Liberty Law Blog

Fourth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference

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Recently, the Fourth Annual Originalism Works in Progress Conference was held at the University of San Diego Law School.  And now the video proceedings of the seven papers are available.  The papers given at the conference, which involved various aspects of originalism, were as follows:

  • James Allan (Queensland), Australian Originalism without a Bill of Rights: Going Down the Drain with a Different Spin
  • William Baude (Stanford Constitutional Law Center), Rethinking the Federal Eminent Domain Power
  • Thomas Colby (George Washington), Originalism and the Ratification of the Fourteenth Amendment
  • Allan Hutchinson (Osgoode Hall), Originalist Sin
  • Gregory Maggs (George Washington), Using Dictionaries from the Founding Era as a Source of the Original Meaning of the Constitution
  • Gerard Magliocca (Indiana), John Bingham and the Drafting and Defense of the Fourteenth Amendment
  • John McGinnis (Northwestern), Is Judicial Restraint an Originalist Method?

Dependency, Properly Understood

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Yuval Levin provided commentary last week on Utah Senator Mike Lee’s recent speech “What Conservatives are For,” where Lee provocatively argued that the problem with much of the Republican Party’s rhetoric is its insistence that Obamacare, among other welfare state policies, strikes at our individualism and independence. Of course, the most dramatic example of this was Romney’s famous takers’ speech and the crude materialistic anthropology it relied upon. Lee’s speech matters, I think, for the reason that he is viewed as part of a rising group of national political figures like Ted Cruz, Marco Rubio, Rand Paul, among others, who seem willing to rethink standard rhetoric of liberty, limited government, free markets, rule of law and actually pour it into new wine-skins. Continue Reading →

The New Deal Constitution at 75

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This past Thursday marked the 75th anniversary of two foundational New Deal decisions, handed down on Monday, April 25, 1938: Erie Railroad v. Tompkins, and United States v. Carolene Products. The American Enterprise Institute celebrated this day of infamy with a two-part event. The tape is here.

I strongly recommend it. You may want to skip the first 13 minutes (some clown wisecracking about the dairy industry’s contribution to ConLaw) but you do not want to miss the main events: Continue Reading →

Prosecutorial Discretion

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In Crane v. Napolitano, President Obama’s order not to enforce the immigration laws against certain illegal immigrants (who came to the US as children) has been challenged.  The basis of the challenge is that Obama’s order is inconsistent with the governing statute.  The District Court recently held that the plaintiffs are likely to prevail in their claim, although it has ordered additional briefing on a jurisdictional issue.  The court wrote that the statute used the word “shall” and therefore imposed a mandatory duty on the executive.

Let’s assume that Congress did take away the President’s prosecutorial discretion.  Is that constitutional?  In my opinion, the answer is yes, at least under the Constitution’s original meaning.  First, the President is normally required to follow laws that Congress passes.  Even if the President does not like the law, that does not give him the right to ignore it.  The King of England once asserted that power, but the Glorious Revolution ended it and the Take Care Clause adopts that principle for the U.S. Constitution.  Thus, if Congress says that all persons who are 65 years of age and meet certain conditions are entitled to Social Security benefits, the President cannot ignore the statutory directive.  Similarly, if Congress says persons meeting other conditions are not entitled such Social Security benefits, the President must also respect that requirement. Continue Reading →

Kenneth Minogue’s The Liberal Mind at 50

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In his autobiography, John Stuart Mill relates the mental crisis that he experienced as a young man when he asked himself whether he would be happy if all the reforms that he thought necessary were granted or achieved. Would they necessarily fulfill him?

The answer, obviously, was ‘No,’ and Mill, having been nothing if not a man of the most complete integrity, suffered a nervous collapse. ‘The end had ceased to charm,’ he wrote, ‘and how could there ever again be any interest in the means? I seemed to have nothing left to live for.’

Few people, however, are as intelligent or scrupulous as Mill; but like him, they need something to live for. Indeed, the struggle for existence (or subsistence) having been more or less won – how, without a great deal of determination, do you starve in a modern society? Continue Reading →

Social Justice and the Silence of Modern Constitutionalism

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In this month’s Forum Samuel Gregg revives “the meaning of social justice in the classical tradition of natural law reasoning, with particular reference to Roman Catholic pronouncements about this subject.” Social justice strives for the common good.  Two learned commentators provide vigorous, reasoned dissents, economist David C. Rose maintaining that this defense of social justice is “both misguided and dangerous.”   Philosophy professor Eric Mack thinks the notion of social justice “necessarily champions extensive state authority.” Though he allows Gregg’s understanding is not egalitarian, he nonetheless seeks to “weigh [social justice] down and sink it.” Continue Reading →

