Few would seem better qualified to rally the support of decent people against religiously motivated extremists.
How, and how successfully, does Sacks deploy his vast knowledge and profound understanding of the oldest of the three Abrahamic faiths against those today who would kill in the name of the youngest? The first task is to locate the source of the human propensities for religion and violence.
Outside infantile phantasy, dualistic thinking typically emerges, he says, whenever the gap or dissonance between the world as-it-is and as we would have it be becomes too great to be borne. Not all dualistic thinking issues in violence, even when it has adopted a religious guise—as the quietistic nature of these two sects attests. In non-religious form, pathological dualism lay behind the virulent anti-Semitism of the Nazis. Having located the source of most contemporary religious violence in pathological dualism, Sacks then proffers an explanation of today’s religious form of this malady by invoking the theory of scapegoating that the late French anthropologist Rene Girard advanced to account for the origin and function of religion. To serve successfully in that capacity, a scapegoat had to be some relatively weak outsider, who was yet capable of being portrayed as a threat by whichever group it served as one.
Thus far in his account of religious violence and its causes, Sacks has hardly needed to draw on his theological erudition and expertise. The vital clue to the answer to this question, for Sacks, is contained in the very wording in which he formulates it. Assuming Sacks is right that sibling rivalry for God’s special favor lies at the root of the historic contention between the three Abrahamic faiths, how does he think appreciation of this fact can help end the religious violence that currently afflicts so much of the world today? It is precisely at this juncture that he unveils a Biblical hermeneutic of his own devising that displays just why he is so widely held in high regard as a religious thinker and scholar, and not just by his coreligionists. His new way of reading these well-known Biblical stories about sibling rivalry is precisely what Sacks goes on to provide in the central four chapters of his book. The account of the banishment of Abraham’s eldest son Ishmael at the behest of Isaac’s mother Sarah, argues Sacks, was not intended to portray the younger sibling as having displaced the elder in the eyes of either God or their common earthly father. Sacks offers comparably novel and impressive re-readings of the other Biblical narratives that deal with sibling rivalry.
On the surface, Genesis is a series of stories in which the elder is supplanted by the younger.
Having said that, a work such as Sacks’s could well have a powerful prophylactic effect upon young Muslims in the West, if read as part of a course in comparative religion. David Conway is a Visiting Senior Research Fellow at the Westminster-based social policy think-tank Civitas: Institute for the Study of Civil Society which he joined in 2004 and where he worked full-time as a senior research fellow for five years, after leaving academia following a thirty year career teaching Philosophy at various British universities. This podcast with criminologist Barry Latzer focuses on the surprising findings in his latest book, The Rise and Fall of Violent Crime in America.
This episode of Liberty Law Talk is a conversation with congressional scholar Louis Fisher on his recent book, Congress: Protecting Individual Rights. The Online Library of Law and Liberty’s focus is on the content, status, and development of law in the context of republican and limited government and the ways that liberty and law and law and liberty mutually reinforce the other.
For decades, liberal pundits mocked this perception of Yalta, arguing that these Fifties-era characterizations were the product of hysteria and a desire to present voters with simple answers to complex questions. Perhaps, but time has not been kind to liberal characterizations of what really happened at Yalta, where the Allies met 70 years ago. A photo of Alger Hiss hovering behind an obviously sick Franklin Roosevelt has in fact led some to overplay his participation at the conference.
As Whittaker Chambers stated years later, the main job of Hiss and other American officials who secretly worked with Soviet intelligence was to “mess up policy.” Hiss passed along documents to Moscow and also no doubt did his best to mess up Washington’s doomed China policies, on which he also worked.
I came across a mention of a female communist who was the contact between Roosevelt and the Communist Party. As for Alger Hiss, thoughtful historians who have examined the record and available evidence have long surmised that his role at Yalta was relatively insignificant in the development and execution of the Yalta agreements. The political agreement assured that Uncle Joe could run rampant over half of the Eurasian land mass. The connection to Stalin and pre-war subterfuge with Japan – US relations is somewhat murkier but it is argued that even prior to the War Stalin feared US power and meant to keep US pre-occupied. As many know, Donald Trump has released a list of 11 people he might nominate to the Supreme Court if he is elected.
