An Eternal Introduction

USA Constitution Parchment

When I read the preface, I thought: What a great story awaits the reader. The authors of The Constitution: An Introduction, Michael Stokes Paulsen and Luke Paulsen, father and son, spent nine summer vacations together discussing the original Constitution and the Amendments. I wish I could have been privy to the conversations. Did the father ever say to the son, “you changed my mind on this point?” Did the son ever say to the father, “you changed my mind on that point?” After all, I think, the key to introducing America is by way of a dynamic conversation within and between the generations. Their aim is both lofty and restrained: to write an introductory book that is “rigorous, accurate, and scholarly” yet at the same time “brief and readable.” But they fall short.

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Do We Want a Redeemed Constitution?

Textured American Constitution with US Flag

My current podcast is a discussion with a most excellent scholar, Michael Paulsen, on the book he has coauthored with his son, Luke Paulsen, introducing the U. S. Constitution to the general reader. Good as the book is in many respects, it did surprise me with its embrace of the idea that the Constitution of 1787 was a pro-slavery document.

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Introducing the Constitution: A Conversation with Michael Paulsen

Paulsen constitution

This next edition of Liberty Law Talk is a discussion with Michael S. Paulsen, co-author with his son, Luke Paulsen, of their new book entitled The Constitution: An Introduction. The Paulsens’ book is a thoughtful and probing overview of the foundations and evolution of American constitutionalism. Our discussion focuses on key ideas in the book: What does it mean to be a country that is defined by a written constitution? Is the Founders’s Constitution a pro-slavery document? Has the use of substantive due process in Lochner, Griswold, and Roe corrupted our understanding of the Fourteenth Amendment? Of what worth is the Youngstown decision that…

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The Contest for Constitutional Liberty

A Funeral Procession for the Stamp Act of 1765.

In 1993 John Phillip Reid published the fourth and final volume of his Constitutional History of the American Revolution.  The subtitles for each volume are noteworthy: The Authority of Rights (1988); The Authority to Tax (1987); The Authority to Legislate (1991); and, finally, The Authority of Law.  The shelves of many American libraries, public and private, have welcomed the accumulated weight of historical explanations of the coming of American Independence with political, economic, and social templates serving as the sources of underlying causation.  Few, too few, have offered legal and constitutional analyses, an intellectual shortcoming that would have astounded, and likely angered, American whigs watching from their perch in 1775.

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The Undeclared War on ISIL

(U.S. Navy photo by Mass Communication Specialist 2nd Class Alex King/Released)

Mr. Gerry never expected to hear, in a republic, a motion to empower the Executive alone to declare war. - Constitutional Convention, August 17. Quaint, that Elbridge Gerry—hung up as he was on the idea that an Executive might need to be empowered to declare war. Two-hundred-and-twenty-seven years nearly to the day after that remark, and one year ago today, the United States commenced military operations against the Islamic State of Iraq and the Levant. One year, $3.3 billion, 5,000 airstrikes and 3,500 ground troops later—hardly repelling a sudden attack—Congress has yet to raise its timid hand to assert its institutional authority. The Obama Administration,…

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Ted Cruz: A Probable Natural-Born Citizen of the American Republic

Senate Republicans Speak To The Press After Weekly Policy Meetings

In a recent article published at the Harvard Law Review Forum, Paul Clement and Professor Neal Katyal emphatically denied the existence of any substantial controversy as to whether Senator Ted Cruz meets one of the eligibility requirements for the presidency, viz., whether he is a “natural born citizen” of the United States.  Any claim otherwise, they argue, is “specious,” for the historical evidence “clearly” demonstrates that he is such a natural-born citizen; because he was born to a citizen mother and thus a citizen “from birth,” he was a “natural-born citizen.”

I write to note my disagreement with their certitude, but tentative agreement with their conclusion.

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Dissenting from Natural Rights Nationalism: A Reply to Randy Barnett


Many thanks to Randy Barnett for his very thoughtful response to my post “The Book of Judges,” which criticizes a natural rights constitutional jurisprudence. Barnett says I was going after a straw man—that real defenders of “judicial engagement” are not calling for a philosopher’s debate on the federal bench that would produce a settled list of the type and content of natural rights for federal judges to enforce. He isn’t about defining and specifying natural rights in judicial decisions. Instead, he notes that they exist, and they are protected in the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment.

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On “Payback”


Empowered by the elections of 2014, Republicans face the question common to all who have had revolutionary changes imposed on them: Are we to accept what was done to us so as not to further revolutionize our environment, hoping our restraint will lead our adversaries to restrain themselves whenever they return to power?

Senator Harry Reid (D-Nev.), who, as Minority Leader pioneered the filibuster of appellate judicial nominees—vide, Miguel Estrada—and then as Majority Leader abolished the rule that allows it, had this to say in the wake of the midterms: “This is not get-even time.” Just as understandably, Senator Orrin Hatch (R-Utah) argues for teaching “these blunder-heads that they made a big mistake” by giving them “a taste of their own medicine.”

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