Silent Cal’s 6 Simple Rules for a Confused President Obama

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Coolidge's Inaugural Address, March 24, 1925

President Coolidge’s Inaugural Address, March 4, 1925

In his new book, Why Coolidge Matters: Leadership Lessons from America’s Most Underrated President, Charles C. Johnson claims that ‘Silent Cal’ wasn’t so much silent as he was silenced. But today, thirty years since Tom Silver’s underrated book about America’s underrated thirtieth president, Coolidge and the Historians, that is changing. In addition to Johnson’s book, we also have Amity Shlaes’s new biography, Coolidge, a prequel of sorts to her bestseller, The Forgotten Man: A New History of the Great Depression. Undoubtedly, there is growing interest in Coolidge that, although somewhat delayed, is especially timely for the present. Here are six lessons for President Obama from the not-so-silent Cal Coolidge. Continue Reading →

Friday Roundup, April 26th

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Before Super PACs, McCain-Feingold, “soft money,” and the Keating 5; before Watergate, and even before Teapot Dome, there was the Michigan Senate race of 1918. . . . one of the nation’s most contested elections and earliest campaign finance “scandals. . . . Unlike the typical political saga, however, Baker presents the story not as a morality tale of honest government corrupted by big money, but rather as a cautionary story about big government regulation of honest money and the political choices of the electorate.

  • Intervention like its 1820: Featured on Liberty Fund’s Online Library of Liberty is John Taylor of Caroline’s thoughts on freedom, property, and early efforts by the feds to direct the economy.
  • So how is this representative government? They don’t read the legislation they pass, which can’t even really be called law. They don’t appropriate the money to pay for it and, apparently, exempt themselves from its consequences.

But where does the Treasury get its money? Well, to a very significant extent, it gets it from the Federal Reserve, which has so far amassed more than $1.8 trillion of Treasury debt, and keeps on buying — again at the top of the market. This all makes a most interesting triangle of government finance, as shown in Figure 1. Thinking about it, my brother, a Swiss private banker, observed, “Just about what John Law built in France in 1716-1720” — referring to the notorious paper money theorist and government banking practitioner, who inflated the infamous “Mississippi Bubble” of his day.

PollockFigure1_4-23-13.jpg

The Fed, by buying long-term MBS and long-term Treasury debt, especially by buying them at the top of the market — a top which its own purchasing pressure is intentionally creating — is concentrating massive interest rate risk on its own balance sheet. By “the Fed’s” balance sheet, we actually mean the aggregate balance sheet of the 12 Federal Reserve Banks. This consolidated balance sheet has $3.3 trillion in total assets and $55 billion in equity, for leverage of a heady 60 times and a capital ratio of a paltry 1.7 percent.

Pollock notes that the accounting rules are different for the Fed when it comes to stating its losses. So you won’t even be able to believe your lying eyes. Better stated: it made up the rules.

The Fed controls its own accounting standards and, in 2011, changed its accounting so that even with a net loss of $55 billion, its capital would still be reported as $55 billion. If it lost $100 billion, its capital would still be $55 billion. If it lost $200 or $300 billion, its capital would still be $55 billion. Get it?

If on a Winter’s Night a Drone Strike

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There is no dictum more central to Burkean prudence than the idea that one does not establish rules for the ordinary case based on the extreme one.  So why is Rand Paul, of all people, on television speculating on what the Boston marathon case might mean for a policy on the domestic use of drones?

His answer, apparently leaning more toward his presidential ambitions than his 13-hour filibuster on the topic, was that he would not have objected to the use of a drone against Dzhokhar Tsarnaev during the manhunt for the alleged Boston marathon bomber.  This is being interpreted as abandoning Paul’s general objection to the use of drones against U.S. citizens on U.S. soil. Continue Reading →

When Government Goes Into Business

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The sequester is kicking in, and the consequences are upon us: airplanes are falling out of the sky, furloughed FBI agents commiserate over donuts, sea levels keep rising. Help, however, is on the way. Increasingly, federal agencies are funding themselves from sources other than appropriations. Not a few have turned into profit centers for the Congress.

Just last week, the Federal Reserve proposed a fee schedule for its banking oversight “services,” pursuant to section 318 of Dodd-Frank and to the tune of $440 million. (That’s what the exercise supposedly costs the government. What it costs the banks and the economy, no one knows.) Not everyone is happy with the NPR—see here. Continue Reading →