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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|12 Comments

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

November 30, 2017|Alexander Bickel, judicial activism, judicial engagement, Originalism, Robert Bork

What Robert Bork Learned from Judicial Activism, Right and Left

by Mark Pulliam|9 Comments

I have been thinking about Robert Bork recently, prompted in part by the 30th anniversary of his rejection by the Senate on November 23, 1987. Next month will mark the fifth anniversary of his passing on December 19, 2012.

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November 6, 2017|judicial deference, judicial engagement, Judicial Review

The Dangers of an Engaged Judiciary

by James R. Rogers|6 Comments

The puzzle is why judges review the constitutionality of (some) laws deferentially. Last week I considered one of the most often provided reasons for deference, that the judges are “unelected,” and so, in a republican political system, should be careful when striking down the enactments of popularly elected legislators. Yet in the American constitutional system, national-level courts are fully republican institutions. They are immunized from direct electoral supervision to make them and the system more republican, not less republican. They are selected by the people’s representatives, and serve only during “good behavior.” This makes courts republican institutions according to the “rigid definition” that James Madison provides in Federalist No. 39. So, too, at the state level, many judges are elected directly, or at least undergo retention elections. It’s hard to maintain at either the state or national level that the judiciary is a non-republican branch of government.

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August 15, 2017|A Debt against the Living, Ilan Wurman, judicial engagement, Judicial Restraint, Liquidation, Living Constitutionalism, Living Originalism, Originalism

Introducing Originalism: A Conversation with Ilan Wurman

by Ilan Wurman|3 Comments

Ilan Wurman joins this edition of Liberty Law Talk to discuss his new book, A Debt against the Living: An Introduction to Originalism.

May 10, 2017|classical liberals, Conservatives, judicial engagement, Judicial Restraint, Libertarians, Never-Trumpers

Judicial Nominations Unite the Right, Even Never-Trumpers

by John O. McGinnis|6 Comments

inscription on the courthouse

The  latest nominations of ten fine lower court judges makes clear that President Trump is the best President for judicial selection since at least Ronald Reagan, particularly in his willingness to nominate conservative legal academics likely to have extraordinary influence.  He has certainly been aided by having a Republican Senate, and by relying on the network of the Federalist Society, but the nominations are his own.

And they will receive almost universal approbation among conservatives, classical liberals and libertarians. That includes those who supported Trump and those who were Never-Trumpers, although it is somewhat embarrassing for those Never Trumpers who said the candidate could not be trusted to select good judges or even to choose justices from the list he announced.   As I said before the election, precisely because of his other heterodox stances, Trump would follow through on his unifying judicial commitments.

Appointing judges whose ideal is to enforce the Constitution as written unites almost all strands of the political right. For traditional conservatives, the Constitution represents an anchor against too rapid change. For libertarians, the Constitution contains valuable limitations on government power and protections of rights. For both, originalism  protects the rule of law against the latest social engineering fads of the left.

But one might wonder whether this union will survive the increasingly fierce debate between judicial engagement and judicial restraint among constitutional theorists on the right..

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March 2, 2017|Administrative State, Chevron, judicial deference, judicial engagement, Judicial Restraint, Neil Gorsuch

Gorsuch Gets Judicial Deference Right

by David McDonald|7 Comments

Paragraf, Fragezeichen, Urteil, Recht, Gesetz,  in dubio pro reo, Urteilsfindung, Rechtsprechung, Justiz, Symbol, Gericht, Gerechtigkeit, Ungerechtigkeit

As the confirmation battle over 10th Circuit Judge Neil Gorsuch—Donald Trump’s nominee to fill the late Antonin Scalia’s Supreme Court seat—takes shape on cable news shows and across newspaper opinion pages, phrases like “judicial restraint” and “judicial activism” dominate much of the discussion.

While anyone you ask will agree that restraint is good and activism bad, and that judges should be careful not to usurp lawmaking authority from the people’s duly elected representatives, it’s often difficult to figure out exactly what people mean when they give their opinion on this subject. All too often, calls for judicial restraint or deference are not about dispassionately applying the law and leaving the policy decisions to Congress; they are calls for blind rubber-stamping of governmental action.

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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|18 Comments

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|22 Comments

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 21, 2016|Civil Law, Common Law, judicial engagement, Judicial Oath, Mark Pulliam, Williams v. Pennsylvania

Engagement Doesn’t Mean Limitless Power

by Devin Watkins|3 Comments

In a recent post on Law and Liberty, Mark Pulliam lambasted the idea of a more “rigorous standard of judicial review, across the board, when laws are challenged” called “judicial engagement.” He claims that those of us who advocate judicial engagement presume that judges are untainted by bias or personal predilections whereas they “are just government officials who wear robes, no different (and certainly no more noble or wise) than any other functionary of the state.”

Judicial engagement does not make any such presumption. Judges are no different from any other people. But the office of a judge is different. A judge has different incentives than a legislator because of the nature of his or her office, which renders him or her less vulnerable to manipulation by interest groups or political pressure.

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September 15, 2016|Constitutional Law, judicial activism, judicial engagement, Patel v. Texas Department of Licensing and Regulation, Rodriguez v. San Antonio Independent School District

Grounds for Concern?

by Mark Pulliam|15 Comments

Texas Supreme Court

We have seen many examples of an “engaged judiciary” at the state court level, and it isn’t always pretty.

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Book Reviews

A Compelling and Compassionate Book about Epilepsy

by Theodore Dalrymple

Our knowledge of the human brain is limited, but neuroscientist Suzanne O’Sullivan’s observation of her patients yields astute insights.

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Andrew Roberts Takes the Measure of the “Populist” Aristocrat, Churchill

by Joao Carlos Espada

Yes, there is something new to be learned about Winston Churchill, and it's in the new 1,105-page biography by Andrew Roberts.

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Liberty Classics

Bringing Natural Law to the Nations

by Samuel Gregg

If sovereign states ordered their domestic affairs in accordance with principles of natural law, the international sphere would benefit greatly.

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Belloc’s Humane Defense of Personhood and Property

by James Matthew Wilson

Perhaps the memory of that metaphysical right to property informs our fears, and could lead to a restoration of human flourishing.

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Podcasts

Born-Again Paganism: A Conversation with Steven Smith

A discussion with Steven D. Smith

Steven Smith talks with Richard Reinsch about his provocative thesis that a modern form of paganism is becoming public orthodoxy.

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"Slouching Towards Mar-a-Lago:" A Conversation with Andrew Bacevich

A discussion with Andrew J. Bacevich

Andrew Bacevich discusses his new book Twilight of the American Century

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Bureaucracy, Regulation, and the Unmanly Contempt for the Constitution

A discussion with John Marini

John Marini unmasks the century-long effort to undermine the Constitution's distribution of power.

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Beautiful Losers in American Politics: A Conversation with Nicole Mellow

A discussion with Nicole Mellow

Nicole Mellow on the beautiful losers in American politics who have redefined the country.

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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.

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