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January 22, 2020|judicial activism, Justice William Rehnquist, Ken Kersch, Originalism

Originalists Were Always for (Some) Judicial Engagement

by Sean Beienburg|

President Reagan with William Rehnquist, Warren Burger, and Antonin Scalia During the Announcement of the Nominations of Rehnquist as Chief Justice and Scalia as Associate Justice (National Archives).
The tendency toward a firm enforcement of the Constitution’s structural provisions was built into conservative constitutionalism from the beginning.

April 2, 2019|judicial activism, judicial constraint, Judicial Restraint, Precedent, reliance interests, Roe v. Wade

Traditional Precedent Rules Do Not Restrain Judicial Activism

by John O. McGinnis|

shutterstock.com
The Court is activist when it acts on its own discretion rather than on the basis of a clear dictate of law.

March 19, 2019|judicial activism, Mark Pulliam, Originalism, Privileges or Immunities Clause, the Old Originalism, the Slaughterhouse Cases

Mark Pulliam and the Old Originalism

by Mike Rappaport|

Preamble to the Constitution (Jack R. Perry Photography/Shutterstock.com)
Mark Pulliam rightly criticizes nonoriginalist judicial activism but wrongly would depart from the original meaning in other cases.

June 19, 2018|Comparative Constitutional Law, constitutional amendments, judicial activism

Unconstitutional Constitutional Amendments

by Mike Rappaport|

The U.S. Constitution (Sergey Kamshylin/Shutterstock.com).
Can procedurally-sound amendments to a constitution be declared unconstitutional?

May 8, 2018|Burger Court, Clint Bolick, Fourteenth Amendment, judicial activism, Judicial Restraint, Lino Graglia, Originalism, Raoul Berger, Robert Bork, Warren Court

Originalism’s Legal Turn as a Libertarian Turn

by Jesse Merriam|

Originalist thought has not just been on a steady legal trajectory over the last 20 years.  There is also an important and overlooked political story to tell.

April 12, 2018|Administrative State, Chevron deference, John Locke, judicial activism, Judicial Review

Chevron Bias, Illustrated by Statistics

by Philip Hamburger|

Chevron interferes with independent judicial judgment, and Christopher Walker calls it nonpartisanship.

November 30, 2017|Alexander Bickel, judicial activism, judicial engagement, Originalism, Robert Bork

What Robert Bork Learned from Judicial Activism, Right and Left

by Mark Pulliam|

I have been thinking about Robert Bork recently, prompted in part by the 30th anniversary of his rejection by the Senate on November 23, 1987. Next month will mark the fifth anniversary of his passing on December 19, 2012.

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June 21, 2017|Judge William Pryor, judicial activism, Judicial Review, Judiciary Act of 1789, Marbury v. Madison

Return to Marbury

by Greg Weiner|

marbury-v-madison

The travel ban case is headed to the Supreme Court by way of the once redoubtable Fourth and always activist Ninth Circuits, leaving revisionists to wonder how it might have unfolded had it made its way upward through Judge William H. Pryor’s Eleventh. Pryor’s view of the judicial role exhibits appropriate assertiveness within its sphere and a fitting humility beyond it.

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May 2, 2017|Job Market Signaling, judicial activism, Judicial Independence, Michael Spence

Cheap Talk and “Efficient Waste” in Politics (and Marriage)

by James R. Rogers|

The signaling model of education is pretty well known these days. Starting with Nobel-prize winning economist Michael Spence’s article on “Job Market Signaling” in the early 1970s, the extreme version of the model articulates a reason schooling would exist even if it did not increase human capital in the least. The canonical story goes something like this: There are two types of workers, high quality and low quality. Employers want to hire high-quality workers, and would be willing to pay them more. But they can’t tell high-quality workers apart from low-quality workers. If a potential employer were to ask applicants…

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April 10, 2017|Executive order, judicial activism, National Security

Judicial Activists Take On National Security

by Carson Holloway|

New York

Judicial activism always undermines the rule of law. Rarely, however, does it also endanger national security. Yet the federal judges who have blocked President Trump’s executive orders on immigration have done just that.

The lawlessness of the courts in question has been exposed by a group of five dissenting judges on the Ninth Circuit Court of Appeals. As these judges so ably observe, the federal district courts that ruled against the President’s policy simply ignored binding precedents—of both the Ninth Circuit and the Supreme Court—recognizing the legal authority of the President to act as he did. Moreover, these judges achieved their aim by deploying an utterly novel application of the First Amendment, holding that an executive order that does not even mention religion somehow violates the Establishment Clause.

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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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