foundational debates between British and colonial statesmen that contested the nature of law, sovereignty, rights, and constitutionalism and would serve as the basis of the revolution and lead to the creation of America.

Freedom Is the Condition to Living Well

Statue of Liberty detail, New York

What is the relationship between law and ethics? It’s one of the trickier questions.

Sometimes we think they’re the same thing. In government, most ethics committees really investigate people who might have broken the law. The same goes for university life: A violation of my college’s code for students when it comes to sex is also pretty much a crime. To be ethical is to be law-abiding.

Well, that’s a low standard, even if it’s one lots of politicians and business leaders can’t meet. Everyone knows that sexual ethics is about more than safety and consent, and political ethics is about more than not embezzling or not lying under oath.

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Money Can’t Buy Me Love


The 2016 presidential contest will put the lie, but probably not the kibosh, to the case for campaign finance regulation.  The contest’s results thus far—which, granted, is not very far—indicate what common sense says: money cannot protect candidates for whom citizens do not want to vote, nor are excessive sums necessary for those to whom the electorate is drawn.

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The Association of American Law Schools Needs More Political Diversity


In the week that a new organization, Heterodox Academy, was established to press for more ideological diversity in academic life, the learned association in my own profession showed how much it is needed. The Association of American Law Schools (AALS) sent around a notice of its prospective annual meeting, highlighting its most prominent speakers. Of the thirteen announced, none is associated predominantly with the Republican party, but eleven are associated with the Democratic Party. Many are prominent liberals. None is a conservative or libertarian.

Five are judges, including Stephen Breyer, all appointed by Democrats. Another is the incoming Senate leader of the Democrats. Three others contributed predominantly to Democrats. One for whom no contributions could be found held a fund raiser for President Obama. Another worked for the Democratic side of the House Judiciary Committee during the impeachment of President Clinton.

It is true that Michael Bloomberg is also speaking. He has been at various points a Democratic and a Republican and is now an independent. Perhaps the AALS thought that a single person could create diversity through his many political avatars! But seriously, Bloomberg, who has crusaded for gun control and limitations on permissible ounces in a sugary soda, does not resemble a conservative or libertarian. He ran as a Republican in 2001 for Mayor of New York City because it was the nomination he could acquire.

Now my point is not to disparage the highlighted speakers. They are all eminent men and women.

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The Horror of Morrison v. Olson – Part III: There is No General Separation of Powers

I want to conclude my posts on Morrison v. Olson by discussing the majority’s treatment of the separation of powers issue generally.  As I mentioned in my prior posts, the majority approved the judicial appointment of the Independent Counsel and the restriction on the President’s removal of the IC through specific doctrines that involved appointment and removal.  But then after approving these aspects of the statute (as well as some others), the Court examined what it regarded as the overall separation of powers issue: the Court asked whether these provisions together were consistent with the separation of powers generally. This is…

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Confessions of a Member of the One Percent

Rich person throwing hand drawn car yacht and house

Passing a kiosk in France recently, I noticed a magazine on the rack that promised to reveal to the multitude the secrets of the One Percent. The One Percent in question was, of course, that small and now infamous proportion of humanity that is separated from the 99 Percent by its wealth and, presumably, happiness and all other desirable things.

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