Indeed, the brief for Homer Plessy argued that “The Declaration of Independence … is not a fable as some of our modern theorists would us believe, but the all-embracing formula of personal rights on which our government is based.” It is the “controlling genius of the American people.” And prior to the Plessy setback, as Charles Lofgren shows in his meticulous The Plessy Case (1987), this argument helped win anti-segregation suits at the state level.

With the Declaration in mind, Harlan uses a robust understanding of the 13^th Amendment and the privileges and immunities clause of the 14^th Amendment against segregation statutes.  Citizens, including those who served as soldiers in the Civil War, deserve the recognition of having equal rights.  Segregation is among the “badges of slavery or servitude” the Amendment is intended to abolish. The citizenship argument is crucial for Harlan, as we see in his famous invocation of the color-blind Constitution.

The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens

But what of Harlan’s praise of the white race as “dominant”?  Did Harlan simply fall prey to the Progressive racialist theories of the time? But note his qualification that the white race will remain so “if it remains true to its great heritage and holds fast to the principles of constitutional liberty.” At the core of those principles is the Declaration of Independence, and at its core is “all men are created equal.”  Even the despised alien “Chinaman” can partake of rights denied a black citizen, as Harlan sardonically notes later in his opinion. To deem itself “superior” the white race would have to deny its superiority as a caste. And in so casting off its badge of mastership, it would also remove the badge of servitude from blacks. This was Lincoln’s definition of democracy, “As I would not be a slave, so I would not be a master.”

If the Civil War Amendments truly overruled Chief Justice Taney’s caricature of originalism and the Declaration in his Dred Scott opinion, then Harlan’s logic would have to prevail. But the courts have not adopted his understanding and thus not only the Plessy logic but the Dred Scott distortion of our founding as racist still prevail, not just in the courts but also in scholarship and increasingly in the public mind. Such an understanding of the founding is surely insinuated in former law professor Barack Obama, as both his autobiographies show.

From the Brown Court’s reliance on occult social science (eviscerated by Hadley Arkes, among others) and its Plessy majority reasonableness standard we get the bureaucratic enforcement of civil rights, racial and ethnic preferences, and limitless government. The Declaration points in quite another direction.

It turns out, as Volokh notes, that sexual harassment at an institution of higher education might be found in any public or private discussion of sex, love, or eroticism. This means that the speech constituting the core purpose of higher education would have to be scrutinized by Washington bureaucrats. This is dangerous professionally—terrify your favorite male professor by sending him a DVD of David Mamet’s Oleanna, about a supposed episode of sexual harassment. And, more important, the vague codes enforce a debilitating self-censorship on professors and students that simultaneously increases the blandness and the freakishness of higher education.

But what defenders of free speech on campus, such as the estimable FIRE, among others, may miss is the contradictory place the university has become. Having embraced the sexual revolution and encouraged an atmosphere of promiscuity, much of higher education has now created a legalistic, centralized crackdown on talk about sex. We have become what Tocqueville implied our condition would be without the influence of mores: a bureaucratic nightmare. If we can’t rule ourselves, we will have rules, myriad of them, made for us.

This (for now) soft despotism reminds us of the great contemporary classic, Reading Lolita in Tehran, Azar Nafisi’s memoir of teaching western literature during the Iranian cultural revolution. She teaches a small, private seminar of women great western literature, while in society and in her regular classroom she sees, among other terrifying sights, the compulsory veiling of women, their harassment by revolutionary guards for any show of “immodesty”—the slightest glimpse of hair, which might excite a man, might result in the miscreant woman being punished.

Teaching under the tyranny gave Nafisi (the American –educated daughter of a former mayor of Tehran) a better appreciation of, among others, Jane Austen. She has revolutionary political significance far greater than the proletarians Nafisi wrote about in her dissertation. By promoting female virtues, Austen is a subversive in Tehran—and in democratic nations as well. It is the restraint of propriety, not perverse tyranny, which makes touching Emma’s hand such an erotic moment. Reading Austen is a nearly forbidden pleasure that evinces the civilizing effect of great literature. (Among her acknowledgements, Nafisi thanks “Paul” [no last name, but we know by context which Paul this is] for “introducing me to [Leo Strauss’s] Persecution and the Art of Writing.”)

Prior to her confirmation hearings, now-Justice Elena Kagan disclosed that she reads Austen’s Pride and Prejudice every year. What does the novel say to her about manners, vulgarity, the differences between men and women? Might someone on the Judiciary Committee, who didn’t mistake Pride and Prejudice for a broadside on affirmative action, have asked the nominee to explain how the rule of law might abate the coarsening of our culture? Or at least how the rule of law presupposes a certain culture? Or don’t we see the connection?

Staying on the superficial level of comparing Obama with Nixon ignores the fundamental problem coming into sight here: the administrative state. In Woodrow Wilson’s conception, this scientific, a-political unity would inflict the will of an elite class on an electorate. In its modest way the IRS in this current scandal is playing out the logic of the great Progressive theorists of the administrative state—as well as its practitioners (see Woodrow Wilson, especially his classic essay on public administration). I have made this argument in some posts for this site, e.g., this one on Cass Sunstein and FDR, and several others, including John Marini and Joseph Postell, have made similar arguments.

