Liberty Law Blog

Combating Government Wrongdoing

by Mike Rappaport / 1 Comment

Filed Under: , , ,

Print Friendly

The revelations about IRS targeting of tea party groups, despite repeated denials by the Administration, and of manipulation of talking points about Benghazi, again despite repeated denials by the Administration, raise the question of what institutions should be used to stop government – especially executive branch – wrongdoing.  This is a complicated issue, but I thought I would discuss the issue a bit.

The original Constitution employed the following political checks – good faith on the part of the executive branch (including prosecuting executive wrongdoers) combined with the check of legislative impeachment.  This might have made sense in the beginning, with a small government, but certainly it does not work adequately for a large government.

One additional check in the early days involved lawsuits by individuals against government officials for wrongdoing.  For example, if a government official searched or seized your property, one could sue him for trespass or some other relevant tort.  The individual could defend on the ground that his action was legally authorized.  But if it was not, then one might have a tort suit against him for damages to be paid out of his pocket.  This provided government officials with incentives to conform to the law.

Unfortunately, over time the movement for big government made up immunity for government officials that prevented them from having to pay damages so long as they had a reasonable basis in the law for their actions.  Continue Reading →

The Saturday Night Special

by Nicholas J. Johnson / 13 Comments

Filed Under: , ,

Print Friendly
Robert Sherrill's "The Saturday Night Special"

Robert Sherrill’s The Saturday Night Special

I just dusted off an entertaining screed from 1973 written by former Washington Post reporter Robert Sherrill. Although you can gather it from his credential as a Posty, the prodigious title of the book better signals his views on the “so-called” right to keep and bear arms. To wit: The Saturday Night Special: And Other Guns With Which Americans Won The West, Protected Bootleg Franchises, Slew Wildlife, Robbed Countless Banks, Shot Husbands Purposely And By Mistake And Killed Presidents – Together With The Debate Over Continuing Same.  Absent from Sherrill’s list is any suggestion of the utility of firearms for legitimate self-defense.

The book is a vivid reflection of the times, urging confidently the states’ rights view of the Second Amendment that today not a single member of the United States Supreme Court attempts to prop up. But enough nostalgia. Continue Reading →

The Theologico-Political Question (Part II): A Review of “42″

by Ken Masugi / 3 Comments

Filed Under: , , , , , , , , ,

Print Friendly

Early in one of the best sports movies, Knute Rockne, All-American, the immigrant kid Knute learns to play football with the neighborhood boys, including a black one.  The logic of the movie, following the recognition of Catholics in higher education, is that the opportunities will open up for blacks, too. 42, another biopic of baseball star and civil rights pioneer Jackie Robinson, takes the next step from that classic.

Frankly proclaiming Robinson’s importance for America, Brooklyn Dodgers owner Branch Rickey opens the movie by declaring to his assistant, “I have a plan.”  In fact Rickey and Robinson deserve comparison with Martin Luther King. Claiming to be interested in winning and thus in profits, Rickey’s signing of Robinson exemplifies Tocqueville’s observation that Americans say that they are interested in profit but in fact often have higher motives. He is Tocqueville’s American, a self-professed Methodist focused on acting righteously, doing good while doing well. Continue Reading →

Is Ted Cruz a Natural Born Citizen?

by Mike Rappaport / 1 Comment

Filed Under: , ,

Print Friendly

With the increasing prominence of Senator Ted Cruz and the possibility that he might run for President, there has been a renewed interest in whether Cruz, who was born to an American mother and a non-American father in Canada, is a natural born citizen.  At the time of his birth, a federal statute made a baby born in his situation an American citizen at birth.  The question is whether that makes Cruz  a “natural born citizen” under the U.S. Constitution.

Some commentators have sought to make points against both Cruz and originalism.  One argues that Cruz would be a natural born citizen under all theories of constitutional interpretation, except his own – originalism.

Over at the Originalism Blog, Mike Ramsey has a long post discussing the issue.  While anyone interested in the issue should read the entire post, the summary is that Cruz is a natural born citizen under an originalist interpretation of the Constitution.  According to Ramsey, the meaning of the phrase is a person who is a U.S. citizen at birth under the laws at the time of his birth.  Thus, Cruz is a natural born citizen. Continue Reading →

Friday Roundup, May 10th

by Richard Reinsch / 0 Comments

Filed Under: , , , , , ,

Print Friendly
  • So, to restrain the judiciary why not make a judgment in favor of self-government or a competitive politics structured by federalism and separation of powers? The latest Liberty Law Talk with Joshua Hawley evaluates some interesting answers to this question: “Making the Supreme Court Safe for Democracy.”

