Archive for the 'Law' Category
Posted by Jonathan on 29th January 2016 (All posts by Jonathan)
Seth Barrett Tillman considers legal issues relating to the respective presidential candidacies of Ted Cruz and Hillary Clinton.
Guess whose candidacy raises the most complex and troubling legal questions?
There are many fora (including several widely read individual, group, and journal-run blogs) whose mission, if not primary mission, includes discussion of time-sensitive legal issues of public interest. Should not the public be informed about these Clinton-related possibilities and risks well before votes are cast? Why the silence among journalists, academic commentators (with expertise in election law, constitutional law, and statutory interpretation), and bloggers who usually very much like to write on issues of public moment? Would not this make a suitable–if not outstanding–journal symposium issue: “The Hillary Clinton Candidacy–The Legal Issues”? Any takers?
Given the silence, you would almost think “natural born citizen” were the only legal issue out there. Odd isn’t it?
Posted in Current Events, Elections, Law, Media, Politics | 5 Comments »
Posted by Jonathan on 22nd January 2016 (All posts by Jonathan)
Seth Barrett Tillman’s thoughtful remembrance of Professor McDonald:
Professor McDonald was and will remain—long into the distant future—among the most influential historians on American history, particularly in regard to the American Revolution and the Constitution’s framing era. Some people might say he was the most influential historian of his generation. He wrote for both academics and the wider public. He also was part of the recrudescence of pro-Hamiltonian scholarship—not a small achievement considering he did this while writing in 1970s U.S. academia and while teaching in the deepest South. He wrote boldly, and he also experimented with new ideas about the past, including the so-called Celtic hypothesis.
I am not going to describe his vitae or his personal life (about which I know little). These things have been and are being done well in many other forums. Here I want to describe how kind McDonald was to me personally.
Worth reading in full.
Posted in History, Law, Obits | 2 Comments »
Posted by Jonathan on 20th January 2016 (All posts by Jonathan)
Tillman on Lamya H: “Your complaint is that your psychology professor was too—fat? I am so sorry. I can see that that would ruin your freshman experience. You were expecting? Luke Skywalker during his youth? Princess Leia Organa during her Jabba the Hutt years?”
From: Seth Barrett Tillman, Return of the Letter to a Young Social Justice Warrior—responding to Lamya H.’s: A personal history of Islamophobia in America, Vox (January 15, 2016), http://ssrn.com/abstract=2719141.
(Related post: “Dear Young Social Justice Warrior”.)
Posted in Arts & Letters, Civil Society, Current Events, Deep Thoughts, Law, Leftism, Lit Crit, Philosophy, Political Philosophy, Rhetoric, Society | 4 Comments »
Posted by Jonathan on 18th January 2016 (All posts by Jonathan)
Posted in Current Events, Elections, Law | 5 Comments »
Posted by Jonathan on 14th January 2016 (All posts by Jonathan)
Posted in History, Law | 7 Comments »
Posted by TM Lutas on 14th January 2016 (All posts by TM Lutas)
The traditional modern conservative opinion on the 2nd Amendment diminishes and almost entirely dismisses the opening clause, “A well regulated Militia, being necessary to the security of a free State”. I believe this to be an error that leaves leftists an opening to prolong the Second Amendment assault forever. That opening needs to be closed. A substantive construction of this clause that makes sense to the general public is necessary to put down the gun control movement permanently.
But first, a little Latin. Crimes can be generally divided into the categories “malum prohibitum” and “malum in se”. Malum in se are crimes that are universally considered wrong or immoral that all just societies prohibit. Malum prohibitum are crimes that a legislature creates and are only crimes because they told us so. Tyrannies thrive by multiplying malum prohibitum crimes and turning honest citizens into fearful subjects that can be seized by the law at any time. Militias only go after malum in se crimes and are thus useful to the people who want a just society but useless to any sort of tyrant.
The militia’s uselessness to tyrants is its greatest selling point and one that the colonists implicitly understood because none of the abuses of King George were ever enforced by the militia (if there are examples where this actually happened, please share in comments). With that understanding, the introductory clause makes perfect sense to us all and gives us a common sense reason why even today, it’s important to have a strong militia so that our security is, as much as feasible, in the hands of people who will not sweat the small stuff. In fact, it’s truly necessary for the security of a free state.
