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August 21, 2018|Commerce Clause, Morrison v. Olson, Supreme Court, United States v. Lopez

Why Lopez Fizzled

by James R. Rogers|

U.S. Supreme Court chambers (stock_photo_world / Shutterstock.com).
United States v. Lopez never presaged a huge rollback in national power: why is this?

March 13, 2018|Commerce Clause, Corpus Linguistics, Kelo, Originalism, Takings clause

Originalism and Corpus Linguistics

by Mike Rappaport|

Billion Photos / Shutterstock.com
Corpus linguistics studies how we actually use words, and this makes it a valuable asset for originalism.

September 18, 2017|16th Amendment, Campaign Finance, Commerce Clause, Contract Clause, Elizabeth Warren, Ganesh Sitaraman, Gilded Age

The Modern Constitution Empowers Redistribution, the Original One Not So Much

by John O. McGinnis|

Ganesh Sitaraman has written an oped in the New York Times arguing that our Constitution was not built for a society as unequal as our has become.  Even leaving aside the claim that our society is becoming substantially more unequal—one I have contested, the essay is mistaken.   First, the Constitution as amended today empowers the federal government to engage in regulatory redistribution and progressive taxation to reduce economic inequality.   Second, the Constitution of 1789 on which Professor Sitaraman principally focuses was consciously built to protect against legislative attempts to mandate more equality. The populist demagogues with whom the Framers were mainly concerned were those who would bamboozle the populous into debtor relief legislation and other wealth destroying schemes that could be sold, just as in our day, as aids to poor and retribution to the rich.   Sitaraman misunderstands both our contemporary Constitution and our original Constitution.

After the 16th amendment and the New Deal Court’s interpretation of the Commerce Clause, the federal government has plenary powers of income taxation and regulation. There is nothing to prevent the left wing of the Democratic party from making our income tax code even more progressive than it already is.

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July 20, 2017|Commerce Clause, Garcia v. San Antonio Metropolitan Transit Authority, National League of Cities v. Usery, New York v. United States, Printz v. United States, Tenth Amendment

Viva National League of Cities v. Usery

by Nick Dranias|

Map of USA. Highly detailed 3D rendering

As it tends to do when not in political control in Washington, the Left has rediscovered the power of state sovereignty. That doctrine is being used to resist the new administration’s federal immigration policy in a way that’s identical, in formalistic terms, to the Right’s tactics during the early days of the Obama administration—albeit in service of an opposite outcome.

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January 24, 2017|Commerce Clause, Endangered Species Act of 1973, Gonzales v. Raich, NFIB v. Sebelius, Texella reyesi, Wickard v. Filburn

Will a Tiny, Blind, Subterranean Bug Be the Undoing of the Federal Leviathan?

by Mark Pulliam|

The Bone Cave Harvestman

In 1942, deciding the case of Wickard v. Filburn, the U.S. Supreme Court deemed the wheat grown by an Ohio farmer purely for his own use and consumption—not for sale—to “exert a substantial effect on interstate commerce.” This infamous decision led many to conclude that the scope of Congress’s authority under the Commerce Clause is essentially unlimited.

Now that understanding may be upended by a tiny, blind arachnid known as the “Bone Cave harvestman” (scientific name: Texella reyesi). This cave-dwelling invertebrate, which resembles a spider, has been included by the U.S. Fish and Wildlife Service on the Endangered Species list since 1988. Pursuant to the Endangered Species Act and its enabling regulations, the “habitats” of endangered species cannot be modified or “degraded” without a federal permit.

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September 28, 2016|Commerce Clause, Indians, Naomi Schaeffer Riley, NLRB v. Jones & Laughlin, The New Trail of Tears

The Sum of Social and Political Evil

by W. B. Allen|

The New Trail of Tears opens with the question, “What does America owe Indians?” and closes with the response, “To make them equal Americans.”

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November 10, 2014|Commerce Clause, Congress, dormant Commerce Clause

Commerce, Interrrupted

by Michael S. Greve|

Business Background

Herewith (as promised) a brief comment on brother Rappaport’s splendid earlier post on the “exclusive” Commerce Clause. Here’s the key paragraph:

It is too bad that Congress does not have the exclusive commerce power, because I believe it would be better than the original meaning.  An exclusive power would make it less likely that the states would have agreed to the New Deal expanded, concurrent commerce power.  Thus, the exclusive power would have been unlikely to have been expanded into the broad scope that the current commerce power has.  With a more limited scope, the federal government would have limited authority, as would the states.  There would not be two governments exercising the same authority and neither would have complete power to create cartels.  This arrangement came close to being followed in the pre New Deal era, when the Court came pretty close to recognizing a limited federal Commerce Power that was largely exclusive.   But it is now, sadly from a policy perspective, gone with the wind.

I think there’s pretty powerful evidence to the effect that the Founders did mean the Commerce Clause to be exclusive; it’s just that their idea of what constitutes “commerce among the several states” was so much narrower that ours.

