Liberty Law Blog

Lawlessness, Small and Large

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A reporter for The Nation magazine looking for a partisan “color” story cornered me at the 2014 Conservative Political Action Conference, asking what I thought of Chris Christie. I took the chance to remind his magazine’s audience that both parties in American politics have been adopting similar habits of lawlessness, and that continuing to confirm those habits has dire consequences. Continue Reading →

Economic Liberty–Part of the Constitution’s DNA

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Previously I praised America’s Unwritten Constitution by Akhil Amar and then offered my first reservation about the book. My second reservation is its treatment of economic liberty. Professor Amar sees the greatness of the Constitution in the unfolding of democracy and equality. But economic liberty is also in the Constitution’s DNA and yet he seems to leave it out of the American story.

I also thought unfounded one historical claim, which itself surprising, because Professor Amar is generally very reliable. In a discussion that attacked theories of interpretation that would justify reasoning striking down economic regulation, as in Lochner v. New York, he wrote: “The 1913 ratification of Federal Income Tax Amendment, one of the most notable populist events of the twentieth century, blessed redistributive economic policy by endorsing a tax that everyone understood would likely feature a progressive structure taxing the wealthy at steeper rates than the poor.” One does not have be a libertarian to wonder whether the proposition that this amendment blessed redistributive economic policy in general is an overstatement. In fact, the 16th amendment can be seen as attempt to find an stable source of revenue other than tariffs, which were not only inefficient but often regressive, rather than a general endorsement of redistribution.

In any event, regulatory powers and taxing powers are different constitutional concepts. Economists then and now almost universally see redistribution through taxation as a superior policy, because it does not lead to as much distortion and loss of innovation as does redistribution through regulation. Thus, the 16th amendment cannot be said to extinguish whatever constitutional restrictions there are on redistribution through regulation.

More generally, our Constitution protects economic freedom in many ways. Continue Reading →

Friday Roundup, March 14th

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  • Hank Clark of the BB&T Center for the Study of Capitalism at Clemson provides our feature Books essay this week on George Smith’s The System of Liberty: Themes in the History of Classical Liberalism.

Might inequality in the United States be less damaging than it is in Europe because the very rich were not born into wealth, but earned their money by creating new products, services and technologies?

Piketty answers:

This is what the winners of the game like to claim. But for the losers this can be the worst of all worlds: They have a diminishing share of income and wealth, and at the same time they are depicted as undeserving.

Henderson notes that Piketty “. . . did not answer what I think was Porter’s implicit point–the large social value of the incentive to innovate–but also Piketty didn’t even answer the narrow question asked: is inequality less damaging because many very rich people earned their money by innovating?”

Judicial Candor and the New Deal Settlement

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One of the interesting aspects of Supreme Court opinions is how much or little candor they exhibit. Put differently, are the justices being honest about the principles that actually govern their views?  Originalists often argue that judicial nonoriginalists fail to acknowledge that they are not conforming to the original meaning (except when such nonoriginalist is justified by precedent or practice). While I think this is largely true, nonoriginalists do signal their views. Justice Brennan or Justice Breyer indicate that they do not feel bound by the original meaning, but still they don’t acknowledge that they are departing from the original meaning in specific cases.

In terms of candor, it is interesting to consider two areas where the New Deal Court stopped enforcing constitutional limits: limits on Congress’s authority under the Commerce Clause and the Necessary and Proper Clause, and limits on Congress’s power to delegate legislative power to the executive.  In both cases, prior to the New Deal, the Constitution was thought to place significant limits on Congress’s authority. But after the New Deal, the Court stopped enforcing these limits. In the case of the Commerce Clause, the Court is now willing to enforce some limits again, but not in the area of the nondelegation doctrine.

Interestingly, though, during the post New Deal era, the Court never announced clearly that it was no longer enforcing the limits. Instead, it simply applied a doctrine that through a variety of devices, such as the rational basis test, always led to the result that Congress had the necessary authority. Sophisticated observers, of course, acknowledged that there were no limits on Congress’s authority. For example, I was taught this in law school. But the Justices never acknowledged it forthrightly.

In a way, this is a bit peculiar. If one wanted to cement the doctrine that Congress was not subject to limits, one way to do so would be to openly announce this doctrine. In that way, it would be harder for future courts to depart from the doctrine. For example, U.S. v. Lopez was able to exploit the fact that the Court had never asserted that there were no limits on the Commerce Power. Yet, the pre-Lopez Court never said so clearly.

One likely explanation for the failure of the Court to acknowledge that there were no limits was that it would too clearly suggest that the Court had rewritten the Constitution. The original meaning plainly placed limits on Congress’s authority in these areas and saying otherwise would have opened the Court to attack. So instead of announcing what they were doing, they misrepresented what they were doing and relied on sophisticated observers to teach new lawyers what was really going on.