The alternative is to entirely rely on paid agents of the state for our security, whether military or police. Is there ever a case where governments who are hard up for cash don’t make petty rules to extract fines and hem in the people’s liberty? Is there a government out there that does not favor its supporters and disfavor its opponents? Controlling these agents’ salaries is a powerful inducement for them to do the wrong thing if the government asks them. Over time and across a large number of governments, there will always be cases where they will be asked and there will always be agents who are willing to be tin pot tyrants. They have households to maintain after all.
Posted in Civil Liberties, Civil Society, Law, Political Philosophy, RKBA | 54 Comments »
Posted by Jonathan on 13th January 2016 (All posts by Jonathan)
Posted in History, Law | No Comments »
Posted by Jonathan on 7th January 2016 (All posts by Jonathan)
Seth will be speaking at the Federalist Society conference tomorrow (Friday), January 08, 2016, at around 11:00 AM at the Sheraton NY Times Square Hotel. Subject: Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, Military Law Review (forthcoming circa Summer 2016) (peer reviewed), available at http://ssrn.com/abstract=2646888
Posted in Announcements, Law | Comments Off on Seth Barrett Tillman to Speak at NYC Federalist Society Meeting on Friday
Posted by TM Lutas on 5th January 2016 (All posts by TM Lutas)
Forum shopping the prosecution of felonies by choosing the campus courts or the criminal courts is a massive case of privilege that is not available to most Americans and favored most strongly by today’s campus Left.
Check your privilege indeed.
Posted in Academia, Education, Law, Law Enforcement, Politics | 11 Comments »
Posted by Jonathan on 29th December 2015 (All posts by Jonathan)
Posted in History, Law | 5 Comments »
Posted by Jonathan on 28th December 2015 (All posts by Jonathan)
A new post from Seth Barrett Tillman:
Professor Akhil Amar (Yale Law School) and Professor Lawrence Lessig (Harvard Law School) have both written on the scope of the Constitution’s office-language. Indeed, their individual views on the scope of the Constitution’s office-language are central to (some of) the leading theories they have each popularized.
[. . .]
Amar and Lessig cannot both be correct. At most: only one can be correct. We, the public, deserve a full, meaningful debate: not a cult—or, even, two well-placed elite academic cults—whose chief sacraments are omerta and humbug.
Will anyone—particularly those on the Left—step forward? Or will the many who have supported both Professor Amar’s and Professor Lessig’s views in this matter continue to support both, notwithstanding that these two views contradict one another?
Posted in History, Law, Political Philosophy, USA | 12 Comments »
Posted by David Foster on 6th November 2015 (All posts by David Foster)
(I cross-posted my 2014 review of C S Lewis’s novel That Hideous Strength over at Richochet, where a good comment thread has developed. Some of the comments reminded me of the extremely negative review of the book written by JBS Haldane in 1946, and Lewis’s response thereto.)
Haldane was an eminent British scientist (population genetics) and a Marxist. C S Lewis was…well, you probably already know who C S Lewis was.
Haldane’s critique was directed at the series of novels by Lewis known as the Ransom Trilogy, and particularly the last book of the series, That Hideous Strength . Lewis responded in a letter which remained unpublished for many of years. All this may sound ancient and esoteric, but I believe the Lewis/Haldane controversy is very relevant to our current political and philosophical landscape.
To briefly summarize That Hideous Strength: Mark, a young sociologist, is hired by a government agency called NICE–the National Institute for Coordinated Experimentation–having as its stated mission the application of science to social problems. (Unbelievably, today the real-life British agency which establishes rationing policies for healthcare is also called NICE.) In the novel, NICE turns out to be a conspiracy devoted to very diabolical purposes, as Mark gradually discovers. It also turns out that the main reason NICE wanted to hire Mark is to get control of his wife, Jane (maiden name: Tudor) who has clairvoyant powers. The NICE officials want to use Jane’s abilities to get in touch with the magician Merlin and to effect a junction between modern scientific power and the ancient powers of magic, thereby bringing about the enslavement of mankind and worse. Jane, though, becomes involved with a group which represents the polar opposite of NICE, led by a philology professor named Ransom, who is clearly intended as a Christ-figure. The conflict between NICE and the Ransom group will determine the future of humanity.
