Historians and Originalists Part I: The Context of the Debate

In recent years, there have been acrimonious debates – both formal and informal – between these two groups.  Historians have viewed law professor originalists as engaged in an amateurish attempt to understand historical meanings that is often result oriented.  Originalist law professors have viewed the historians as protecting their own turf by endlessly lecturing the originalists about the historians' superiority, with the historians then sometimes misunderstanding what original meaning is.  It has been a relationship in dire need of improvement. One of the problems is that methodological differences between the disciplines are often reinforced by political differences.  Most of the historians tend…

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The Original Nuclear Option

The basic idea of the “nuclear option” in the U.S. Senate is that supermajority rules exist at the sufferance of simple majorities. Last week’s decision to use a simple majority to eliminate the Senate filibuster for Supreme Court nominees was thus not the original nuclear option. The Constitutional Convention of 1787 was.

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Judicial Activists Take On National Security

New York

Judicial activism always undermines the rule of law. Rarely, however, does it also endanger national security. Yet the federal judges who have blocked President Trump’s executive orders on immigration have done just that.

The lawlessness of the courts in question has been exposed by a group of five dissenting judges on the Ninth Circuit Court of Appeals. As these judges so ably observe, the federal district courts that ruled against the President’s policy simply ignored binding precedents—of both the Ninth Circuit and the Supreme Court—recognizing the legal authority of the President to act as he did. Moreover, these judges achieved their aim by deploying an utterly novel application of the First Amendment, holding that an executive order that does not even mention religion somehow violates the Establishment Clause.

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Why Many Universities Make Free Speech a Low Priority


My friend Heather Mac Donald is the latest speaker to be prevented from presenting on a college campus—this time at Claremont McKenna. Heather’s talk was to show how policing saves citizens’ lives, including those of African-Americans. Heather is the one of the most eloquent speakers I know. It is outrageous that some students prevented her from speaking. But perhaps not surprising: they fear that she may persuade their fellow students that it is some of their preferred policies, not the police, that are the greater danger to minority communities.

After the suppression of Heather’s talk a Vice-President at Claremont voiced bureaucratic regret in the manner that has become familiar after similar such incidents across the country. But it is generally a mistake to believe that university administrators at these universities or many others will do what it takes to defend free speech and thus free inquiry at their institutions of learning. The best evidence of the low priority they place is that students who prevent talks are almost never disciplined, let alone expelled or prosecuted for their interference. As Robert George reminds us every day, no has yet been held accountable for the assault on Charles Murray and his host that occurred at Middlebury. No one has yet been disciplined for the recent violence at Berkeley over a speaker either.

Three reasons combine to make actual protection of free speech a low priority on colleges campuses. The first is the tendency to treat students as simple consumers rather than as participants in the university community with duties that are no less important than professors.

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God Talk and Americans’ Belief in Inalienable Rights

I posted earlier this week regarding whether Americans still believe the Declaration of Independence’s affirmation that they “consent” to laws and taxes through their legislative representatives. There may be good reasons Americans no longer believe they really consent to the laws their representatives enact, but it is a striking change from the beliefs articulated during the founding era.

In considering whether Americans still believe the Declaration of Independence, we next consider the most-well known section in the Declaration, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness, that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”

There are, of course, entire books devoted to these few lines. A few observations, however. First, what is the link between there being a creator and persons being endowed with “unalienable” (or inalienable) rights?

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Facts and Myths of Mass Incarceration

Prison bars and a hallway 3d rendering

John F. Pfaff’s Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform is probably the best book on so-called mass incarceration to date. Its great strength is that it is empirically grounded. Pfaff, a professor of law at Fordham, doesn’t cherry-pick data to support some a priori theory, he grapples with the hard realities that the data present. As he well understands, this makes his argument for reducing imprisonment a very tough sell.

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The Confirmations Wars are not Partisan, but Principled

It is frequently observed that the confirmation process for justices is becoming more partisan, but this characterization is incomplete, even misleading. The classic kind of congressional partisanship occurs when parties rally around  or oppose policies or nominees of the sitting President, simply by virtue of his party.  And if the President takes a different position or nominates a person of different views for the same role, partisans of his party tend to happily fall in line with the new world their leader has created.

But both Republicans and Democrats have views on the appropriate role of judges that transcend the vicissitudes of presidential leadership. When George W. Bush nominated Harriet Miers, it was Republicans who scuttled her nomination, fearing probably correctly that she lacked the depth of understanding to maintain what they believed was a lawful jurisprudence. The jurisprudence favored by Republicans has been working itself pure for decades and now embraces originalism in constitutional law and textualism in statutory interpretation, but that accepts a relatively large role for precedent.

The Democratic judicial philosophy has also become clearer.  At first, it was focused on protecting precedent in general, most importantly that of Roe v. Wade. But now that the Supreme Court under Chief Justices Rehnquist and Roberts have made many decisions, such as Citizens United, that flout Democratic policy objectives  Democrats no longer exalt precedent but empathy as well as good results for their preferred minorities and “the little guy”as opposed to corporations.

The  confirmation hearings on Neil Gorsuch exposed this jurisprudential chasm.

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Donald Trump and the Future of the International Liberal Order

Since Donald Trump unexpectedly won the presidency in November, his foreign policy pronouncements have received considerable scrutiny from those anxious to elicit from them how potentially detrimental his presidency is liable to be to the so-called liberal international order. By this expression is meant that web of alliances and international arrangements and organizations that the United States has been instrumental in helping to create and support since 1945 to promote global peace and prosperity. Most notable among the elements of this global order are such bodies as the United Nations, NATO and the European Union, as well as that medley…

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Mary Bilder on Constitutional Originalism

There have been a couple of blog posts on Professor Mary Bilder’s op ed on Originalism and the Constitution, including one by Larry Solum and one by John McGinnis.  I don’t mean to pile on, but there are some important questions that remain to be addressed. Mary Bilder is an important law professor who is also a legal historian.  Her op ed reflects the views of many historians about originalism and therefore I believe it warrants some attention.  I should say that I have enjoyed Bilder’s work in the past.  Her article on the Corporate Origins of Judicial Review is an…

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Hewitt’s Mostly Wrong Way


The latest venture to confront the new Donald Trump era is what Hugh Hewitt calls his “conservative playbook for a lasting GOP majority.” This is the subtitle of The Fourth Way, his new book. Hewitt, the Chapman University Law School professor, former Reagan administration official, and talk radio host, is everyone’s favorite nice guy—a charming media personality, fair-minded debate moderator, and the author, so far, of 17 books. This one is his most ambitious.

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