The Unjustly Neglected Roger Sherman: A Conversation with Mark David Hall

shermanThis edition of Liberty Law Talk is a discussion with Mark David Hall about American framer Roger Sherman who was the only framer to sign the Articles of Association, the Declaration of Independence, the Articles of Confederation, and the Constitution. At the Constitutional Convention, he spoke more than all but three delegates and helped forge the Connecticut Compromise. Yet his writings remain relatively obscure. To help rectify this is Liberty Fund's new volume entitled Collected Works of Roger Sherman, edited by Hall.

The Foreign Emoluments Clause I: Some Evidence of Historical Usage

The Foreign Emoluments Clause has received some attention recently in connection with President-Elect Donald Trump’s decision to maintain some of his business assets.  One question that arises is whether Trump’s businesses might conflict with the Clause if they engage in arms-length commercial transaction with a foreign government. One reason to believe the Clause would not cover President-Elect Trump is Seth Tillman’s argument that the Clause does not extend to the President.  But let’s put that to the side and examine whether the benefits from an arms-length transaction would constitute an emolument. The Clause provides: No Title of Nobility shall be granted by the…

Read More

No! The Electoral College Was Not about Slavery!

George Washington presiding over the Constitutional Convention of 1787 in Philadelphia.

The American people have learned much about the Electoral College since the November election. Much has been learned about the origins, evolution and contemporary functioning of our system of presidential elections. We have debated the merits of our system versus allowing a simple national popular vote. We have seen an unprecedented campaign to try to get electors to vote against their pledge. And some have tried to instruct us on the nuances of the Founding environment that created our unique electoral system.

But among all the good information and honest debates have arisen a misleading half-truth aimed at undermining the Electoral College.

Law professor Paul Finkelman ominously opines that Americans would be “disgusted” if they knew the real origin of the Electoral College was in protecting slavery.

Read More

An Originalist against Trump Has No Regrets

A couple weeks back, Mark Pulliam wagered that some of the Originalists Against Trump regretted signing the statement after they realized Donald Trump had won the presidential election. This didn’t sound right to me, but maybe that’s because I was one of the original Originalists Against Trump and I have no regrets. But Josh Blackman has recently reported, with support from Jonathan Adler, that “several signatories have had their regrets.” This surprises me, though it probably shouldn’t. The apparent source of personal regret is the reduced likelihood of receiving an appointment—presumably judicial—from the President. “If only I hadn’t signed that statement,…

Read More

Classical Liberal Resolutions for 2017: Part I

New Year concept - cheering crowd and fireworks

It has been a disorienting year for classical liberals. The presidential candidate of the more classically liberal of the two major parties took some positions wildly at odds with classical liberalism, like opposition to freer trade, enthusiasm for government intervention in corporate decision making, and hostility to some civil liberties.   He won the Presidency in part because of some of those positions.

But then the same candidate announced the nomination of  a substantially better cabinet from the classical liberal perspective than those Hillary Clinton would have appointed. It is through these generally decent appointees that he must largely govern, not by twitter.

He also shows every sign of following through on his commitment to appointing a justice sympathetic to enforcing the constitution as written and thus better implementing a charter broadly reflecting the classical liberalism born in the eighteenth and nineteenth century, although not of modern libertarianism. Once again the relative success of classical liberalism is made even clearer if potential nominees are not evaluated against a standard of utopian perfection, but compared to the result-oriented justices(s) that Hillary Clinton promised to appoint.

Here then are a few classical liberal resolutions for this strange era.

Read More

Top Content of 2016

Manchester By the Sea: Dark, Beautiful, and Real


Every person undergoes traumatic experiences. Their quantity and quality vary, but once suffered, these experiences are incorporated into the person, usually invisibly to the rest of us. When they are not hidden enough, we may wish a person would just get over it already. Yet we marvel, when a person calmly reveals some past trauma, at the human ability seemingly to tuck such things away.

Kenneth Lonergan’s magnificent film Manchester by the Sea—poignant, funny, tough—portrays the human limits of this ability.

Read More

Holding Israel to a Higher Standard

Recently, I heard a critic of Israel acknowledge that Israel’s neighbors engaged in the same activity as Israel, but the critic quickly pointed out that Israel is held to a higher standard. I used to hear this type of argument made more often—both by Israel’s defenders and critics—but it seems to have become less common. One might wonder why it has declined and whether such a higher standard can be justified. While holding Israel to a higher standard can be useful in particular instances to critics of Israel who are making an argument, its overall effect is to enhance Israel’s reputation.…

Read More

Scholars Write an Unscholarly Letter Opposing Senator Sessions

Lettered Man Writing - 15th-16th century

A group of law professors, now more than a thousand in number, has written a collective letter opposing Jeff Sessions’ nomination as Attorney General. The  letter’s list of particulars against him is long—from his position on environmental laws to civil rights laws—as well as allegations of racial insensitivity that figured in his failed nomination to be a federal district court judge thirty years ago.

Of course, these law professors have every right to oppose Jeff Sessions as citizens, but they are clearly here writing as legal scholars, noting their position as law professors at the start of the letter and signing with their institutional affiliations.

What is notable, however, is the lack of any scholarly argument in the letter.  There is no analysis of why Sessions’ positions are wrong as matter of law or policy. 

Read More

Invasion of the Constitutional Soul-Swappers

Magic of reading

Extending our prior consideration of organic metaphors in constitutional law into another realm, let us now consider the relationship of body and soul in the Constitution of the United States of America.

Read More