The Unforgettable Fire: Tradition and the Shape of the Law

Columns at the U.S. Supreme Court

What is the relationship of law and tradition? Tradition, either as a proposition of independent legal value or a register in which to discuss and explain the persistence of our legal arrangements, has very little traction today. In law, as in many other areas of contemporary American life, tradition as a normatively powerful idea is wildly unfashionable—even disreputable. When tradition’s influence on law is considered, responses ordinarily fall somewhere along a predictably confined range—from dismissal and disdain to something like revulsion. A fairly recent Slate article on Khloé Kardashian’s checkered and rather perplexing spiritual practices concisely sums up the general view:…

Read More

Responses

The Courts and Tradition: A Begrudging Respect

Marc DeGirolami’s Liberty Forum essay discusses two contexts in which tradition might influence American law: common law and constitutional law. He suggests that tradition is still robust in the former, less so in the latter. With regard to common law, I think that he’s right that custom underlies a good deal of the law of contracts,…

Read More

American Tradition in Theory and Practice

Professor DeGirolami has written an interesting Liberty Forum essay in behalf of paying respectful attention to tradition as a major aspect of our legal order. However, I think there are two major problems with it. The first is theoretical, particularly in relation to the American political and legal experience. The second has to do with…

Read More

Legal Realism, Legal Revolution

In the first paragraph of his celebrated 1881 book on the common law, Oliver Wendell Holmes, Jr. wrote: “The life of the law has not been logic; it has been experience.” Nor was that the first such expression in the annals of American jurisprudence. At the Philadelphia Convention of 1787, James Madison recorded John Dickinson’s…

Read More

Law and Tradition in America: Marc DeGirolami Replies

I am grateful for the learned responses of Professors Bernstein, Levinson, and Stoner to my Liberty Forum essay on law and tradition. Of course, it will not be possible to reply to each point. But it may be simplest to consider the arguments of Professors Bernstein and Stoner together, before more particularly addressing Professor Levinson’s. Bernstein…

Read More

Extending Bankruptcy Law to States: Is It Constitutional?

Illinois State Legislature

Puerto Rico cannot pay its debts. A significant number of states—with Illinois leading the way—teeter on the brink of fiscal disaster. Expenditures exceed revenues; debt service is a rising percentage of budgets; pension liabilities are woefully underfunded; credit ratings plummet; time is running out. If these states were private corporations, and even if they were cities, they could voluntarily file for bankruptcy protection under federal law. That would enable them to negotiate with their creditors to restructure their debts, and to renegotiate contractual obligations such as pay, retirement, pensions, and health care. Often these future obligations are untouchable as a matter of…

Read More

Responses

Sovereignty and Orderly Defaults

In his illuminating and timely Liberty Forum essay on the constitutional impediments to a state-level bankruptcy procedure, Michael McConnell emphasizes the importance of the sovereignty of the states in the framework of American federalism. Unlike Detroit and San Bernardino, and perhaps unlike Puerto Rico, the states are considered fully sovereign with respect to taxation, expenditures,…

Read More

State Bankruptcy and the Federal Order

While a federal bankruptcy law for states might be a desirable policy, its constitutionality is doubtful. Now, I am not a constitutional lawyer and cannot speak to the details of United States case law, but I do study fiscal federalism in comparative context: its conditions, operations, and consequences. Accordingly, I will analyze how a federal…

Read More

In What Circumstances Would the Threat of State Bankruptcy Be Credible?

Michael McConnell’s Liberty Forum essay does an excellent job of outlining the legal case that enabling states to declare bankruptcy is not necessarily inconsistent with constitutional principles or with existing case law. From the perspective of a public choice economist, however, there is another salient issue. What those who study the outcomes of institutional arrangements and…

Read More

A State Bankruptcy Policy and the Constitution: Michael McConnell Responds

I am grateful to Jonathan Rodden, Jason Sorens, and Steve Slivinski for their thoughtful responses to my essay, entitled Extending Bankruptcy Law to States: Is It Constitutional? I am particularly grateful because they addressed the many public policy issues about state bankruptcy, which I did not. I confined my essay to the legal/constitutional questions. But the…

