Sorry, Damon, International Laws Are Laws

My friend Damon Linker has a new piece for The Week arguing that George W. Bush, Dick Cheney, and Condoleezza Rice cannot be war criminals, because the laws they are accused of violating are merely "international law," which is no law at all: [I]t's inaccurate to describe these rules and regulations as laws. They are, …

Affirmative Action: Unequal Protection?

The Economist has come out against race-based affirmative action in the United States, a surprising (to me) move given the magazine's socially left-of-center outlook (e.g., for legalizing drugs and banning handguns). Indeed, the way in which affirmative action as currently practiced discriminates against Asians even more than against whites is difficult to justify. (I argued …

A good answer to Landsburg’s excellent question

David Friedman provides what I think is the best answer to Landsburg's provocative question. I think I have now answered Steve Landsburg's puzzle. The difference between his example (or mine) of an action that imposes only subjective costs and his example of an activity such as reading pornography, or Bork's of using contraception, that imposes …

Justice and sentencing

My Twitter feed has been filled with Americans and others expressing outrage about a Saudi court's sentencing a man to be paralyzed from the waist down. He had stabbed a man in the back, paralyzing him. I'm not going to defend or oppose the sentence, but I am going to defend a principle here: the …

Income Inequality Doesn’t Matter

Roger Koppl argues this week at ThinkMarkets that “Income inequality matters.” He thinks it matters so much that he says it twice. He believes “Austrian,” pro-market, economic liberals should be speaking up more on this “central issue.” I think Koppl could not be more wrong. The issue deserves all the inattention we can muster for …

In which everyone decides I’m heartless and insensitive

Several of my progressive Facebook friends posted about Gabrielle Giffords’ testimony before Congress about gun legislation, editorializing that we/they should pay close attention because of her personal experience as a victim of violence. Now, I understand why some criminal courts allow victim-impact statements: before deciding what sort of punishment should be meted out, it’s relevant …

President Obama’s Immigration Enforcement Decision: Good Policy but Illegal?

Several commentators have weighed in on President Obama's decision to stop deporting certain immigrants under 30 who were brought illegally to the country when they were under 16. This morning, Andrew Napolitano and Ilya Somin have come down firmly on opposite sides of this issue. Napolitano: Along comes the president, and he has decided that …

When X is Not-X

There have been some wonderful pieces written in the past few weeks trying to make sense of the President’s claim that a SCOTUS decision to overturn the Affordable Care Act would be unprecedented. Of course, the pieces often proceed as follows The President stated X The President obviously knows not-X  Therefore X must have a …

Starving the Courts

In the latest issue, The Economist gives a startling look on the dire situation of courts in America. Budget cuts and, at the federal level, political obstruction have fostered delays and case backlogs. Some of the dire consequences: In California, uncontested divorces now take a year to obtain. One circuit court in Georgia has stopped …

Interposition: Part Nine: The Hartford Convention

Few in power find it convenient to notice inconsistencies in their own conduct. Alas, but President Madison was no exception. Federalism and decentralization exist precisely because free constitutions should not depend on the good graces of those in office, but on the checks necessary to harry them back under the law. Seeking the financial means …

Interposition: Part Eight: Federalism, Finance and The War of 1812

When tensions with England finally began to degenerate into violent altercations, first on the western frontier in such places as Tippecanoe and later along the Great Lakes, the Madison administration decided the time had come to vindicate America’s claims of offended sovereignty. Unsurprisingly, these claims also happened to coincide with popular desires to expand into …

Interposition: Part Seven: The Embargo and Noncooperation

With the war in Europe between France and England intensifying, Americans found their rights as neutral traders regularly violated by both French and British navies, and French and British port restrictions further limited American opportunities for commerce. To make matters worse, on numerous occasions, English vessels had boarded American ships and “impressed” many of their …

Eye for an Eye: Retribution or Restitution?

I recently came across this interesting, five-year-old interview with law professor William Ian Miller on "talionic" law in the Middle Ages, which specified literal "eye for an eye" justice. Talionic law developed in societies that lacked stable state institutions, like Iceland and early England. As such, it was embedded in strong extended-family institutions that used …

Liberty: the example of circumcision

The Seattle Times, Slate, and other outlets have run interesting stories in the last couple of days discussing a new initiative that will appear on this November's ballot in San Francisco--and hold onto your privates, gentlemen: It would ban circumcision for all minors (under age 18), rendering it a misdemeanor punishable by up to one …

Interposition:Part Five: Assuming Powers from National Bank to Seditious Libel

Not long after the ratification of the Constitution, Madison came to have serious doubts about his former Federalist friends. Particularly, he came to suspect the sincerity of many who had asserted that the new government would possess only those powers specifically delegated to it. The first disappointment came with Hamilton’s championing of the incorporation of …

Interposition: Part Four: New York and the First Act of Interposition

New York was Hamilton’s great project. So closely divided was the state, that at various moments, he despaired of its coming into the union. At one point the Antifederalists offered a compromise. They would support a conditional ratification dependent on the passage of certain key amendments, including the all important construction of delegated and reserved …