Michel Temer, acting president of Brazil in his first ministerial meeting - 13 May 2016.After the Brazilian Chamber of Deputies accepted President Dilma Rousseff’s impeachment, the Senate approved it, and she will be tried in the Senate in a proceeding that has to finish within 180 days. Judge Collyer held that the House had standing with respect to the Non-Appropriation claim but not with respect to the Employer Mandate claim. Another part of the opinion seems to say that some constitutional provisions—including the Appropriations Clause—travel with an implied institutional right of action; others, like the “vesting” of all legislative powers in the Congress, don’t. Manifestly, what drives Judge Collyer’s half-loaf opinion is an attempt to keep the courts in the separation-of-powers game without opening the door to institutional lawsuits whenever some legislators feel that the executive has transgressed its authority or fallen down on the job.
We may not WANT to have these disputes adjudicated by the Black Robes but we may be impelled to do so. Nope, let it go undergo Black Robe divination – who knows, perhaps even they will see that there was some institutional meaning to the constitution. The ACA brings the insurance companies into the federal government as part of the government.
Before even beginning to defend that position, we must first consider what is meant by “liberty.” Adherents of different ideologies have widely differing conceptions.
Even many libertarians—myself  included—recognize that negative liberty doesn’t always trump all other values. Some legal theorists argue that evaluating constitutional theories based on their effectiveness in promoting specific values is inherently illegitimate. While we may not want judges to rely on their own personal values in applying whatever turns out to be the right theory of constitutional interpretation, the decision of what interpretive theory to use in the first place is not and cannot be a value-neutral enterprise. Perhaps the real answer to our question is that we should throw out theories of interpretation entirely. The most obvious objection to this approach is that liberty is not the only value that should be promoted by a system of judicial review. First, to be effective in promoting liberty under realistic conditions, a theory of constitutional interpretation has to gain the assent of judges from a wide range of ideological and partisan backgrounds. Second, even in a much more libertarian-friendly judiciary, pursuing liberty directly may not achieve the goal as effectively as relying on the results of supermajoritarian decisions embodied in the original Constitution and later amendments.
It would be foolish to claim that originalism is conducive to liberty under all possible conditions. In general, originalism is only likely to promote liberty if the original meaning of the constitution in question protects that value more than the realistically feasible alternatives such as living constitutionalism or deference to the political process. It is sometimes argued that the Necessary and Proper Clause, which gives Congress the power to  “make all Laws which shall be necessary and proper for carrying into Execution” other powers granted to the federal government, ends up giving the latter nearly unlimited authority by a kind of back door.
Admittedly, the original Constitution imposes mostly structural constraints on federal authority. The federalism established by the original Constitution is far from unambiguously beneficial for liberty. But federalism-based limits on congressional power do promote liberty in two important ways.[3] First, decentralization of power limits the likelihood that an oppressive policy will spread to the entire nation, as opposed to affecting only some subset of states. Second, federalism enables people to “vote with their feet” against oppressive state and local governments, in favor of jurisdictions with better (or at least less bad) policies. When the original 1787 Constitution came up for ratification, critics rightly insisted on the need for a Bill of Rights.
As I detail in a forthcoming book,[4] the original meaning of the Public Use Clause would bar not only Kelo v. Even after the enactment of the Bill of Rights, the original Constitution offered only very limited protection for liberty against the depredations of state governments.
The Reconstruction Amendments enacted in the wake of the war curtailed many of the most serious affronts to liberty permitted by the original Constitution.
There is now a near-consensus among legal scholars of all stripes that the Fourteenth Amendment incorporates all or nearly all of the Bill of Rights against the states.
In addition, although the issue is still disputed, recent scholarship by Randy Barnett, Ryan Williams, Christopher Green, and my George Mason colleague David Bernstein, among others, makes a powerful case that the original meaning of the Due Process and Privileges or Immunities Clauses of the Amendment provide substantial protection for a variety of otherwise unenumerated individual liberties. This protection extended to a variety of basic traditional rights of free citizens, including both “economic” and “noneconomic” rights.
The original meaning of these clauses does not provide complete protection for a libertarian conception of freedom. Similarly, enforcing the original meaning of the scope of federal power would not completely eliminate federal government policies that infringe on liberty. A more complete discussion of the relationship between originalism and liberty would also require consideration of the relevance of different competing versions of originalism, such as original intent and original public meaning. In my view, what is said above holds true under the form of originalism currently dominant among originalist scholars and jurists: original public meaning originalism, which focuses on the public meaning of the text at the time of enactment.