Read More

The Case for More Money in Politics

Hands raising money - United States dollar (USD) banknotes

Should a democracy, in the name of combatting political corruption, and in the name of equal participation in politics, regulate the formation of political opinions—or should it be guided by the principle of the free formation of opinion that emerges spontaneously in society? The phrase “campaign-finance reform” assumes a premise: that the way American political campaigns are run needs reform. Specifically, it assumes that the problems in our political discourse are principally ones about who pays for campaigns. These problems are alluded to, in breathless tones, as “money in politics,” or “dark money,” or, most glibly, “Citizens United.” Consider, though, that there…

Read More

Responses

Campaign-Finance Law, the State of Nature, and the Nirvana Fallacy

One cannot fault Professor Derek Muller, whose work I admire and respect, for taking a hard libertarian line against campaign-finance regulation in his Liberty Forum essay. After all, that misguided approach is built into the prompt of the question posed by Law and Liberty’s editors: “Should a democracy through concerns about corruption in politics and equality…

Read More

A Natural Right with Naturally Unequal Consequences

I am in strong agreement with the Derek Muller’s opposition to Progressive ideas to reform laws relating to campaign speech. He is particularly eloquent on why the Framers believed that limiting government was the best route to eliminating political corruption—the opposite of the Progressive agenda, which seeks to expand the state. We can build on his…

Read More

The End of the Great Compromise

Constitutions are more than struggles over meaning or changing social values as interpreted by judges. Constitutions are part of larger political struggles and reflect that conflicts and compromises in those larger fights. The conflicts of the New Deal ended with a compromise—one that promised an open political process in lieu of constitutional protections for the…

Read More

Speech Equality’s Crushing Weight: Derek Muller Replies

It was a privilege to participate in this month’s Liberty Law Forum. I am deeply grateful for the opportunity to contribute the lead essay, “The Case for More Money in Politics,” and I am humbled at the thoughtful commentary provided by Professors Rick Hasen and John McGinnis, and by John Samples, all of whose opinions…

Read More

Twenty Years after Welfare Reform: The Welfare System Remains in Place

Clinton_prwora

It was 20 years ago that leaders of both major political parties gathered in the Rose Garden of the White House to watch President Clinton sign the Personal Responsibility and Work Opportunity Reconciliation Act. The bill that Clinton signed into law on August 22, 1996, despite its obscure title (and unpronounceable acronym, PRWORA—hereafter we will simply call it “the Act”), represented the most extensive revision of federal welfare policy in more than a generation. There were smiles all around that day in the Rose Garden, and an uncommon political harmony as Democrats and Republicans basked together in the warm afterglow of…

Read More

Responses

Welfare Reform’s Success and the War on Immobility

There is much with which to agree in Michael Tanner’s Liberty Forum essay summarizing the post-1996 history of welfare reform, its successes and failures, and where to go from here. However, I view the Personal Responsibility and Work Opportunity Reconciliation Act as having succeeded to a greater extent than Tanner believes. Indeed, as I have argued…

Read More

Tailoring the Help to Those Who Need It

Michael Tanner’s Liberty Forum essay provides a characteristically insightful and level-headed overview of the 1996 welfare reform and its consequences. He admirably clears away the rhetorical fog that still envelopes our debates regarding welfare, and does not let either side get away with much. “Welfare reform was neither the disaster that its critics feared nor…

Read More

We Can’t Stand Welfare, and Can’t Stand Welfare Reform

The 1996 welfare reform law seemed, at the time, like a very big deal. Critics denounced it as a savage assault on those Americans whose lives were already precarious. Supporters hailed it as the first reversal since 1932 of a relentless trend: individual government welfare programs grew more numerous, while each one spent more money…

Read More

Twenty Years after Welfare Reform: Michael Tanner’s Response

Scott Winship, Yuval Levin, and William Voegeli offer insightful critiques of my Liberty Forum essay on the 20th anniversary of welfare reform. Actually, I use the term “critique” advisedly, because there may not actually be that much daylight between our positions. Still, there are quibbles, if not major differences. Scott Winship clearly feels the 1996 reform…

