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The United States is a nation built upon principles of liberty - principles that include a democratic form of government. The French political philosopher Benjamin Constant understood the connection. He distinguished between liberty as understood by the ancient world, the Greeks and the Romans, and liberty as understood by the Nineteenth Century moderns.

Writing thirty years after the French Revolution, not long after the adoption of the American Constitution, Constant pointed out that "the liberty of the ancients" is an active liberty, consisting of a sharing of a Nation's sovereign authority among that Nation's citizens. From the citizen's perspective, it consists of "an active and constant participation in collective power." It means "submitting to all the citizens without exception the care and assessment of their most sacred interests." The sharing of sovereign authority, Constant said, would "ennoble[]" the people's "thoughts and establish[] among them a kind of intellectual equality which forms the glory and power of a people."

Constant distinguished the active, participatory "liberty of the ancients" from a more "modern" negative liberty that consists of "individual independence" from State control. He was no stranger to negative liberty. Having seen the Terror in action, Constant understood the need to protect the individual from the excesses of those who act in the name of a democratic majority. In recognizing the need to protect individuals from the unchecked power of even a democratically constituted State, Constant made clear that both ancient active and modern negative freedoms "are important." He said that we must embrace both, "learn[ing] to combine the two together."

Those who created our Constitution understood the liberty of which Constant spoke. They wrote a document that stresses the importance of modern "negative" liberty, but at its core is a blueprint for "ancient" active liberty, which they might have called "public liberty" and which we might call "democracy." Jefferson, for example, spoke of the rights of the citizen as "a participator in the government of affairs," - while Adams, his rival, added that all citizens have a "positive passion for public good."

My Tanner lectures are about this ancient liberty as embodied in our more modern Constitution. My thesis is that courts should take greater account of the Constitution's democratic nature when they make both constitutional and statutory decisions.

    -LECTURE: Our Democratic Constitution (Stephen Breyer, November 17, 18 and 19, 2004, Harvard University Tanner Lectures On Human Values 2004-2005)
In advance, let me offer fair warning that what follows will be extremely pedantic, but it contains points about republican liberty that I've made it the past and feel compelled to reiterate. I do so now having: received a signed copy of Neil Gorsuch's Republic, If You Can Keep It; found a copy of Stephen Breyer's Active Liberty at the Thrift Store; and been immersed in the debates over Adrian Vermeule's essay, Beyond Originalism in the Atlantic. It just seems like a good time and place to restate some first principles about the Founding and what follows from it.

First off, here is what I wrote in a recent blog post following a reason interview with David French, IT BEGINS WITH MISUNDERSTANDING REPUBLICAN LIBERTY (BrothersJuddBlog, 4/11/20):
'I Think the Protection of Liberty Is a Common Good': The Dispatch's David French on the value of liberalism and the problems with the new nationalist right (STEPHANIE SLADE, THE MAY 2020, reason)

The thing that has come to exemplify everything that's wrong with modernity for this crowd, as you well know, is Drag Queen Story Hour. Tell us what those words mean and then give me the Frenchian position on it.

Drag Queen Story Hour is a small movement of drag queens and friends of drag queens who will host, in public libraries scattered around this country, small gatherings of people who will listen to a drag queen read a children's book. Children come to Drag Queen Story Hour. They see the drag queens and they interact with the drag queens. It's come to symbolize the advance of the sexual revolution and, particularly, the way that the sexual revolution touches the lives of children. So the argument that was made was that classical liberalism is inadequate to address the threat of Drag Queen Story Hour, and that Drag Queen Story Hour is the product of liberty unrestrained. This is what happens when people are given too much liberty: Drag queens read books to kids.

