Madison and the Liquid Constitution

Clear blue sky

The conversation Richard Reinsch has sparked on constitutional liquidation is less about constitutional meaning than about the ultimate—note “ultimate”—authority to ascertain it. It is true, as Randy Barnett, among others, notes, that liquidation is a longstanding topic in originalist thought. But Reinsch suggests a new avenue, writing that republican politics bien entendu is the ultimate (see above) expositor of constitutional meaning and that this is true generally, not just in ambiguous or indeterminate cases.

Read More

The Constitution, Liquidation, and Originalism

Richard Reinsch, editor of this site, has written an interesting piece entitled The Liquid Constitution.  Richard emphasizes that there is a need to liquidate the meaning of unclear constitutional provisions, and notes that James Madison praised this approach.  Richard has some critical things to say about originalism, suggesting that it enthrones the judiciary at the expense of the people. Without engaging with his criticisms of originalism, I do want to note that the role of liquidation is an important issue within originalism, and that originalist scholars have begun to study the matter from an originalist perspective.  One issue is the extent…

Read More

Defining Socialism Down

Communism killed some 94 million people in the 20th century. It ranks alongside any other evil of that period, which is saying something. Consequently, no less than Nazism, it is not a word to be casually used or a charge to be lightly made. Both happened in response to Richard Reinsch’s eminently sensible observation in this space that Barack Obama is “not a socialist”—a clause followed hard on by another stating that Obama’s policies were incompatible with the genius of the American regime. Despite the latter clause, this set off a range of posted comments that placed “progressive,” “socialist” and “communist” on the same slippery continuum, with one commentator remarking that they were separated only by meaningless degrees, another claiming that Obama was not a socialist, he was a “radical socialist,” and still another clarifiyng that, no, he was a “fascist” instead.

It is difficult to see what purpose is served by these excesses other than to trivialize charges conservatives ought to take seriously while deflecting punches that might actually land.  Certainly no converts are going to be made by forcing choices to falsely stark extremes—either a state scaled back beyond what anyone in the mainstream of politics, Republican or Democrat, today supports on the one hand or the specter of socialism on the other—that, not incidentally, crowd 62 million Americans who voted for Obama into the same pejorative category.  A charge of communism is a charge of totalitarianism that conjures the Gulag, the collectivization of farms and the deaths by starvation or slaughter of tens of millions. It is not the same thing as socialism, and socialism is not the same thing as progressivism.

Read More


Recent posts and comments on my humble federalism oeuvre—prominently, Richard Reinsch’s sensational post—invite careful thought and reflection. The gravamen, as I understand my critics, is that I’m too enamored with political economy (rationalism, and economics) and too dismissive of the civic, democratic virtues that make government work and last. At the end of the day, that may be right; I’d love to think and argue about it. But I’m in Indianapolis today and at Holy Cross tomorrow and on Thursday back in class again. A few hasty questions, then: Can you make republican government work for devils—in other words, create a…

Read More

The Upside-Down Constitution: Recent Reviews and Further Reflections

The Upside-Down Constitution sought to spark a more vigorous and forthright debate about federalism and, more broadly, the constitutional order—beyond a federalism of “balance” and a clause-bound, positivist originalism. I’m gratified that a good number of thoughtful lawyers and scholars have accepted the challenge. Early reviews include terrific pieces by Rob Gasaway, sitemeister Richard Reinsch, and Ilya Somin. Recent additions include a review by James A. Gardner (SUNY Buffalo Law School) in the Law & Politics Book Review (more in a sec); by R. Shep Melnick (Boston College) in The Forum; and by Roderick M. Hills, Jr. (NYU Law School) in the Tulsa Law Review.