Still, this necessarily brief and oversimplified survey of the original meaning of the Constitution shows that it provides strong, if incomplete, protection for individual liberty in a variety of ways. The emphasis on individual liberty was perhaps even stronger in the case of the Civil War-era Republicans who drafted and ratified the Reconstruction Amendments.
Although originalism offers strong protection for individual liberty, perhaps living constitutionalism can do even better. Perhaps the best-known version of  living constitutionalism is “representation-reinforcement,” the theory—developed by the late John Hart Ely—that judicial review should generally focus on protecting rights necessary for democratic political participation, and helping “discrete and insular minorities” who cannot  effectively fend for themselves in the political process.[8] Representation-reinforcement theory can justify strong protection for rights closely related to political participation, such as freedom of political speech and association. But ultimately, the theory offers little protection for a wide range of liberties that are not closely related to political participation, and whose violation may not disproportionately target minorities or the politically weak.
Other influential versions of living constitutionalism focus on keeping constitutional interpretation in line with changing social conditions and the views of popular majorities or influential legal elites. Whatever their other virtues, these types of living constitution theories are unlikely to provide strong, systematic protection for liberties endangered by the political process. Some influential academic theories of living constitutionalism—most notably Ronald Dworkin’s “chain novel” approach—argue that judges should begin with the constitutional text, but interpret ambiguous phrases to conform with the best available version of liberal political theory, while simultaneously giving some deference to precedent and historic practice.[10] The implications of this approach for liberty depend on your view of the best interpretation of liberal political theory, which – of course – is likely to vary greatly for judges with different values and dispositions.
Among both originalists and living constitutionalists, there are some who prefer judges to largely defer to the political process. Some advocates of judicial deference hope that if judges defer to the political branches of government, the latter will take constitutional rights more seriously, knowing that they cannot rely on the judiciary as a safety net. A similar pattern emerged when federal judges largely abjured enforcement of constitutional economic liberties, property rights, and structural constraints on congressional power from the 1940s to the 1980s.
It is also dangerous to rely on public opinion as the main protection for constitutional rights. Moreover, survey data show that the public often has a strong bias against individual freedom, particularly on economic issues. Some argue that nondeferential judicial review is antithetical to originalism itself, which supposedly requires deferring to the legislature in all but the most clear cases of unconstitutionality.
None of this suggests that we should rely on judicial review alone to protect constitutional rights.
Reliance on litigation and judicial review is just one part of a broader strategy for enhancing freedom; others include conventional political mobilization, and influencing elite intellectuals and policymakers.
Although originalism provides greater protection for individual liberty than other realistically feasible approaches to constitutional interpretation, it still has its limits.
Moreover, as I emphasized at the start, liberty is not the only value that must be considered in evaluating theories of constitutional interpretation. Despite these caveats, the relatively close affinity between originalism and liberty is an important consideration in evaluating competing approaches to constitutional theory.
In his famous, breakthrough speech at the Cooper Union in New York, Lincoln remarked on those black slaves who had not thrown in with John Brown. The point of Ilya Somin's able and humane Liberty Forum essay is to show libertarians how to deploy originalism as a doctrine to maximize “negative liberty” in America. I would like to start by thanking Law and Liberty for hosting this symposium, and Hadley Arkes, Peter Lawler, and Ed Whelan for their thoughtful comments on my initial essay. Perhaps, but if the values that one cherishes include honesty about the meaning of words in a legal text, and honesty about the meaning of words in an oath, doesn’t that narrow the choices very considerably as to what interpretive theory to use?
What were the thoughts of the primary author of the Constitution about the Declaration of Independence?
Liberty Forum is a platform for the discussion of the legal and philosophical principles that inform and govern a free people.
George Curtis is a former professor of history at Hanover College and a former fellow at Liberty Fund.


This is a fine essay, and John Philip Reid’s scholarship absolutely merits celebration.
My question: Curtis implies that some scholars attribute the modern, statist constitution to Anti-Federalist thinkers. Is it unreasonable to compare the Administrative Procedures Act (and it’s lineage) to the Declaratory Act?
John Phillip Reid is not a great stylist either, and he has a quirky way of presenting his argument that takes some getting used to. Through tax penalties the legislature assumes a power to bind us in all cases whatsoever, or at least those cases in which we can be penalized through taxes for not conforming to the will of the legislature.