A brilliantly written and thought-provoking book, which I highly recommend, even if, like me, you’re not generally a fan of fantasy novels.
With context established, here are some of the highlights of the Lewis/Haldane controversy:
1) Money and Power.
In his article, Haldane attacks Lewis for the latter’s refusal to absolutely condemn usury, and celebrates the fact that “Mammon has been cleared off a sixth of our planet’s surface”…clearly referring to the Soviet Union. Here’s part of Lewis’s response:
The difference between us is that the Professor sees the ‘World’ purely in terms of those threats and those allurements which depend on money. I do not. The most ‘worldly’ society I have ever lived in is that of schoolboys: most worldly in the cruelty and arrogance of the strong, the toadyism and mutual treachery of the weak, and the unqualified snobbery of both. Nothing was so base that most members of the school proletariat would not do it, or suffer it, to win the favour of the school aristocracy: hardly any injustice too bad for the aristocracy to practise. But the class system did not in the least depend on the amount of pocket money. Who needs to care about money if most of the things he wants will be offered by cringing servility and the remainder can be taken by force? This lesson has remained with me all my life. That is one of the reasons why I cannot share Professor Haldanes exaltation at the banishment of Mammon from ‘a sixth of our planet’s surface’. I have already lived in a world from which Mammon was banished: it was the most wicked and miserable I have yet known. If Mammon were the only devil, it would be another matter. But where Mammon vacates the throne, how if Moloch takes his
place? As Aristotle said, ‘Men do not become tyrants in order to keep warm’. All men, of course, desire pleasure and safety. But all men also desire power and all men desire the mere sense of being ‘in the know’ or the ‘inner ring’, of not being ‘outsiders’: a passion insufficiently studied and the chief theme of my story. When the state of society is such that money is the passport to all these prizes, then of course money will be the prime temptation. But when the passport changes, the desires will remain.
Read the rest of this entry »
Posted in Arts & Letters, Big Government, Britain, Christianity, Crime and Punishment, Deep Thoughts, History, Human Behavior, Law, Leftism, Philosophy, Political Philosophy, Religion, Society | 18 Comments »
Posted by Mrs. Davis on 26th August 2015 (All posts by Mrs. Davis)
Just got done listening to the talking heads arguing whether gun control or more mental health treatment is a better way to prevent the next wacko shooter. I’ve got another idea.
Accept that there are evil people in the world who will find a way to do bad things to others no matter how many laws we write. Even in China. Then figure out how to minimize the number of them who become cult figures to inspire other evil people.
How about denying these nuts their 24 hours of fame. Don’t broadcast their picture or name their name on air. Let them die in the anonymity they so richly deserve without the opportunity to inspire the next nut. By all means name the victims and describe the beginning of the destruction and greif brought to their families and communities. But don’t give these shooters any publicity at all.
It also seems like time to mandate that all live broadcasts are on 7 second delay.
Posted in Civil Society, Law, The Press | 14 Comments »
Posted by David McFadden on 20th August 2015 (All posts by David McFadden)
The fiftieth anniversary of the Voting Rights Act of 1965, signed by President Lyndon Johnson August 6, 1965, has revived proposals to fill a much-needed gap in the Act, to borrow one of Hanna Gray’s favorite expressions.
The gap is thanks to the felicitous 2013 Supreme Court case of Shelby County, Alabama v. Holder, which I discussed last year in these pages. The Court held unconstitutional the Act’s archaic test for determining which states must get preclearance from the Justice Department or from the U.S. District Court for the District of Columbia to change their election laws. The preclearance requirement–Section 5 of the Voting Rights Act–was supposed to be a temporary, emergency provision expiring five years after the Voting Rights Act became effective. But as Milton Friedman said, “Nothing is so permanent as a temporary government program.” Congress renewed Section 5 four times, most recently in 2006, when Congress renewed it for another 25 years.