Interposition:Part Two: Publius and the Federal Check to National Power

Among the defenders of the Constitution, a great deal was said about the states as a check to the power of the national government that informed the first ideas about interposition.  Madison’s contention in Federalist 39 is well-known. Our union was to be “partly federal and partly national.” Among the premier federal attributes were such provisions as the equal …

Interposition: Part One: An Essential Purpose of the States

A rumble can be heard emanating from assemblies and governor’s mansions across these fruited plains. It is a sound reminiscent of by-gone days that echo down through centuries of constitutional thought. Prompted by everything from unfunded Congressional mandates to the new omnibus healthcare bill, (See here and here) these reverberations strike cords of distant legal memory that …

Interposition: The Teeth of Federalism: Introduction

The first of a series will begin tomorrow, the Ides of March (the 15th), an appropriate time to initiate an investigation of interposition and federalism in America. On that date in 44 B.C., Julius Caesar was slain for his offences against the Roman Republic. It was a futile act of desperation. The empire was not …

Welcome Aboard – Elizabeth Price Foley

I am quite pleased to announce that Elizabeth Price Foley will be joining Pileus as one of our Authors.  Elizabeth is sure to be a great addition to our lineup, especially given that she has an expertise in health care and constitutional law.  Here is her impressive bio:      Elizabeth Price Foley is Professor of Law at Florida International …

Just Another Example of How Personal Freedom Requires Economic Freedom

Police are using regulatory inspections as a pretext for warrantless, apparently racially biased searches. If you're going to support occupational and business licensing, you're going to have to accept a hobbled Fourth Amendment.

Individual Mandate Unconstitutional

Breaking news from Virginia federal district court. Consider this an open thread on the topic. I will try to update with reaction from around the web. UPDATE: Here's a link to the decision (PDF). SCOTUSblog has a summary. Orin Kerr says Judge Hudson's decision contains a significant, possibly fatal error.  

American Exceptionalisms, Right and Left

For the American right, the United States is exceptional for its political commitment to freedom. For the American left, the U.S. is exceptional as an outlier of injustice and inequality relative to other advanced democracies. In a four-part series, I will investigate these claims of American exceptionalism and argue that both have some element of …

Barnett on the Supreme Court on the Individual Mandate

While my fellow Pilei debate the role that moderate Republicans can play in a future return to fiscal sobriety, libertarian law prof Randy Barnett considers whether, with respect to the PPACA, it even matters. What are the chances that the Supreme Court strikes down the individual mandate, including potentially the entire bill, which lacks a …

A Constitutional Right to Marriage?

So what do we think about the district court ruling overturning California's same-sex marriage ban? To my knowledge, this is the first time a court has asserted a federal constitutional right to marriage. As a longtime supporter of getting government out of marriage licensing and of legal equality for same-sex and nonmonogamous relationships, I am …

The Nationalist Politics of the al-Megrahi Release

The release of the terminally ill Abdelbaset al-Megrahi, convicted of involvement in the Lockerbie airplane bombing, is in the news again, due to the oil spill, of all things. The U.S. Congress wants to know whether there was a quid pro quo: whether BP lobbied the Scottish government to release Megrahi so that Libya would …

A Word of Thanks to Four Black Men and A Gun

As an American, I owe a tremendous debt of gratitude to many, many people who have risked and given their lives to defend our liberty. But as I reflect on the recent Supreme Court decision in McDonald v. City of Chicago, I thought I should take a moment to mention four Americans who have made …

Is Net Neutrality Racist?

Is Network Neutrality a racist policy?  At least one prominent Chicago politician seems to think so. Cook County Commissioner Robert Steele recently voiced his objections to the FCC’s proposed regulatory attempts to achieve Net Neutrality. The principle of network neutrality asserts that broadband providers should not be able to block or limit use of their …

What We Can Infer about Kagan

My Pileus colleague Marcus Cole argued a few weeks ago that conservatives and libertarians should not be so unhappy with Supreme Court Justice nominee Elena Kagan, since it could have been "much worse." With a left-liberal Democrat in the White House and a Congress controlled by the Democrats, who knows, Marcus asked, what enormity we could …

Does the Federal Government Have Grounds to Sue Arizona?

Secretary of State Hillary Clinton announced in Ecuador last week that the Obama Administration plans to commence legal proceedings against the State of Arizona to invalidate its recently enacted SB 1070. The new law directs state and local law enforcement officers and agencies to enforce federal immigration law by detaining or reporting persons giving rise …

Antonym Contest!

There appears to be no widely accepted antonym for "civil libertarian." So how about a contest? Please post your suggestions for a new coinage in the comments, and I will select a winner at the end of the day. The winner will receive a free Pileus t-shirt the approbation of the impartial spectator and one's …

Kagan Could Be Much Worse

Conservative and libertarian opposition to the appointment of Solicitor General and Supreme Court nominee Elena Kagan has been lackluster at best, and for good reason: President Obama’s choice to fill the seat of retiring Justice John Paul Stevens could be much worse. Indeed, there is some reason to believe that conservatives ought to breathe a …