In response to: The Legal Turn
In response to: The Legal Turn
On the Originalism blog, Michael Ramsey and Andrew Hyman responded to my post for Law and Liberty on the original understanding of substantive due process. Hyman disputes the definition of “liberty” I provided and asserts a different definition of “due process of law” in the Fifth Amendment, while Ramsey asks for more evidence that the definition of “liberty” given wasn’t unique to Thomas Jefferson.
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…
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…
A great deal of ink has been spilled of late on the question what, exactly, it means for someone to be a natural born citizen under the U.S. Constitution. As Senator Cruz was born in Canada, to a mother who was a citizen and father who was not a citizen, the question is on point. The Constitution states in Article II that “no Persons except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.”
What, exactly, does that mean?
R.H. Helmholz begins his groundbreaking new book with a deceptively humble claim: In early modern Europe and early republican America, natural law had “real but limited success in determining the outcome of contested cases.” Helmholz’s exhaustive analysis of historical records shows that arguments rooted in the natural law tradition influenced court cases in the years before the legal revolutions set in motion by the Napoleonic and American Civil Wars, but almost always in conjunction with citations of positive law. Natural Law in Court: A History of Legal Theory in Practice corrects those who dismiss natural law as mere ideological window dressing,…
When judges interpret federal statutes, are they interpreting laws? What should be the obvious answer to this question is complicated by a recent book, Judging Statutes, by the Chief Judge of the United States Court of Appeals for the Second Circuit, Robert A. Katzmann. Judge Katzmann shows us how a well-informed judge approaches difficult questions of statutory interpretation. Along the way, he raises challenging questions about what contemporary statutes are.