Through tax bindings, and through government enforced industrial bindings the old republican Constitution is being replaced. This Anthology is a selection of chapters and extracts taken from the most important and influential books in the OLL. We have arranged the collection here into themes in order to illustrate the breadth and depth of the classical liberal and free market tradition. There is additional material in the collection of over 500 Quotations about Liberty and Power one of which is featured on the home page every week.
Also see the collection of Key Documents of Liberty in which there are 100 documents stretching back to the Code of Hammurabi. When you want a bank to waive a service fee, alywas stress what a great customer you are (especially if you have multiple accounts at that bank).
After gaining a double-first in philosophy at Cambridge (under the supervision of Roger Scruton) and a doctorate in ethics, Sacks went on to become an orthodox rabbi, and later served for two decades as Britain’s Chief Rabbi.
Sacks traces the first to the supreme serviceability religion has in conferring meaningful forms of group identity without which many are prone to anomie.
Sometimes such thought assumes a religious guise, as in the cases of Zoroastrianism and Manicheism, or the now defunct, early Jewish and Christian sects responsible respectively for the Dead Sea Scrolls and the gnostic gospels.
There is, however, one form of dualistic thought especially prone to generate violence irrespective of whether it assumes a religious or non-religious cast. Now in a religious guise, it underlies the virulent anti-Semitism rampant throughout the Muslim world since the advent of a Jewish state in its midst. According to Girard, organized religions originally arose around ritualized human sacrifice, a ritual that served to unite societies otherwise prone to internecine conflict. To the contrary, through highlighting subtle details in the sparse Biblical narrative (whose true significance, so Sacks contends, was discerned by early Jewish sages), its true intention is showing the equally high esteem in which both brothers were held by God and Abraham.
That would be for the many; dealing with the few—those who have fallen victim to pathological dualism—will require much stronger medicine than Sacks dispenses. 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.
They argue that there was very little the United States could have done at the close of the Second World War to stop the Red Army from overrunning Eastern Europe. It has become apparent that, however ineffectual it might have been to try to get Stalin to allow democratic elections in Poland and the other Central and Eastern European states, the American side was hardly sympathetic to such an effort. Much higher in the policy hierarchy than Alger Hiss were trusted advisers such as Lauchlin Currie and Harry Dexter White, both of whom were Soviet spies.
Hiss’s lasting contribution to the UN agreement was helping to settle the flap over the creation of a Trusteeship Council.
This 54-minute feature documentary was created by Michael Kirk, a prolific and highly successful television documentarian with a quiver full of awards to his credit. Burwell, litigation over the Affordable Care Act and the administration’s creative implementation of the statute continues.
Under Section 1401, so-called “Premium Tax Credits” are paid directly to insurance companies, which then reduce the premium charged to the insured.
Judge Collyer makes that balancing act quite explicit, and she emphasizes that this case was brought by, and alleges an injury to, the House as an institution—as distinct from a complaint brought by individual legislators who mope about a dilution of their voting power, or something of the sort. This case, says the administration, isn’t justiciable: if Congress doesn’t like the Executive’s position, it has a million ways to fight back—for example, by withholding funding. Contrast the Constitution the convention produced with the Virginia plan, and note that Madison seldom discussed separation of powers outside of the Federalist–when he was forced to defend the actual document that they had produced. I will focus on the “negative” liberty defended by most libertarians: the right to be free of government interference with one’s economic and personal lives, including the rights to property, contract, speech, religion, and freedom in personal relations. Proving that a particular theory of constitutional interpretation best promotes liberty does not prove that it is the best overall. And the ability to maximize it effectively is an important virtue, even if it is not the only criterion by which theories of constitutional interpretation should be assessed. The problem with this view is that it divorces constitutional theory from the normative justification for obeying the Constitution (or any legal rule) in the first place.
Why not just have judges promote liberty directly, by simply deciding each case based on the criterion of what ruling will best maximize liberty in the long run?
But even from the standpoint of liberty alone, promoting it directly is unlikely to be the best approach under real-world conditions. Only a small minority of judges are libertarians, and the percentage is likely to increase only slowly. A supermajority process can draw on a much wider range of knowledge and expertise than is available to a handful of Supreme Court justices, or even a larger corps of federal judges. An originalist approach to enforcing the Constitution of the Soviet Union or the laws of Nazi Germany would likely do far more to undermine liberty than enhance it.
