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March 20, 2017|Daniel Horowitz, Federalist 78, Josh Blackman, judicial oligarchy, Stolen Sovereignty

Judicial Tyranny’s Final Frontier

by Mark Pulliam|19 Comments

Law and justice concept. Scales of justice, gavel, paragraphs, brown wooden background, place for text

Daniel Horowitz’s Stolen Sovereignty: How to Stop Unelected Judges from Transforming America (2016), published before the presidential election, is proving to be prescient—even prophetic.

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November 18, 2016|F.A. Hayek, Federalist 78, Obergefell v. Hodges, Roe v. Wade, United States v. WIndsor

Principle or Policy Preferences?

by Steve Ealy|3 Comments

What to make of Donald Trump’s interview with CBS’s Lesley Stahl last week?

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September 26, 2016|Congressional Power, Donald Trump, Executive Power, Federalist 78, Hillary Clinton, War Powers

What Do These Two Think About the Office to Which They Aspire?

by Greg Weiner|8 Comments

Andrew Harrer/Bloomberg via Getty Images

Presidential debates neither are nor ought to be midterm exams. The people who administer midterms do not necessarily possess political wisdom (see “Wilson, Woodrow”), and the people who excel at taking them may be better at demonstrating technical detail than prudential judgment (see above). Thus questions that make a candidate stumble—and that can win the journalistic brass ring for the moderator, namely, instigating news—tend not to be as valuable as those that prompt reflection and reveal a mind at work.

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March 29, 2016|Alan Gibson, Alexander Hamilton, Article III, Evan Bernick, Federalist 78, James Madison, judicial deference

Constitutionalism by Word Association: A Reply to Evan Bernick

by Greg Weiner|7 Comments

The doors of the Supreme Court

At The Huffington Post, Evan Bernick has offered a thoughtful reply to my suggestion that judicial deference to Congress differs categorically from judicial deference to the administrative state, arguing instead that the real problem is deference simply: “Judicial deference of any kind sees judges elevating will over the reasoned judgment that judges who draw their power from Article III must exercise.”

This usefully identifies the core of the issue. If federal judges actually possessed all the power Bernick says Article III assigns them, there would be less constitutional basis for constraining their authority. If they do not, the issue is whether they can commandeer it.

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May 26, 2013|Chris Green, Federalist 78, judicial activism, Michael Ramsey, Originalism

The Judicial Dilemma of Originalism, Part II

by Greg Weiner|Leave a Comment

Protesters rally against President Trump's travel ban on February 4, 2017 in Washington DC (Rena Schild / Shutterstock.com),

Michael Ramsey and Chris Green have made thoughtful comments on The Originalism Blog on my post asserting a tension between original intent and judicial restraint.  (Briefly, I argued that originalism does not necessarily entail restraint and might often counsel the opposite, so that judicial conservatives ultimately have to choose between them.)

Ramsey observes, persuasively, that the tension I asserted is equally a tension for liberals, who must also choose between their calls for a living constitution and judicial restraint; otherwise it is “hard to take their calls for judicial restraint seriously.” I agree. Many if not most calls for judicial restraint are opportunistic.  That said, judicial conservatives who have argued most pointedly for tethering constitutional interpretation to foreseeable principle bear, I would argue, a particular burden not to succumb to that temptation.

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May 21, 2013|Aristotle's Politics, Federalist 78, judicial activism, Originalism, Robert Bork, Willmoore Kendall

The Judicial Dilemma of Originalism

by Greg Weiner|1 Comment

For the bulk of the last generation, a conjunction of conservative legislatures and liberal courts enabled judicial conservatives to avoid a theoretical tension it is now time to confront: that between original intent and judicial restraint.

Robert_BorkThe tension was alleviated by the fact that, given the blend of conservatism in the electoral branches and liberalism on the bench, advocates of original intent and judicial restraint reached the same conclusions in 99 cases of 100: If majorities made decisions compatible with constitutional originalism and courts were inclined to overturn them—see Roe v. Wade as the paradigmatic example—the natural default for conservatives was judicial restraint.  Conservatives, led intellectually by Judge Robert Bork, preached a doctrine of deference to majorities. 