Read More

Saving Originalism from the Originalists

Law Books

For decades, adherents of “judicial restraint,” led by Justice Antonin Scalia, have railed against “judicial activism.”[1] Activist judges, they charge, have repeatedly overstepped the bounds of their authority by striking down acts of the democratically accountable branches of government on grounds having no proper basis in the Constitution. In the view of many who favor more restrained use of the power of judicial review, “originalism”—the notion that the Constitution should be interpreted in accordance with the intent of the Framers—is not only the sole defensible method of constitutional interpretation, but the last, best hope of ending misadventures in judicial activism. As…

Read More

Responses

Constitutional Theory As Game Theory

Stephen F. Smith begins his Liberty Forum essay by quoting from Justice Antonin Scalia’s “Originalism: The Lesser Evil” speech from 1988. There Scalia announces that the Constitution, though it has an effect superior to other laws, is in its nature a sort of ‘law’ that is the business of the courts—an enactment that has a fixed…

Read More

Promoting Originalism: Through Strategy or Principle?

Stephen Smith’s Liberty Forum essay concerns an important question for originalism: How can originalists provide nonoriginalists with an incentive to follow the Constitution’s original meaning? Smith identifies what he regards as a serious problem with originalism: “In a world in which many judges reject original intention as a binding constraint, originalism cannot achieve its goal of…

Read More

Reactivists We Have Known and Loved (Just One, Actually)

Kudos to Stephen Smith, and kudos to the man behind the curtain (Richard Reinsch) for inviting his essay. What a breath of fresh air. In the current environment, constitutionalism seems unlikely to regain real-world traction any time soon. Surely, though, that must remain the long-term objective. To that end originalism must liberate itself from its…

Read More

Saving Originalism: A Reply by Stephen F. Smith

It was an honor for me to contribute my initial essay, “Saving Originalism from the Originalists,” to the Liberty Law Forum, and now I am doubly honored to have had my work reviewed by constitutional scholars as widely respected as Professors Michael Greve, Gordon Lloyd, and Mike Rappaport. I am grateful to each of them…

Read More

Reimagining Religion’s Distinctiveness: Kathleen Brady Replies to Her Critics

I would like to thank D.G. Hart and Ilya Shapiro for their thoughtful comments on my essay. Together their observations provide me with the opportunity to clarify some aspects of my account of religion’s distinctiveness and the implications of this distinctiveness for our understanding of the First Amendment’s religion clauses and other constitutional liberties. Professor Hart critiques my understanding of religion for following the modern tendency to envision religion in individualistic terms. In America we have shifted towards viewing religion as “a personal quest for meaning,” something “deeply personal” and “private,” rather than a “corporate identity” or a matter of institutional…

Read More

The Clashes of Values that Leviathan Foments

Kathleen Brady’s book The Distinctiveness of American Religion in Law: Rethinking Religion Clause Jurisprudence is a fascinating exposition of the changing role that religion plays in a rapidly secularizing society. What’s so special about religion? Why should courts treat it differently from non-religious belief systems? Why do we still mostly speak of religious free exercise and not so much freedom of conscience or other formulations of broader ideological protections? Why, for example, does an institution like the Hosanna-Tabor Evangelical Lutheran Church and School get exempted from employment-discrimination laws but not the Cato Institute (which is just as opposed to government…

Read More

Reimagining Religion’s Distinctiveness in American Law

A row of Church pews

Historically we have understood our tradition of religious liberty to entail distinctive treatment for religion. We have interpreted the Free Exercise and Establishment Clauses of the First Amendment to afford special protections for religious exercise and to place special limitations on government involvement with religion. The religion clauses, we have said, protect religious belief and practice from the dangers of state intrusion; protect the state and its institutions from the dangers of sectarian control; and operate to prevent the domination of religious minorities by majorities. Equality of treatment between religion and nonreligion has also always been a part of our tradition…

Read More

Responses

Who Threatens Whom? Which Religion Needs Protection?