If we know how the Administrative State came to be and what its purposes are, we see the depth of the crisis in self-government the IRS scandals disclose. Franklin Roosevelt centralized federal government power in the White House, with an administrative apparatus that would be the party that would end all parties. (Sidney Milkis’s study of FDR, The President and the Parties,  is particularly telling on this point.) Of course what FDR and the Progressives before him meant by ending parties or being apolitical is partisan liberal. This he made clear toward the end of his 1944 State of the Union Address:

One of the great American industrialists of our day—a man who has rendered yeoman service to his country in this crisis-recently emphasized the grave dangers of “rightist reaction” in this Nation. All clear-thinking businessmen share his concern. Indeed, if such reaction should develop—if history were to repeat itself and we were to return to the so-called normalcy of the 1920’s—then it is certain that even though we shall have conquered our enemies on the battlefields abroad, we shall have yielded to the spirit of fascism here at home.

FDR’s once revisionist history of Calvin Coolidge as a precursor of Hitler has been played out in various ways in the institutions that prop up the Administrative State—universities, the chattering classes, and journalism. The highly educated professionals that staff the IRS and other Washington bureaucracies don’t even need to be told who the enemy is—organizations that have “Constitution” (or “Liberty,” for that matter) in their names—because their education has told them whom and what to suspect.

The assault on bureaucracy today pits the rights of the people against the wisdom of the ruling elite. Try reforming the CIA, the civil rights division of the Justice Department, or the IRS through political appointees, who reflect the results of elections. Those agencies have long been captured, not through some iron triangle of interests, but through the acceptance of their employees of a conception of justice that is at war with constitutional government. That is what the IRS scandal is bringing to light.

Frankly proclaiming Robinson’s importance for America, Brooklyn Dodgers owner Branch Rickey opens the movie by declaring to his assistant, “I have a plan.”  In fact Rickey and Robinson deserve comparison with Martin Luther King. Claiming to be interested in winning and thus in profits, Rickey’s signing of Robinson exemplifies Tocqueville’s observation that Americans say that they are interested in profit but in fact often have higher motives. He is Tocqueville’s American, a self-professed Methodist focused on acting righteously, doing good while doing well.Robinson is his perfect choice to integrate baseball. In addition to his baseball skills, the Californian is a WW II army officer and a four-letter athlete at UCLA. But can he control his temper, which led him to a court-martial for protesting racial segregation in the army? We know the end of the story.

As much as he needs to prove his talent, Robinson must display restraint. “God built me to last,” and he is severely tested. Rickey recalls Christ’s “forty days in the wilderness.” Robinson portrays Uncle Tom as Harriet Beecher Stowe intended him to be known—a Christian martyr and, with George Washington, an American founder.  He exemplifies the theologico-political question of how one should live one’s life, a person of faith or citizen? He does both.

However cloying some may find such moralizing to be, baseball of all sports cries out for it. Recall Susan Sarandon’s Bull Durham paean to “the church of baseball.” In introducing young professionals from Europe to baseball, in Carl Yastrzemski’s last game against the Angels, I was told by one astonished but appreciative spectator that she thought she was at a church service. 42 takes full advantage of the parallels.

Among numerous penetrating accounts of baseball, such as those by Jacques Barzun, George Will, and Willmoore Kendall, political theorist Diana Schaub’s essay for National Affairs  stands out for the connections it makes between American politics and mores and the former national pastime. “Baseball is a mirror of American liberty and of the virtues necessary to sustain it.” It’s a game of rules, but “Justice is not reducible to the rules …. Hurling invective at ‘His Umps’ readies one for bad Supreme Court decisions.”

Schaub explores the early national popularity of baseball, demonstrated in this political cartoon of the 1860 election which I add to her argument. According to her, “Abraham Lincoln had a baseball diamond built behind the White House and often joined his sons and their friends in playing ball.”  She makes daring political and moral claims for baseball: “Admittedly, the decline of baseball is not the worst effect of fatherlessness. Drugs, delinquency, and despair are all worse. Nonetheless, black alienation from baseball is part of the collateral damage. And if, as I believe, baseball has a moral and civic dimension, then indifference to baseball is not just an unfortunate byproduct of fatherlessness, but a serious loss in its own right.”

Informed by Schaub’s baseball savvy, we come to see how Robinson should be ranked with King—he starred in the national pastime and affirmed to Americans the founding principle of human equality, a principle reinforced by the rules of the game. 42 shows a real man at work, as ballplayer and citizen.

In Texas, religious free exercise cuts a wide swath, as its State Supreme Court displayed in Pleasant Glade Assembly of God v. Schubert (2008).  A member of the church, a suffering Laura Schubert, had hands (lots of them) laid on her, as her faith calls for, and came out of the experience with physical injuries and psychological trauma.  The Court concluded that

The Free Exercise Clause prohibits courts from deciding issues of religious doctrine. Here, the psychological effect of church belief in demons and the appropriateness of its belief in “laying hands” are at issue. Because providing a remedy for the very real, but religiously motivated emotional distress in this case would require us to take sides in what is essentially a religious controversy, we cannot resolve that dispute. Accordingly, we reverse the court of appeals’ judgment and dismiss the case.

No violation of Employment Division v. Smith, 494 U.S. 872 by Laura’s co-religionists. (She should have sued individuals, not the church). No establishment issues in the Texas cheerleaders’ spiritedness.

The real question behind these cases call to mind what Leo Strauss named the theologico-political issue, on our duties to God and country and how they form the exercise and defense of philosophy.  Some of his lectures on this theme have recently been posted on the Leo Strauss Center site.

Kountze High football unites God and country (or at least Texas), but how does philosophy come in? In fact philosophy contemplates what makes sports and religion remarkable.

Sports and religion drive men beyond the ordinary and everyday. The miraculous shot/pass/catch defies the laws of nature, as does prayer. We anticipate miracles, not just in the World Series and in saints, but in the exertions of ordinary men and women and their separation, however modest, from others, athletically or in prayer. Like art, sports and religion are practiced principally for their own sake. While they may have all manner of good effects, at bottom they are useless.

