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 →
Liberty Law Blog
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.
- Did the American Constitution help Americans create the condition of statelessness for others? That’s the question taken up by David Hendrickson in our feature review essay this week. Hendrickson’s evaluation of Eliga Gould’s Among the Powers of the Earth notes that the book
is a welcome addition to what the author styles as the internationalist or unionist interpretation of the revolution, of which my own scholarly work forms a part. Gould is at pains to say that nothing in his interpretation is inconsistent with the view which sees the Constitution as a peace pact, but his main emphasis is how it worked to the detriment of excluded groups. The book is notable for its exceptional use of little known sources, introducing a whole new cast of characters to the historical narrative and making, for this reason alone, a brilliant contribution. That choice of lens, however, comes at a price, making his story less “how Americans experienced and understood the revolution” and more “how the nations and peoples with whom they were most closely connected experienced and understood it.” The latter is an extremely good thing to know, but it not the same as what one gets from an “inside out” perspective.
- Pedro Schwartz @ Econ Lib: Overcoming the contradictions of liberal democracy.
- Kurt Lash: Stare Decisis and Normative Theory.
- AEIdeas: Break up the megabanks.
- What happens when judges run prisons?
- George Will urges that on immigration reform we should look to Stephen Douglas.
This business of administrative fixes to duly enacted statutes, like the one President Obama announced to the Affordable Care Act Thursday, may or may not produce improved policy, but it is certainly horrendous constitutionalism, and those who utilize it today are fated to howl about it tomorrow. It is a good rule of constitutional thumb never to create a power one would not trust when placed in the hands of one with whom one disagrees. Democrats ought thus to ask: Will it be fair game for future Republican presidents unilaterally to alter statutes, much in the manner of a surgeon excising tumors or bypassing arteries, merely because the old-fashioned route is inconvenient? (Suppose Congress raises the minimum wage; a Republican president, opposing the policy, exempts businesses from it by means of prosecutorial discretion: “Administrative fix”!)
It has happened under the Affordable Care Act twice now, once to delay the employer mandate and now to inhibit the cancellations of insurance policies. In each case, the legal basis has been prosecutorial discretion, the president’s alleged authority to decide when and whether to enforce a law. (What was that about “faithfully execute?”) Both actions seem reasonable enough on policy grounds. Both also make the Bush-era signing statements seem like models of constitutional deference by comparison. Signing statements, for all the abusive purposes to which they are put, are at least keyed to constitutional objections. Administrative fixes circumvent Congress because going through Congress is a pain in the neck. Continue Reading →
Within the past two weeks, federal courts in two circuits have blocked the mandates of Obamacare on private businesses to fund abortion and contraceptives in their medical plans. In both cases, the owners of the businesses combined in the suits were Catholics. And the claim was made in all cases that the mandates compelled the owners to become accomplices in endorsing and facilitating acts that were in deep conflict with the moral teachings they had absorbed as Catholics. But what was striking about the judgments in these cases was that the judges did not rest their judgments on the “beliefs” of the owners. Continue Reading →