Most seductive in this transformation was the fact that Keynes seemed to combine the worst fear of unbridled capitalism (mass unemployment) with the source of the greatest resentment (the idle rich) into a coherent explanation for the troubles that plagued the US and the UK.  Not only was this message seductive to politicians seeking both a scapegoat and a program for action, it was attractive to the young and brilliant economists who were entering into the economics profession during the 1930s and 1940s. They were given a purpose – economic science could be a tool of social control that when utilized appropriately could balance the economy, eliminate inefficiencies and curb injustice.

This is the world that F. A. Hayek and company challenged.  It is the great “counter-revolution” in economic thought in the 20th century.  Angus Burgin’s The Great Persuasion is the best social history yet written on this episode.

The Theologico-Political Question (Part I), and Texas Cheerleaders

by Ken Masugi / 0 Comments

Filed Under: , , , , , , ,

Print Friendly

texas godThe cheerleaders at Kountze High School, 95 miles northeast of Houston, may deploy Christian-themed banners at school sporting events, a State District judge ruled.  Some photos of the banners (with cheerleaders) may be seen here.

In Texas, religious free exercise cuts a wide swath, as its State Supreme Court displayed in Pleasant Glade Assembly of God v. Schubert (2008).  A member of the church, a suffering Laura Schubert, had hands (lots of them) laid on her, as her faith calls for, and came out of the experience with physical injuries and psychological trauma.  The Court concluded that Continue Reading →

State Spending With Limits, and Without

by Michael S. Greve / 1 Comment

Filed Under: , ,

Print Friendly

AEI’s Ben Zycher is a wonderfully funny guy, and a damn good economist. Humor is his way of coping with the dismal science and with his depressing subjects and shoot-yourself conclusions. His latest study examines whether tax and expenditures limits (“TEL”), adopted by most states over the course of four decades, actually work. (TELs seek to limit state taxes and spending growth to some formula—typically, inflation plus population growth.) Unequivocal answer, based on a comprehensive data set and a sophisticated econometric analysis: Nah. Nope. Forget it. Continue Reading →

Originalism and Affirmative Action Part I: The Critics’ Argument

by Mike Rappaport / 3 Comments

Filed Under: , , , ,

Print Friendly

Recently, I completed a draft of an article on affirmative action and the original meaning of the 14th Amendment.  I thought I would put up a couple of posts on the article.  For the syllabus or to download the article, see here.  While I did not write the article with the University of Texas v. Fisher case in mind, it is clearly relevant to the case.

The article responds to various scholars who have argued that the original meaning of the Constitution clearly permits affirmative action.  These scholars actually make two claims:  first, that the Constitution’s original meaning strongly supports the constitutionality of affirmative action, and second that the originalist justices – Justices Scalia and Thomas – are behaving like hypocrites because they are both originalists and believe that government affirmative action is unconstitutional.

For example, consider Cass Sunstein’s claim that originalism:

strongly suggests that affirmative action policies were originally regarded as legitimate.  Hence there is no historical warrant for the [originalist] view that affirmative action is generally unconstitutional.  On the contrary, history supports affirmative action.  In the aftermath of the Civil War, Congress enacted programs that provided particular assistance to African-Americans, and this makes it extremely difficult to attack affirmative action on [originalist] grounds.

[The originalist justices] have abandoned their own favorite principles of interpretation.  Astonishingly, the Court’s most enthusiastic [originalists], Justices Scalia and Thomas, have voted to strike down affirmative action programs without devoting so much as a sentence to the original understanding of the Equal Protection Clause.  Both justices usually pay a great deal of attention to history, particularly when they are voting to invalidate the actions of other branches of government.  But on affirmative action their judgments do not depend on history at all.  They don’t seem to care about it.

Sunstein and the other scholars base their argument on a set of federal statutes that were passed at the time of the enactment of the 14th Amendment.  In my next post, I will show that these statutes are weak evidence of the original meaning, because they are federal statutes, they are in most cases not clearly race based, and they are merely expected applications.  Thus, Sunstein’s confidence here about the original meaning is not at all justified. Continue Reading →

Can Reason Bear Liberalism’s Weight?

by Richard Reinsch / 4 Comments

Filed Under: , , , ,

Print Friendly

“All we ask is that law and policy be based upon reason.” So begins Ralph Hancock’s latest book, Responsibility of Reason: Theory and Practice in a Liberal-Democratic Age. This opening quote was actually delivered by a frustrated political scientist at an academic conference, who asserted “the authority of simple reason” against perceived rubes who doubt its truth or rather its efficacy for impartially reconciling competing claims within a pluralist democracy. Continue Reading →

Obamacare Litigation 2.0

by Michael S. Greve / 1 Comment

Filed Under: , ,

Print Friendly

Last week, business owners and individuals from several states sued the IRS and HHS over the agencies’ interpretation and implementation of the Affordable Care Act. The case was engineered by the Competitive Enterprise Institute. CEI’s press release appears here; it contains a link to the Complaint, filed in the federal district court for the D.C. Circuit. This is huge: all of Obamacare hangs on the outcome. Continue Reading →

« 5 6 7 8 9 10 11 12 »