Alas, Shep’s piece is behind a pay wall and Rick’s, behind a “you-must-buy-the-physical-volume” wall. I have the e-files but can’t link to them without copyright infringement. Next best option: (1) offer to send the file(s) to anyone who asks; (2) give the authors air time on this blog—not nearly as much as they deserve, but enough to give a flavor and to suggest useful lines of further inquiry and debate. I proffer this post in that spirit; with apologies for its inordinate length; and with gratitude to the critics.

Read More

Friday Roundup, January 4th

The first Liberty Law Talk of 2013 is with Nicholas Eberstadt of AEI on his compact but powerfully argued book, A Nation of Takers. Paul Hollander reviews in our Books section this week Spies and Commissars: The Early Years of the Russian Revolution. Authored by Robert Service, communist historian extraordinaire, Hollander notes that the book underscores an important observation Two major misconceptions entertained by the opposing parties of the period are laid to rest. One was held by the Soviet leaders, the other by Western politicians. On the Soviet side there was the strongly held and ideologically conditioned belief, or rather, delusion,…

Read More

Friday Roundup, December 28th

Peter McNamara reviews in our Books section Michael Federici's The Political Philosophy of Alexander Hamilton. Don't miss the podcast I did earlier this fall with Federici at Liberty Law Talk. McNamara observes: Hamilton’s declarations about liberty and republicanism and his actions as the first Secretary of the Treasury did little to convince many of his contemporaries that he was sincere.  Jeffersonians routinely accused Hamilton of harboring imperial ambitions, of being a monarchist, and of trying to subvert both liberty and the republican form of government.  Jefferson himself also called into question Hamilton’s loyalty to the United States, his personal courage, and…

Read More

Friday Roundup, December 21st

In case you missed it: Todd Zywicki reviews @Law and Liberty David Skeel's The New Financial Deal. David Henderson at Econ Log adds some interesting facts to the mix on the Erik Loomis fracas at University of RI. Feds to taxpayers: About the auto bailout, we  lost your money. Mark Roe at Project Syndicate: Corporate short-term thinking and economic trends: what are the connections? Michael McConnell at Slate: What if Robert Bork Had Joined the Court? Good legal career advice from Ted Frank. Code of the Gentleman (link no longer available): Diana Schaub reviews a new translation of Aristotle's Nicomachean Ethics.  

Wanted: Long-Term Rules for the Short-Sighted Fed

The Cato Journal’s Spring/Summer 2012 volume on “Monetary Reform in the Wake of Crisis” is not to be missed. Contributors include Allan Meltzer, John Allison, James Grant, George Selgin, and Judy Shelton, among others. You could think that so much has transpired since this went to print, more QE, more EU summits, more “Fed twists” that its value has decreased. Not so, however.

For example, Allan Meltzer, author of the magisterial history of the Fed entitled A History of the Federal Reserve, has an essay “Federal Reserve Policy in the Great Recession” that is chock full with insight on the Fed’s behavior of recent years. The essay also limns a way forward to a rule-driven, discretion-limited Fed. The main theme is that “Overresponse to short-run events and neglect of longer-term consequences of its actions is one of the main errors that the Federal Reserve makes repeatedly.” Meltzer charges that the Fed in the Great Recession has engaged in credit allocation and distorted credit markets, incurred an unprecedented volume of long-term assets, evaded the dual-term mandate, engaged in debt management, among other acts. In so doing, the Fed has done things “that are not the responsibility of a central bank.”

Read More

Friday Roundup: December 14th

Don't miss Brian Tamanaha's visit to Liberty Law Talk to talk about Failing Law Schools. At EconLib's vast treasure trove: Israel Kirzner on "The Philosophical and Ethical Implications of Austrian Economics." Reconsidering Hobbes' revolution. "Debt and the Constitution" John Steele Gordon at The American: One of the president’s demands for avoiding the fiscal cliff is that Congress give him the power to raise the debt ceiling, subject only to a two-thirds vote in each house to override him.While it is hard to imagine Congress willingly surrendering so basic a power to the executive branch, I wonder under what authority it could do so.…

Read More