After Obamacare: A Conversation with Josh Blackman

unraveledThis edition of Liberty Law Talk discusses with Josh Blackman his latest book, Unraveled: Obamacare, Religious Liberty, and Executive Power. Professor Blackman has been engaged with Obamacare since its creation and discusses the ways the law has impacted our thinking about healthcare, the regulatory state, and religious liberty.

The Federalist Papers and Us


In Rekindling Constitutional Ambition, his recent post for Law and Liberty, Yuval Levin offered some particularly helpful insights for thinking through our constitutional problems. As Levin points out, friends of the Constitution are currently in a period of uncertainty about what goals they should be aiming for, even apart from the usual confusion over how to achieve their goals. Some friends of the Constitution argue that the election of Donald Trump to the presidency would allow for a revival (such as the writers at the Journal of American Greatness blog), while others (such as the signers of the Originalists against Trump statement) argue that it would undermine obedience to the Constitution as that document was originally intended.

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The Electoral College: We Can’t Live with It; We Can’t Live Without It

The main value of the Electoral College today is that it generates clear winners when the popular vote is unclear. One might fairly ask how the popular vote for president in 2016 was not clear – Hillary Clinton received over 500,000 more votes than Donald Trump in the most current count, after all. And that’s true enough. But majority rule is not about who gets the most votes, it’s about who receives a majority of the votes. And Hillary Clinton did not receive a majority of the popular vote.

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Let’s Imagine 2016 without the Electoral College


The Electoral College has long been the strange uncle of the American Constitutional order—little understood and even less appreciated. But there is a reason that hundreds of amendments have been submitted to change the system and none of them have come even close to passage in more than forty years: it works!

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Free Association, Not Safe Spaces, on Campus

Many universities are now in the business of creating “safe spaces.” The concept is not well defined but includes establishing actual physical spaces that will be reserved for some group, generally a group that a university defines as a minority. But some of these same universities also impose so-called “all comers policies,” in which no group is permitted to exclude anyone even from its elected offices on the basis of their beliefs. Thus, for instance, Christian groups would have to admit atheists even as potential leaders.

But policies that create safe spaces are in substantial tension with those that require clubs to accept all comers. A group of Christian evangelicals might well believe that it may be more effective in its mission if its members shared its basic beliefs. It might also make its members feel more comfortable discussing them, if  the organization did not have opponents in its midst.  That is not to say that a restrictive charter creates the ideal form of such an organization: some groups of evangelicals might well welcome embrace debate at every turn and benefit from the intense scrutiny of every argument.

One of the virtues of allowing groups to make such decisions is that a community would no doubt get a range of distinctive spaces for speech generated by different trade-offs between mission and openness. Another is that the university would respect many different forms of diversity that bubble up from below rather than just those that conform to its official line on what kind of diversity matters.  Most importantly, a university that is dedicated to creating places where people can feel comfortable, but does not want to be in the business of creating official restrictions on speech in student life should also be pleased with the self-organization of overlapping spheres of debate.

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Love Story

Andrew Garfield as Demond T. Doss in Hacksaw Ridge

In war, sitting out protects one’s bodily safety. Sitting out of the morally messy struggles typical of adult human life protects one’s sense of superiority and innocence. Doing the good sometimes requires an odd courage: accepting the risk of getting the soul’s hands dirty. But how and how much to dirty one’s hands are difficult to discern.

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No Protestants on the Bench

Columns at the U.S. Supreme Court

As it does every year, a new Supreme Court term has begun in Washington. This time, however, the Court’s composition is a bit unusual. At the moment, the Court has only eight members; a successor for the late Justice Antonin Scalia, who passed away in February, has not yet been appointed. But the Court’s composition is unusual for another reason, too: the religious backgrounds of the justices.

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My November Break

I just wanted to let people know that I am not blogging during the month of November, which should hopefully allow me to take care of some other responsibilities.  I look forward to starting again in December.

The Public Interest and the Regulatory State

How can we ensure that government officials use their powers in the public interest?

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Compromising the Nature of the Union

first edition of S. A. Mitchell Jr.’s 1860 map of Iowa, Nebraska, Illinois, Missouri Kansas and Nebrasa.

The Framers of the Constitution recognized that in a country as extensive as the United States, compromise between partisan groups was the price of Union. The zone of acceptable compromise had constantly to be calculated and reconsidered because Americans put the Constitution to practical use by using it as a partisan instrument to win substantive policy conflicts.

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