My argument about this was really pretty simple. I don't like Drag Queen Story Hour. I would not take my children to Drag Queen Story Hour. But I don't have to go to Drag Queen Story Hour, and unless they violate anti-obscenity or indecency statutes or otherwise applicable and constitutionally appropriate laws, they enjoy all the protections of the First Amendment that everybody else enjoys. In fact, that open access to the use of public facilities has been a boon to social conservative groups like Christian organizations. There are thousands of churches that conduct worship services in empty classrooms and gymnasiums and cafeterias across this country, who have access to library facilities and other public buildings. They utilize those to say and preach and teach things that the common good conservatives would very much like and very much endorse. And you cannot have a legal system that allows the government to dictate which preferred viewpoint gets access to its facilities. If you embrace such a system, you're not going to like the outcome.

The idea is that if conservatives can stop Drag Queen Story Hour from happening at the library, then why can't progressives stop--

They can and will stop church services, Bible studies, Tea Party meetings, GOP gatherings. I mean, once you lift the [requirement of] viewpoint neutrality in access to public facilities, you lift it. It's gone. And you better be in charge of everything, or you're going to see your preferred viewpoint locked out of the public square.

Now, that's a pragmatic response. I tend to think that liberty has independent value. A lot of [common good conservatives] think there is no independent value in liberty unless liberty is used for virtue. But I think the protection of liberty is a common good.

It's true, though, that people on the left increasingly are trying to use the power of the state to impose their values on conservatives.

Oh, sure.

So why isn't it true that at some point you have to fight fire with fire?

The fact of the matter is that we have systems in place that protect individual liberty increasingly effectively. This is something a lot of people miss. People who just started following politics recently tend to think that religious liberty is under unprecedented siege, when the reality is religious liberty has more protections right now from government interference than it has had in the last 25 years. People tend to think that free speech is under unprecedented attack, when right now people are more free from the threat of government censorship than they have been perhaps anytime in the whole history of the United States of America. There is an enormous advance of legal protection from censorship from the government over the last 25-30 years that is completely underappreciated.

What we face now isn't so much the government imposing its values but private actors using the power that they have, whether financial or cultural, to try to crowd out competing voices from the public square. That would be, for example, when the Oscars doesn't let Kevin Hart be a host. That's one private entity telling a private citizen he can't host their gathering. I am concerned about the culture of censorship that exists in a lot of these private actions. But it's just a fundamentally different thing from the formal censorship that happens at the point of the government's bayonet.

Mr. French gets at why it is a fact that the Right rejects the Founding altogether and hates America as it is. The goal of the Constitution is to establish a republic in order to secure liberty; and republican liberty has a certain historical form. It is essentially the right to be free from arbitrary control by others, a right that requires a participatory government--so that all who are to be bound by laws have a say in them--and completely equal application of the limits (laws) adopted.

At various times and in various places--which accord almost precisely with which party is in power--folks have objected to all three factors implicated here: that liberty is explicitly not freedom; that lawmaking must be a democratic process; and that laws must be applied equally to all to be legitimate.

John Jay anticipated the first objection:

"Nothing is more certain than the indispensable necessity of government, and it is equally undeniable, that whenever and however it is instituted, the people must cede to it some of their natural rights in order to vest it with requisite powers." (Federalist No. 2)

The text anticipated the second, putting the legislative, and most democratic, branch in Article 1. :

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

And while we struggled with the third for quite some time--driven largely by the need to buy-off the slave-holding South--the 14th Amendment made the implicit explicit:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

When you wish to claim a particular freedom, which your fellow citizens overwhelmingly reject, you tend to insist that "natural rights" can not be limited by liberty.

When you can not get a proposed law passed via the democratic process you tend to claim that the Executive and/or Judicial branch has the power to legislate.

And when you either wish your group to receive special treatment or seek to punish another group, you claim that laws need not be equal.

It is obvious on its face that a private entity like the Academy can ban anyone they want from the Oscars, or Twitter from tweeting, etc., without in any way running afoul of the Republic. The attempt to impose the structure above to them is simply a non-sequitur.

