Why Freedom Is a Legal Concept

John Lilburne reading from Coke's Institutes at his trial for treason (c.1649).

The king will have a copy of the law written for him . . . It will remain with him and he will read it all his life . . . to observe faithfully all the words of the law. –Deuteronomy 17:18-19 You shall not render an unfair decision: do not favor the poor or show deference to the rich; judge your fellow countrymen fairly. –Leviticus 19:15 You shall have one law for the non-Israelite who lives permanently with you (in your land) and the native-born in the land (the Israelite). –Leviticus 24:22   More than 50 years ago, Bruno Leoni, in Freedom and…

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Responses

The Rule of (Pluralistic) Laws

Steven Grosby’s rich Liberty Forum essay combines, as his writing always does, a sensitivity to history with a careful attention to theoretical problems. I am tempted to engage him on the terrain of history, in the hope of prompting still more from him on the Middle Ages; were I just a listener, that is what…

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The Rule of Law and the Rule of Reason

Steven Grosby’s essay is an excellent contribution on the formal and procedural elements that must be upheld to maintain the rule of law. Grosby’s essay, however, invites us to unpack what kind of “reason” is inherent in law and to ask what it means for law “to rule.” The 13th century theologian and philosopher Thomas…

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One Need Not Choose Between the Rule of Law and Constitutional Federalism

I am delighted to have had the opportunity to read Professor Grosby’s Liberty Forum essay and to be invited to comment on it. I am especially happy that Professor Grosby has focused on the rule of law as a legal concept, as opposed to arguing that it's a political or philosophical concept. For unlike much…

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Congress in Search of Itself             

Sunrise behind the dome of the Capitol in DC

Christopher DeMuth had an interesting take on the election and its impact on our national institutions. In an essay for the Wall Street Journal, he wrote of the present inability of the political branches of government to function in a manner compatible with a national public good. Analyzing that failure, he pointed to what he believes is “a central purpose of the American scheme of checks and balances,” namely: to draw out the distinctive strengths of the two political branches, executive and the legislature, while containing their distinctive weaknesses. The scheme has not been working well of late. The consequences are…

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Responses

How to Put the “Most Complete and Effectual Weapon” Back in Their Hands

Indubitably, our nation’s finances are a mess. America has run deficits 36 of the past 40 years. The national debt is $18 trillion, and it has tripled as a percentage of GDP since 1974. Each February, the President rolls out his budget—a collection of tomes loaded with tables and text attempting to explain the government’s $3.7…

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More Reasons to Doubt that Separation of Powers Can Be Revived

John Marini provides an insightful commentary on Christopher Demuth’s optimistic suggestion that President Trump and the Republican Congress will be able to revive separation of powers and, by so doing, rescue us from an “autopilot government, rife with corruption and seemingly immune to incremental electoral correction” that the administrative state has created. Marini is less…

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The Real Ruling Authority

Americans are worried about the economy and jobs, about national security and safety from terrorism, about securing healthcare, about their children’s education. Lately I haven’t heard too many people talking about the problem of separation of powers. In fact, besides John Marini, Christopher DeMuth, Jonathan Turley, and a few other scholars and policy wonks, I…

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Overthrowing the Rule of Organized Intelligence: John Marini Replies

I would like to thank Kevin Kosar, Ralph Rossum, and Colleen Sheehan for their thoughtful and generous responses to my essay, “Congress in Search of Itself”.  Although there were many areas of agreement, and very few disagreements, each author focused on a different aspect of the problem posed by the contemporary role of Congress, and…

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He Tried to Warn Us

Friedrich Hayek (1899 - 1992) with a class of students at the London School of Economics, 1948. (Photo by Paul Popper/Getty Images)

Donald Trump and Hillary Clinton entered the 2016 campaign as the least popular major-party presidential nominees in the history of polling. Clinton was widely regarded as some combination of corrupt and disingenuous. Many of Trump’s most serious supporters still tend to defend him from a posture more of apology than enthusiasm. The campaign played out as if designed to disprove Publius’ prophecy about selecting a chief executive: that it “affords a moral certainty, that the office of president will seldom fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.” Publius’ prediction,…

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Responses

Why the Worst Now?