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June 30, 2012|Federalist 78, James Madison, Judicial Restraint, NFIB v. Sebelius, Obamacare, Originalism, Self-Government

Roberts’ Rules for Self-Government

by Greg Weiner|5 Comments

Protesters rally against President Trump's travel ban on February 4, 2017 in Washington DC (Rena Schild / Shutterstock.com),

Beneath the variegated opinions on health care issued by a divided Supreme Court, a shared subplot lurks: the strange and contentious fate of broccoli in a free republic.  The conservative justices utilized the specter of a broccoli mandate to argue that the requirement to purchase health insurance exceeds Congress’ powers under the commerce clause.  Justice Ruth Bader Ginsburg, writing for the minority on that issue, was at pains to say the analogy was inapt.  Yet all sides are falling prey to a fallacy that illustrates the Court’s lofty self-image as the Platonic protector not just against abuse but against absurdity too.

Call it the reductio ad constitutionatum: the suggestion that a power is unconstitutional if it could be absurdly applied. In political argument, the reductio ad absurdum—questioning a premise by showing that it leads to absurd consequences—is legitimate.  In judicial reasoning, though, it is less useful. Its unstated assumption is that the courts exist to protect us against our own acts of silliness—a vast understanding of judicial power. Even Earl Warren might blush.

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June 19, 2012|Affordable Care Act, Federalist 78, John Marshall, Judicial Review, Originalism

Constitutionality of Health Reform: An Argument for Popular Constitutionalism

by Greg Weiner|5 Comments

Protesters rally against President Trump's travel ban on February 4, 2017 in Washington DC (Rena Schild / Shutterstock.com),

It was June 1793, a summer of discontent for the nascent opposition in Washington, and Thomas Jefferson had a problem: A political adversary in Virginia was rumored to be contemplating a run for the House of Representatives.  Jefferson, concerned that the House provided a powerful perch, hit on the idea of banishing the adversary to a political backwater instead.  “Hence,” he wrote at the time, “I think nothing better could be done than to make him a judge.”

It was many years later, but on the question of whether the bench supplied a platform for power, the target of Jefferson’s machinations—John Marshall—laughed last.  Still, Jefferson’s assumption that the bench was a political wasteland from which no influence could be exerted illustrates a perspective missing in constitutional considerations over the Affordable Care Act.  The question the Court must answer is not merely whether the law is constitutional—the topic of virtually all the questions the justices asked—but also whether that decision is one for the judiciary to make.

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Book Reviews

The Ford Restoration

by Kirk Emmert

Occupying the White House in unfavorable circumstances can make a President fall back on his best friend: the U.S. Constitution.

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John C. Calhoun, Madisonian Manqué

by Thomas W. Merrill

His institutional innovations were geared toward preserving slavery.

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Podcasts

The Solid Ground of Mere Civility: A Conversation with Teresa Bejan

A discussion with Teresa M. Bejan

Teresa Bejan discusses with us how early modern debates over religious toleration are an example of how we can disagree well.

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Leading a Worthy Life in a Scattered Time: A Conversation with Leon Kass

A discussion with Leon Kass

Leon Kass discusses Leading a Worthy Life.

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Eric Voegelin Studies: A Conversation with Charles Embry

A discussion with Charles Embry

What did "Don't immanentize the eschaton!" really mean? An intro podcast on the formidable mind of Eric Voegelin.

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Republican Virtue, Interrupted: A Conversation with Frank Buckley

A discussion with F.H. Buckley

The real conflict in our politics centers on reforming massive levels of public corruption.

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About

Law and Liberty’s focus is on the content, status, and development of law in the context of republican and limited government and the ways that liberty and law and law and liberty mutually reinforce the other. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law and Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

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