If this is what happened, it ain’t pretty. But lots of government isn’t.

The CIA Invades the Senate

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Yes, the irony of the CIA intruding on the computers of the Senate Select Committee on Intelligence—whose chairwoman has defended the right of the NSA to intrude on the computers of millions of Americans—is delicious. Yes, there is probably hypocrisy involved in the indignation. Yes, it hurts to say this: Senator Dianne Feinstein (D-CA), who is outraged, is still right. Continue Reading →

The Lived Constitution

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Despite my admiration and enjoyment of  America’s Unwritten Constitution, I have some disagreements as well. Professor Amar is absolutely correct to reject a wooden textualism, but one of his interpretive moves strikes at the formality that comes from interpreting the language of the Constitution as fixed when it was enacted. In particular, I worry about the “lived Constitution.” Here Professor Amar discovers a mode of constitutional interpretation which discovers unenumerated rights in the practices and beliefs Americans live by. An example would be the emergence of a right to contraception.

To be sure, the Constitution’s structure permits a lot of room for the development for social norms. Federalism for instance permits a forum of experimentation.  New social norms change law through the process of passing ordinary legislation. No state bans contraception now and none now would do so, regardless of whether the Court had declared it a constitutional right.

But I fail to see why norms should become part of the Constitution even if they enjoy substantial support. First, that support does not necessarily represent a consensus about making the norm a constitutional right.  It is simply different to accept a norm as a good thing now as opposed to entrenching it for the future in the federal constitution. We may need time for second thoughts or believe that the costs of entrenchment outweigh the benefits given future uncertainty.   Continue Reading →

The Common Core Emperors Have No Clothes

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Has anyone actually read the Common Core Standards? Not advocacy of the standards, or criticism of them, but the standards themselves? Have even those speaking out most loudly in their favor examined them closely?

Bill Gates And African Leaders Launch Joint Initiative At UNFor the past two years or more, we have heard different personages—from state school board members to state school superintendents to state legislators to experts in various think tanks to former governors to soon-to-be former governors to the arch-funder of the Common Core, Bill Gates, hit all the talking points about these “standards” in English and math. We have been told that they will lead to “college and career readiness,” though no college says they will. We have heard that such standards are absolutely indispensable in a 21st-century global economy, though no one has ever told us why the study of English or mathematics should change just because we use computers or live in a different century. Continue Reading →

What Happens if Data is Speech?

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Recently, courts have grappled with the question of whether data is speech for purposes of the First Amendment. Google, and other tech giants, have defended their algorithmic outputs under the guise of free speech. In a new essay titled “What Happens if Data is Speech,” published in the University of Pennsylvania Journal of Constitutional Law Online, I consider the next question in this emerging area of the law. What happens if data is speech? I approach this inquiry from three angles.

Continue Reading →

Originalism and Judicial Review – Part I: The Mistaken Opinion of the Previous Generation

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One of the questions asked of originalists is whether the original meaning ever clearly resolves an important constitutional issue. While I think that the uncertainty of the original meaning is overstated, it is true that many issues require further investigation. The ironic thing is that one area where the original meaning is quite clear is an issue where for a couple of generations people regularly asserted that the original meaning was the opposite of what it actually was: judicial review.

For a couple of generations before the last 10-15 years, people regularly claimed that the Constitution did not provide for judicial review and that Chief Justice John Marshall invented it in Marbury v. Madison. Yet, nothing could be further from the truth – judicial review is clearly established in the text and history of the Constitution.

This is an important issue. After all, if judicial review was made up by the Court, then this makes it more difficult to argue that the Court should follow the original meaning of the Constitution when conducting it.

The claim about the original meaning fit with the prejudices of the dominant view during this period. In addition to its implicit endorsement of nonoriginalist adjudication, this view about judicial review often drew a distinction between judicial review of federal laws and judicial review of state laws. This view sometimes acknowledged that judicial review of state laws was contemplated by the original meaning, but it still insisted that judicial review of federal laws was not. Thus, this claim fit with the New Deal view that judicial review of the federal government should be lax at best.

Continue Reading →

Introducing Lauren Weiner as Associate Editor of Law and Liberty

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Lauren Weiner

Let us introduce Lauren Weiner, the new Associate Editor of Law and Liberty. Our growing enterprise now benefits from the editorial and writing efforts of a self-confessed ink-stained wretch. (Lauren says she is updating, though, and now prefers byte-sodden rogue.) Lauren’s writing life has taken her to jobs as an editor, reporter, and congressional staffer, and to the Pentagon, where she spent three years as a speechwriter to Secretary of Defense Robert Gates. Her interest in U.S. history, foreign policy, politics, and culture is deep and abiding. The publications in which her work has appeared include the Weekly Standard, Commentary, First Things, American Communist History, the Wall Street Journal, the American Interest, Policy Review, the New Criterion, the Washington Times, and the Baltimore Sun.