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October 16, 2018|Alito, Georgetown, Gorsuch, Kagan, Kavanaugh, Originalism, Roberts, Thomas

Why Law Students Need to Learn More about Originalism

by John O. McGinnis|

Brian Jackson/Adobe Stock Images
Law is a professional discipline and students should be prepared for the world as it is rather than what their professors fantasize it could be.

May 1, 2018|Dimaya, Gorsuch, Oil States Energy Services, Originalism, Public Rights, Thomas

Justice Thomas vs. Justice Gorsuch

by Mike Rappaport|

Seated from left, Associate Justice Ruth Bader Ginsburg, Associate Justice Anthony M. Kennedy, Chief Justice of the United States John G. Roberts, Associate Justice Clarence Thomas, and Associate Justice Stephen Breyer and Standing behind from left, Associate Justice Elena Kagan, Associate Justice Samuel Alito Jr., Associate Justice Sonia Sotomayor, and Associate Justice Neil Gorsuch. (Olivier Douliery/Pool via CNP /MediaPunch/Alamy.com)
The fact Justices Thomas and Gorsuch disagree is great development — not only for originalism but for constitutional law generally.

October 9, 2017|Ann Althouse, Gorsuch, Jeffrey Toobin, Originalism, Thomas

Jeffrey Toobin: Originalist Assassin

by Mike Rappaport|

Jeffrey Toobin

Recently, Ann Althouse had a great post criticizing Jeffrey Toobin’s account of oral argument in the Supreme Court’s political gerrymandering case. Toobin had criticized Neal Gorsuch, portraying him as violating norms and as ineffective. But Althouse makes a strong case that this is largely in Toobin’s imagination. Sadly, this is not the first time Toobin has unfairly criticized an originalist justice. In this past post, I criticized Toobin’s unfair attack on Justice Thomas’s criticism of nonoriginalism. Apparently, Toobin sees his role as in part attempting to persuade the New Yorker’s audience that originalists are just so wrong.

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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.

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May 8, 2012|Originalism, Precedent, Scalia, Thomas

The Greater Originalist: Scalia, Thomas, and the Legitimacy of Precedent

by Mike Rappaport|

Tim Sandefur recently had a post up claiming that Justice Thomas is the greater originalist, not Justice Scalia (as Lee Strang had claimed).  I don't necessarily disagree with Sandefur -- I think that both Scalia and Thomas have their virtues.  But I do strongly disagree with one aspect of Sandefur's post where he says: But if originalism means anything, it means that the Constitution has a meaning, and that it’s possible for courts to get that meaning wrong, and between those two—following the wrongly decided precedent or following the Constitution’s actual meaning—a judge must choose the latter. One can disagree with this approach,…

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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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