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August 21, 2018|John Marshall, McCulloch v. Maryland, modalities, Natural Born, Originalism, structure, text

Originalism Encompasses Text and Structure

by John O. McGinnis|

St. Louis, Missouri with the Thomas F. Eagleton U.S. Courthouse in foreground (A.G. Baxter/Shutterstock.com).
At its best, originalism encompasses most of the arguments critics claim it cannot, and does justice to both the text and structure of the Constitution.

July 23, 2018|Alexander Hamilton, Chief Justice John Marshall, Common Law, Federalist 78, Kate Elizabeth Brown, McCulloch v. Maryland, Necessary and Proper Clause, Opinion on the Constitutionality of a National Bank, Weston v. Charleston, Whiskey Rebellion

Hamilton the Lawyer

by Carson Holloway|

“Colonel Hamilton, by means of his fine melodious voice, his reasoning powers and persuasive address, soared far above all competition.”

September 8, 2017|

Give Me Madison, Please!

by Kevin Gutzman|

In response to: The Liquidation of Meaning: Madisonian Originalism for the Living Generation

Gordon Lloyd and Steve Ealy provide considerable material to ponder. The gist of their argument seems to be that rather than a Progressive political culture centered on quadrennial presidential elections and a governmental system featuring a considerable policy-making authority for both the president and the Supreme Court, we ought to prefer a “Madisonian” system. While sympathetic toward, and indeed enthusiastic for, their criticisms of our current political culture, I demur from their ascription of their views to James Madison. Their Madison is not Madison as I understand him, and I prefer the real thing. Consider the Lloyd/Ealy account of Madison’s response…

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Unsettling Thoughts on Liquidation

by James Stoner

It is subtle, or at least ironic, to use a term—“liquidate”—that has lost its original meaning to initiate a discussion of constitutional interpretation.  Today the word still has a legal usage, referring to the payment and settlement of debts.  The OED finds that meaning in English publications at the time that Madison and Hamilton employed…

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Liquidation and the Problem of Constitutional Settlement

by Greg Weiner

Gordon Lloyd and Steve Ealy make a compelling case for liquidation, what they call “Originalism for the Living Generation,” as the most Madisonian means of settling constitutional meaning. Grounded as it is in Madisonian text and example, from The Federalist to the bank veto, the superb account Lloyd and Ealy offer is difficult to assail…

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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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July 19, 2016|

State Bankruptcy and the Federal Order

by Jason Sorens|

In response to: Extending Bankruptcy Law to States: Is It Constitutional?

Illinois State Legislature

While a federal bankruptcy law for states might be a desirable policy, its constitutionality is doubtful. Now, I am not a constitutional lawyer and cannot speak to the details of United States case law, but I do study fiscal federalism in comparative context: its conditions, operations, and consequences. Accordingly, I will analyze how a federal law for state bankruptcy would tend either to support or to undermine the values one might seek to protect by means of the federal, constitutional order in the United States. The main points of the argument are as follows. First, federal bankruptcy law for cities reaches…

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Sovereignty and Orderly Defaults

by Jonathan Rodden

In his illuminating and timely Liberty Forum essay on the constitutional impediments to a state-level bankruptcy procedure, Michael McConnell emphasizes the importance of the sovereignty of the states in the framework of American federalism. Unlike Detroit and San Bernardino, and perhaps unlike Puerto Rico, the states are considered fully sovereign with respect to taxation, expenditures,…

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In What Circumstances Would the Threat of State Bankruptcy Be Credible?

by Stephen Slivinski

Michael McConnell’s Liberty Forum essay does an excellent job of outlining the legal case that enabling states to declare bankruptcy is not necessarily inconsistent with constitutional principles or with existing case law. From the perspective of a public choice economist, however, there is another salient issue. What those who study the outcomes of institutional arrangements and…

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A State Bankruptcy Policy and the Constitution: Michael McConnell Responds

by Michael McConnell

The 1840s approach of letting insolvent states default in their own juices is unlikely to withstand political pressures for bailouts today.