The Road to Serfdom’s publication was one of the intellectual and political turning points of the 20th century. The bloom was starting to come off the rose of socialism and Hayek explained why—in clear, crisp, and precise language and in a spirit of respect for those who had believed or still believed in socialism. I’m…

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We Might Need a Prince of the Potomac

Within days of Donald Trump’s inauguration, George Orwell’s 1984 shot to the top of Amazon’s bestseller list. Trump’s America is not Big Brother’s Oceania or Airstrip One. (Hillary Clinton’s America would not have been, either.) But however far Orwell’s dystopia is from becoming our reality, it’s good for Americans to reacquaint themselves with his warnings.…

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Father Knows Best

In many key respects, F.A. Hayek’s fears that the modern social-democratic welfare state would lead to totalitarianism did not come to pass. Even soft despotism seems only to have been partially realized. However, rereading The Road to Serfdom in the opening days of Donald Trump’s presidency offers an uncomfortable glimpse of where our national politics…

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Grasping at the Straws of Public Virtù

Friedrich Hayek did not predict Donald Trump, and President Trump is not the central planner of Professor Hayek’s dark imaginings. The question is whether Hayek’s analysis of the central planner can help explain the Trump phenomenon. The claim of my February Liberty Forum essay was that it could. In assessing that claim, I have the…

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The Future of Political Parties

1912 Republican National Convention in Chicago

Anyone witnessing the bellicose 2016 campaign would be hard pressed to envision a bright future for American political parties. American politics appears to be shaped currently by the paradoxical relationship between the decline of party organizations and angry partisanship—an unfiltered partisanship without parties, if you will, that has given rise to a contest between political opponents who not only disagree on principles but also deeply distrust their rivals’ motivations. The Democratic Party was roiled by a 74-year-old Vermont senator, a self-proclaimed “democratic socialist” no less, who denigrated the rearguard of the party “establishment”—super delegates and the party professionals in the Democratic…

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Responses

Partisanship, Parties, and the Snake that Eats Its Own Tail

Sidney Milkis represents the finest tradition of American political science. His research on the presidency and the parties has always been topnotch, and his broad understanding of political history gives his analysis of contemporary affairs special weight. Best of all, the University of Virginia’s White Burkett Miller Professor of Politics is interested in the big…

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Back to the Nixon Future?

In his excellent Liberty Forum essay on party politics, Sidney Milkis mentions Richard Nixon’s role in shaping the party system that we have today. The point is worth exploring in more detail. President Nixon’s story tells us a great deal about where the parties have been since the middle of the 20th century, and whither…

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2016 As a Realigning Election

In his very thoughtful analysis of the 2016 election, Sidney M. Milkis asserts that “the rise of Donald Trump as the Republican nominee and his election as President have been the equivalent of a political weapon of mass destruction.” Milkis laments this as the culmination of a divisive partisanship in which “candidates not only differ…

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America Must Regain Its Place as the Lodestar of Liberty

I am very grateful to Richard Reinsch, the editor of Law and Liberty, for inviting me to write an essay on “The Future of Political Parties” and for enlisting three perspicacious critics to respond to it. It is gratifying that my frantic attempt to place the madcap events of 2016 in historical perspective resulted in…

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Freedom of, Freedom for, and Freedom from Religion: The Contested Character of Religious Freedom in America

A statue of Thomas Jefferson includes this figure holding a tablet bearing several names that different belief systems have for a higher power, titled “Religious Freedom, 1786.”

Americans are discussing the topic of “religious freedom” quite a lot these days, which might give us the impression that religious freedom is one fixed thing. Or perhaps some would say it used to be one thing but has become something else since the time of the Founding. This Liberty Forum essay will argue that the situation, both historically and today, is more complex than either view. I want to argue that there is indeed a core or center to the idea of religious freedom in America but that this core or center is at the intersection of, or overlap among,…

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Responses

Religious Liberty After John Locke

The central point of Michael Zuckert’s Liberty Forum essay is that contemporary disputes about religious liberty should not come as a surprise, since they are the result of three contrary, though sometimes overlapping, understandings of religious liberty that have been found in the body politic in differing degrees since the American Founding. He classifies these…

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The Paradox of Jefferson’s “Establishment of Religious Liberty” and the Problem of the Administrative State

Michael Zuckert’s Liberty Forum essay is a great introduction to religious liberty as it is discussed in America today, and provides a useful analytical framework to understand the tensions and controversies we face with regard to religious liberty, and perhaps liberty more generally. He strikes me as on the mark in his conclusion that religious…

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Religious Freedom Can Now Mean Only: Freedom for Religion

Michael Zuckert’s Liberty Forum essay does an excellent job of bringing to light ambiguities and tensions that have always been present in the notion of religious freedom. He is certainly right that there is no Pure Theory of Religious Freedom, which, if only we can grasp it and make it universally accepted, would resolve all…