But once we introduce public institutions to the equation we do bump up against the framework of republican liberty. Consider the case of Drag Queen Story Hour. In the first instance, we must ask whether the library involved is public or private. Only if public need we go further in examining the activity. If public, we would next examine whether there is an existing volunteer story hour which welcomes any group that wishes to participate, in which case there is a presumption that all such groups ought be treated equally. After all, if a library with such a program sought to ban Chinese-Americans from reading we would know something had gone wrong. On the other hand, if a public library has no such program and tells a volunteer group that proposes one that they don't care to institute, there is no equal protection problem. Finally, it will be appropriate to look at the status of the children being read to: are they required by law or by some public institution to attend? Are they school children in detention? Or is it a choice by them and their parents to attend said readings? If attendance is voluntary, it is not apparent that we need even consider the matter at all. Will not just the Right but conservative and religious Americans find the decision of libraries and parents to participate in the program to be troublesome as a moral matter? Undoubtedly. Does that, therefore, make it a matter where a Common Good jurisprudence dictates the Court intervene? Only if, as is the case, we now propose that the right adopt exactly the same sort of activist theory of the Judiciary branch that we always, correctly, objected to when the left adopted it. When the interlocutor above asks if we don't need to fight fire with fire it is the republican Constitutional order that we are talking about burning down. And while Right and Left have ample reason for such nihilism--since they hate the America we live in--it is no reason for believers in well-ordered liberty and lovers of the American Republic to join in the bonfire.


What is most interesting about the Gorsuch and Breyer books--both consisting in the main of lectures they've given, though Mr. Gorsuch includes some case law--is that there is considerable agreement on a basic fact, that the Constitution requires that the making of laws be subject to democratic processes. It is here that one would think a left/right Court consensus was waiting to be forged. But from that starting point they proceed to quite different concerns. And this divergence is possible, for the most part, because, while celebrating the idea of liberty, neither is really willing to embrace it totally as the basis for the Court to render decisions.

Mr. Breyer's idea of "active liberty" is particularly specious, as can be seen in the introduction at the top of the page, because while he begins--quite correctly--by acknowledging that the American nation is founded on the basis of liberty and that democracy is a component of that liberty, he quickly and, apart from ideology, inexplicably reduces liberty to little more than democracy. Over the course of the contained lectures he argues that it is then the job of the Court to vindicate the concern for democracy by doing seemingly whatever it needs to do to increase democracy.

It will be apparent that this is such an amorphous standard for judging cases as to be meaningless. It is little more than a justification for an activist judiciary to do whatever it feels like doing. More problematic is that, even were we to take it seriously, in elevating just one component of republican liberty to a place of primacy, it not only misshapes the whole idea but does so in favor of what is not even the most important part. After all, were it possible to find another form of rule (law) making that protected us all equally from dominance by a few who would not be so limited then we would not necessarily have to require the participatory test. Imagine a past in which a perfect monarch chose to bind himself to exactly the same laws he expounded for his subjects, or a future in which Artificial Intelligence could determine a perfect balance between freedom (natural Rights) and security (the limits we are willing to accept on those rights) and democracy becomes superfluous as a matter of liberty.

But it is the final stumbling block that is fatal. For Mr. Breyer's suggestion is really that the Founders, who founded a republic that is largely devoted to circumscribing the powers of democratic majorities, intended to use the least democratic branch of the government to force ever greater democratic control upon the citizenry. To the extent that this assertion is coherent it is plainly anti-Constitutional. It is, indeed, hard to take this book seriously. Were we to try to save the author from himself and afford his core idea some value, we might join him in saying that because democratic participation is so important to republican liberty, to the Founding and to the Constitution, the Court ought to impose a judiciary standard that requires every law/regulation to be subject to democratic processes, which would mean that they had to originate in the Legislative Branch and never in the Judiciary nor the Executive. The reason why he does not follow where his own sentiment seems to point becomes obvious when we turn to his colleague.