And they are of a moment, an attempt to be immortal, while aware of the limits of the clock or season, or a mere lifetime, a three score and ten, versus eternity. Sports is tragic, salvific religion comic. They need each other. And philosophy seeks to understand what they desire.

In bashing once again Korematsu v. U.S. (the 1944 Supreme Court case upholding the removal of ethnic Japanese from the west coast), George Will  repeats some of these  distortions of history by relying on the latest ploy by Peter Irons, whom I’ve debated about these issues. Will contends that “Officials altered and destroyed evidence that would have revealed the racist motives for the internments.”  While agreeing with Irons’ attack on Korematsu, Ilya Somin refrains for now from signing his petition.

Briefly, my rebuttal to Irons is simply that regardless of what the government’s brief excluded the same argument was being made by numerous other sources, including the Munson report[i], the tedious (and seemingly open-mic) Roberts Commission hearings, and a host of law review articles. The tendentious Report of the Commission on Wartime Relocation and Internment of Civilians has been attacked by, among others, the Chief Army Historian. This debate is neither defined nor closed. My purpose here is to sharpen that vital discussion.

Moreover, the anti-mass relocation arguments cited by Irons approve and recommend the isolating and interning of an unspecified number of enemy aliens and their associates. Would Irons permit such a singling out? He opposes curfews for ethnic Japanese as well. The question that hovers in those reports, such as the Ringle report that Will misinterprets, is what will ethnic Japanese do, if the tide of the war changed.

Hawaii did not suffer relocation because it was under a general curfew, such as part of Boston was. Is that also objectionable? As policy? Constitutionally? “Internment” and relocation were two separate policies, the former applied to suspected agents under investigation, the latter to those sent to relocation centers.  Some critics wish to use the internment label to cover both policies. I knew a Buddhist priest who served as a chaplain in the Japanese Army in Manchuria. He was interned—arrested a few days after Pearl Harbor and not to be heard from for months. Relocation proceeded more slowly, in early 1942, and included about 90 percent of all ethnic Japanese.

Finally, and most revealingly, few if any critics of Korematsu and the relocation policy mention the Nihau episode, which must have alarmed policymakers following Pearl Harbor. Niihau stands out as a specific example of how susceptible Japanese Americans might be to the seductions of Imperial Japan.

On December 7a damaged Japanese fighter-bomber landed on the isolated island of Niihau, at the westernmost tip of the Hawaiian archipelago. The pilot urged a California-born Japanese-American farmer and his wife to aid him in claiming the island for the Emperor. But Hawaiians eventually resisted and after a shootout both men were dead and the wife in custody. Here was a simple farmer, neither agent nor nationalist, joining the cause of Japan in its moment of glory and committing suicide, in an utterly crazy endeavor. Any honest study of the relocation or WW II will discuss the Niihau episode.[ii]

I’m not sure why more wasn’t written about Niihau. Might it be dismissed as just a one-off, or, more ominously, was it what might generally be expected to happen with ethnic Japanese in the event of an invasion of the west coast or Hawaii? Evidently, Japanese war planners relied on exploiting the sentiments and opportunism of Hawaiian Japanese, as University of Hawaii historian John Stephan documents in Hawaii Under the Rising Sun: Japan’s Plan for Conquest after Pearl Harbor.  

The irrelevance of Irons’ recycled argument is underlined by the fact that the Korematsu dissenters took account of the objections he finds in the omitted materials. The Court majority exercised appropriate deference to the executive. And in referring to this case it is unconscionable to avoid mention of its companion case, ex parte Endo, which clearly established the principle that  “whatever power the War Relocation Authority may have to detain other classes of citizens, it has no authority to subject citizens who are concededly loyal to its leave procedure.”    

Here it may be helpful to understand the “leave procedure” available in the 10 relocation centers or camps, as their residents called them. After disposing of some property and storing the rest with friends, my Tacoma, Washington parents were herded into an assembly center (the Puyallup, Washington fairgrounds) and then to a relocation center (first, Tule Lake, in northern California). (Those living farther inland, in Spokane or Salt Lake City, for example, about 10 percent of the ethnic Japanese population, were spared.)

Camp life was Spartan, to say the least, but, as this useful war-era film shows, amenities developed over the years. During the spring and summer they were needed to work in agriculture, so they moved out of camp to work in fields. Three of my mother’s siblings moved to Chicago rather than live in such conditions. (A job or place in college could get one out of the centers.) When Tule Lake became a segregation center to house ethnic Japanese who proved troublemakers in other camps by demonstrating in favor of Japan and beating pro-American residents, my folks went to Minidoka Center in Idaho. There they could visit relatives who worked in a nearby sawmill.

The war posed loyalty tests. My father, like others who emigrated from Japan, favored Japan, but my mother, whose parents emigrated, was American-born, and this was her country. One uncle of mine joined the army and was decorated; another, obeying his immigrant mother’s demand, went to prison rather than be drafted. The Administrators of the camps (led by Milton Eisenhower) tried to get the camp residents to leave for much-needed work on the outside, but they were hesitant to do so and passed on the opportunity. As America pushed the war front into the western Pacific, FDR allowed the Supreme Court cases to be argued, and the decisions were announced after the November elections (fearing Governor Earl Warren).

