(image: Jose Gil / shutterstock.com) Cake, Controversy—And the Common Law
A Partial Vindication of Thomas West
Unsettling Thoughts on Liquidation
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 it to refer to construing the Constitution in The Federalist. Both Webster’s and the OED give as a secondary definition “to make clear,” with Webster’s citing Hamilton himself, and they agree that that usage of the term is now rare or obsolete. Gordon Lloyd and…
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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…
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…
Peter Augustine Lawler, a Personal Remembrance
Peter Augustine LawlerElectors, Americans, Countrymen, Lend Me Your Ears
Members of the U.S. Senate escort the Electoral College ballots through Statuary Hall on their way to the House Chamber in the U.S. Capitol, January 8, 2009. (Photo by Chip Somodevilla/Getty Images)On Monday, December 19, electors across America will be called upon to do their solemn duty of casting votes to choose the next President and Vice President of the United States, gathering in the capitals of all 50 states and in the District of Columbia. Together these electors, 538 in all, constitute the Electoral College, and it is their votes—to be officially tallied by Congress in January—that determine who will be inaugurated to the presidency and vice presidency on January 20. The electors themselves were chosen by popular election in the states on November 8, running as pledged to vote for one or another slate of candidates. If all the electors vote as pledged, and assuming that recounts do not disturb the current tallies, Mr. Trump and Mr. Pence will defeat Mrs. Clinton and Mr. Kaine by a vote of 306 to 232.
Legal Realism, Legal Revolution
In response to: The Unforgettable Fire: Tradition and the Shape of the Law
In the first paragraph of his celebrated 1881 book on the common law, Oliver Wendell Holmes, Jr. wrote: “The life of the law has not been logic; it has been experience.” Nor was that the first such expression in the annals of American jurisprudence. At the Philadelphia Convention of 1787, James Madison recorded John Dickinson’s arguing on August 13: “Experience must be our only guide. Reason may mislead us.” Leaving aside for now what Holmes was up to when he wrote those famous words, or, for that matter, Dickinson when he declaimed his, I think Marc DeGirolami’s praise of tradition in…
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Marc DeGirolami’s Liberty Forum essay discusses two contexts in which tradition might influence American law: common law and constitutional law. He suggests that tradition is still robust in the former, less so in the latter. With regard to common law, I think that he’s right that custom underlies a good deal of the law of contracts,…
Professor DeGirolami has written an interesting Liberty Forum essay in behalf of paying respectful attention to tradition as a major aspect of our legal order. However, I think there are two major problems with it. The first is theoretical, particularly in relation to the American political and legal experience. The second has to do with…
Stoner vs. Munger: Citizen or Consumer? How Do You Choose When You Vote?
There is a marvelous ambiguity in the question that Mike and I are debating.[1] Idiomatically, a question that begins “How do you . . . ” might be asking how one should do something; or it might be asking how, typically, it is done. As with any ambiguity, the interpretation depends upon the context.
For example, if an older person who looks a bit baffled asks, “How do you use an iPhone?,” you would show him how to enter a code to unlock it, how to swipe a finger across the screen to make various icons appear and disappear, perhaps even how to dial a call. If, by contrast, a 20-something carrying an iPad asks “How do you use an iPhone?” you would assume he or she was taking a survey, and you might answer by mentioning your favorite apps and showing him or her some favorite photos or videos.
So, if someone asks our question, “How do you choose when you vote?,” one would consider the questioner. If a neighbor or a stranger asks, one might answer “Democrat” or “Republican,” or “pro-life” or “pro-choice,” or even say “None of your business!” But if a student asks, or someone young enough not to be fixed in his or her opinions and habits, then perhaps the questioner means, how should one think about voting, how should one go about making a political choice?
Restoring Religious Liberty, Reviving Political Liberty
A few weeks ago, a friend of mine in Religious Studies returned from a conference at a major law school with this report: “Not all, but the majority of presenters agreed that Christians should be marginalized and have their freedom of speech and religion severely restricted because of how hateful their beliefs about sin are and the dignitary harm these beliefs cause others. Am I just young and naive and in reality nothing will come of this, or is it a truly scary reality that leading law professors are saying this?”
I don’t know whether my friend will be reassured or further discouraged if he reads The Rise and Decline of American Religious Freedom, but he will discover one leading scholar in the field who shares his alarm and addresses the matter with purpose and equanimity. Steven D. Smith, Warren Distinguished Professor of Law at the University of San Diego, has composed an essay rather than a treatise or a legal brief, an attempt to get partisans on both sides of the culture wars to see today’s disputes concerning politics and religion in historical perspective. Writing as a man of soft-spoken faith, he aims to begin a conversation, not avoid one, although he is surely aware that those who won’t listen are difficult to persuade.
The Disposition of Common Law: A Reply to Barry Shain and John McGinnis
If common law is judge-made law, as every law student these days is taught to think and as every political scientist who bothers to notice it presumes, then one easily enough understands why it is viewed by patriotic American citizens with suspicion. Everyone who reads the Constitution knows that the legislative power is vested in Congress, not the courts. Everyone who follows the courts knows that their constitutional decisions are treated in the press as judicial policy-making. And everyone who can connect the dots would conclude that common-law is the seductress leading judges away from their proper function of doing justice according to law in particular cases brought before them, and into the heady business of rewriting the Constitution when lobbied through the vehicle of a high-profile case.
Justice Scalia put this charge memorably in his book, A Matter of Interpretation, saying law students are taught in their common-law courses the art of “playing judge, which in turn consists of playing king—devising, out of the brilliance of one’s mind, those laws that are to govern mankind.”
