Gordon Lloyd

Gordon Lloyd is the Dockson Emeritus Professor of Public Policy, Pepperdine University and a senior fellow at the Ashbrook Center. He is the creator, with the help of the Ashbrook Center, of three highly regarded websites on the origin of the Constitution.

What Are the Antifederalists to Us?

Crossroads for Liberty: Recovering the Anti-Federalist Values of America’s First Constitution presents us with a paradox. Author William J. Watkins, Jr. recognizes, on the one hand, that we cannot get out of our 21st century difficulties with the omnipotent Administrative State by appealing to the Federalist. Alexander Hamilton, in particular, was a good government type who was willing to concentrate power in the general government as far as republican and federal principles would permit. It should come as no surprise that he accused the Antifederalists—those who opposed adoption of the Constitution outright, as well as those who wanted the inclusion of…

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Rebuilding the Liberty Narrative: A Conversation with Gordon Lloyd

liberty-equalityThere is nothing more arduous than the apprenticeship of liberty, Tocqueville informs. While equality in modern democratic society is a natural tendency—one that grows without much effort—it is liberty that requires a new defense in each generation. In this spirit the next edition of Liberty Law Talk discusses with Gordon Lloyd the Liberty Narrative and its unending contest with the Equality Narrative.

Constitutional Theory As Game Theory

Stephen F. Smith begins his Liberty Forum essay by quoting from Justice Antonin Scalia’s “Originalism: The Lesser Evil” speech from 1988. There Scalia announces that the Constitution, though it has an effect superior to other laws, is in its nature a sort of ‘law’ that is the business of the courts—an enactment that has a fixed meaning ascertainable through the usual devices familiar to those learned in the law. Deviation from the fixed-meaning method would lead to judicial decisions based on “the preferences of the judge himself.” The opening reference to Scalia is made in order to 1) identify originalism with the late…

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Promoting Originalism: Through Strategy or Principle?

Stephen Smith’s Liberty Forum essay concerns an important question for originalism: How can originalists provide nonoriginalists with an incentive to follow the Constitution’s original meaning? Smith identifies what he regards as a serious problem with originalism: “In a world in which many judges reject original intention as a binding constraint, originalism cannot achieve its goal of…

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Reactivists We Have Known and Loved (Just One, Actually)

Kudos to Stephen Smith, and kudos to the man behind the curtain (Richard Reinsch) for inviting his essay. What a breath of fresh air. In the current environment, constitutionalism seems unlikely to regain real-world traction any time soon. Surely, though, that must remain the long-term objective. To that end originalism must liberate itself from its…

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Saving Originalism: A Reply by Stephen F. Smith

It was an honor for me to contribute my initial essay, “Saving Originalism from the Originalists,” to the Liberty Law Forum, and now I am doubly honored to have had my work reviewed by constitutional scholars as widely respected as Professors Michael Greve, Gordon Lloyd, and Mike Rappaport. I am grateful to each of them…

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Scrawling “Opportunist” All Over Madison’s Notes

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As Mary Sarah Bilder says in the introduction to Madison’s Hand: Revising the Constitutional Convention, scholars have known for over a century that James Madison revised the notes he took during the deliberations in Philadelphia over the Constitution. So why write a detailed book on the Convention that then proceeds to include commentary on Federalist 10, the Virginia ratification debates, the First Congress, and the collaboration between Madison and Jefferson in the 1790s? What does all this breadth have to do with a revised reading of the Constitutional Convention? Apparently there is, as it were, a “conventional wisdom” out there that Bilder, Professor…

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An Eternal Introduction

USA Constitution Parchment

When I read the preface, I thought: What a great story awaits the reader. The authors of The Constitution: An Introduction, Michael Stokes Paulsen and Luke Paulsen, father and son, spent nine summer vacations together discussing the original Constitution and the Amendments. I wish I could have been privy to the conversations. Did the father ever say to the son, “you changed my mind on this point?” Did the son ever say to the father, “you changed my mind on that point?” After all, I think, the key to introducing America is by way of a dynamic conversation within and between the generations. Their aim is both lofty and restrained: to write an introductory book that is “rigorous, accurate, and scholarly” yet at the same time “brief and readable.” But they fall short.