The great strength of Mr. Gorsuch's book lies in his sustained assault upon administrative law. the sheer scope and reach of the modern nation state has resulted in a system where the Legislative branch tends to pass rather vague laws creating certain regulatory bodies but then cedes to the Executive Branch or even to those bodies themselves the responsibility for crafting the laws/regulations required for fulfilling their stated purposes. Thus, rather than democratically enacting the legal scheme for regulating television, Congress creates a Federal Communications Commission:
The Federal Communications Commission regulates interstate and international communications by radio, television, wire, satellite, and cable in all 50 states, the District of Columbia and U.S. territories. An independent U.S. government agency overseen by Congress, the Commission is the federal agency responsible for implementing and enforcing America’s communications law and regulations.
Applying the Constitution rigorously and vindicating liberty entirely, would mean not permitting Congress to cede that authority for implementation, at least to the extent that it means letting an independent agency write laws itself.

The Justice marshals an impressive array of cases where we can see how this antidemocratic means of enabling big government results in a legal labyrinth of regulations that are so numerous, so fluid and so arbitrary that no citizen could ever hope to comprehend them all, resulting in exactly the sort of unjust dominance that republican liberty is meant to avoid. Not the least of the problems is that the agencies are subject to capture by the very groups they are meant to regulate, so that, while a neutral set of rules to govern beauty salons could conceivably make sense, we are instead left with rules favoring existing businesses that require umpteen hours of "training" before black women with a skill in demand are to be allowed to practice hair-braiding legally.

While it is easy to understand why we chose this path of least resistance as we developed greater regulation of the environment, the workplace, and so on and so forth, we have birthed a monstrosity that no one can fully comprehend and, therefore, no one should be bound by. The Code of Federal Regulations is not democratically derived, does not treat all equally, and, especially because agency interpretations of the code can be changed ex post facto, is arbitrary by definition. Taking the easy way out has led us right of a system of ordered liberty and the sort of government of laws not men intended by the Constitution.

It is as we turn to considering the Constitutional alternative that we can understand where we lost Justice Breyer. After all, a system where Congress got to weigh in on every Federal regulation would be much more burdensome and would be likely to result in far less regulation. If nothing else, the time constraints for Congress to read and pass as many regulations as the modern state promulgates would afford limits. So, if one prefers big government, the Constitutional alternative can hardly be attractive. But this no intellectually honest rationale for not requiring it. More importantly, the fact that a regulatory scheme that protects liberty--including Mr. Breyer's professed concern for democratic participation in rulemaking--would be cumbersome is not a proper concern of the Judicial Branch. If, as we often hear, tough cases make for bad law, how much worse must tough ways of governing make the law if we allow the Court to make that its main concern?

On the other hand, Mr. Gorsuch writes extensively about the importance of civic education, civility and democratic participation as vital to maintaining our Republic. These are all things Mr. Breyer would certainly agree with. This happy overlap ought give us some basis for believing that we could reduce partisanship, at least on the Court, if not nationally. but fairness requires us to look at how ostensible Originalsts likewise abandon the framework of republican liberty when it suits them, to arrive at their desired ends.

Justice Gorsuch has already dissented in a case stemming from Citizens United, joining Clarence Thomas, who believes that any limitation on corporate politicking is unConstitutional. But, if we return to our republican liberty framework, not only are corporations not persons, as the conservative majority in Citizens insisted, they are creatures of the legislature, created out of whole cloth to relieve individuals from the spectre of personal liability for the debts of business entities. To imagine that a benefit to individuals thereby makes the fiction created into an individual itself is deeply bizarre. And to hold that the creator of corporations can not restrict them as it chooses is judicial activism of the worst kind. And when something like 85% of the actual persons in America are supportive of the restrictions the most democratic branch chose to place upon its creations, an intercession by the Court can not be justified by Originalism, only by naked political preference (*), the sort of arbitrary decision Mr. Gorsuch is so worried about by the administrative state. We are back to fighting fire with fire without regard to what the flames consume.

