The Civil Rights of Officer Wilson

A year after being accused of violating Michael Brown’s civil rights, Officer Darren Wilson, late of the justly excoriated Ferguson Police Department, has yet to recover his. Those rights include a presumption of innocence denied even after a Justice Department investigation affirmatively exonerated him, compiling reams of physical evidence and witness accounts consistent with his account of events. That evidence conclusively disproved the “hands up, don’t shoot” narrative that—within minutes of the event, the DOJ report said—took flight on wings of since discredited testimony. The investigation also established that Brown attempted to seize Wilson’s gun. Yet the best The Washington Post, reporting on…

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Bitcoin: A Technology of Law, A Technology of Liberty?

A currency has three important functions. It provides a medium for exchange, a measure for the cost of goods, and a store of value. It is one of the most important technologies ever invented and like all technologies might be improved. It is also a matter of intense public concern, because the power over money brings with it immense political power.

The computational revolution is bidding to transform our relation to money by replacing fiat money with a digital currency. Fiat money consists of token issued by the government, like the dollar. Its success depends on trust in the government to maintain the currency as a stable store of value. But governments face political temptations to debase the currency for political ends. Just ask people in Argentina how well the peso has operated as a store of value. Even the dollar has dramatically fallen in value, as in the inflation of the 1970s. Moreover, fiat currencies of today often impose substantial transactions costs in the process of exchange. Banks make substantial profits from these transactions.

Thus, a stable currency outside of the control of the state without substantial transaction costs might well both make the economy more efficient and limit the power of government. It could be a wonder of the modern world. That is the potential promise of a digital currency—a form of money that is created and exchanged in cyberspace. The most famous such currency is Bitcoin and Nathaniel Popper has written a superb book, Digital Gold, chronicling its birth and wild rise. In the next post, I will review the book, which has a cast of characters to rival the most improbable of picaresque novels.

But first a short and necessarily simplified summary of the complex mechanics of Bitcoin:

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The New Originalism: The Emergence of the General Common Law

Recent years has seen significant discussion about the “New Originalism,” a term which is often associated with several different trends in originalist thought.  One is the shift from original intent to original public meaning.  Another is the shift from a focus on constraint to other justifications for originalism.  And a third is the acceptance by some of a construction zone.

I am not a fan of the way the term “the New Originalism” is used, in part because it focuses only on a few aspects of the changes in Originalist Theory.  But let’s accept the term.  There is one aspect of the New Originalism – of recent trends in Originalist Theory – that is not usually recognized: the emergence of a belief in the general common law.  This emergence relates to some of the other themes of the New Originalism – in particular a shift from a focus on constraint to accuracy about the original meaning.

Back in the 1980s, there was a leading view among originalists about the federal common law: it was unconstitutional.  This view was applied to the federal common law of Swift v. Tyson that was eliminated by Erie v. Tompkins.  This view was also applied to the “new” federal common law that emerged with Erie.  Both of these applications were justified by plausible readings of the constitutional text and connected up with the old originalism’s distrust of judicial discretion, which federal common law provides.  While Justice Scalia was one of the leaders of this approach, he was not consistent about it; I can still remember discussing with others our disappointment that the Justice had written a federal common law opinion in Boyle v. United Technologies.

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“Anti-Sovietchik No. 1″


When the Great Terror, Robert Conquest’s documented expose of Stalin’s Purge Trials, was published in 1968, the response from the Kremlin was predictable. Conquest, who died last week, was denounced as peddling fascist propaganda by Leonid Brezhnev, the hardline replacement for the thaw-attempting Nikita Khruschev when the latter was toppled in 1964. But in private, the truthfulness of Conquest’s account was validated by the KGB, who consulted it to see what their predecessors had been up to.