Writing for the Court in Shelby County v. Holder, Chief Justice Roberts said that preclearance sharply departs from basic constitutional principles by allowing the federal government to veto state laws before they go into effect, reversing the burden of proof, and forcing an oddly selected group of the states to beseech the Civil Rights Division of the Justice Department or a distant court to allow them to implement a new election law.
The Court held that this onerous regime can no longer be based on a coverage formula that sweeps in states because in the 1960s or 1970s they had low voter turnout or a literacy test. Striking down the coverage formula left Section 2 of the Act still in effect. Under Section 2, state voting laws can still be challenged in court. Section 2 does not reverse the burden of proof but leaves it where it normally is in the law—on the challenger.
Nonetheless, the party line still compels liberals to recite, in nearly every article in which they mention the subject, that in Shelby County the Supreme Court “gutted” the Voting Rights Act–or better yet committed an “Historic Gutting.” Substituting a synonym for “gutted” seems to be frowned upon and may even require a trigger warning.
“Congress must restore the Voting Rights Act,” wrote the President in a letter to the editor of the New York Times last week. He and others on left remain under the misconception that in striking down the coverage formula for preclearance, the Supreme Court invited Congress to write a new one and now Congress just needs to get about the business of accepting his invitation. There was no invitation, just a warning that a new preclearance formula based on current conditions would raise the question of whether the preclearance requirement itself is unconstitutional.
Republicans in Congress do not need to help set the stage for that controversy. Instead, they should take the offensive and counter that as the states ought not to be treated like vassals, it’s time to consider repealing Section 5 altogether. Short of that, they should leave to languish in committee proposals to rehabilitate an anachronistic affront to federalism.
Posted in Civil Liberties, Elections, Law, Leftism | 7 Comments »
Posted by Jonathan on 24th July 2015 (All posts by Jonathan)
From an open letter by Seth Barrett Tillman:
To sum up, if you decide to publish an article, and your article gives rise to a response or responses taking issue with your ideas, that is cause for genuine pride and congratulations, as most ideas are never even noticed. But, if instead, your reaction to such responses is to claim that you have been injured (i.e., your feelings are hurt because you have become aware that others see the world differently from you), then it seems to me that your purported injury is not meaningful or cognizable. If mere hurt feelings were a recognized injury, then no one could possibly disagree with anyone else, and all intellectual inquiry, in law and in other fields, would be at an end. You do see that, right? At a time when free speech is in decline all over the world, when free speech is threatened by government monitoring, by ever expanding legal liability, and by criminals who respond with violence to speech with which they disagree, are you sure you are on the right side of this issue? Exactly whose side are you on?
Worth reading in full.
Posted in Arts & Letters, Civil Society, Current Events, Deep Thoughts, Law, Leftism, Lit Crit, Philosophy, Political Philosophy, Rhetoric, Society | 6 Comments »
Posted by Jonathan on 7th July 2015 (All posts by Jonathan)
Seth Barrett Tillman (posting also at The New Reform Club):
I think many do not quite follow Justice Thomas.
This might help.
The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.
Justice Thomas in Obergefell v. Hodges, 576 U.S. ____, at *17 (2015) (dissenting) [pdf]
Mrs Thatcher came only twice [to the Conservative Philosophy Group], once as prime minister. That was the occasion for a notable non-meeting of minds. Edward Norman (then Dean of Peterhouse) had attempted to mount a Christian argument for nuclear weapons. The discussion moved on to ‘Western values’. Mrs Thatcher said (in effect) that Norman had shown that the Bomb was necessary for the defence of our values. [Enoch] Powell: ‘No, we do not fight for values. I would fight for this country even if it had a communist government.’ Thatcher (it was just before the Argentinian invasion of the Falklands): ‘Nonsense, Enoch. If I send British troops abroad, it will be to defend our values.’ ‘No, Prime Minister, values exist in a transcendental realm, beyond space and time. They can neither be fought for, nor destroyed.’ Mrs Thatcher looked utterly baffled. She had just been presented with the difference between Toryism and American Republicanism. (Mr Blair would have been equally baffled.)
