Replacing the US Constitution of 1787 began in the 1930s, slowly and imperceptibly, always with bipartisan support. Now it rushes to completion, unmistakably. Democrat President Barack Obama’s proclamation: “I can do anything I want,” only exaggerated the reality of the 2014 constitution, which the Republican leadership of the House of Representatives re-confirmed quickly Continue Reading →
Liberty Law Blog
Last Monday, a conference was held at NYU on Richard Epstein’s new book The Classical Liberal Constitution. Epstein’s book is in some sense his magnum opus — at least as to constitutional law — setting forth in 700 pages his classical liberal view of the Constitution and its development. It is a beautiful book and well worth reading.
My presentation at the conference discussed whether the book could be classified as following an originalist methodology. I conclude that it cannot. The entire conference is available on video. For the panel I participated in see, here. (I start talking at the 30 minute mark.)
As I have discussed in previous posts and a recent paper, public choice has freed originalism from the countermajoritarian difficulty by showing that it is an interpretative method well suited to enforce a constitution that is in its formation and essence anti-majoritarian. But many scholars are resistant to the truths of public choice and continue to be attracted to the essentially majoritarian paradigm of Progressivism. Their difficulty is that the modern Court has often invalidated the actions of majorities without any substantial support in the text of the Constitution. Thus, scholars have attempted to square the circle to preserve the Progressive paradigm by showing that the Court’s actions can meet some definition of majoritarianism and do not reflect judicial usurpation of the political process. Here is a thumbnail sketch (and critique) of three of the most prominent attempts.
John Hart Ely and Democracy and Distrust. In my view the strongest way of meeting the countermajoritarian difficulty is John Hart Ely’s Democracy and Distrust. Ely dismisses clause bound originalism but sees judicial review as justified when it reinforces and refines democratic outputs. Thus, anti-discrimination principles are to be enforced, because they prevent the political process from being distorted by racial and gender stereotypes. Similarly, free speech permits people to deliberate and thus reinforces democracy.
But Democracy and Distrust famously does not justify Griswold or Roe v. Wade, because it is difficult to see these decisions as reinforcing the democratic process rather than providing substantive rights. Thus progressives who today almost universally want to preserve a jurisprudence that expands what they consider to be core human rights need other theories to address the countermajoritarian difficulty. Continue Reading →
- In our February Liberty Law Forum Steven Grosby and Bill Dennis weigh in with their essays on the Institutions of American Liberty.
- Nick Capaldi’s “To Make a Market” is our feature Books essay this week that reviews Lisa Herzog’s Inventing the Market: Smith, Hegel, & Political Theory.
- Alberto Mingardi of Econ Lib: What consequences for the Swiss referendum? But is there a larger context at work here that the standard libertarian account misses? I think that’s what Walter Russell Mead in Switzerland’s primal scream is arguing. I suspect that to this return of borders, nation-state politics, thumbs in the eyes of transnational progressive and corporate elites, Pierre Manent is saying ‘told you so’.
- Richard Epstein on why the classical liberal case against the contraception mandate is superior to a religious exercise argument.
- Don Boudreaux and Mark Perry in the WSJ on the myth of the stagnant middle class.
- Michael Paulsen asks if intellectual diversity in the legal academy is the most important thing?
The February 11 testimony of Janet Yellen, the new Chairman of the Federal Reserve Board, to the House Financial Services Committee, described the Fed as “transparent and accountable.” However dubious a description this may be, four transparent intentions of the Fed did come through: Continue Reading →
Transparency in government is a public good, because it helps us understand what government is doing, including what favors its officials dole out to private citizens. Being invited to a state dinner is of no small significance. For the hundred or so citizens not in public office who are invited, it is not only a memorable event but a boost to one’s reputation and an advertisement of one’s proximity to power. But for the rest of us, learning who goes is one way to understand what the President cares about and who his core supporters are.
President Obama’s guest lists are sadly much less transparent than those of President George W. Bush. Other than government officials they list the affiliations only of journalists. Compare the guest list to President Obama’s state dinner for Francois Hollande to George Bush’s list for the dinner for Queen Elizabeth II. (I have not studied the lists of all state dinners, but I have no reason to believe these are atypical).
What could be the reason for this selective information? Unfortunately, only cynical explanations are plausible. Continue Reading →
Frederick Gedicks, who holds the Guy Anderson Chair at Brigham Young University Law School, recently argued in the Washington Post that to permit Hobby Lobby and Conestoga Wood, the two companies challenging the contraception mandate on religious liberty grounds, to receive an exemption from its strictures would be a violation of the Establishment Clause. Gedicks argues that granting the exemption would, in effect, make employees of these companies pay the costs of their employers practicing their religion: Continue Reading →
In 2004 leftwing filmmaker Michael Moore released his film Fahrenheit 9/11, a searing attack on the legitimacy of George Bush’s election to the presidency in 2000, and his handling of events before, during, and after the terrorist attack of September 11, 2011 on the World Trade Center. Moore was unequivocal in his stated hope that the movie would “help unseat a president.”
Fahrenheit 9/11 was produced by Moore’s production company Dog Eat Dog Films, a corporation. At the time – before the Supreme Court decision in Citizens United v. Federal Election Commission—it was illegal for corporations to spend money “in connection with any election to any political office,” and illegal for an officer of a corporation to consent to such an expenditure.
Imagine if fourteen months after the election, Moore had been indicted by a Bush-appointed federal prosecutor for violating the prohibition on corporate spending. Imagine if Moore was arrested, cuffed, criminally charged for his activities, had his passport confiscated, and bail set at $500,000–what would have been the reaction from the America’s liberals? Of the press? Of Senator Barack Obama? Continue Reading →
On January 14, the Supreme Court heard oral arguments on an issue that may seem somewhat dry and technical to the average person, whether parties to a bankruptcy case can consent to have a Bankruptcy Judge enter a final order resolving their claims in a bankruptcy case. Contrary to the seemingly narrow and special nature of the issue, however, the outcome of the case could have profound implications for individual rights and the administration of justice in the federal courts. Continue Reading →
In my last post, I looked at the influence of public choice on originalism, which I discuss in a recent paper. Here I suggest that originalism also faces challenges from public choice that it needs to address. Here are four of them:
How is Originalism Self-sustaining? Public choice originalism shows why one needs to enforce constitutional provisions according to their original meaning to prevent legislative or even popular majorities from undermining the supermajoritarian framework. But why will judges follow originalism, when the supermajoritarian framework of the Constitution makes it very difficult for people to overrule their decisions through a constitutional amendment? Recent work by rational choice political scientists has focused on the general question of how a constitution can be self-enforcing.
One possible answer is that justices will be disciplined by a culture of originalism. As Richard Posner notes, an important part of judicial satisfaction comes from feeling that they have played the game by the rules. If the rules are understood to be originalist, that understanding provides substantial discipline. One observation about this solution is that it makes the success of originalism ultimately dependent on cultural capital–in this case that of the legal culture. That fact is not necessarily surprising. Many other important social institutions, like the market economy itself, have been thought dependent on culture. Continue Reading →