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The Undeclared War on ISIL

(U.S. Navy photo by Mass Communication Specialist 2nd Class Alex King/Released)

Mr. Gerry never expected to hear, in a republic, a motion to empower the Executive alone to declare war. - Constitutional Convention, August 17. Quaint, that Elbridge Gerry—hung up as he was on the idea that an Executive might need to be empowered to declare war. Two-hundred-and-twenty-seven years nearly to the day after that remark, and one year ago today, the United States commenced military operations against the Islamic State of Iraq and the Levant. One year, $3.3 billion, 5,000 airstrikes and 3,500 ground troops later—hardly repelling a sudden attack—Congress has yet to raise its timid hand to assert its institutional authority. The Obama Administration,…

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More on Construction: A Response to Larry Solum

In my previous post, I raised a question about originalist theories that employ the concept of construction.  I wrote:

The existence of construction raises an important textual question.  If a matter is within the construction zone – and there is no original meaning on the question – then is it part of the Constitution?  Put differently, if a judge employs values that are outside the Constitution to decide a matter, is he deciding the matter based on the Constitution?

And then I continued:

If the Constitution is defined as the original meaning of the words in the document – the standard definition of originalists – then the answer appears to be no: the judge who decides a matter in the construction zone is not deciding the matter based on the Constitution.  And if the judge is not deciding based on the Constitution, then his decision is not enforcing the supreme law of the land (since only the Constitution, federal statutes and federal treaties are supreme law of the land).  Decisions within the construction zone would arguably not be entitled to displace either state law or federal statutes.

In the remainder of the post, I explored some possible ways that those who employ construction might address this issue.

In response, my friend Larry Solum has written a helpful response.  I would recommend that readers take a look at Larry’s post, which is interesting and constructive.  Here I certainly can’t capture all of the subtleties of Larry’s view or post. 

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The Judicial Power Permits only Interpretation, not Construction

Danger sign, warning background

The most import current debate in originalism is between those who believe that judiciary in the course of judicial review can engage only in interpretation and those who believe it can also fill in a  “construction zone” when the semantic meaning of a provision runs out. The latter originalists, such as Randy Barnett, Larry Solum and Jack Balkin, make a strong distinction between clear and unclear language in the Constitution. For clear language, judicial review can find a precise original semantic meaning for a provision and there is no need for the judge to consult anything but the semantic  meaning.  Unclear language, in contrast, creates a construction zone.  Within that zone,  the judge may appeal to materials other than its original meaning in the course of judicial review.

Mike Rappaport in a recent post poses an important question for the latter camp, wondering how they can really be acting as originalists when engaging in construction. Whatever their theoretical arguments about the necessity of construction, how can constructionists be claiming to deciding a matter based on the Constitution? As Mike lucidly puts it:

If the Constitution is defined as the original meaning of the words in the document – the standard definition of originalists – then the answer appears to be no: the judge who decides a matter in the construction zone is not deciding the matter based on the Constitution.  And if the judge is not deciding based on the Constitution, then his decision is not enforcing the supreme law of the land

Mike then notes that one possible response of those who believe in construction is to claim that the “judicial power” gives judges the authority to engage in construction. But in my recent paper, The Duty of Clarity, I show why the Constitution’s understanding of judicial power is inconsistent with construction. There I demonstrate that judicial review was thought to permit judges the authority not to follow a statute only if it were, in Alexander Hamilton’s words, in “irreconcilable variance” with the meaning of the Constitution.

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Cecile Richards’ Modest Proposal?


In the latest video showing the mind of Planned Parenthood, we learn that when they deliver an intact baby, pricing the parts is, “just matter of line items.” And the cost of baby parts, "We bake that into our contract."  Over to you Jonathan Swift . . . "I do therefore humbly offer it to publick consideration, that of the hundred and twenty thousand children, already computed, twenty thousand may be reserved for breed, whereof only one fourth part to be males; which is more than we allow to sheep, black cattle, or swine, and my reason is, that these children are seldom the fruits of marriage,…

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Toward an Independent American Foreign Policy — The Iranian Nuclear Agreement


Unfortunately for sober foreign policy discussions, the United States is beginning another election cycle with seventeen months left before the next presidential election. Foreign powers affected by American foreign policy are not unaware of American election cycles. To the shame of several American political candidates, the candidates are not averse to using such powers, and being used by them, to further their electoral prospects. So it should come as no surprise that the recently agreed Joint Comprehensive Plan of Action Regarding the Islamic Republic of Iran’s Nuclear Program (14 July 2015) has become the object of fierce controversy.

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