It looks like the next several months will be full of exciting new books for folks interested in the constitution and freedom. (The publication dates are always subject to change...)
1) Josh Blackman, Unprecedented: The Constitutional Challenge to Obamacare (Public Affairs, Sept. 10).
I read this book in manuscript. It gives a very thorough and, most importantly, objective account of the history of NFIB v. Sebelius and other cases challenging the constitutionality of the individual mandate. I disagree strongly with a few of Blackman’s conclusions about that history, but the disagreements are in good faith, and Blackman’s research is scholarly and his presentation fair to all sides. That’s apparently more than you can ask for from some people.
I agree with just about everything Somin believes, and his academic specialty is the effects of rational ignorance on democratic institutions, so it’s great to see he’s got a book on the subject. I expect it will be precise, persuasive, and enlightening as his writing nearly always is.
3) Clark Neily, Terms of Engagement (Encounter, October 8)
I’m reading this book now. It’s an excellent call to arms—or rather, call to law—for those who think as I do that our judiciary has fallen down on the job. That job is to protect our constitution against the assaults of politics; to police the boundaries that separate the public sphere, subject to political control, and the private realm of individual rights that is—or so we were promised—not subject to political vicissitudes. Neily’s book is smoothly written and accessible to the layman and is an excellent choice for non-lawyers who want to know why our judges have failed us so badly.
I adore Richard Epstein, and can’t wait for this book, which promises a defense of the proposition—obvious to my eyes, but controversial to others—that our Constitution was written on the basis of classical liberal political philosophy, and was not, as Holmes claimed, written for people of fundamentally differing views. Certain propositions about individual dignity and freedom are indispensable foundations for understanding our fundamental law.
Then, of course, there’s my book. In it, I argue not only that our Constitution was written to defend classical liberal values, but that the authors of the Fourteenth Amendment sought to reinforce those values after having seen them assaulted so savagely in the years leading up to the Civil War. Sadly, Progressive political philosophy undid their achievements, and as a result our courts have failed to defend crucial constitutional values. Conservatives and liberals alike—through their assaults on important principles like “substantive due process” or an engaged judiciary, have reversed our constitutional priorities, replacing liberty with majority-rules. I argue for a return to the principle of the primacy of liberty and an engaged judiciary that will protect individual rights from both sides of today’s political spectrum.
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