George Washington, American


In my “Age of Washington” class the other day, I stumbled over the start of his Last Will and Testament.  I regard the will as a partly public and partly private document—the last of his great “farewells,” including his farewell to the Virginia Regiment in 1759, his last Circular to the States in 1783, and, of course, his Presidential Farewell Address of 1796.

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American Heresies and the Betrayal of the National Interest: A Conversation with Walter McDougall

tragedyWhat is American civil religion? And has it been distorted to the extent that it has undermined our nation's foreign policy? The eminent historian and scholar Walter McDougall, author of the new book, The Tragedy of U.S. Foreign Policy, joins this edition of Liberty Law Talk to discuss these questions.

Using Left Wing Institutions for Right Wing Purposes

While I am often critical of the left, there is one area where one must admire their accomplishments: the left is extremely good at designing institutions that promote their agenda.  In fact, some of these ideas have been so good that the right has copied them, with success. One traditional area where the left has promoted its agenda is through “public interest” law firms.  The various law firms, such as the ACLU, bring lawsuits that have had enormous impact.  Over time, the right has formed its own law firms which have also had significant effects. Another area where the left has been…

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Do You Believe in the Judicial Supremacy of Dead Justices?

Wooden Judges Gavel And Old Law Books On Wooden Background

Randy Barnett recently had a great line on Twitter accusing an interlocutor of advocating “the judicial supremacy of dead justices.” The description wasn’t accurate, in my view, and wasn’t a very substantive answer to the question by Adam White that prompted it. But it’s on Twitter, so we can lighten up some. And it’s a great zap-line. Is anyone really in favor of “the judicial supremacy of dead justices”?

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Stumbling Toward a Compromise

rugby scrum

“If you want to understand why evangelicals could vote for someone of Trump’s morals,” Megan McArdle suggested, read Harvard Law professor Mark Tushnet’s “Abandoning Defensive Crouch Liberal Constitutionalism.”

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Why Are Non-Originalist Professors Ignoring Non-Originalist Arguments for Binding Electors?

Larry Lessig, Geoff Stone, and other law professors have called for the electors on the Trump slate to abandon him and so throw the election into the House of Representatives. They argue that the electors have this constitutional right even in the face of state statutes that forbid them from doing so, because the Framers gave electors the power of discretionary selection. They are empowered to use their own judgement and are not tied to the views of those who selected them.

I agree that electors have the constitutional right to vote for whomever they choose for the reasons that my friend Robert Delahunty brilliantly provides in a recent essay. I do not agree, however, that it would be prudent to do so. Indeed, if the objective is to prevent a Trump presidency, the exercise is a pointless one. Republicans control 31 state delegations in the House and almost every Republican member from those states comes from a district Trump won. It is inconceivable that there would be a House majority for anyone else, particularly so late in the transition process. Indeed, a cynic might conclude that the objective of throwing it to the House is to draw out the acrimony over the election, make Trump less legitimate, and yoke House Republicans more closely to his presidency in case of its failure.

And, unlike Delahunty, those who are arguing for the discretion of electors are generally not originalists. And this raises questions about the consistency and neutrality of their jurisprudence. Living constitutional, historical practice, and pragmatic arguments all cut against permitting electors the discretion that the original meaning confers.

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The Rules Will Be Enforced

Medical concept

“Use every man after his desert, and who shall scape whipping?” — Hamlet, Act II, Scene 2

In a world of perfect justice, each man would receive his due and nothing else, as Shakespeare’s words suggest. Whether such a world is possible or even desirable is another question.

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Why the Section 8 Solution Won’t Cut It

For Sale Sign

Donald Trump’s appointment of Ben Carson to be the next Secretary of the Department of Housing and Urban Development puts Dr. Carson in charge of a $45 billion budget that administers housing aid to over five million American families. Reading Matthew Desmond’s new book, which powerfully recounts the daily struggles of eight low-income families in Milwaukee, will help him prepare for the job.

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Clear Originalist Cases

One of the difficult issues for originalism is what it means concretely for the United States Constitution.  What actually is in the original meaning of the various provisions of the document? I must admit that I find this to be difficult.  If one has a sophisticated and open minded view of interpretation – which I like to believe I do – many clauses of the document are simply not clear, unless one has done the extensive historical research.  Even then, the resolution of issues will often be a matter of judgment.  Thus, it is sometimes difficult to make firm statements about…

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How Enduring Originalism Puts Real Jurisprudential Teeth in Originalism’s Bite

This post answers the question that ended my last one, which is how seriously to take something Justice Kennedy wrote about the Fourteenth Amendment in judicially promulgating a federal constitutional right to same-sex marriage. But the post also does more: it points toward a general framework for thinking about the relationship between the Constitution and constitutional law.

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