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November 8, 2018|14th Amendment, Barack Obama, Donald Trump, Edmund Burke, Federalist #63, Originalism, Steve King

Political Originalism and the Problem of Power

by Greg Weiner|

Image: Charles Brutlag / Shutterstock.com
Originalism is not merely a theory of how the Constitution should be preserved but also of how, precisely, it should change.

November 1, 2018|14th Amendment, Citizenship, Peter Schuck, Rogers Smith

Citizenship and the “Living, Breathing Constitution”

by James R. Rogers|

Image: Evegenia Parajanian / Shutterstock.com
If Americans no longer desire birthright citizenship, then the means to implement that desire is to amend the Constitution.

September 19, 2018|14th Amendment, Hayek, Ninth Amendment, Privileges or Immunities

Protecting Traditional Rights with the Ninth and Fourteenth Amendments

by Mike Rappaport|

Friedrich Hayek (1899 - 1992) with a class of students at the London School of Economics, 1948. (Photo by Paul Popper/Getty Images)
Michael Rappaport on how Hayek's use of the Ninth and Fourteenth Amendments supports traditional rights - and originalism.

September 14, 2018|14th Amendment, 9th Amendment, Hayek, Originalism, Privileges or Immunities Clause, William Pryor

Was Hayek an Originalist?

by Mike Rappaport|

Friedrich Hayek in Gothenburg, Sweden 1981 (Roger Tillberg / Alamy Stock Photo).
Hayek was an originalist of a certain sort, one who favored an original meaning based on the words of the Constitution and the enactors' intent.

July 24, 2018|14th Amendment, Lochner v. New York, Oliver Wendell Holmes

A Commentary on Holmes’s Lochner Dissent: Part I

by Mike Rappaport|

Bakery in New York City, 1936 (Robert Kelly/Wikimedia Commons/CC-GY 2.0).
Justice Oliver Wendell Holmes' two-paragraph dissent in Lochner v. New York does not grapple with the question: what does the 14th Amendment enact?

September 21, 2016|14th Amendment, commercial republic, Founding, Free Speech, gag rule, Michael Kent Curtis, Privileges or Immunities Clause, Stephen Field

The Continuity of the Fourteenth Amendment with the Founding

by John O. McGinnis|

At a splendid conference at the University of the South last weekend, the most important underlying theme turned out to be the question of the continuity of the 14th Amendment with the rest of the constitution. Some scholars—indeed most– argued that the Reconstruction Amendments represented a second founding and a radical break with the past.

In contrast, I believe that there is substantial continuity between these two essential parts of our charter of liberty.  The 14th Amendment advanced and opened to all the commercial republic that was at the heart of the original Constitution. By their secession and actions leading up to succession, the South showed that it recognized that commercial dynamism and freedoms of the original founding would doom slavery. The Civil War just accelerated the realization of guarantees that flowed from principles implicit in the original Constitution.

For instance, before the War Southern states tried to gag discussion of petitions on slavery on the House floor and banish criticism of the peculiar institution from the federal mails, in obvious violation of constitutional guarantees. Slavery supporters also burned down abolition newspapers.  They tried to ban books that argued that the wages of Southerners who did not own slaves were decreased by the institution of slavery.  As Michael Kent Curtis noted, these acts allowed the North to reframe the debate about slavery as one about established constitutional liberties and the freedom of labor generally.

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January 5, 2016|14th Amendment, Originalism, Reconstruction

Who Are the True Heirs of the Reconstruction Republicans?

by Mike Rappaport|

In a post at Balkinization, Mark Graber criticizes the five more conservative justices on the Supreme Court, seeking to link them to the Democrats who championed slavery:

Roberts Court justices and their allies take the post-bellum Democratic position on constitutional equality. During the debates over the Second Freedmen’s Bureau Bill, Republicans insisted that Congress could take into consideration American racial history when passing legislation that provided specific benefits to destitute freedmen. Democrats insisted that any legislation that favored persons of color violated constitutional commitments to equality. Chief Justice Roberts agrees with those who hoped African-Americans would remain in a state as close to slavery as constitutionally possibly.

For years, originalists have told us that constitutional language must be interpreted consistently with how that language was understood when constitutional provisions were ratified. Apparently . . .  what they have meant is that constitutional language ought to be interpreted consistently with how persons who opposed constitutional provisions interpreted that language after ratification.

Graber’s argument, which has also been made in the literature, is not persuasive.  In my view, it makes a tendentious political argument that is easily defeated by those it criticizes.

