In a widely-discussed op-ed from 2022, a pair of left-wing law professors argued that it was time to “reclaim America from constitutionalism.” Part of their call to action was an intentional and flagrant defiance of the written law of the Constitution. But it went beyond that. They recognized that constitutionalism entails not merely obedience to a particular document, but a certain notion of political activity and its aims. They rejected a politics that obscures “direct arguments about what fairness or justice demands,” and centers instead on what people have at some point “agreed upon”—a pol ..read more

It’s not often that a distinguished scholar advises his listeners to be cautious before assigning excessive weight to his words. That, however, is precisely what the economist F. A. Hayek did in his speech at the 1974 Nobel Prize banquet. “The Nobel Prize,” Hayek informed his audience, “confers on an individual an authority which in economics no man ought to possess.” He then added: “There is no reason why a man who has made a distinctive contribution to economic science should be omnicompetent on all problems of society—as the press tends to treat him till in the end he may himself be persuad ..read more

Under our Constitution’s separation of powers, Congress enacts the laws, the Executive executes them, and the Judiciary interprets them. Chevron deference undermined that essential structure because it created a space where the Executive, not the Judiciary, determined meaning of the law. In doing so, it freed Congress from some of its accountability for writing statutes. As applied to substantial questions, it allowed Congress to abdicate its legislative role by delegating to an agency the power to interpret the limits of its own powers. Eliminating Chevron would help return us to the separati ..read more

Economic history—the study of economic phenomena, processes, and patterns in past time, employing tools from economics, history, and other disciplines—is a small field. For a brief time, roughly half a century ago, it was a hot area of scholarly interest, but from the 1970s until the early twenty-first century its fortunes ebbed, as historians gravitated to trendier fields such as cultural history and economists moved increasingly toward modeling. The recession of 2007–09 and its aftershocks helped to spark a modest uptick in interest in economic history in both history and economics departmen ..read more

Thirty years ago, give or take, I sauntered into class as a lowly “2L” law student, sat down, and opened the textbook for my first day of studying copyrights and trademarks. One hour later, I walked out of that classroom—utterly confused—and proceeded to drop the course and sign up for something a bit less arcane. (Immigration law, if I recall correctly.) I never did go back to re-take that course in copyright law. So how very fortunate for me—and for you, dear reader!—that 30 years later, Princeton professor David Bellos and London lawyer Alexandre Montagu decided to sit down and explain the ..read more

A cancer diagnosis flips your world and your life upside down. It distorts the way you view reality and compresses time. It forces you to weigh alternatives and make choices that normal people don’t have to make and conventional circumstances don’t dictate. Deciding to treat it, and specifically how to treat it, involves not merely what is available, but what a patient can tolerate. Cancer patients are frequently weak and wounded, and the tools that physicians have at their disposal, recent remarkable advances notwithstanding, are dangerous and can be lethal. Most of the alternatives like radi ..read more

The Supreme Court’s recent turn to history and tradition as guides for understanding the public meaning of text has reignited longstanding debates about the uses of history in law. In Memory and Authority, the longtime advocate of “living originalism,” Jack Balkin, argues that the Court’s use of history is self-serving, and amounts to the “mirror image” of living constitutionalism. Three Law & Liberty contributors—law professor Mark Movsesian, political theorist David Schaefer, and historian Aaron N. Coleman—assess the book, as well as the promise and limitations of “law-office history” fr ..read more

Jack Balkin’s new book, Memory and Authority, opens with an account of the “modalities” of historical argument that lawyers and judges may employ in interpreting the Constitution. These include arguments based on text, constitutional structure, and purpose, but also factors like “national ethos,” “political tradition,” and “honored authority.” It soon emerges that Balkin’s underlying goal in listing these approaches, as an exponent of a doctrine he calls “living originalism” (alternatively, “framework originalism”), is to undermine the claim that the Constitutional text, read as a reflection o ..read more

Jack M. Balkin’s Memory and Authority deserves praise for advocating that a natural relationship exists between history and constitutional interpretation. He is right to point out that both should rely upon one another more than they do; it is a shame that each group looks sideways at the other. Much of this suspicion emerged with the rise of professional history a century ago, with its disciplinary focus on context, causality, and change over time. Instead, what should be a beneficial kinship is fraught with recriminations—many of which Balkin documents—as each side frequently accused th ..read more

History and tradition are having a moment in American constitutional law. In recent landmark cases, the Supreme Court has looked to history and tradition as guides to construing the meaning of the Constitution. For example, in Kennedy v. Bremerton School District, the justices ruled that the Establishment Clause “must be interpreted by ‘reference to historical practices and understandings.’” Practices consistent with American tradition, like the non-coercive prayers a public school football coach offered in Kennedy, do not violate the Clause. Similarly, in the Dobbs case that held that the Con ..read more