The Right Honourable Enoch Powell quoted in John Casey, The revival of Tory philosophy, The Spectator, March 17, 2007 (emphasis added)
Posted in Anglosphere, Britain, Civil Liberties, Conservatism, Current Events, Law, Morality and Philosphy, Political Philosophy, USA | 10 Comments »
Posted by Jonathan on 27th June 2015 (All posts by Jonathan)
The Supreme Court and Federal Reserve are corrupt in the same way. Both institutions defer excessively to legislative and regulatory agendas instead of sticking to their respective mandates.
(Re: Judicial Restraint.)
Posted in Current Events, Deep Thoughts, Law, Organizational Analysis, Political Philosophy, Politics, Public Finance, Tea Party | 6 Comments »
Posted by Jonathan on 2nd June 2015 (All posts by Jonathan)
Eamon de Valera’s April 1945 missive to Churchill, Roosevelt and Stalin:
After the cease fire, you must begin a peace process (even if, at first, you lack cooperation from your opponents). The first steps in that peace process are: to recognize the Axis Powers’ governments (even if not democratic) to allow all parties to return to their borders as they existed prior to the outbreak of these past regrettable hostilities and finally, to allow international trade to flow freely so that hungry innocents may be fed, clothed, and receive medicine. It is true that this might allow (some of) your enemies to rearm. But my own experts assure me that this possibility is minor. Inconsequential, abstract, and theoretical future risks such as potential rearmament cannot overcome the pressing, real, and current demands of suffering humanity and international law.
(A parody by Seth Barrett Tillman. Read the whole thing here, or in the Claremont Review of Books, where it appears towards the bottom of the Correspondence page here.)
Posted in History, Humor, International Affairs, Law, Leftism, Military Affairs, National Security, Political Philosophy, War and Peace | 8 Comments »
Posted by Mrs. Davis on 2nd May 2015 (All posts by Mrs. Davis)
Now that charges have been brought against the 6 officers involved Baltimore’s streets will return to their state of a month ago. But there will be a trial and that trial will have a significant impact on the direction of Baltimore’s future. The trial has three possible outcomes:
First, the trial can be seen by most to have been fair and just.
Second, the trial results in acquittals seen to be unjust by the city black community.
Third, the trial can result in convictions seen outside Baltimore as unjust.
The first seems least likely based on Ms Mosby’s performance announcing the charges on May Day. But in the event the prosecution and trial are depoliticized Baltimore could resume its leisurely contraction into a bedroom community for Washington D. C.
But if either the second or third options eventuate they could turn Baltimore into a much different place. Acquittals would reignite rioting on the scale of 1968. A kangaroo court would indicate that the rule of law had degenerated into tribal justice. In either event, the abandonment of Baltimore by private employers and what’s left of its middle class would accelerate.
Headquarters are important to a community. They provide the leaders who are committed to the health of the community. When the head of every organization has eyes on promotion to a bigger job closer to headquarters there is not the continuity or commitment necessary to make the long term investments to support the young and less fortunate in the community. Today of the 25 largest employers headquartered in Baltimore only three are not education, government or healthcare related; T. Rowe Price, the mutual fund company, and Broadway Services and Abacus, security guard and janitorial contracting firms. Johns Hopkins won’t be able to do it alone.
This lack of headquarters also indicates that there is little economic reason for Baltimore to exist. The primary force in Baltimore is inertia leading to ever greater entropy. All solutions are temporary and Baltimore no longer solves a problem.
So, if Baltimore’s judicial environment begins to look more and more like Dodge City circa 1880 and it has little economic opportunity, who will stay? Disinvestment and declining tax base will result in inadequate funds to provide even minimal services to an increasingly needy and unassimilated population. Financial support will increasingly come from sources other than the city itself, primarily the Federal government. Sounds like an Indian reservation to me. And Baltimore will not be alone in this transition, only first.
When I lived there the local brew, Natty Boh, advertised to its market as the Land of Pleasant Living. Now it ain’t even got charm, hon.
