• About
  • Contact
  • Staff
  • Home
  • Essays
  • Forum
  • Podcasts
  • Book Reviews
  • Liberty Classics

April 1, 2019|Divine Law, H.L.A. Hart, Harold Berman, John Finnis, jurisprudence, Natural Law, Thomas Aquinas

Ordered Liberty and the Demands of Law

by Adam J. MacLeod|

Self-governing people make—design, craft, and promulgate—law to govern their own and others’ choices and actions.

April 6, 2017|Harriet Miers, Jack Balkin, jurisprudence, originallism, Partisanship, Stephen Sachs, textualism, Will Baude

The Confirmations Wars are not Partisan, but Principled

by John O. McGinnis|

It is frequently observed that the confirmation process for justices is becoming more partisan, but this characterization is incomplete, even misleading. The classic kind of congressional partisanship occurs when parties rally around  or oppose policies or nominees of the sitting President, simply by virtue of his party.  And if the President takes a different position or nominates a person of different views for the same role, partisans of his party tend to happily fall in line with the new world their leader has created.

But both Republicans and Democrats have views on the appropriate role of judges that transcend the vicissitudes of presidential leadership. When George W. Bush nominated Harriet Miers, it was Republicans who scuttled her nomination, fearing probably correctly that she lacked the depth of understanding to maintain what they believed was a lawful jurisprudence. The jurisprudence favored by Republicans has been working itself pure for decades and now embraces originalism in constitutional law and textualism in statutory interpretation, but that accepts a relatively large role for precedent.

The Democratic judicial philosophy has also become clearer.  At first, it was focused on protecting precedent in general, most importantly that of Roe v. Wade. But now that the Supreme Court under Chief Justices Rehnquist and Roberts have made many decisions, such as Citizens United, that flout Democratic policy objectives  Democrats no longer exalt precedent but empathy as well as good results for their preferred minorities and “the little guy”as opposed to corporations.

The  confirmation hearings on Neil Gorsuch exposed this jurisprudential chasm.

Read More

February 14, 2016|Antonin Scalia, jurisprudence, legal realism, Originalism, textualism, Thomas Carlyle

Antonin Scalia–A Giant of Jurisprudence

by John O. McGinnis|

Justice Antonin Scalia

Justice Scalia is one of the few jurists who vindicate Carlyle’s great man theory of history. Because he brought three large and different talents to the Court, he changed the course of its jurisprudence. He had the intellect to fashion theories of interpretation, the pen to make them widely known, and the ebullience to make it all seem fun.

More than any other individual, Justice Scalia was the person responsible for the turn to both originalism in constitutional law and textualism in statutory interpretation on the Court and in the legal world more generally. Indeed, it was Scalia who made a crucial move in modern originalist theory. While a variety of scholars had argued that the Constitution should be interpreted according to the intent of the Framers, original intent originalism had some disabling flaws, the most important of which it is impossible often to find a unitary intent in a multimember deliberative body.  Scalia championed a theory of original meaning that made the Constitution depend not on the intent of the Framers but on the publicly available meaning of its provisions.

Read More

June 23, 2015|Conservatism, Eric Posner, Fusionism, Ideology, jurisprudence, Libertarianism, orginalism, Supreme Court

Why Democratic Justices are More United than Republicans

by John O. McGinnis|

It has been reported that this term is shaping up to be one of the most liberal at the Supreme Court since 1969. Another report by Eric Posner shows that the justices appointed by Republican Presidents are agreeing less among themselves, while the justices appointed by Democratic Presidents remain a united bloc.

We should be cautious about reading this information as a trend. The case mix changes from year to year and thus there can be expected to be overall ideological variation from year to year depending on that mix and the justices’ idiosyncratic views. But there is no doubt that the country is moving left at least on social issues and the oldest adage about the Court’s decision-making is that it follows the election returns. Certainly, the expected creation of a right to same-sex marriage would be unimaginable without the rapid and dramatic shift in public opinion on the issue.

The more interesting question is why Republican justices tend to fracture while the Democrats stay united. The first reason is that Supreme Court opinions implicate not only ideology, but jurisprudential methodology and Republicans are more divided on jurisprudence.

Read More

April 26, 2015|Black, Douglas, Frankfurter, Ginsburg, Ideology, jurisprudence, Partisanship, Scalia, Thomas

Judicial Variations–Jurisprudes, Ideologues, and Partisans

by John O. McGinnis|

There are three paradigmatic types of Supreme Court justices—the jurisprude, the ideologue, and the partisan. While no actual Supreme Court justice perfectly represents the ideal, some present pretty close approximations. It is hard to understand or predict the results of Supreme Court cases without determining how a particular justice fits into these types.

The jurisprude is a justice committed to a particular method of judging rather than an particular set of results. On the current Court the examples par excellence are Justices Antonin Scalia and Clarence Thomas who are committed to originalism. From the past Justice Hugo Black was a textualist and Felix Frankfurter, his sparring partner, advocated an historical jurisprudence. These jurisprudential commitments frequently lead to unusual ideological results. Justice Scalia (and Justice Thomas as well) vote for criminal defendants based on their close readings of  the language of the Constitution, like the Confrontation Clause. For originalist reasons, Justice Thomas is no friend of preemption claims with the result that in his opinions businesses often lose to state tort law and regulation. Despite being a New Deal populist as a Senator, Black as a Justice wanted to enforce the Contract Clause against debtors.

The ideologue is a justice who is strongly right or left of center as that is defined in his day and votes that way.

Read More

November 26, 2013|agency shops, California, CIR, collective bargaining, First Amendment, jurisprudence, Knox v. SEIU, labor law, Labor Unions, New Deal

Don’t Pay No Union Dues

by Michael S. Greve|

Here’s a case worth watching: this past April, the Center for Individual Rights (lead attorney Michael Rosman) and Jones Day (Michael Carvin) filed a First Amendment challenge to California’s “agency shops” for public school teachers. (An “agency shop” means that non-union members must still pay a fee to the union for activities related to collective bargaining.) Plaintiffs are teachers who have about had it with the defendant unions. The State of California will likely join the case on the defendants’ side. A recent blog on the case is here; a copy of the complaint here. This baby ought to move fast:…

Read More

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.

Read More

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.

Read More

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.

Read More

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.

Read More

Podcasts

Stuck With Decadence

A discussion with Ross Douthat

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

Read More

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.

Read More

Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

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

Read More

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.

Read More

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.
  • Home
  • About
  • Staff
  • Contact
  • Archive

© 2021 Liberty Fund, Inc.

This site uses local and third-party cookies to analyze traffic. If you want to know more, click here.
By closing this banner or clicking any link in this page, you agree with this practice.Accept Read More
Privacy & Cookies Policy
Necessary Always Enabled

Subscribe
Get Law and Liberty's latest content delivered to you daily
  • This field is for validation purposes and should be left unchanged.
Close