Likewise, the Gorsuch/Thomas team joined in a dissent from denial of certiorari in a gun case, wherein they begin:
The Second Amendment to the Constitution guarantees that “the right of the people to keep and bear Arm[s] shall not be infringed.”
At the point where you feel compelled to truncate the text of the 2nd Amendment in order to make your argument, you can't also pretend to be engaged in Originalism, which, at a minimum requires reading the text as written. Nor will it do to pretend that the fact that some sort of gun right is acknowledged in the 2nd, because, as we've noted, even some level of natural rights are necessarily conceded in any form of republican liberty. Let us turn to the other two legs of our liberty-based analysis and we find that gun restrictions are also supported by as much as 85% of the public, have been democratically adopted by our representatives, and apply equally to the entire citizenry. It is no surprise then that the Heller ruling that invented the right of individuals to keep handguns was itself qualified and yet still represented a radical departure from two hundred years of American jurisprudence. This is kind of the right's version of the left's Roe v. Wade, a desired decision unmoored from the Constitution and republic liberty. Each side likes to imagine existential threats that flow from allowing laws they don't like to stand and to see themselves as entitled to legislate from the bench to vindicate rights they wish were in the Constitution, but our liberties are best secured when the Judicial Branch limits its own role and leaves it to us to settle these thorny social policy questions. If Bob wants to carry a bazooka everywhere he goes and Sally wants to use abortion as birth control, let them convince their representatives to institute laws permitting same which apply equally to everyone. If the worst-case scenario for the Court refusing to arbitrarily enact my policy preference is that I have to work to get my fellow citizens to agree to it, or live under exactly the same legal regime that all of them are subject to, that seems an entirely reasonable and republican result.



(*)Think of it this way, a law that says no red head shall be permitted to contribute to political campaigns, fails constitutional muster for exactly the same reason that a law that held all red heads shall be exterminated does. But a law that did away with corporations would face no constitutional difficulties, so one limiting their political activities can not. Were the American people to determine that limited liability is a higher price to pay than the convenience of corporations is worth, the legislature could simply end the institution and businesses would have to find some other way of arranging themselves.


(Reviewed:)

Grade: (C)


Websites:

See also:

Law
Stephen Breyer Links:

    -WIKIPEDIA: Stephen Breyer
    -BIO: Stephen Breyer (John R. Vile, June 2017, The First Amendment Encyclopedia)
    -BIO: Stephen Breyer Biography (1938–) (Biography.com)
    -BOOK SITE: Active Liberty (Penguin Random House)
    -WIKIPEDIA: Active Liberty
    -PDF: Active Liberty (Tanner Lectures)
    -LECTURE: Our Democratic Constitution (Stephen Breyer, November 17, 18 and 19, 2004, Harvard University Tanner Lectures On Human Values 2004-2005)
The United States is a nation built upon principles of liberty - principles that include a democratic form of government. The French political philosopher Benjamin Constant understood the connection. He distinguished between liberty as understood by the ancient world, the Greeks and the Romans, and liberty as understood by the Nineteenth Century moderns.

Writing thirty years after the French Revolution, not long after the adoption of the American Constitution, Constant pointed out that "the liberty of the ancients" is an active liberty, consisting of a sharing of a Nation's sovereign authority among that Nation's citizens. From the citizen's perspective, it consists of "an active and constant participation in collective power." It means "submitting to all the citizens without exception the care and assessment of their most sacred interests." The sharing of sovereign authority, Constant said, would "ennoble[]" the people's "thoughts and establish[] among them a kind of intellectual equality which forms the glory and power of a people."

Constant distinguished the active, participatory "liberty of the ancients" from a more "modern" negative liberty that consists of "individual independence" from State control. He was no stranger to negative liberty. Having seen the Terror in action, Constant understood the need to protect the individual from the excesses of those who act in the name of a democratic majority. In recognizing the need to protect individuals from the unchecked power of even a democratically constituted State, Constant made clear that both ancient active and modern negative freedoms "are important." He said that we must embrace both, "learn[ing] to combine the two together."