The decisions restricting ethnic Japanese liberties were not more racist than any other government or social practice of the 1940s–hardly an endorsement of them, of course. The point for us today, as we determine policy concerning terrorism and immigration, among others, is to avoid condemning the relocation as unconstitutional and unjust without acknowledging the moral horizon of the world of 1941.[iii] Today we face different threats, and temporary exclusions of nationalities (or religions) are not at issue. Whatever strategy develops will seek out the active loyalty of Americans and immigrants of all ancestries.

We Americans almost viscerally hate opinions like Dred Scott and Korematsu because they turn Americans into tribes, when we know Americans are really free individuals, like the Declaration says we are. Yet we were not born yesterday, we come from different cultures; we are in a bad as well as a good sense a “nation of immigrants.” Jefferson and the other founders worried that foreigners would corrupt the new republic with their European monarchist sympathies and strangle self-government in its crib with their demand for a king. WW II reflected this same founding pressure. By the nature of our founding principle of equality there will be other wars and crises to come. In such situations loyalties are far from certain.

David Lebedoff, who wrote what appears to be a fascinating comparison of  George Orwell and Evelyn Waugh, fears this device might yield this correction of the Gettysburg Address. (See the comment by “Madwoman” at 10:34 a.m. Saturday, who reports pedagogic malpractice by a teacher who relied on a computer program and marked down a student for errors in a quoted passage. )

Would such a world appreciate William Zinsser, so beautifully profiled here, now 90, blind, and still teaching? Do students make any sense of On Writing Well?

So I am skeptical when people hail the onset of MOOCs as presaging the demise of the current higher education establishment. The online world has its own temptations. The writing problem reflects a reading problem. Students read all kinds of things, quickly.

Without hesitation we quickly resort to google rather than visit the library. Sources in student papers might be all online, with books scorned because their contents can’t always be consumed for free on a computer screen. Yet papers in professional journals are often intellectually inaccessible for even advanced students, while sophisticated books can inform both specialist and a serious general reader.

I see the deterioration all about me. One graduate student, by no means a person of limited intellect, boasted of not using a single book in his M.A. thesis—which of course he had to revise heavily. My 9^th-grade daughter, who has two A.P. classes, couldn’t believe that my 8^th grade history paper used (as required) several books as sources. No google either. Its multi-page length (albeit handwritten) further astonished her. It’s a different world now.

All these innovations obscure the fundamental problem concerning reading and writing. The culture that made even the unlettered appreciate, for example, the Gettysburg Address is fading, though it might even yet be recovered. In a two and a half minute speech Lincoln encapsulated in poetry the history of western civilization and America’s place in it, drawing on the language of the Declaration of Independence and the 90^th Psalm (King James translation).

Whether using Euclidean science (“the proposition” of human equality) or biblical revelation (“a new birth” of freedom) America is the exceptional nation of human history. Crisis of the House Divided, by 95-year old Harry Jaffa, remains the great guide to understanding the Gettysburg Address, and it is available online here.  Lebedoff can use the Gettysburg Address to make his point about grading software because he assumes a heritage—one that we no longer teach.

Libertarian Justin Raimondo rejects gay marriage, arguing that heterosexual  marriage is an oppressive norm that gay men should reject. Marriage is not just about two people but requires an official/clergy, a government license, and witnesses. He would bypass all this and allow erotic relations to flourish. Jonathan Rauch, a leading conservative public policy scholar, would strengthen marriage by extending that essential institution to gays. This refounded notion of marriage would make both gays and heterosexuals more aware of their mutual responsibilities. He vehemently rejects Raimondo’s characterization of gay men. Thoughtful questions from philosophy professor Richard Hassing, writer Lauren Weiner, and constitutional scholar Walter Berns force the speakers to refine their arguments.

The many vital questions these debaters don’t deal with stem from their overly spiritual or gnostic view of marriage. I have heard Rauch oppose civil unions on the grounds that they promote promiscuity. Perhaps he also opposes no-fault divorce. Consider in this context the argument that easy divorce, given the “two-income trap” that bedevils couples today, leads to staggering numbers of bankruptcies among women (and might well for the “partner b”). After all, “Having a child is now the single best predictor that a woman [viz. ‘partner b’] will end up in financial collapse.” Of course unregulated banking, instead of the “stern-looking banker” of yesteryear, is the culprit, in “The Brave New (Unregulated) World”—but author  (now Senator) Elizabeth Warren is the “stern-looking” public servant to deal with this, as “the Madame Defarge  of our shining city on the Potomac; the  preeminent tricoteuse of our regulatory state.” But I digress in this recollection of the common enemy.

If it does nothing else—and it surely performs a great service—the debate between Raimondo and Rauch crushes the conventional wisdom of typical defenders of gay marriage, who let romantic love obscure the ultimate purpose of marriage. The exchange will surely illuminate many listeners, whatever their viewpoint. My own view of marriage is closer to that of Ryan Anderson in this podcast on our website.

As Friedrich Hayek dedicated The Road to Serfdom (1944) to “the socialists of all parties,” we might use May 1 to declare a counter-revolution of Marxist materialist science. For this purpose Hayek’s works are an invaluable resource. But an even more fitting response to international socialism was given by a figure Marx actually admired and wrote about—Abraham Lincoln.

Consider this internationalist sentiment by the author of the Gettysburg Address, “The strongest bond of human sympathy, outside of the family relation, should be one uniting all working people, of all nations, and tongues, and kindreds.” Does this prove Lincoln an arch-collectivist, as this writer for The Nation hopes?  Hardly. Note first Lincoln’s political purpose in addressing this labor group and then consider why he made an exception of the family.