Posted in Civil Liberties, Civil Society, Law | 18 Comments »
Posted by David Foster on 20th April 2015 (All posts by David Foster)
Do not fail to read these links describing the use of the police in Wisconsin against individuals who dared offer opposition to the Democratic Party–Big Labor machine:
Glenn Reynolds at USA Today: Wisconsin’s dirty prosecutors pull a Putin
David French at National Review: Wisconsin’s Shame: I thought it was a home invasion
Also David French at NR: The deep state knows how to protect itself
If these reports are true, or anything like true–and I see little reason to doubt it given the conduct of the Democratic Party and its agents and allies over the past decade–then the threat to individual rights and the rule of law in America is even more serious than I thought it was.
Posted in Civil Liberties, Law, Law Enforcement, Leftism, USA | 28 Comments »
Posted by Michael Kennedy on 24th March 2015 (All posts by Michael Kennedy)
Thomas Sowell has a fine tribute to the leader of Singapore who died yesterday.
It is not often that the leader of a small city-state — in this case, Singapore — gets an international reputation. But no one deserved it more than Lee Kuan Yew, the founder of Singapore as an independent country in 1959, and its prime minister from 1959 to 1990. With his death, he leaves behind a legacy valuable not only to Singapore but to the world.
Born in Singapore in 1923, when it was a British colony, Lee Kuan Yew studied at Cambridge University after World War II, and was much impressed by the orderly, law-abiding England of that day. It was a great contrast with the poverty-stricken and crime-ridden Singapore of that era.
Today Singapore has a per capita Gross Domestic Product more than 50 percent higher than that of the United Kingdom and a crime rate a small fraction of that in England. A 2010 study showed more patents and patent applications from the small city-state of Singapore than from Russia. Few places in the world can match Singapore for cleanliness and orderliness.
Read the rest of this entry »
Posted in Civil Society, Conservatism, Law, Politics, Society | 3 Comments »
Posted by David Foster on 24th February 2015 (All posts by David Foster)
43% of Democrats believe that the President should have the right to ignore court rulings if they are standing in the way of actions he feels are important for the country. Only 35% of Dems disagree, the remainder being undecided.
This from a Rasumssen poll of likely voters, which also shows that 81% of Republicans disagree with the President having the power to ignore the courts.
Today’s Democratic Party is an enemy of American self-government, and it appears that a lot of the party’s supporters want to it be this way.
See also my related posts:
The Democratic Party and the drive for unlimited government power
When law yields to absolute power
Posted in Civil Liberties, Law, USA | 12 Comments »
Posted by Lexington Green on 5th February 2015 (All posts by Lexington Green)
Huge thanks to the University of Chicago Law School Federalist Society Student Chapter on Tuesday, who invited me to speak to their group on February 3, 2015. I previously spoke at the Booth School of Business, which was also a thrill. I am most grateful for the opportunity to speak at the University of Chicago, my undergraduate alma mater.
The event was well-attended. I attribute this in part to the drawing power of the free buffet of Indian food, and not exclusively to the appeal of the speaker. The students were attentive and asked good questions. I understand that audio of the talk will be available at some point. I will post a link when it is available.
My topic was “America 3.0 and the Future of the Legal Profession”.
First I spoke about some of the themes from America 3.0: Rebooting American Prosperity in the 21st Century, Why America’s Greatest Days are Yet to Come, which I coauthored with James C. Bennett. I discussed the cultural foundations of American prosperity and freedom, the role of our legal profession in American history, in particular in adapting to technological changes, I then discussed some of the major technological changes which are now sweeping our nation and the world. I said that some of them will be general purpose technologies which will cause changes on the scale of the steam engine, railroads or computing itself.
Read the rest of this entry »
Posted in Academia, America 3.0, Book Notes, Chicagoania, Economics & Finance, Education, Entrepreneurship, Law, Personal Narrative, Politics, Quotations, Society, Tech, USA | Comments Off on Mike Lotus Spoke to the University of Chicago Law School Federalist Society Student Chapter on February 3, 2015 About “America 3.0 and the Future of the Legal Profession”