Those who created our Constitution understood the liberty of which Constant spoke. They wrote a document that stresses the importance of modern "negative" liberty, but at its core is a blueprint for "ancient" active liberty, which they might have called "public liberty" and which we might call "democracy." Jefferson, for example, spoke of the rights of the citizen as "a participator in the government of affairs," - while Adams, his rival, added that all citizens have a "positive passion for public good."

My Tanner lectures are about this ancient liberty as embodied in our more modern Constitution. My thesis is that courts should take greater account of the Constitution's democratic nature when they make both constitutional and statutory decisions.

    -VIDEO: U.S. Supreme Court Associate Justice Stephen Breyer describes the interpretive principles explored in his book, "Active Liberty: Interpreting our Democratic Constitution." (Charlie Rose Show, 10/26/06)
    -AUDIO INTERVIEW: 'Active Liberty' from Justice Stephen Breyer (Fresh Air, October 20, 2005, NPR)
    -PROFILE: Supreme Court Justice Stephen Breyer shows progressive streak (David E. Bernstein and Josh Blackman, 7/12/11, Newark Star-Ledger)
    -VIDEO DISCUSSION: A Conversation on the Constitution with Supreme Court Justices Stephen Breyer and Antonin Scalia (Federalist Society, Dec 5 2006)
    -PROFILE: A Workable Democracy: The optimistic project of Justice Stephen Breyer (Lincoln Caplan, March-April 2017, Harvard Magazine)
    -VIDEO: Active Liberty by Mr. Justice Breyer (The Ponen Mind, 12/12/05, PBS)
    -INTERVIEW: Towards ‘active liberty’ (Robb London and Michael Armini, April 23, 2006, Harvard Law Today)
    -INTERVIEW: Supreme Court Justice Breyer on 'Active Liberty' (Nina Totenberg, September 29, NPR: All Things Considered)
    -LECTURE: On the Liberty of the Ancients Compared with that of the Moderns (Benjamin Constant, 1819)
First ask yourselves, gentlemen, what an Englishman, a Frenchman, and a citizen of the United States of America understand today by the word "liberty."

For each of them it is the right to be subjected only to the laws, and to be neither arrested, detained, put to death, or maltreated in any way by the arbitrary will of one or more individuals. It is the right of everyone to express his opinion, choose a profession and practice it, to dispose of property, and even to abuse it; to come and go without permission, and without having to account for his motives or undertakings. It is everyone's right to associate with other individuals, either to discuss their interests, or to profess the religion that he and his associates prefer, or even simply to occupy their days or hours in a way that is most compatible with his inclinations or whims. Finally it is everyone's right to exercise some influence on the administration of the government, either by electing all or particular officials, or through representations, petitions, demands to which the authorities are more or less compelled to pay heed. Now compare this liberty with that of the ancients.

The latter consisted in exercising collectively, but directly, several parts of the complete sovereignty; in deliberating, in the public square, over war and peace; in forming alliances with foreign governments; in voting laws, in pronouncing judgments; in examining the accounts, the acts, the stewardship of the magistrates; in calling them to appear in front of the assembled people, in accusing, condemning or absolving them. But if this was what the ancients called liberty, they admitted as compatible with this collective freedom the complete subjection of the individual to the authority of the community. You find among them almost none of the enjoyments we have just seen form part of the liberty of the moderns. All private actions were submitted to a severe surveillance. No importance was given to individual independence, neither in relation to opinions, nor to labor, nor, above all, to religion. The right to choose one's own religious affiliation, a right that we regard as one of the most precious, would have seemed to the ancients a crime and a sacrilege.