In his March 21, 1864 message to the New York Workingmen’s Democratic Republican Association, Lincoln was rallying support for the war. The 2002 movie Gangs of New York reflects the hostility in New York City against the Union, culminating in July, 1863 anti-draft riots that resulted in scores dead, including many blacks. But for Lincoln “the existing rebellion, means more, and tends to more, than the perpetuation of African Slavery—that it is, in fact, a war upon the rights of all working people.”

As Lincoln had put it seven years before in his speech attacking the Supreme Court’s opinion in the Dred Scott case, “In some respects [a black woman] certainly is not my equal; but in her natural right to eat the bread she earns with her own hands without asking leave of any one else, she is my equal, and the equal of all others.”  The natural right she has eclipses any other sentiments we may feel.

Lincoln concludes that working people must respect the property of all. “None are so deeply interested to resist the present rebellion as the working people. Let them beware of prejudice, working division and hostility among themselves. The most notable feature of a disturbance in your city last summer, was the hanging of some working people by other working people. It should never be so.” The most famous speech of Lincoln’s early career emphasized the reverence for the law against lawless men.

It is in this context that he declares that “The strongest bond of human sympathy, outside of the family relation, should be one uniting all working people, of all nations, and tongues, and kindreds.”  Subsequently, the workingmen should not join the socialist movement or engage in class warfare. They should in fact be the fiercest protectors of property rights.[i]

Nor should this lead to a war upon property, or the owners of property. Property is the fruit of labor —property is desirable — — is a positive good in the world. That some should be rich, shows that others may become rich, and hence is just encouragement to industry and enterprize. Let not him who is houseless pull down the house of another; but let him labor diligently and build one for himself, thus by example assuring that his own shall be safe from violence when built.

Finally, in addition to the focus on the dignity of labor, Lincoln rests the distinction here between him and the spreading socialist movement on “the family relation.” The Communist Manifesto  is noteworthy not only for advocating a particular form of socialism or communism, based on a new view of world-history and the abolition of private (bourgeois) property but also on the abolition (Aufhebung) of the (bourgeois) family.

It is not in the bourgeois distortion of the world but rather in human nature that private property and the family are linked, as we see from both Plato’s Republic and Aristotle’s Politics. Neither the family nor private property can exist without each other. That is why communism ancient and modern required that men surrender their hold over what is closest to them, in property or flesh and blood. That both natural goods were denied to slaves made the war a moral necessity, a consequence of the belief that “All men are created equal.”

In this month’s Forum Samuel Gregg revives “the meaning of social justice in the classical tradition of natural law reasoning, with particular reference to Roman Catholic pronouncements about this subject.” Social justice strives for the common good.  Two learned commentators provide vigorous, reasoned dissents, economist David C. Rose maintaining that this defense of social justice is “both misguided and dangerous.”   Philosophy professor Eric Mack thinks the notion of social justice “necessarily champions extensive state authority.” Though he allows Gregg’s understanding is not egalitarian, he nonetheless seeks to “weigh [social justice] down and sink it.” These criticisms to the contrary, Gregg’s defense of social justice is in fact essential for preserving liberty and preventing the absorption of all human activity under the aegis of the state.[i]

Gregg’s reliance on the Catechism of the Catholic Church[ii] and Thomas Aquinas for his arguments about social justice may incite some to further mischaracterize “social justice.” He uses the Catechism’s terms such as “solidarity” that may sound authoritarian. They may give the false impression that he favors a powerful state, and, even worse in this criticism, one backed by official Catholic theology, against modern liberal rights.

But Gregg is calling for citizens who will act toward each other with the comprehensive classical virtue of justice (dikaiosune) and charity. Such free citizens will avoid being burdens to their fellow citizens and not use their political rights to bully other citizens into demanding transfers of wealth. Social justice is not the Rawlsian difference principle, as it confronts an anti-Rawlsian indifference principle. Gregg wants to rescue social justice from those who conflate it with socialism, both its friends and its enemies.[iii]  Social justice, like justice itself (to dikaion), simply reflects the common good that obtains in all decent political communities. He is daring the critics of social justice to attack justice itself or the very notion of a common good as essential to the meaning of a good political community.

Gregg interprets his authorities correctly, but he could have arrived at similar conclusions had he instead cited The Philosopher, Aristotle, and made a less sectarian argument. In other words, rather than quoting Aquinas, neo-scholastics, and the Catechism, he might have followed the Saint’s teacher and the philosophic basis for social justice.

 Gregg reminds us of a great strength of Catholic social teaching—that laws and courts, and certainly not the bureaucracy, should not be the principal means by which citizens relate to one another. He notes that the Catechism finds in solidarity “the sharing of spiritual goods even more than material ones.” Men and women have families, neighborhoods, religious institutions, fraternal groups, ethnic societies, athletic leagues, and a myriad of other associations, flourishing especially in free societies. Free men live under the discipline of laws they adopt for themselves and under the discipline of the free market, but they also live under obligations within these different groups. In fact, the more justice we secure for one another through these informal groups (which have the clumsy label of “mediating institutions”), the less need for law. His approach exposes the flaw in critics who separate the state from society and proceed to attack the state in the name of society.

Mutual affection, love, is a vital political element, perfecting the justice in political communities. Aristotle spends two entire books of the ten, Books 8 and 9, in the Nicomachean Ethics on the subject of friendship (philia).[iv] Friendship enhances the virtues that have been the major focus of the book and both brings about pleasure and draws us closer to the ultimate goal of life, flourishing or happiness (eudaimonia). It is necessary for this purpose and splendid (kalon) besides. 

