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May 30, 2019|construction zone, Gary Lawson, Larry Solum, Originalism, Precedent, Randy Barnett

The Three Fault Lines of Contemporary Originalism

by John O. McGinnis|

U.S. Constitution (Festa/Shutterstock.com)
Originalism must construct rules of precedent that mediate between the value of following the original meaning and the value of constitutional settlement.

January 3, 2019|Gary Lawson, Michael Dorf, Michael Paulsen, Originalism, Originalism and the Good Constitution, Precedent

Michael Dorf, Precedent, and the Original Meaning

by Mike Rappaport|

Stephen Chung/Shutterstock.com
The Constitution’s original meaning allows for precedent, but does not specify the particular precedent rules that should be followed.

November 3, 2017|Antonin Scalia, Confrontation Clause, Crawford v. Washington, Gary Lawson, Giles v. California, Langage of Law

Recent Originalist Jurisprudence on the Court Reflects the Language of the Law

by John O. McGinnis|

At times members of the Supreme Court, including Justice Scalia, have said the words of the Constitution should be read in ordinary language. But recent majority opinions in the Confrontation Clause, like Crawford v. Washington and Giles v. California,  written by none other than Justice Scalia, are more consistent with the view expressed by Mike Rappaport and me that the Constitution is written in the language of the law. That language includes ordinary language but also terms that have a distinctly legal meaning as well as legal interpretive rules.

The Confrontation Clause provides that “in criminal prosecutions, the accused shall have the right . . .  to be confronted with witnesses against him.”  In Crawford the state wanted to introduce a tape recorded statement made by the defendant’s wife to the police. The statement appeared reliable but the defendant had not been afforded the opportunity to cross examine the witness. The Court in an opinion by Justice Antonin Scalia recognized that the question of whether the clause applies only to witnesses at trial is not answered by the “Constitution’s text . . . alone.” Justice Scalia stated that “One could plausibly read “witnesses against” a defendant to mean those who actually testify at trial, those whose statements are offered at trial or something in-between.”

To resolve this uncertainty, Justice Scalia looked at the legal meaning of the constitutional provision.

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August 3, 2017|Bob Natelson, Fourth Amendment, Gary Lawson, Geoffrey Miller, Language of Law, Laura Donohue, Michael Ramsey, Natural Born Citizens, Necessary and Proper Clause, original methods, Originalism

Originalist Scholarship Relying on the Language of the Law–Part II

by John O. McGinnis, Mike Rappaport|

In our last post, we provided some examples of recent scholarship that rely on the view, which we have defended, that the Constitution is written in the language of law. They are not consistent with the view that the Constitution is written in ordinary language. In this post we provide some other important examples.

Scholars have even shown the language that looks most ordinary is better understood as part of the language of the law.  The Fourth Amendment provides: “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The word “unreasonable” is sometimes used as an example of a vague word in ordinary language that renders the meaning of a constitutional provision indeterminate.   But Laura Donohue has argued that the word “unreasonable” should be instead read with the legal meaning of “against the reason of the common law.” As a result, the Fourth Amendment does not incorporate some free-floating reasonableness test, but a set of specific prohibitions of searches that violated the common law. 

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July 17, 2017|A Great Power of Attorney, Bolling v. Sharpe, fiduciary obligations, fiduciary powers, Gary Lawson, Guy Seidman, McCulloch v. Maryland, Necessary and Proper Clause, Originalism, Robert Natelson, Yates v. U.S.

Getting to the Essence of the 1787 Document

by Evan Bernick|

Gary Lawson and Guy Seidman’s important new book, “A Great Power of Attorney”: Understanding the Fiduciary Constitution, seeks to explain what the Constitution of the United States is. While that might appear to be a goal that could only be achieved with a massive tome (or perhaps several of them), the book runs about 200 pages and is focused narrowly on the question of what kind of document “We the People” ratified in 1788. The Constitution has been called a contract, a compact, a covenant, a charter, and (by one of the coauthors in a previous writing) a recipe—all of which…

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March 13, 2017|

More Reasons to Doubt that Separation of Powers Can Be Revived

by Ralph Rossum|

In response to: Congress in Search of Itself             

John Marini provides an insightful commentary on Christopher Demuth’s optimistic suggestion that President Trump and the Republican Congress will be able to revive separation of powers and, by so doing, rescue us from an “autopilot government, rife with corruption and seemingly immune to incremental electoral correction” that the administrative state has created. Marini is less optimistic and spells out some of the major obstacles to rejuvenating “the primary practical defender of constitutional government, the separation of powers.” Marini’s focus here, as in so much of his path-breaking published work, is on pointing out the pernicious consequences of the Progressives’ transformation of…

