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April 16, 2019|John Marshall, Joseph Story, Paul Finkelman, Roger Taney, Supreme Injustice

The Peculiar Institution and the Supreme Court

by Joyce Lee Malcolm|

Joseph Story (shutterstock.com)
Paul Finkelman’s account of antebellum decisions gets Justice Taney right, but not Justice Marshall, and especially not Justice Story.

August 24, 2018|high crimes and misdemeanors, Impeachment, James Wilson, Joseph Story

Is Early Impeachment Practice Relevant to Original Meaning?

by Michael Stokes Paulsen|

Title page to Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833) (Image: Historic Images / Alamy Stock Photo).
Does the practice of impeachment in the early American republic offer guidance to understand "high crimes and misdemeanors" today?

August 16, 2018|Alexander Hamilton, Impeachment, James Wilson, Joseph Story, The Federalist

The Ratification-Era Understanding of “High Crimes and Misdemeanors”

by Michael Stokes Paulsen|

Signing the Constitution, Louis Glanzman, 1987 (National Park Service)
Nearly all of the historical evidence favors a broad, political view of the impeachment power.

March 12, 2018|Atlantic slave trade, Charles Beard, Chief Justice John Marshall, Joseph Story, Le Jeune Eugenie, Paul Finkelman, Roger Taney, Supreme Injustice, The Antelope, The Josefa Segunda

Failed Attempt to Cut Marshall and Story Down to Size

by Paul Moreno|

Lithograph of John Marshall by William Henry Brown, 1844 (Metropolitan Museum of Art)
Taney may well deserve to be “hooted down the page of history,” but it is unfair to take Marshall and Story with him.

October 19, 2016|Alan Taylor, doux commerce, dueling, John Marshall, Joseph Story, new progressivism, old progressivism

The Founders Were Better than Trump and Clinton

by John O. McGinnis|

Alan Taylor, a historian from the University of Virginia, has written an op-ed in the New York Times arguing that Americans wrongly disparage Donald Trump and Hillary Clinton in comparison to the Founders. Instead of recognizing their similarities to this year’s candidates, Taylor says that we treat the Founders as mythical giants. But, according to Taylor, they were as divided and divisive as  these nominees. And the Founders tolerated a society with less sound norms than our own. Moreover, we should just accept that Founders did not resolve the “core principles of our government,” leaving it up to us to fight about them.

This op-ed is misleading and flawed in many respects. It exaggerates the differences in principle as opposed to politics among the Founders. It does not give credit to the Founders’ principles for being a primary cause of the improvement in social norms in America. And its claim that the Constitutional text does not settle core governing principles is a conventional and undefended cliche of the academic Left.

First, while the Democratic-Republicans and Federalists had strong political differences, their respective appointees to the Supreme Court were united on  the constitutional principles of creating a strong but limited federal government whose focus was creating a commercial society. That justices of different parties agreed on so much after deliberation is strong evidence that there was substantial, even if not unanimous agreement, on core principles.

For instance, Chief Justice John Marshall and Justice Joseph Story hardly ever diverged on the resolution of constitutional cases, despite being appointed by  John Adams and Thomas Jefferson respectively.

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April 6, 2014|

Sowing the Seeds of an Originalist Future

by Keith Whittington|

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

U.S. Supreme Court Justice Clarence Thomas

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, but the meme that he is a passive presence on the bench is now widespread. This perception is, no doubt, a generalization from the oft-noted fact that Thomas rarely asks questions during oral arguments. Like Calvin Coolidge, whose historical reputation as “Silent Cal” has been…

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More Responses

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…

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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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July 15, 2012|Accountability, Deborah H. Merritt. Justice O'Connor, Democracy and Distrust, Full Faith and Credit Clause, John Hart Ely, Joseph Story, Justice Blackmun, Luther v. Borden, Madison, Marbury v, Monarchy, New York v. United States, Pacific States Telephone & Telegraph Co. v. Oregon, Roe v. Wade, Shay's Rebellion, Sovereignty, The Guaranty Clause, The Warren Court, Titles of Nobility

Democracy, Distrust, and the Republican Form of Government

by Tom Christina|

This post consists of two parts:  (1) thoughts prompted by re-reading John Hart Ely’s Democracy and Distrust; and (2) something resembling a meditation on the Guaranty Clause.  As the reader will see, I am not able to articulate the connection between the two topics in anything but the most general terms.  I hope others may be able to do so. 

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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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