Graber’s argument focuses on the legislative debate concerning the Freedmen’s Bureau Act, which provided special benefits to former slaves. He claims that the defenders of slavery and white supremacy, the Southern Democrats, made the same arguments that the modern Republicans make concerning affirmative action. And the party of freedom for blacks, the Northern Republicans, make the same arguments that the modern Democrats make. Graber also claims that the modern Republicans, who tend to be originalists, are not really purporting to enforce the original meaning of the Constitution concerning this issue. 

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October 2, 2015|14th Amendment, Birthright citizenship, Originalism

A Nonoriginalist Challenge to Birthright Citizenship for Illegals – Part II: The Original Meaning

by Mike Rappaport|

Having stated my political view that the United States should allow a large amount of legal immigration, I now turn to birthright citizenship: the idea that any person born in the United States should automatically be a United States citizen. While I will develop this point later, it should be noted at the beginning that these two issues do not necessarily coincide. One can favor immigration, even illegal immigration, and still be against birthright citizenship. As I will explain later, I hold a version of this position. Similarly, one could favor birthright citizenship and be against much immigration. The first sentence of…

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August 4, 2015|14th Amendment, assimilation, Enumerated Powers, Immigration, Liberty, welfare

A Classical Liberal Constitution Welcomes Immigrants

by John O. McGinnis|

Immigration of the right kind is a great benefit to a nation run under principles of liberty. If the immigrants obey our laws and work productively, they will add to the nation’s wealth.  If they assimilate to the nation’s creed of liberty under law, they strengthen its power throughout the world, because their  former compatriots take heed of their success and that example may encourage more liberty in their home nations. And not only do the citizens of the welcoming nation benefit, so also do immigrants. The value of their human capital rises as soon as they set foot in a nation of free markets and the rule of law.

The way to encourage citizens to embrace immigration from abroad is to have a constitution that limits welfare programs and precludes ethnic discrimination. Without such commitments, citizens may rationally worry that poor and even work-shy immigrants may come and eventually vote themselves higher levels of benefits, even at the expense of long-time citizens and their descendants. Without guarantees against discrimination, citizens may also worry that ethnic groups who still feel solidarity based on previous ties, will try to organize government benefits on the basis of ethnicity, impeding assimilation.

And now I can reveal that once there was a nation that had a constitution with the pre-commitments needed to facilitate a sound immigration policy. It was the United States after it had ratified the 14th Amendment. 

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June 1, 2015|

How Constitutional Originalism Promotes Liberty

by Ilya Somin|

What approach to constitutional interpretation best protects liberty? My task in this essay is to answer that modest question. Ultimately, there is no definitive answer that applies to all times and all places. But under the circumstances of the United States for the foreseeable future, originalism is likely to be the best bet. Both the structural and individual rights provisions of the Constitution generally protect liberty more when interpreted from an originalist standpoint than by applying any of originalism’s plausible competitors. Before even beginning to defend that position, we must first consider what is meant by “liberty.” Adherents of different ideologies…

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Responses

What “Liberties” Does the Constitution Protect?

by Hadley Arkes

In his famous, breakthrough speech at the Cooper Union in New York, Lincoln remarked on those black slaves who had not thrown in with John Brown. Even though, as he said, they were “ignorant”—even though they had no formal education—they had the wit to see that the schemes of this crazy white man would not…

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The Use and Abuse of Originalism

by Edward Whelan

Ilya Somin’s thesis in his Liberty Forum essay is modest and hedged. Confining himself to “the circumstances of the United States for the foreseeable future,” he argues only that, among the “plausible competitors,” originalism is “likely to be” the theory of constitutional interpretation that best protects the components of  “ ‘negative’ liberty defended by most…

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Originalism and Legislative Deliberation

by Peter Augustine Lawler

The point of Ilya Somin's able and humane Liberty Forum essay is to show libertarians how to deploy originalism as a doctrine to maximize “negative liberty” in America. He doesn’t claim to establish that negative liberty is good, or that its maximization accords with living in the truth or with dignity. It’s enough to say…

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Originalism and Liberty: Ilya Somin Replies

by Ilya Somin

I would like to start by thanking Law and Liberty for hosting this symposium, and Hadley Arkes, Peter Lawler, and Ed Whelan for their thoughtful comments on my initial essay. I had planned to complete this reply much earlier. But just as constitutional originalism sometimes has difficulty taking account of new developments, so my original…

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Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

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The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

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Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

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James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

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Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

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Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

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Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

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America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

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About

Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. 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 & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

The opinions expressed on Law & Liberty are solely those of the contributors to the site and do not reflect the opinions of Liberty Fund.
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