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September 19, 2019|Antonin Scalia, Keith Whittington, Larry Solum, New Originalism, Originalism, Randy Barnett

The Challenge of Naming the Modern Originalist Movement

by Mike Rappaport|

Georgetown University Law School Prof. Larry Solum engages in a discussion at Chapman University with Prof. Lawrence Rosenthal on October 21, 2015. Image: Chapman University Fowler School of Law.
Why is it so hard to define intellectual movements in terms of what unites rather than divides them?

July 12, 2019|Declaration of Independence, Ed Erler, George Will, Harry Jaffa, Originalism, Randy Barnett

George Will’s Libertarian Turn

by Mark Pulliam|

George Will speaks at the Conservative Political Action Conference (Christopher Halloran / Shutterstock.com).
The pursuit of extra-constitutional natural law theories makes for strange bedfellows.

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.

July 3, 2018|Abortion, Judge Robert Bork, judicial engagement, Justice Anthony Kennedy, Mary Ann Glendon, Originalism, Randy Barnett, Roe v. Wade, Roger Pilon, Supreme Court, The Federalist

The Kennedy Succession

by Greg Weiner|

As we consider Justice Kennedy's successor, we should ask what a conservative judge should believe about the role of the courts.

April 18, 2017|Federalist 37, Federalist 53, James Madison, Liquidation, Living Constitutionalism, Randy Barnett, Richard Reinsch

Madison and the Liquid Constitution

by Greg Weiner|

 

The conversation Richard Reinsch has sparked on constitutional liquidation is less about constitutional meaning than about the ultimate—note “ultimate”—authority to ascertain it. It is true, as Randy Barnett, among others, notes, that liquidation is a longstanding topic in originalist thought. But Reinsch suggests a new avenue, writing that republican politics bien entendu is the ultimate (see above) expositor of constitutional meaning and that this is true generally, not just in ambiguous or indeterminate cases.

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March 3, 2017|Conservative nonoriginalism, Glenn Reynolds, liberal nonoriginalism, Randy Barnett

Do Liberals Want Conservative Nonoriginalists?

by Mike Rappaport|

Over at the Volokh Conspiracy, Randy Barnett, as an aside, asks liberals the following question: Why would you possibly want a nonoriginalist “living constitutionalist” conservative judge or justice who can bend the meaning of the text to make it evolve to conform to conservative political principles and ends? However much you disagree with it, wouldn’t you rather a conservative justice consider himself constrained by the text of the Constitution like, say, the Emoluments Clause? In his U.S. Today Column, Glenn Reynolds picks up on the idea and explores various decisions that might be overturned based on a conservative living constitutionalism. Barnett’s is an…

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December 20, 2016|Bertrand de Jouvenel, Congress, Constitutional Law, Judicial Review, Judicial Supremacy, Mark Tushnet, Randy Barnett, Stare Decisis, The Minotaur

Crouching Congress, Hidden Judges

by Greg Weiner|

One of the signal achievements of Bertrand de Jouvenel was establishing the existential status of power: “The Minotaur,” he called it, a metaphysical entity, nearly organic, with an instinct for both survival and expansion. If Mark Tushnet’s overeager call, predicated on a Hillary Clinton presidency, for judges to emerge from what he alleged to be their “defensive crouch liberal constitutionalism” and slay the foes of Progressivism demonstrated anything, it was that there is, miracle of miracles, such a creature as a judicial Minotaur. Randy Barnett’s much discussed and certainly much warranted reply at The Volokh Conspiracy confirms it. Yet the judicial Minotaur…

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October 18, 2016|Donald Trump, George Will, judicial engagement, Justice Anthony Kennedy, Planned Parenthood v. Casey, Randy Barnett

The Inconvenient Truths Staring Us in the Face

by Peter Augustine Lawler|

Paul Ryan Addresses The Economic Club Of Washington, DC (Photo by Chip Somodevilla/Getty Images)

Quite a few conservatives, beginning maybe with George Will, are saying that the victory of Trump would be the end of conservatism. Others, maybe beginning with Damon Linker, are saying that the nomination of Trump signaled the end of conservatism. There are many ways of evaluating such claims. Here’s one.

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October 3, 2016|Abraham Lincoln, judicial activism, judicial engagement, Majority Rule, Natural Rights, Originalism, Our Republican Constitution, Randy Barnett

Government by Judiciary

by Carson Holloway|

Americans are united in professing respect for the Constitution, but they are deeply divided over what it actually means and how it ought to be interpreted. These disagreements have roiled our public life for decades. Everybody who follows politics knows about the clashes between the liberal proponents of judicial activism and the conservative defenders of judicial deference. These arguments go on and on, with neither side succeeding in persuading the other of the superior merits of its theory. Faced with this ongoing deadlock, we wonder if there is any way to achieve unity on the meaning of the Constitution.

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September 20, 2016|Equal Protection Clause, Necessary and Proper Clause, presumption of liberty, Randy Barnett, transgender bathroom access

Will Judges Debate the Layout of Shower Areas?

by Greg Weiner|

Aristotle teaches that justice is necessary where friendship has failed. His point is that the strictures of the law need only be imposed where ordinary, informal, face-to-face interactions collapse. Lawsuits—and, for that matter, laws—thus begin where comity and common sense end. That is worth keeping in mind as the first frontal constitutional challenge to the U.S. Department of Education’s attempt to impose a one-size-fits-all approach to transgender access to intimate facilities—bathrooms, locker rooms, and showers—works its way through the courts.

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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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