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More Responses

How to Put the “Most Complete and Effectual Weapon” Back in Their Hands

by Kevin R. Kosar

Indubitably, our nation’s finances are a mess. America has run deficits 36 of the past 40 years. The national debt is $18 trillion, and it has tripled as a percentage of GDP since 1974. Each February, the President rolls out his budget—a collection of tomes loaded with tables and text attempting to explain the government’s $3.7…

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The Real Ruling Authority

by Colleen Sheehan

Americans are worried about the economy and jobs, about national security and safety from terrorism, about securing healthcare, about their children’s education. Lately I haven’t heard too many people talking about the problem of separation of powers. In fact, besides John Marini, Christopher DeMuth, Jonathan Turley, and a few other scholars and policy wonks, I…

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Overthrowing the Rule of Organized Intelligence: John Marini Replies

by John Marini

I would like to thank Kevin Kosar, Ralph Rossum, and Colleen Sheehan for their thoughtful and generous responses to my essay, “Congress in Search of Itself”.  Although there were many areas of agreement, and very few disagreements, each author focused on a different aspect of the problem posed by the contemporary role of Congress, and…

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March 7, 2017|Gary Lawson, Originalism

Gary Lawson on Proving the Law

by Mike Rappaport|

I received this book – Evidence of the Law: Proving Legal Claims – in the mail and am looking forward to reading it.  Gary Lawson, of course, is a leading originalist and an expert in administrative law.  I use his first rate Administrative Law casebook. In Evidence of the Law, Gary discusses the fact that our legal system, while focusing carefully on the methods and standards for proving facts, generally ignores the methods and standards for proving law.  Yet, such methods are crucial. And nowhere is this more true than in originalism.  If one thinks about constitutional originalism, it is very much concerned…

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November 10, 2015|Gary Lawson, Jim Fleming, Keith Whittington, The New Originalism

Lawson on the New Originalism

by Mike Rappaport|

In a new  article by Gary Lawson discussing Jim Fleming’s book on constitutional theory, Lawson takes issue with a well known claim by Keith Whittington about the new and old originalism that Fleming accepts.  (For one discussion of the new originalism, see here.)  Whittington had claimed in 2004 that:

The new originalism is distinct from the old in that it is no longer primarily a critique of the Warren Court’s rights jurisprudence. The new originalism is more comprehensive and substantive than the old. It is more concerned with providing the basis for positive constitutional doctrine than the basis for subverting doctrine.

Lawson writes:

Thus, I think Professor Fleming gets it precisely backwards when he characterizes the new originalism as a move from anti-Warren Court tirades to a governing judicial philosophy. He has taken bad guidance from Keith Whittington, who postulated – with absolutely zero evidence that I can see – precisely such a move as the explanation for the emergence of the new originalism in the Reagan and post-Reagan years. That is the sort of thing that sounds nice to political scientists who like that kind of explanation. It just happens to be, I believe, wildly false, and indeed backwards, as an account of the emergence of the new originalism.

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August 6, 2013|Administrative Law, Gary Lawson, Joe Postell, Mark Seidenfeld, Rechtsstaat

Administrative Law and the Rechtsstaat: Some Thoughts

by Michael S. Greve|

Last week’s Liberty Forum exchange between Joe Postell, Gary Lawson, and Mark Seidenfeld on courts and the administrative state is an early, thought-provoking contribution to a large-ish debate that we should and, I hope, will have. It raises a basic question especially for those who (like Joe) argue for a more muscular, less deferential judicial role in the administrative state: what exactly do we want courts to do?

Joe Postell, Mark Seidenfeld writes, wants to mobilize courts for libertarian values—a smaller, more limited government. To the extent that this is in fact Joe’s position, Mark’s central objection is right: that can’t be the role of the courts, either as a normative matter (the size of government is, presumably, a political decision, within constitutional bounds) nor even as a conceptual matter. Joe celebrates F.A. Hayek’s embrace of the German Rechtsstaat and its independent administrative courts as a model. There is indeed much to like about that model (more in a sec). But it has nothing to do with small government. It has to do with lawful government—which can be very, very big. For proof, see Germany.

As it turns out, even the idea of lawful government is deeply ambiguous so far as the role of courts is concerned—far more ambiguous than Hayek, for one, lets on in his Rechtsstaat ruminations.

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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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