Although it was intended to establish a stronger federal government than existed under the Articles of Confederation, it still imposes tight limits on the scope of federal power. Despite valiant efforts to prove otherwise, the text of the Commerce Clause does not give Congress the power to do more than regulate trade in goods and services across state boundaries and the instrumentalities by which that trade is conducted. The original meaning of spending for the general welfare likely does not mean what the modern Supreme Court assumes: spending on any object that Congress might consider beneficial.
But even if we accept the broad interpretation of  “necessary” as “useful or convenient” adopted by the Supreme Court in McCulloch v.
State governments often undermine liberty and more expansive federal authority can potentially stop them. As terrible as slavery and segregation were, they would have been even worse had the federal government enforced them nation-wide (as might have happened had there been a single unitary national policy on these issues in the early republic, or at the height of Jim Crow-era racism). Throughout American history, this option has been utilized by oppressed minorities, and people in search of greater freedom and opportunity—including African-Americans, gays and lesbians, and many others. The Bill of Rights enacted in 1791 contains important protections for a variety of individual liberties, on top of those provided by structural constraints on federal power. Akhil Amar, Kurt Lash, and others provide strong arguments that that incorporation should be understood to encompass the broader view of many of those rights that predominated in the 1860s, rather than more constricted interpretations of the 1790s. As many of these scholars emphasize, nineteenth century Americans, including those who framed and ratified the Amendment, did not recognize a sharp distinction between the two types of freedoms.
As Bernstein, among others emphasizes,[5] the dominant view at the time would still uphold state regulations that fall within the scope of the “police power” used to promote the health, safety, or welfare of the public. For example, the original meaning of the Foreign Commerce Clause and the Tax Clause probably gives Congress broad power to enact protectionist legislation restricting the import of foreign goods. Most of it is also valid under the today less popular original meaning approach, which emphasized the intentions of the individuals who drafted the text.
Competing theories must meet a high standard if they are to surpass originalism on this score. They were heavily influenced by the proto-libertarian “free labor” ideology of the antislavery movement, and by a desire to curb infringements on individual liberty enacted by antebellum state governments, especially in the South. It also offers little justification for judicial enforcement of structural limits on government power that are not focused on either enhancing participation or protecting minority groups.
For example, “popular constitutionalism” emphasizes the need for judicial interpretations of the Constitution to take account of the views of the general public, particular those embodied in mobilized social movements, such as the civil rights movement or the gun rights movement.
Public opinion and influential social movements sometimes favor enhanced protection for liberty; but very often they favor the exact opposite. The overall implications for liberty are not likely to be as beneficial as those of originalism, unless the judiciary somehow becomes overwhelmingly libertarian—an unlikely eventuality in the foreseeable future.
If constitutional interpretation raises difficult questions, why not leave them to the elected representatives of the people, except perhaps in cases where the unconstitutionality of their actions is unambiguously clear? The political branches of government are often the very entities that threaten liberty the most. Violations of these constitutional constraints on government power greatly increased, and most legislators stopped giving them any serious consideration. On both economic and social issues, support for individual freedom is often closely correlated with political knowledge (when controlling for other variables),[13] and knowledge levels tend to be low. Efforts to protect liberty by relying on judicial review alone are likely doomed to failure. At this late date, the judiciary cannot fully restore the original meaning of the Constitution in the face of longstanding adverse precedent and government policy. Even if originalism is the best realistic alternative for purposes of protecting liberty, that doesn’t necessarily make it the best theory overall. City of New London and the Limits of Eminent Domain, (Chicago: University of Chicago Press, 2015), ch. Somin currently serves as co-editor of the Supreme Court Economic Review, one of the country's top-rated law and economics journals.
He doesn’t claim to establish that negative liberty is good, or that its maximization accords with living in the truth or with dignity.
Recognizing that there is no shortage of online venues for evaluating legal questions, Liberty Forum's distinction rests in its examination of the basic principles of constitutional republican order and its focus on the elements of freedom that must exist in a society dedicated to liberty and responsibility. This first essay’s ideas will then be considered and tested by two other participants in each exchange. They did so by upholding the elements of the late seventeenth century English and post Glorious Revolution constitution that Parliament jettisoned after the French and Indian War. They are available in a variety of eBook formats - ePub, text PDF, and Kindle - and we are working on creating a stand-alone HTML version as well. It should serve as a useful guide to those who would like to explore this tradition further. He traces the second to the no less deep-seated human tendency to resort to what he calls dualistic thinking.