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June 2, 2014|Commerce Clause, Progressivism, Roe v. Wade, Town of Greece v. Galloway, Wickard v. Filburn

Blowback Conservatism

by Hadley Arkes|

I’ve been traveling today, driving from Amherst back to Washington, and so I’m catching up with some of the comments drawn by the piece on Commencements and the bizarre implication that springs from the judgment of the Court in Lee v. Weisman. I want to thank Carl Scott for his stirring words on Natural Rights & the Right to Choose. But on this matter of whether I would try to make use of the lever revealed in this case, he has me wrong on one critical point: I’m always in favor of the conservatives making use of the ‘principles’ laid down by the Left in order to show how those principles would work quite forcefully against them. The Left persistently fails to live by the rules or principles it lays down for others, and so the only way of making them back away is to use the precedents they set in ways that they’ll find quite jarring.

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April 10, 2014|

The Jurisprudence of Constitutional Restoration Is Originalism, but Not All Conceptions of Originalism

by Lee J. Strang|

In response to: Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration

U.S. Supreme Court Justice Clarence Thomas

Dr. Ralph Rossum’s most recent book, Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration, performs the valuable service of cataloguing and synthesizing the jurisprudential work of one of America’s great living jurists. Rossum’s book joins other sympathetic—though not hagiographic—accounts of Justice Thomas’ work, most importantly Professor Scott Douglas Gerber’s First Principles: The Jurisprudence of Clarence Thomas. Before turning to the core of my Essay, let me first note Rossum’s unique contributions. Rossum brings up to date the literature on Justice Thomas, and his compilation and synthesis of Justice Thomas’ hundreds of opinions enables the reader to systematically understand and evaluate Justice…

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More Responses

Sowing the Seeds of an Originalist Future

by Keith Whittington

Not too long ago, I found myself discussing the U.S. Supreme Court with an acquaintance who does not particularly follow politics. During the conversation, I mentioned the name of Justice Clarence Thomas, which provoked the question, “He’s the one who doesn’t do anything, right?” I suppose there are worse ways that Justice Thomas could be remembered,…

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“Just, Wise, and Constitutional”: Justice Thomas’s Legacy in Law and Politics

by Adam White

Ralph Rossum has followed his indispensible volume on Justice Scalia with an equally indispensible analysis of Justice Clarence Thomas’s life and work. The two seem destined to be paired forever. Because they share so much in common, each is the other’s best foil. Professor Rossum draws such contrasts expertly, as have Randy Barnett and Lee Strang,…

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Thomas’s Full Throated Originalism: Ralph Rossum Responds

by Ralph Rossum

I am grateful for the thoughtful commentaries and kind words that Keith Whittington, Lee J. Strang, and Adam White have provided on my essay on Clarence Thomas’s jurisprudence of constitutional restoration. Since all three commentaries address the low value that Thomas, as an originalist, places on stare decisis, I will begin there. Antonin Scalia, the Court’s…

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April 1, 2014|

Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration

by Ralph Rossum|

U.S. Supreme Court Justice Clarence Thomas

When, on July 1, 1991, President George H. W. Bush nominated Clarence Thomas to serve as Associate Justice of the United States Supreme Court, predicting that he would be “a great Justice,” calling him “the best person for this position,” and denying that Thomas’s race had entered into his nomination, many Americans were skeptical. They doubted Bush’s claims, as they doubted his nominee. Among those doubting Thomas were individuals from the civil rights community, convinced that he would abandon the life-long campaign for racial justice undertaken by Thurgood Marshall, the first black justice, whose seat he was to fill. Other…

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Responses

Sowing the Seeds of an Originalist Future

by Keith Whittington

Not too long ago, I found myself discussing the U.S. Supreme Court with an acquaintance who does not particularly follow politics. During the conversation, I mentioned the name of Justice Clarence Thomas, which provoked the question, “He’s the one who doesn’t do anything, right?” I suppose there are worse ways that Justice Thomas could be remembered,…

Read More

The Jurisprudence of Constitutional Restoration Is Originalism, but Not All Conceptions of Originalism

by Lee J. Strang

Dr. Ralph Rossum’s most recent book, Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration, performs the valuable service of cataloguing and synthesizing the jurisprudential work of one of America’s great living jurists. Rossum’s book joins other sympathetic—though not hagiographic—accounts of Justice Thomas’ work, most importantly Professor Scott Douglas Gerber’s First Principles: The Jurisprudence of Clarence…

Read More

“Just, Wise, and Constitutional”: Justice Thomas’s Legacy in Law and Politics

by Adam White

Ralph Rossum has followed his indispensible volume on Justice Scalia with an equally indispensible analysis of Justice Clarence Thomas’s life and work. The two seem destined to be paired forever. Because they share so much in common, each is the other’s best foil. Professor Rossum draws such contrasts expertly, as have Randy Barnett and Lee Strang,…

Read More

Thomas’s Full Throated Originalism: Ralph Rossum Responds

by Ralph Rossum

I am grateful for the thoughtful commentaries and kind words that Keith Whittington, Lee J. Strang, and Adam White have provided on my essay on Clarence Thomas’s jurisprudence of constitutional restoration. Since all three commentaries address the low value that Thomas, as an originalist, places on stare decisis, I will begin there. Antonin Scalia, the Court’s…

Read More

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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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