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Return to the Original Sources of the Separation of Powers

I want to begin this response with a series of questions and comments. When and why did America go wrong? Put slightly differently, when and why did America get derailed? Who or what did the derailing? And why is this derailment so much different, in kind and not simply degree, from every other perceived previous derailment we have heard about from previous generations? I say “perceived” because it is critical to any current derailment narrative that every previous derailment narrative didn’t realize that, given the fullness of time, their derailments were actually hiccups that, in retrospect, a couple of swigs of…

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In response to: Congress Incongruous

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Bucking Up the People’s Branch

We live still nominally under the Constitution of 1789 (as amended) but not under its republican government. The states are largely subordinated to the federal establishment. The people loathe the people’s branch, and in any case, Congress seems unwilling to make laws or to fight its corner in the balancing of powers. As Christopher DeMuth…

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Bring Back Institutional Jealousy

Christopher DeMuth has identified the primary ailment afflicting administrative law today: the absentee Congress. Two stories from the Wall Street Journal on the day I write (August 10, 2015) tell the tale. Page One has an article, “Industry, States Set to Fight EPA Rules,” describing planned legal challenges by a number states and interest groups against…

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Congress Incongruous — Response to Commentaries

I am grateful for the smart and informed commentaries on my Liberty Law Forum essay by John Samples, Gordon Lloyd, Michael M. Uhlmann, and those who posted shorter comments. They do not, I think, call for point-by-point author responses, but reading them altogether suggests that I should say a few words about the motivations and…

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The New Deal & Modern American Conservatism

The New Deal

This next Liberty Law Talk is with Gordon Lloyd of the School of Public Policy at Pepperdine on his new book, co-authored with David Davenport, The New Deal & Modern American Conservatism (Hoover Press, 2013). Much has been made, and rightly so, of the example set by Calvin Coolidge in his confrontation with the forces of taxing and spending and nascent regulatory attempts to cartelize certain markets, among other challenges he faced. However, might it be that Herbert Hoover and his "American System" articulated in the 1932 campaign, along with his subsequent attempts to repeal the New Deal, offers the…

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The Constitutional Liberty of the Antifederalists

"The Looking Glass for 1787" detailing the Federalist/Antifederalist conflict.

Your Anti-Federalists or My Antifederalists? Let’s presume that we turn to the American Founding to seek advice in our contemporary conversation with the Neo Progressives and the Admnistrative State.  I suggest that we are better served by considering the advice of the Antifederalists than The Federalist since our current situation is actually a perversion of the good government-good administration teaching of The Federalist. But that means the Antifederalists must be coherent and relevant rather than 1) incoherent and irrelevant, 2) coherent but irrelevant, 3) relevant but incoherent. Incoherent and Irrelevant The easiest way to define the Antifederalists is narrowly: They opposed the ratification…

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Are My Federalists His Antifederalists?

Gordon Lloyd has spent much of his career studying the Founding period.  One of the many fruits of his diligent work has been his four excellent websites designed to teach the Philadelphia Convention, the Federalist-Antifederalist debates, the Ratification Conventions, and the Bill of Rights to students. To say that Lloyd knows the Founding well is an…

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Beware the Categorical Trap

Conservatives are disappointed and are searching for reasons for the disappointing electoral outcome. In whom or what are they disappointed?  A tempting approach is to adopt the inevitableness of changing demographics framework of the left.  The left regularly focus on the story of the marginalized—women, minorities, the young and the poor—gaining ascendancy or being victimized.  And certainly these four groups were active in this election and were important in delivering the presidency to Obama and perhaps the Senate to the Democrats. It would appear that it is the old white guys who held power previously that are now the victims! But that is delicious revenge for the left.  Because it is all about power; you old white guys have had your turn. Now it is our turn.

But there is nothing destiny deciding or inevitable about the impact of these four categories. 

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Federalism, Congressionalism, and an Appeal For a Renewed Constitutional Morality

Why are we still talking about federalism in 2012?  Wasn’t it mortally wounded with the passage of the 16th and the 17th Amendments?  At least, that is what I hear a lot of Conservatives moaning about.   Surprisingly, then, we are still talking about federalism.  And, I trust, doing something about it.  Here is a preliminary answer to the question about the fate of federalism: federalism is a conservative principle that over the last 100 years has restrained the development of the Administrative State. My mind wanders to the Progressives with their national prohibition of intoxicating liquors, FDR’s New Deal spiritual crusade against Mammon and “the money changers in the temple,” LBJ’s Great Society “war on poverty,” and our current national debate over individual health care coverage.  These various Prohibitionists are very spiritual and remind me of the spiritual Colonialists and their love of good government to make us good people.  Good government is also big government.

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