By nominating and then disposing of some suitable victim, potential antagonists could unite and divest themselves of aggression in socially harmless ways. They continue to do so today in the Middle East which, having divested itself of Jews (outside of Israel) now finds itself consumed by internecine warfare. They contend for the affection and special favor of their father and the blessing and inheritance that go along with it.
Only the destined religious vocation of their respective descendants was intended to be portrayed as being different. Sadly, however brilliantly illuminating Sacks’s reworking of Biblical narratives about sibling rivalry unquestionably is, it will have little purchase among the likes of ISIS and Al Qaeda, and for one very simple reason: However full the Quran might be of stories about Judaism’s patriarchs and other Old Testament prophets, unlike Christianity Islam regards the Hebrew Bible as a text that has woefully distorted the historical facts about them. Law and Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy. During his time at the State Department, he occupied mid-level posts in which he never dealt directly with Roosevelt. Stanton Evans and Herbert Romerstein, whether Hiss also had anything to do with Operation Keelhaul, the product of one of the most shameful Allied decisions at Yalta.
The language Hiss was requested to craft settled the matter and was entered into the record of proceedings. Attorney General Loretta Lynch to institute a five-year ethics training program for any lawyer seeking to appear in any of the 26 states that participated in the immigration case now pending before the SupremeRead Moreby Michael S.
In yet other parts of the opinion, Judge Collyer suggests that the Employer Mandate claim can be brought by other (private parties), whereas only the House can assert the “institutional” injury.
That, not litigation, is the constitutionally envisioned scenario (Federalist 51, and all that). With the support of both parties, Congress has fallen into the habit of writing blank checks and of authorizing agencies to create their own tax regimes. The answer to the question raised by this essay would be very different if we instead focus on left-liberal conceptions of liberty that include an extensive role for welfare state benefits and government regulation. A complete theory of constitutional interpretation must also consider other goals such as the provision of public goods and increasing human welfare.


The fact that some people wrote down a set of rules 150 or 200 years ago does not in and of itself create a moral obligation for us to obey them today (or even for their contemporaries to have done so). That approach might sometimes require us to sacrifice some elements of liberty in order to protect others. Most non-libertarians are likely to reject a theory of interpretation that directly prioritizes liberty out of hand. Other things equal, greater and more diverse knowledge is likely to result in rules that better achieve the goal in question. More ambiguously, the same may be true of efforts to enforce the original meaning of many contemporary European constitutions that include extensive provisions for welfare rights and grant government wide-ranging powers over economic and social life.
Today, the lion’s share of federal legislation is supposedly authorized by either the Commerce Clause, which gives Congress the power to regulate “Commerce . It certainly does not give Congress the power to regulate any activity that might have a significant effect on such trade, or on the national economy.
If it did, there would be no reason for the Spending Clause to also grant Congress the power to spend to “pay the debts and provide for the common Defence… of the United States.” Both debt repayment and defense spending plausibly benefit the nation. The original Constitution’s toleration of state government-imposed slavery is perhaps the most powerful case in point. Such foot voting also incentivizes states to cut back on policies that might cause businesses and productive workers to flee. Research by Eugene Volokh, Michael McConnell, and other scholars shows that the original meaning of the First Amendment provides much broader protection for freedom of speech and religion than previously thought—including nonpolitical and symbolic speech, and some exercises of religious freedom that go against seemingly “neutral” laws. Parker,  the nonoriginalist 1954 decision in which the Supreme Court first held that a “public use” is almost anything the  government says it is. The Fourteenth Amendment not only restricted racial and ethnic discrimination by the states, but also protects important substantive liberties for all Americans.
Thus, nineteenth and early twentieth century jurisprudence used the Due Process Clause to protect both “economic rights” to freedom of contract in labor relations, and “noneconomic” freedoms,  including the right to raise one’s children free of excessive state intervention such as mandates that all children attend public schools and learn only subjects mandated by the state. But that still rules out regulations whose primary purpose is to stifle competition for the benefit of favored interest groups, or simply impose the preferences of majority public opinion on dissenting minorities. I cannot categorically exclude the possibility that one of them would protect liberty better than originalism. Depending how broadly the latter concept is interpreted, it could even justify strong judicial enforcement of constitutional rights that are viewed skeptically by conventional left-liberal supporters of the theory.[9]  Representation-reinforcement theory is also a valuable counterpoint to claims that strong judicial review necessarily undermines democracy. In addition, the key concepts of political participation and “discrete and insular minorities” are often frustratingly vague and indeterminate, which leaves a great deal of room for judicial discretion—discretion that can often be used to refuse to enforce liberties that judges are unsympathetic to. Moreover, by privileging currently powerful political forces, popular constitutionalism counsels deference to the very entities that are often the greatest threats to liberty.
