The late, great Robert Bork is usually remembered as an advocate of judicial restraint. This is certainly the position he took in his famous 1971 article in the Indiana Law Journal, “Neutral Principles and Some First Amendment Problems,” and thereafter, but it turns out that earlier …
Constitutional Law
Free Speech for Me, But Not for Thee
In the name of “inclusion” and “diversity,” free speech has come under attack on many college campuses. Speech codes and “bias response teams” chill the expression of disfavored views. Yet college professors hold their own “academic freedom” in high…
Standing Up for Free Speech on Campus
I don’t often agree with U.C. Berkeley Dean Erwin Chemerinsky, but he courageously defends the First Amendment rights of college students in his new book, which I discuss in Law and Liberty.
Justice Kennedy’s Too-Late Lament
Colorado authorities have fined a cake baker who refused to bake a wedding cake for a same-sex marriage on religious grounds. Justice Kennedy deplored this as anti-religious bigotry, but he started this long ago. I explain here.
Robert Bork’s Second Amendment
Readers of Law and Liberty may have noticed that I am a fan of Justice Antonin Scalia (for example, here and here). I am also an admirer of Robert H. Bork, whom my colleague John McGinnis has described as “the most important legal scholar on the right in the last 50 years.” Bork was a pioneer…
I Heard the Voice of Scalia
Fans of the late Justice will treasure a new collection of his speeches. Justice Antonin Scalia definitely had a way with words. Law students pore over his opinions not just for Scalia’s keen analysis but to delight in the verve of his prose—pungent, clear, combative, and always colorful. S…
Our Living (That Is, Amendable) Constitution
Proponents of “living constitutionalism” or other non-originalist theories of constitutional law sometimes argue that our now 230-year-old Constitution wasn’t designed for current social conditions. Prevailing attitudes on a variety of subjects have changed dramatically since 1787, critics …
Leaving Lochner Behind
What prompts a man to change his mind on a serious matter after 35 years, and should the reversal be met with pride (for eventually getting it right), or chagrin (for taking so long)? For reasons of vanity, I’m going to take a positive tack and choose the former. “Wisdom,” Felix Frankfurter…
The Emersonian Jurisprudence of Oliver Wendell Holmes
Legal scholars are endlessly fascinated by Oliver Wendell Holmes, Jr. (1841-1935). To some, he is “the great dissenter,” whose frequently quoted opinions were a harbinger of Legal Realism. Sympathetic biographers and playwrights have described him as the “Magnificent Yankee” and the “Ya…
Taming the Imperial Presidency
Going back to the tumultuous reign of Abraham Lincoln, political scientists have long been fascinated with the “Imperial Presidency,” and this interest was heightened further by the executive overreachthat characterized the administration of Barack Obama. Some scholars contend that the modern…