June 4, 2015|Chief Justice Warren Burger, McCulloch v. Maryland, Mike Huckabee, Richard Nixon, Separation of Powers, Supremacy Clause

Politicizing the Constitution Is Necessary and Proper

by Greg Weiner|

George Caleb Bingham, "The County Election"

“The notion that the Supreme Court comes up with the ruling and that automatically subjects the two other branches to following it defies everything there is about the three equal branches of government. Chris, the Supreme Court is not the supreme branch. And for God’s sake, it isn’t the Supreme Being. It is the Supreme Court.” –Mike Huckabee, Fox News Sunday, May 24 As superintendent of a national conversation on the Supreme Court’s hegemony over constitutional questions, former Governor Mike Huckabee (R-AR) is less than ideal. He implicitly but indefensibly denies the Supremacy Clause, more on which presently. Even by way of…

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October 26, 2014|dormant Commerce Clause, McCulloch v. Maryland

The Dormant Commerce Clause

by Mike Rappaport|

Mike Greve and Mike Ramsey both have interesting posts on McCulloch v. Maryland and the Dormant Commerce Clause.  Here are my views:

1. In McCulloch, the Supreme Court held that federal institutions such as the Bank of the United States were immune from discriminatory state taxes. I have long been skeptical of this opinion. The federal government has the power to immunize federal institutions and so an argument for a constitutional immunity is extremely weak.  That said, there is a reasonably strong argument that the federal statute establishing the bank preempted the state tax.

2. I do not believe that the Constitution’s original meaning supports the Dormant Commerce Clause. It is possible that some of the work may be done by the Privileges and Immunities Clause of Article IV, but only some of it. While there are articles attempting to ground a Dormant Commerce Clause in the original meaning, I have not found them persuasive.

3.  I believe the Dormant Commerce Clause doctrine is beneficial and therefore I would be disappointed from a policy perspective if it were overturned. By contrast, I do not think desirable policy would be harmed if the immunity portion of McCulloch were overturned, because Congress would step in.

4. While Congress would surely, in the absence of the McCulloch immunity, preempt state laws that interfered with federal institutions, it is less clear that it would act to prohibit states from taking actions that interfered with interstate commerce. But I believe it is much more likely than Mike Greve does. It may be, as Mike says, that “No tax coordination rule has ever come from Congress (let alone the states themselves).”  But that does not mean, as Mike says, that “The argument against the dormant Commerce Clause is an argument for unchecked state aggression.”

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October 17, 2014|dormant Commerce Clause, interstate commerce, McCulloch v. Maryland

The Taxman Cometh, Twice

by Michael S. Greve|

Without the default rule established in McCulloch v. Maryland, the states would make mincemeat of the federal structure.

October 1, 2013|

Without Deference: The Courts Must Independently Interpret the 14th Amendment

by John C. Harrison|

In response to: An Affirmative Power to Interpret: Congress and Section 5 of the 14th Amendment

In most circumstances, the Constitution does not oblige the courts to give any deference to the legal judgments made by legislative or executive actors in the performance of their legislative or executive functions. The enforcement powers of the Reconstruction amendments are like most congressional powers in that respect. Those amendments give Congress substantial law-making power, and the courts may be obliged or permitted to defer to Congress’ judgment about the suitability of its chosen means to the Constitution’s ends. The ends Congress may pursue, however, are specified by the Constitution. For the Reconstruction amendments, those ends are found in the…

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On “Reasonable” and “Best” Readings of Constitutional Power

by Kurt T. Lash

My thanks to the folks at Law & Liberty for inviting me to respond to Josh Hawley's provocative essay on the need for the Supreme Court of the United States to defer to reasonable congressional interpretations of the Constitution. Professor Hawley nicely tees up an issue of inter-branch cooperation in the proper enforcement of the…

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August 25, 2013|John Marshall, Marshallian federalism, McCulloch v. Maryland, Process federalism, States' Rights

The Fallacies of Marshallian Nationalism

by Adam Tate|

In this spirited polemic, Prof. Sotirios Barber defends the American nationalist constitutional tradition, particularly the thought of John Marshall, from the attacks of both states’ rights advocates (who he calls “dual federalists) and process federalists, those who believe national power should be used in expansive ways to protect individual rights without working to establish one specific American society. Barber uses Marshall’s 1819 decision in McCulloch v. Maryland as the starting point for nationalist analysis. Hence, he mentions only briefly the important clashes between nationalists and their opponents during the first three decades of the Early Republic. In explaining the rationale…

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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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