Moreover, even a strongly libertarian Dworkinian jurist may have difficulty figuring out how to protect liberty as effectively as might be done by following rules enacted by liberty-oriented supermajorities, who may have greater knowledge and insight.
To defer to their interpretations of the constitutional safeguards  meant to constraint their own abuses is much like deferring to wolves’ interpretations of the rules regulating access to chicken coops.
When the judiciary largely abdicated enforcement of Fourteenth Amendment protections against racial discrimination in the late 19th century, that helped facilitate rampant Jim Crow laws, not careful legislative reflection on constitutional issues raised by racial discrimination. Successful movements to strengthen protection for individual rights have generally relied on a combination of litigation and political action. Attempting to do so would create a political backlash that is likely to undermine both liberty and the institution of judicial review itself.  It could also undermine prospects for stronger enforcement of the original meaning itself. But it should also matter to others who consider negative liberty an important value, even if they are often more willing than libertarians to subordinate it to other goals. His work has appeared in numerous scholarly journals, including the Yale Law Journal, Stanford Law Review, Northwestern University Law Review, Georgetown Law Journal, and Critical Review.
Liberty Forum aims to uncover the genesis of central legal ideas that produced our unique heritage of Western liberty but are now misunderstood due to ideological confusion. The ideas discussed and debated in this space are not the sole preserve of experts, however.
Each extract is preceded by a brief biography of the author and some explanation of why the text is important, and followed by links to other related material in the OLL. After stepping down from that post, he now occupies university chairs on both sides of the Atlantic. By this expression, Sacks intends to denote those forms of thought in which reality is split into an idealized good against which is pitted some imagined thoroughly evil demonic power or force, and the two are locked in eternal combat. It arises, he says, whenever humanity becomes divided in thought into two groups: the unimpeachably good (Us) and irredeemably bad (Them) held responsible for whatever misfortune befalls the good. This, in Sacks’s view, has been what all the mutual contention of the three faiths has essentially been about. Operation Keelhaul implemented the decision by Roosevelt, Churchill, and Stalin that over two million Russian POWs who had been held by the Nazis would be forcibly returned to the Soviet Union.
But given his views, and his instrumental position in the administration, he might has well have been.
District Court for the District of Columbia held that the House of Representatives has standing to sue the executive (more precisely, Secretaries Burwell and Lew) over their decision to implement an ACA program with unappropriated funds. The House contends that Section 1401 Credits are funded by a permanent appropriation in the Internal Revenue Code, whereas Section 1402 Offsets must be funded through annual appropriations. Why that makes a difference for purposes of constitutional (Article III) standing is dubious. Byrd (1997), where the Supreme Court dismissed individual legislators’ challenge to a statutory line item veto for lack of standing. How ironic, say “the House” and Judge Collyer: withholding funding was “exactly” what Congress did here (emphasis in the opinion). But under the circumstances of the United States for the foreseeable future, originalism is likely to be the best bet.
A complete theory of judicial review must also address the challenge posed by people who have strong reliance interests vested in incorrect, but firmly established precedents.
By contrast, both originalism and at least some versions of living constitutionalism have a measure of demonstrated cross-ideological appeal. This may not matter if the more knowledgeable decision-makers themselves gave little or no priority to liberty in deciding what constitutional rules to adopt. As Justice Clarence Thomas and others have pointed out, the modern “effects test” interpretation would make much of the rest of the Constitution superfluous.