And friendship is politically important: Aristotle maintains that “friendship [seemingly] holds cities together and that lawgivers are more serious about it than about justice…. When people are friends, they have no need of justice, but when they are just, they do need friendship in addition; and in the realm of the just things, the most just seems to be what involves friendship.”  Later, Aristotle makes analogies between types of families and types of political constitutions or regimes. Here Aristotle reflects the Republic of his teacher Plato and its unified best regime.

With all this talk of love, friendship, and best regimes in politics, was the hard-headed Aristotle some exotic ancient flower child? How can such utopianism be of any use in understanding politics? We understand when we realize that Rousseau’s general will and Marx’s social man are powerful attempts to replace the unity and affection that appears absent in the original liberal theorizing of Hobbes and Locke. The movement within modern political theory from Machiavelli through Nietzsche strives to find substitutes for the friendship of classical political philosophy and the unity of medieval Christian political philosophy that modernity had overthrown.

Briefly, modern political philosophy sought to base politics on some of the necessary elements of politics—the economy and safety. In doing so, it neglected the family, yet another necessary part of political life. Seen in this light, social justice is a necessary repair of a flawed modern political theory that attempted to create a good society solely out of rights. Social justice attempts to reintroduce the family and associations into political life, sufficient conditions and their sweetness into necessary ones.[v]

Classical political philosophy and Catholic doctrine remind us of not only the family but as well of the sufficient conditions of politics, human flourishing and civilization. Vatican II emphasized the role of the laity in propagating the faith—not through an ecclesial state or big government but through personal evangelization, as the last two popes underscored.

Solidarity, a Catholic form of Aristotle’s political friendship, responds to the quarrel between the ancients and the moderns. Because the Church believes in prudence and not categorical rulings in these matters, its teaching operates not primarily through government but rather through the faithful and civil institutions, as in the principle of subsidiarity that Gregg emphasizes. The best regime, like the City of God, cannot be realized, yet it remains a guide. Does this approach have dangers, as Rose contends? Yes, all political ideas contain dangers.

To clarify, the best American political expression of political friendship can be found in Lincoln’s Gettysburg Address, which explains the unity the American founders sought over the generations (“Four score and seven”) in a belief in “the proposition that all men are created equal.” Lincoln fused together Lockean equality and the biblical creation of man in God’s image as the meaning of America. What all men everywhere had in common, in either the philosophic or the biblical account, gave this country a unique and just identity.[vi]

Such a defense of political community, which includes its perpetuation, requires social justice as part of the common good.  A country worth saving is a loveable country. Or, as a sign at a gun show read, “Always love your country. Never trust the government.” That is social justice.

Father Emil Kapaun celebrating Mass using the hood of a Jeep as his altar, Oct 7, 1950.

 In a moving White House ceremony Thursday President Obama posthumously awarded Fr. Emil Kapaun, a Catholic priest, the Congressional Medal of Honor for the extraordinary care he gave his fellow soldiers during the Korean War, often at the risk of his own life. Army chaplain Kapaun died in a North Korean prisoner of war camp, after keeping his comrades’ spirits up.

One example of Fr. Kapaun’s nerve:

 [A]s Father Kapaun was being led away, he saw another American — wounded, unable to walk, laying in a ditch, defenseless.  An enemy soldier was standing over him, rifle aimed at his head, ready to shoot.  And Father Kapaun marched over and pushed the enemy soldier aside.  And then as the soldier watched, stunned, Father Kapaun carried that wounded American away.

In the camp, the priest administered sacraments, foraged at night for food, and encouraged the Americans to live. For his extraordinary spiritual devotion the Catholic Church has declared him “a servant of God.”

In addition to interesting political asides, the occasion illustrates the contemporary ordeal of religious liberty. Obama had his political motives for honoring a Catholic priest. And of course he couldn’t resist spotlighting himself: “Now, I obviously never met Father Kapaun.  But I have a sense of the man he was, because in his story I see reflections of my own grandparents and their values, the people who helped to raise me.  Emil and my grandfather were both born in Kansas about the same time….” (May the ceremony discomfort the North Korean despots as they suck on their kimchi.)

Moreover, while some media took note of Fr. Kapaun being a Catholic priest—see for example the Washington Post lengthy account of his heroism and the grateful veterans who pressed the case for the Medal–others slight that fact, as in Brian Williams’ account for NBC Nightly News.  In the NBC reportage, a casual viewer could readily overlook that it was a Catholic priest who was being recognized.

All Americans should be grateful that President Obama, whatever his motives, honored Fr. Kapaun. For one thing, his noble example vindicates the case of the Catholic Church against Obamacare’s HHS Mandate. The Church believes the bureaucratic requirement for contraception, sterilization, and, ultimately, abortion coverage in health insurance provided by Catholic employers, including parishes and dioceses, violates religious freedom by subsidizing conduct that violates Church teaching. Against this view, the bureaucratic imperative demands uniformity among employers, equal treatment in the name of justice.

The example of Fr. Kapaun upbraids Obama’s bureaucracy. It would simply transform Fr. Kapaun into a non-person to separate his heroic deeds (and in particular his struggle to administer sacraments in the POW camp) from his priesthood. He risked his life, defying murderous guards, because he knew his physical existence was only in service of a higher duty, love of the ever-living God. Finally, he prayed for the captors who led him off to death.

Another person could have hoarded food for himself and attempted to transcend the hell about him, by retreating into a solipsism, in an effort to survive. For some, religious conscience might be that narrow and private a matter—but not for this Catholic priest, nor for many other Americans who want to exercise their religious freedoms. We honor Fr. Kapaun even more than the President did, if we realize that his fight in Korea illustrates our contemporary struggle to preserve religious liberty.