    -STUDY GUIDE: Active Liberty (Enotes)
    -ESSAY: Supreme Court Justice Stephen Breyer Shows Progressive Streak (David E. Bernstein and Josh Blackman, July 12, 2011, The Newark Star??Ledger)
    -ESSAY: Active Liberty Lives!: Justice Breyer’s opinion in the recess appointments case deals a blow to originalism. (Adam Winkler, July 08, 2014, Slate)
    -ESSAY: Active Breyer: Making the Liberal Bloc Work (Medha Gargeya, October 10, 2010, Harvard Political Review)
    -ESSAY: AN ELASTIC AMENDMENT: JUSTICE STEPHEN G.BREYER’S FLUID CONCEPTIONS OFFREEDOM OF SPEECH (Benjamin Pomerance, Albany Law Review)
    -ESSAY: Comparing and Contrasting the Constitutional Approaches of Justice Scalia and Justice Breyer: Through the Pending Supreme Court Case Schwarzenegger V Entertainment Merchants Association (Katherine E. Moran Ms.Claremont McKenna College)
    -ESSAY: Breyer v. Scalia: Will Alito be an activist or a textualist? ( Julia K. Stronks, January 15, 2006, Seattle Times)
    -ARCHIVES: "Stephen Breyer" (C-SPAN)
    -ARCHIVES: Stephen Breyer (Charlie Rose Show)
    -REVIEW: of Active Liberty by Stephen Breyer (Robert Bork, New Criterion)
    -REVIEW: of Active Liberty (Cass R. Sunstein, The New Republic)
    -REVIEW ESSAY: Conversation, Representation, and Allocation: Justice Breyer’s Active Liberty (Michael A. Livermore, D. Theodore Rave, NYU Law Review)
    -REVIEW: of Active Liberty (Kathleen M. Sullivan, NY Times Book Review)
    -REVIEW: of Active Liberty (Jeffrey Toobin, The New Yorker)
    -REVIEW: of Active Liberty (Pierre Rosanvallon, International Journal of Constitutional Law)
    -REVIEW: of Active Liberty (Richard A. Posner, Yale Law Journal)
    -REVIEW: of Active Liberty (John DiLulio, Weekly Standard)
    -REVIEW: of Active Liberty (Tom Feeney, National Review)
    -REVIEW: of Active Liberty (Bernard G. Prusak, Commonweal)
    -REVIEW: of Active Liberty (Jess Bravin, WSJ)
    -REVIEW: of Active Liberty (Alykhan Velshi, New English Review)
    -REVIEW: of Active Liberty (Intercollegiate Review)
    -REVIEW: of Active Liberty (Publishers Weekly)
    -REVIEW: of Active Liberty (Mark Rush, lawCourts.org)
    -REVIEW: of Active Liberty (Ilya Somin, Northwestern Law Review)
    -REVIEW: of Active Liberty ( Michael W. McConnell, Harvard Law Review)
    -REVIEW: of Active Liberty (Adam Cohen, NY Times)
    -REVIEW: of Active Liberty (Ken I. Kersch, The University of Chicago Law Review)
    -REVIEW: of Active Liberty (Jerome Braun, Logos Journal)
    -REVIEW: of Active Liberty (Perspectives on Political Science)
    -REVIEW: of Active Liberty (George Will, Newsweek)

Book-related and General Links:

    -REVIEW: of How Judges Think by Richard A. Posner (Gerald J. Russello, The University Bookman)
    -ESSAY: Originalism: The Lesser Evil (Antonin Scalia, University of Cincinnati Law Review)
    -ESSAY: Common-Good Constitutionalism Reveals the Dangers of Any Non-originalist Approach to the Constitution: This wolf comes as a wolf (Randy E. Barnett, APRIL 3, 2020, The Atlantic)
    -WIKIPEDIA: John Hart Ely
    -ESSAY: Common Good Constitutionalism? (Keith E. Whittington, 3.31.2020, The Volokh Conspiracy)
    -ESSAY: Without the Pretense of Legislative Intent (John F. Manning, Oct 26, 2017, Harvard Law Review)
    -ESSAY: Of Ballot Boxes and Bank Accounts: Rationalizing the Jurisprudence of Political Participation and Democratic Integrity (Mar 9, 2018, Harvard Law Review)