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Michael Zuckert Responds to His Critics

The first two responses to my Liberty Forum essay illustrate well that political theory is (still) not an exact science. Francis Beckwith finds my “religious liberty taxonomy” to be “largely correct . . . as an account of the history of America’s church/state jurisprudence,” but he doubts that my classification is as adequate for understanding…

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Ten Ways for the Next President to Promote the Rule of Law

Declaration of Independence Artice Grunge Background

After eight years of President Obama’s administration, conservatives are much more likely to see executive power as a threat to the rule of law than a tool in service of it. Indeed, after 16 years of Presidents Bush and Obama, we are all well accustomed to hearing critics comparing modern Presidents to King George III. (They don’t mean it as a compliment.) But it is a mistake to believe that presidential power is inherently and categorically a threat to the rule of law—quite the contrary. While it is true that presidential power unchecked by Congress, the courts, or the states can…

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Responses

Wishing for a Goat, Not a Hero

Adam White’s Liberty Forum essay offers 10 ways for our 45th President to promote the rule of law, many of which I find appealing. But I fear he could offer a thousand such ideas without much effect, and in the end he concedes that he, too, doubts that Presidents will restrain themselves or their governments…

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Understanding Why and How the Obama Administration Has Flouted the Rule of Law

It is very difficult to take issue with the pessimistic tone of Adam White’s sensible advice to the next President on 10 ways to promote the rule of law. All of the topics that he mentions are understood as serious, systemic weaknesses. When it comes to administrative law, President Obama has a penchant for excessive…

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Coherence in the Executive

I can only applaud the excellent “to do list” in Adam White’s Liberty Forum essay, even as I scan the absentee ballot that I received in September wondering whether any of the leading candidates would have the good sense to give the list the attention it deserves. But we are giving advice here, not forecasting…

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A (Long) Path to Reforming Our Administrative State

When Law and Liberty invited me to write on 10 things that a new president could do to promote the rule of law, I was struck by how counterintuitive the question was. After years upon years of debate over presidents pushing the boundaries of the constitutional powers (and not just during the most recent administration,…

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Commandeering Federalism: The Rise of the Activist State Attorneys General

New York Attorney General Eric Schneiderman (C) speaks as Massachusetts Attorney General Maura Healey (2nd from R) looks on during a press conference at the office of the New York Attorney General, July 19, 2016 in New York City. They announced lawsuits against Volkswagen AG and its affiliates Audi AG and Porsche AG. (Photo by Drew Angerer/Getty Images)

One of the most important developments in American politics and governance is that the attorneys general of the 50 states have become major players in national policy. Once relatively obscure stepping-stone positions focused mainly on small-bore issues, state AGs make their presence known today in area after area, be it health care, environmental regulation, guns, immigration, or cultural issues. The lawsuits they bring against federal agencies and the legal settlements they reach with corporations have led to stronger horizontal relationships among the AGs, and to any given AG’s working with—or against—his or her counterparts in other states as part of…

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Responses

They’re Not the Main Culprit

State attorneys general aren’t ruining federalism. It was already ruined, as Michael Greve’s 2012 classic The Upside Down Constitution chronicles. It is tempting to blame them, given how badly many state attorneys general behave. Some use their office to enrich themselves or their lawyer pals, or to pursue vendettas against adversaries. The attorney general of Pennsylvania,…

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State Attorneys General Didn’t Start the Fire

The American form of government, in the classic formulation of Justice Salmon Chase, contemplates “an indestructible Union composed of indestructible States.”[1] The Constitution, apart from assigning specific functions to the federal government, and prohibiting the states from exercising certain powers, largely leaves the determination of public policy to the 50 states. As numerous jurists, statesmen,…

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Federalism and State Attorneys General

There are many challenges in designing a federalist system of government. Perhaps the most daunting is how to create incentives for government officials to preserve a regime of state-by-state decisionmaking—especially when constituent pressures, partisan allegiance, or ideological beliefs tug in other directions. The U.S. Constitution tries to preserve state prerogatives by enumerating the powers of the…

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State Attorneys General Remain Unsteady Allies for Federalism

My thanks to Hans Bader, Michael Toth, and Jonathan F. Mitchell for their thoughtful responses to my essay concerning state attorneys general (AGs) and contemporary American federalism. Each raises good points about the AGs’ various roles in the era of executive federalism that has rapidly expanded during the Obama years. As all three authors note,…

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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:…

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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,…

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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…

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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…

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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…

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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…

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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,…

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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…

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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…

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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…

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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…

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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…

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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…

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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…

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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…

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