As Secretary of Labor, Perez would have full discretion to regulate the hiring practices of virtually all employers who have federal contracts. This means companies as large as Lockheed Martin and as small as a Denver cheese maker—which are in every congressional district in the country.  Note the prominent businesses among the top 200 contractors of well over 141,000, divvying up over $533 billion in federal contracts.[ii] The struggle over the Perez nomination is not only about how civil rights enforcement is to proceed but about our general attitude toward bureaucratic government. Should the laudable goal of civil rights be enforced by a despotic bureaucracy?

It is becoming distressingly clear that Perez would apply the Chicago-style politics of President Obama to not only the regulatory but the social agenda as well. Perez would achieve these radical aims through the obscure Office of Federal Contract Compliance and Programs (OFCCP), headed by a deputy assistant secretary-level Director who does not require Senate confirmation. [iii] The new Secretary of Labor will shape policy directly, as the OFCCP as of November 2009 now reports directly to his Office.

Unfortunately, we already know what a willful OFCCP can do. In a July 1996 article for the American Spectator, “Here Comes the Goon Squad,” James Bovard provided an appalling picture of how a small federal agency abuses its powers in order to “intimidate and browbeat businesses.” The OFCCP, he declares, “is now symbolic of the corruption and deception at the heart of affirmative action.” Compliance officers’ vices range from incompetence and illiteracy to dishonesty and deception about what the laws require. Their agenda is a socialist or redistributionist of corporate money to pay people for work they never did.

Moreover, recall that the “comparable worth” movement of the 1990s came out of OFCCP. Under this theory, entire professions (e.g., K-12 teaching) were said to be in need of equalization, in order to relieve discrimination against women.   How can then-Secretary of Labor Robert Reich (as have all Secretaries since), preach the need for better trained workers, while “OFCCP is turning high standards for workers into a very expensive liability for government contractors”?   

Bovard’s criticism is rooted in what has, unfortunately, become a staple for civil rights enforcement—disparate impact analysis. An employment practice in hiring, perhaps caused by a qualifications test or requirement, produces an employment profile which for whatever reason does not look right to the OFCCP. Unlike disparate treatment, there may not necessarily be evidence of any intended harm to that group—for example, malicious action by employment personnel, such as discarding applications from certain undesirable zip codes.

What often results from a settlement of a disparate impact-based charge are quotas, backpay, training, and restitution to a group for supposed injuries done to members of that group by an employer who failed to hire or promote members of that group. Merely having applied for a job might result in a windfall for the applicant. Arranged in an often undisclosed agreement, employers often make the economic calculation not to contest OFCCP; hence they might never admit wrongdoing. Securing such an agreement led to “fire-sale” settlements,  while the employer made cosmetic changes to accommodate the cranky agency.  Though “decertifying” an employer from receiving a federal contract is possible, such drastic action is rare. The Agency stumbled along with arbitrary and capricious practices,   having no effect on errant employers.

But in the Bush Administration Director Charles James used his lengthy tenure to train the OFCCP in a new attitude of “compliance assistance” together with focused, legally supportable enforcement, which rebuked the  earlier ethos of confrontation and lawless harassment.[iv] Perez will have the OFCCP replay the horror show Bovard depicts so well.

In Obama’s first term, we are already seeing some appalling changes. For one, working together with the Equal Employment Opportunity Commission, the OFCCP has issued Directive 306, which warns employers that excluding job applicants on the basis of a criminal conviction could be grounds for illegal discrimination—as the exclusion must be job-related.[v] “Hiring policies and practices that exclude workers with criminal records may run afoul of such laws, which prohibit intentional discrimination on the basis of race, national origin, or other protected bases, and policies or practices that have a disparate impact on these protected groups and cannot be justified as job related and consistent with business necessity” (emphasis added). Non-criminality cannot be a general employment requirement!

Not surprisingly, Perez’s record at Justice reveals him to be a fervent supporter of disparate impact analysis which aims in this direction. We can expect aggressive enforcement on behalf of protected groups under its responsibility. As gay rights groups have pressured the President for executive orders to protect their interests, OFCCP might well become the vehicle. After all, the OFCCP was created, not by Congress but by Executive Order 11246, issued by Lyndon Johnson and modified by other executive orders since. President Obama could at any moment issue an executive order adding GLBT’s to the protected groups.  While many employers already have progressive policies regarding hiring, what such an executive order would lead to in enforcement would be excuses to investigate a “hostile atmosphere” which might retard hiring or promotion of gays.

To reiterate, protecting workers from illegal discrimination is a noble cause, but how it is done can sully the whole enterprise, as we see from the OFCCP. We need not shudder at how a second-tier Cabinet officer might well radicalize federal government policy toward unions, OSHA, immigrant workers, unemployment insurance, labor statistics, and Obamacare—all subjects of the Department of Labor. What Perez could do with OFCCP is quite enough.

While Schleifer succeeds admirably in providing “the classroom-friendly and useful” guide to ­Democracy in America he and the Press editor envisioned, it makes inevitable, to use a pseudo-Tocquevillean phrase, comparisons between the Mansfield edition and Schleifer’s own translation, edited by Eduardo Nolla and published in 2010 in a splendid four-volume bilingual set, by Liberty Fund.[iii] Both are indispensable for scholarship. We need to compare the translations as well as their interpretations, as Mansfield has written not only his own 70-page Introduction (co-authored with the late Delba Winthrop) but as well his insightful Tocqueville: A Very Short Introduction, which comments on all his works. In other words, Mansfield seems to have provided his own guides to the book that Schleifer provides a “Companion” for. And Schleifer provides his own fine translation as well! Given that each contribution has merit, what particular virtues does each offer?