The true original meaning of General Welfare is most likely captured either by James Madison’s theory that it authorizes Congress to spend money to implement its other enumerated powers, or that it also grants Congress very limited additional authority to spend on objects that really do benefit virtually all Americans. The original meaning of the Takings Clause of the Fifth Amendment provides strong protection for property rights, including tight “public use” restrictions on the use of what the Founders called the “despotic power” of eminent domain. Berman opened the door to “blight” and “urban renewal” condemnations that have forcibly displaced millions of people. However, that result is unlikely in the case of those versions of living constitutionalism that currently enjoy widespread support. For these reasons, representation-reinforcement is unlikely to protect individual liberty as fully as originalism. For obvious reasons, freedom is less likely to be endangered by politically weak or disorganized groups than by those that have effectively mobilized themselves and achieved a measure of political influence. Prudent originalist jurists can use judicial review to move us closer to the original meaning, but are unlikely to be able to get all the way there—at least not for a long time to come, if ever. The hope is that each topic, and the ideas animating and surrounding it, will emerge into full view for the reader, permitting a new and refined understanding of the ideas discussed. This is where we need to focus our attention if we are to understand and heal the hate that leads to violence in the name of God.
They are not prepared to derive theological lessons from it or even bother to read it, let alone books about it. Amid Stalin’s mass purges of Russians who had contact with foreigners, these men faced certain doom upon their return home. Hopkins, a supporter of Stalin’s absorption of Poland and other Baltic states (some of which were acquired during the Nazi-Soviet military partnership in 1939), said that these countries were eager to be under Soviet control.
Militarily, he wanted to assure Stalin’s promise made in Tehran in December 1943 that the Soviets would enter the war against Japan after the defeat of Germany and commit to a specific date for entry into the Pacific war.
Both are excellent both in assessing the facts and putting the Yalta agreements into broader historical context. While it’s certainly a good thing to keep this excretion of a statute in litigation, from here to eternity, there are reasons to be nervous about Judge Collyer’s ruling. Besides, the Non-Appropriation claim is a constitutional violation only if the House is right about the statutory question. Rivkin) has insisted that this isn’t actually true: appellate courts have dinged private Employer Mandate suits for lack of standing.
Granted: there’s still some value to having a court hold that the executive can’t spend non-appropriated funds (assuming this case survives a certain appeal and gets to the merits). Both the structural and individual rights provisions of the Constitution generally protect liberty more when interpreted from an originalist standpoint than by applying any of originalism’s plausible competitors. If we should obey nonetheless, it must be because of some value or set of values external to the text itself. In recent years, the original meaning version of originalism, in particular, has gathered numerous adherents across the political spectrum. But, as we shall see, the most important parts of the Constitution were in fact enacted by political movements that placed a high value on liberty, even if not quite as high as that assigned by modern libertarians. The Commerce Clause itself also gives Congress the power to regulate trade with foreign nations and with the Indian tribes (which was a much more important part of the economy in 1787 than today).
Originalist scholars on both the right and left now recognize that the original meaning of the Second Amendment provides a robust individual right to bear arms. In recent years, it has achieved notable breakthroughs for gay rights, for opponents of state-sponsored racial preferences, and for advocates of constitutional property rights and the right to bear arms. These ideas are open to all: They are the personal and collective wisdom of any society devoted to the noblest ideas of the Western legal and political philosophical tradition.
Yes, this is on a motion to dismiss, and so the court accepts the complaint unless it’s obviously a crackpot argument. Either way, the distinction makes sense only on the presumption that when the executive goes bad, someone must be able to crank a challenge into the judiciary—per the authority of The Federalist, the “least dangerous” branch of government; and maybe the least dysfunctional. Once you pierce the institutional gossamer, this isn’t a separation of powers case or claim; it’s a separation of parties claim. How about refusing to fund any number of items that the administration and its constituencies care about?
And the nature of that value is likely to influence the normative decision about what interpretive methodologies should be used to determine the implications of the text for particular cases. Both of these types of trade clearly have major effects on the economy and on interstate commerce, yet the Founders thought it necessary to grant the power to regulate these types of trade separately. The original meaning of other parts of the Bill of Rights also often provide greater protection for individual freedom than is available under modern Supreme Court doctrine or many forms of “living Constitution” theory.
With the hopes of fostering these great ideas through Liberty Forum, we welcome your responses. In so doing, the House says, administration officials “drew” money from the Treasury, in violation of Art. Still, it’s obvious at the front end that both parts of the case eventually turn on the interpretation of the ACA rather than the Constitution.
As Justice Robert Jackson observed in a somewhat different context: if Congress lets its powers slip through its fingers, there’s not a lot the courts can do about it. 7 (“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law“). In addition to this “Non-Appropriation” claim, the House complains that the administration has failed to implement the ACA’s “Employer Mandate,” thus effectively “nullifying” that part of the statute. At the end of the fourth, Joseph and his brothers work through a process of forgiveness and reconciliation.



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