Many of my undergraduate students have trouble understanding the threat that religion might pose to the state. Often when teaching the Investiture Controversy, the 11th century contest between Pope Gregory VII and King Henry IV, the Holy Roman Emperor, over the appointment of bishops, I put to them the anachronistic question of whether the Pope has…

Read More

A Modest Proposal for Reforming the Administrative State

Wooden Judges Gavel And Old Law Books On Wooden Background

The problem of administrative government in the United States is well known to the readers of Law and Liberty. Congress delegates broad legislative power to agencies, sacrificing something of our republican character. An agency thus exercises not only executive power as part of that department of government, but also legislative power delegated to it by the Congress. Independently, agencies often exercise judicial power as well, adjudicating not only public rights cases but also cases involving common-law private rights traditionally reserved for Article III courts. We have sacrificed not only some part of our republicanism, then, but also a much greater…

Read More

Responses

(Incrementally) Toward a More Libertarian Bureaucracy

The ambitious proposal reconsidering the foundations of the modern regulatory state that Ilan Wurman outlines in his thoughtful Liberty Forum essay is not an outlier. There seems to be a growing call—primarily among conservatives and libertarians—to return to first principles and rein in the administrative state. And I’m not just referring to Philip Hamburger’s condemnation…

Read More

An Administrative Fairy Tale

Most everyone is familiar with the Hans Christian Andersen tale in which only a child is willing to pronounce what everyone knows: The emperor’s clothes are no clothes at all. As the emperor marches through town, he is as naked as the day he was born. His magnificent new outfit is a fiction, but a…

Read More

Congress-ification of Agency Rulemaking

In his provocative Liberty Forum essay, Ilan Wurman proposes a novel solution to the explosive growth of the administrative state. Constitutional conservatives, rather than pursuing their dream remedy (that is, the Supreme Court overturning or severely limiting its prior holdings on the non-delegation doctrine), should accept that agencies will inevitably exercise a blend of executive,…

Read More

Ilan Wurman Replies to His Critics

I would very much like to thank professors Chris Walker, Jonathan Adler, and Andy Grewal for their thoughtful and incisive responses to my “modest” (or perhaps not so modest) proposal for reforming the administrative state. Much of their criticisms, I think, will be addressed in the forthcoming, fuller accounts of this idea, but much of…

Read More

Freedom of Association and Antidiscrimination Law: An Imperfect Reconciliation

double exposure of businessman or salesman handing over a contra

The topic of this essay[1] is to identify the proper role of antidiscrimination laws in relation to the general principle of freedom of association, which is itself a subset of the basic principle of freedom of contract. Historically, the usual understanding was that the principle of freedom of association enjoyed pride of place in the social hierarchy, such that the antidiscrimination principle was employed only in select contexts, primarily as a counterweight to monopoly power in a broad class of public utility and common carrier settings. The basic position had strong underpinnings in the constitutional provisions that protected equally property…

Read More

Responses

Classical Liberalism: Teaching Its Own Undoing

Professor Richard Epstein has performed a welcome service in reminding us of the classical liberal case for the freedom of association. The classical liberal champions the primacy of rights as guarantors of the individual’s sovereignty to make free dealings with other sovereigns. He values rights as safeguards of the freedom to make moral and economic…

Read More

Richard Epstein’s Imperfect Understanding of Antidiscrimination Law

Richard Epstein is right about how to think about antidiscrimination law. The general principle governing transactions between private parties should be freedom of association, for reasons of both liberty and efficiency. Any departure from that rule, such as a prohibition of discrimination, has the burden of proof. Epstein, however, can’t let go of that general rule…

Read More

Government Intervention Springs Eternal for Antidiscrimination Laws

In his Liberty Forum essay, Professor Richard Epstein makes a persuasive case that antidiscrimination laws are “a great mistake outside of monopolies.” But advocates of “antidiscrimination” laws have a view of monopoly—or of “coercion” and “force”—that is much more expansive than Professor Epstein’s. The Progressive or modern liberal advocates of antidiscrimination laws advance a concept…

Read More

How Classical Liberal Principles Address Cultural, Social and Economic Issues: Richard Epstein’s Reply

My Liberty Forum Essay, Freedom of Association and Antidiscrimination Law: An Imperfect Reconciliation has provoked three thoughtful responses. Those by Marc DeGirolami and Paul Moreno are supportive of my approach and may be  best described as intramural disputes among individuals who agree on the relationship between freedom of association and basic antidiscrimination laws. Andrew Koppelman’s…

Read More