Repealer Amendment and alternatives--Contest concepts

[Humbach, Prof. John A.]

Well, it's true that, just like all other important concepts where much is at stake, liberty and equality are contested concepts.

That has not, however, prevented the creation and implementation of extensive legal mechanisms (EEOC, Title VII, etc.) to protect and further "equality." The results produced by these mechanisms are, of course, also contested, but that has not yet led to a consensus in favor of abolishing them.

The role that is envisioned for Liberty Impact Statements, etc. is a bit more defined than simply promoting "liberty," whatever that word might mean. Rather they would be aimed specifically at laws and government regulations that punish or otherwise sanction conduct. They would, for example, protect freedom from overcriminalization but not freedom from hunger (which would presumably continue to be dealt with in other ways).

While there's no denying that liberty can mean many things, I think it's fair to say that for most of the "Tea Party" types as well as the core narrative of American constitutional history, "liberty from government control" holds pride of place.

takinglibertyseriously.net



John A. Humbach
Professor of Law
Pace University School of Law
78 North Broadway
White Plains, New York 10603
914-422-4239

Personal website: humbach.net
________________________________
From: Sanford Levinson [SLevinson at law.utexas.edu]
Sent: Saturday, September 18, 2010 2:09 PM
To: Humbach, Prof. John A.; conlawprof at lists.ucla.edu
Subject: RE: Repealer Amendment and alternatives

The problem, of course, is that “liberty,” like “equality” (or “democracy” or “republican form of government”) is an “essentially contested concept,” so that a “liberty impact statement” would depend on adopting one among a variety of conflicting (and altogether plausible) theories of liberty.  I often tell my students that one of my favorite books is Doug Rae et al’s Equalities, which demonstrates that there are 108 logically defensible theories of equality; Eric Foner has a fine book on Freedom looking at the various conceptions of freedom in American political history.  I strongly suspect that there is (at least) a book that does the same for liberty.

sandy

From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Humbach, Prof. John A.
Sent: Saturday, September 18, 2010 9:49 AM
To: conlawprof at lists.ucla.edu
Subject: Repealer Amendment and alternatives

The energy of the Tea Party Movement comes from people who know something is very wrong, but they can't quite put their finger on what.

Broadly speaking, the common denominator is concern about what's happening the liberty in this country.

Liberty and equality are the two polestars of the American way. We have created many laws and systems to protect equality, but liberty has been left on its own, to fend for itself in the political fray.

Basically, however, both liberty and equality are subject to the same kind of majoritarian vulnerability: Both tend to be disregarded by highly-motivated majorities whenever the main negative impacts are felt mostly by others.

For the sake of liberty, we need to establish a strong liberty-protective mechanism comparable in purpose to the systems that we have to protect equality. The repealer amendment sounds, however, like a clumsy and potentially dangerous solution.

A better approach would be to adopt a standard that laws must meet before restrictions on liberty can become effective (for example, "strict scrutiny" in place of the rational basis "test"). A key component of implementation would be a routine requirement of Liberty Impact Statements or the like and a special review body to assure that the liberty-protective standard is met.

takinglibertyseriously.net


John A. Humbach
Professor of Law
Pace University School of Law
78 North Broadway
White Plains, New York 10603
914-422-4239

Personal website: humbach.net
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