• Is Originalism Too Hard An Enterprise? [No. 86]
    Articles,  Blog

    Is Originalism Too Hard An Enterprise? [No. 86]

    One frequent complaint about originalism is that it’s quite a hard enterprise – it’s hard to do, it’s not going to succeed, it requires a lot of skills judges don’t have, it requires a lot of investigation into history, there are these hard questions about what kind of originalism to undertake. So the question is not is originalism too hard now. That’s certainly not the only question. The question is, what can one think of a world where originalism would become much easier? And originalism has already, in my view, becoming much easier for judges, it’s becoming much more refined because of the work that’s being done. Originalism depends on…

  • The Common Law Part I: What is Common Law and What Role Did it Play in England? [No. 86]
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    The Common Law Part I: What is Common Law and What Role Did it Play in England? [No. 86]

    The common law is a body of laws and authorities among the judicial branch that was kind of a common heirloom that the people of America brought with them when they began to set up their colonial governments. And, of course, aspects of the common law then informed so many aspects of the daily lives of the colonists, from tort, to contract, to property, to real estate, to ordinary criminal law, protections of defendants who are faced with accusations of crime. A large body of judge-made law that came from England. Now under the common law, even if these rules and regulations were developed by the courts, they were always…

  • Can Congress Sub-Delegate Legislative Powers? [No. 86]
    Articles,  Blog

    Can Congress Sub-Delegate Legislative Powers? [No. 86]

    The Constitution of the United States divides up powers of government among different institutions. It vests all legislative powers herein granted in Congress; it vests the executive power in the President and through the President and subordinates within administrative agencies. And it vests the judicial power of the United States in Federal Courts. Question is, what are the contours of that power? If Congress gives certain authority, to the President, to administrative agencies, to courts, for that matter, to private citizens or foreign countries, is there a point at which Congress is giving those other entities the legislative power that the Congress is vested with under The Constitution. That question,…

  • Should Courts Defer to Political Branches? [No. 86]
    Articles,  Blog

    Should Courts Defer to Political Branches? [No. 86]

    One popular notion about how to think about the courts is the idea of judicial restraint. The idea here is that when interpreting the Constitution, courts should be restrained and should defer to the judgments of Congress or the President or the state legislatures. I do not think that the courts should defer to the opinions of other branches about the meaning of the Constitution. But this is the way I think it should work is that the legislative branches or the political branches are entitled to govern, unless what they are doing violates the Constitution. And some things that they might do violate the very words, I mean, you…

  • Constitutional War Powers: Thomas Jefferson and the Barbary Pirates
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    Constitutional War Powers: Thomas Jefferson and the Barbary Pirates

    Immediately after the Revolutionary War, the US lost the protection of the naval forces of Britain and France in the Mediterranean. And the Barbary pirates were the naval forces of the, uh, satellite states of the Ottoman Empire, who essentially demanded tribute or would seize commercial vessels and hold as prisoners and hostages their crews, and sometimes even put them into slavery. Jefferson heard about the seizures of American commerce, and he realized that something had to be done, but he was against paying tribute or ransom. So, when the issue came up in Jefferson’s time, Jefferson did explicitly authorize the naval forces that Congress had provided him to defend…

  • Does the Fourteenth Amendment Guarantee Birthright Citizenship? [POLICYbrief]
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    Does the Fourteenth Amendment Guarantee Birthright Citizenship? [POLICYbrief]

    Before the Civil War, it appears that the people who decided on citizenship were the states because the federal government was not really regulating it at all. Citizenship was done under what we call the common law, the law we inherited from England at the time of the Revolution. No one disagrees that that’s the rule that applied in England at the time of the Revolution. If you were born on English soil, you were English, and so the assumption has always been to the extent we can tell that the states all adopted the birthright citizenship approach. Now, the reason why this became important is because of Dred Scott.…

  • What Kind of Document is the Constitution? [No. 86]
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    What Kind of Document is the Constitution? [No. 86]

    Suppose I hand you three documents. Each one of those documents contains exactly the same words. They could all be photocopies of a single document. Three identical documents. I then tell you, one of them is a poem, one of them is a shopping list, one of them is a secret code. Are you going to read, interpret, those three documents exactly the same way just because the words are identical? I would guess not, because knowing something about what the kinds of documents are tells you something, not everything, but something about how to go about reading them. If I tell you it’s a poem, you’re going to be…

  • The Importance of Structure v. Parchment Barriers [No. 86]
    Articles,  Blog

    The Importance of Structure v. Parchment Barriers [No. 86]

    We cannot underestimate the importance of structure to preserving liberty. As Justice Scalia was fond of saying, “Any tinpot dictator can have a Bill of Rights.” The Bill of Rights for the Soviet Union was extraordinarily capacious, the Bill of Rights for the North Korean regime is extraordinarily capacious. But without structural protections, Bill of Rights are mere “parchment barriers,” in the words of the Federalist. They’re mere parchment barriers because they’re very easy to transgress without structural mechanisms keeping those in power in check. So it’s a structure that allows the different institutions of government to check and balance each other. It’s structure that allows the ambition of members…

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    Is It Time to Repeal the Jones Act? [POLICYbrief]

    The Jones Act is the Merchant Marine Act of 1920. It’s named after Wesley Jones, the senator from Washington, and he justified the, his legislation on the grounds that we needed to better sealift capacity and a ship-building capacity. The act comes into being as a direct result of World War I. In 1914 when the world goes to war, the United States finds itself in a very precarious situation. The U.S. does not have a large ocean-going merchant marine. And so, the Merchant Marine Act of 1920 aims to ensure that the United States never finds itself in that position where in time of war or conflict, it’s basically…

  • Private Rights and Public Resources in Roman Law [No. 86]
    Articles,  Blog

    Private Rights and Public Resources in Roman Law [No. 86]

    Well it turns out that there are two kinds of problems that you have to worry about in any regime of property rights. One of them is the question that one person will take this property right and use it to blockade the way in which others can use things of their own. Now what legal systems instinctively knew, is that if you allow a blockade, it’s not going to encourage productive use of a resource. What it’s going to do is to allow one individual to make sure that somebody else doesn’t have access to that resource unless it turns out that they buy their way in. You then…