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December 31, 2018|Alexandria Ocasio-Cortez, Bernie Sanders, Classical Liberalism, Dear Colleague Letters, deregulation, Donald Trump, Rhetoric

2018: A Gathering Storm for Classical Liberalism

by John O. McGinnis|48 Comments

U.S. Capitol (zimmytws/shutterstock.com)
Forces appear to be gathering to push America toward the greatest aggrandizement of the state since the New Deal.

August 13, 2018|hate speech, Language, Rhetoric, violence

The Violence in Our Language

by Theodore Dalrymple|5 Comments

A butcher shop in Venice, Italy (J. Pyle/Adobe Stock Images).
We probably shouldn't criminalize speech that encourages violence, but this doesn't rule out a deep concern for where it leads.

August 22, 2015|Anthony Kennedy, Antonin Scalia, John Jackson, John Marshall, Obergefell, Oliver Wendell Holmes, Rhetoric

In Defense of Scalia’s Style

by John O. McGinnis|5 Comments

Justice Antonin Scalia is criticized these days ostensibly not for the substance but for the style of his opinions. His writing is said to be disrespectful as when he critiques the Justice Kennedy’s opinion in Obergefell, the recent case on same-sex marriage. There he stated: “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag.”  He also noted: “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

I cannot join in the criticism of his style. That is not to say I particularly warm to the all rhetoric of his dissent in Obergefell.  It is not as powerful as that of his masterpiece in Casey, which also had harsh passages, but his disdain has a point.   The value of an opinion is measured by the coherence of its reasoning. If someone’s opinion is as unreasoned as Kennedy vapidities about identity, it is worth pointing out with some virulence.  What John Hart Ely famously said of Roe is true of Obergefell: it is not constitutional law and gives almost no sense of an obligation to try to be.

If Scalia believes (and I think he has reason to believe) that the many of the justices joining in Kennedy’s opinion were doing so for its result not for its reasons, they are not acting judicially.  Ridicule in defense of the rule of law is no vice.

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March 19, 2013|Originalism, Rhetoric

The Rhetoric of Judicial Opinions

by Mike Rappaport|1 Comment

My previous post on Arguments from the Future touches on an extremely important issue — the Rhetoric of Judicial Opinions.  Originalism has an extremely powerful rhetorical appeal.  Most people regard the original meaning of the Constitution as the real Constitution.  Therefore, when someone seeks to depart from that, they are at a disadvantage.

There are a variety of moves that nonoriginalists have used to deflect this attack.  One is to bring up something of a red herring.  They interpret originalism as reflecting merely the expected applications of the framers — the specific applications of the constitutional clauses that the framers expected to occur — and then argue that those expected applications are not the Constitution.

But obviously this deflection is insufficient.  It does nothing to address the more plausible types of originalism, such as original public meaning, that go beyond the expected applications.

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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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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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