Let us first note the scope of Schleifer’s Companion. As might be expected of the author of The Making of Tocqueville’s Democracy in America, he begins by describing the genesis of the classic, with sections such as “How Was He Able to Write Such a Brilliant Book?” and “What Were the Sources of Tocqueville’s Book?” After these first 50 pages, the next 100 survey Tocqueville’s  major themes, such as equality, liberty, and various democratic and American issues, including centralization, associations, religion, economics, “intellectual creativity,” race, and American exceptionalism. He concludes with two brief sections: how Americans of divergent political views have read Tocqueville and a glossary and a guide to using the Companion for further study of key parts of the Mansfield-Winthrop edition of Democracy in America.

We all know Tocqueville’s astonishing ability to get Americans to recognize themselves in their love of liberty, their ambition, their laziness, their insistence on equality, their sneering at authority, their fear of offending, their Puritan origins, and their commercial obsession. Oddly, Schleifer initially declares “that there is no single correct way to read or interpret Tocqueville’s master work” (5). But it is not merely that the author may have been inconsistent or simply changed his mind, though Schleifer is careful to distinguish between views presented in 1835 (Volume I) or 1840 (Volume II). He notes that Tocqueville planned to write chapters on “democracy and the moral sciences, on education, on George Washington, on government support for learned academies”—which he dropped (46). No, “Complexity and subtlety are the hallmarks of the message of Democracy in America” (133).

Schleifer also correctly observes that “he consistently assumed at least a tension, if not an outright contradiction, between equality and liberty” and that “perhaps his central concern was how to preserve freedom in the age of equality” (51). Though Tocqueville never precisely defines liberty (or equality), “liberty without liberties was empty of meaning” (66). Schleifer appears to conclude that Tocqueville was like a Socrates: “difficult to capture,” for “the true strength of his book … rests with the questions he raises and the dilemmas he explores with his readers” (170). In this sense Tocqueville is above all “a moralist,” that is, a teacher of how “to nurture the human spirit and enhance human dignity” (172). The open-minded Schleifer lures a modern cynical reader, say an undergraduate, into devotion of “a moralist.” He builds to this conclusion through a model of the meticulous, cautious craft of an intellectual historian.

But whether we are naïve sophomores or doddering seniors in reading Tocqueville, will this approach yield us the depths that Schleifer spies? In their dense and difficult Introduction, Mansfield and Winthrop begin with the bold claim that “Democracy in America is at once the best book ever written on democracy and the best book ever written on America.” A lover of “greatness,” its aristocratic author was both a statesman and a writer, “always unusually detached for a politician, and unusually engaged for a philosopher.” The same “restiveness” Tocqueville saw in democracies, he displayed in his own proud soul. The Mansfield-Winthrop Tocqueville lives with philosophers, first Pascal, then Montesquieu, but above all Rousseau, in skepticism, moderation, and radical will respectively. This is a Tocqueville who takes away the breath from even the most marveling and serious readers, taxing their ability and shaming their intellects. Some “Introduction”!

A prime example of the radicalism of this reading of Tocqueville is the explicit assertion that this foreigner surpassed the founders in understanding America—and implicitly as well Abraham Lincoln and the Lockean social contract of natural rights. The Introduction has much to say about Tocqueville making extreme claims (about the importance of associations to democracy) to counter other exaggerations (about “individualism”) and many other intriguing themes, but let’s stick to this political assertion. The most thoughtful and ardent challenger of Tocqueville, and hence of Mansfield’s praise of him, is Thomas G. West, in an essay “Misunderstanding the American Founding.”[iv] Because Tocqueville never mentions the Declaration of Independence in his entire book, he necessarily distorts American political history and our self-understanding of who we are. This forms the core of several other criticisms of Tocqueville and of Mansfield. West takes on another eminent Tocqueville scholar, Paul Rahe, in a 2009 debate at the Heritage Foundation. West contends that,

It really does not matter whether, as Rahe argues, Tocqueville tacitly agreed with the natural rights teaching but concealed it from his French audience for pedagogical purposes or whether, as I suspect, Tocqueville followed his mentor Rousseau in rejecting the idea of natural law in the sense that Locke and the Founders understood it. Either way, Tocqueville does not tell us what America really was.[v]

For West, despite Tocqueville’s “unquestionably brilliant” book, America at its best and America today require the natural rights-social contract teaching of the founders.

In his Very Short Introduction, Mansfield addresses at various points the issue of Tocqueville’s omission of the Declaration. First, he contends that Tocqueville “deals with [“the old liberalism” of Locke and the Declaration] by ignoring it” (4, cf. 31). This is the strategy of his “new liberalism in which freedom is the friend of religion and infused with pride as well as impelled by self-interest” (4). One might argue to the contrary that the Declaration could also encompass those points of such a “new liberalism,” but Mansfield also goes on to assert that the Declaration made slavery “more difficult to abolish because the whites do not see the blacks to be fully human” (44). But if this were so why would the pro-slavery John C. Calhoun and Alexander Stephens denounce the Declaration for its endorsement of human equality? Consider as well how Roger Taney changed from his days as an attorney defending the Declaration as a pro-universal freedom document in the Gruber trial, to his authorship of the Dred Scott opinion.[vi] West has forced Mansfield into making a shocking claim.

The Companion could have raised some of these issues without compromising its objective. Indeed, its effectiveness might have been enhanced. Consider just this wonderful note from the Nolla-Schleifer edition, concerning Tocqueville’s attempted seduction of Robert Fulton’s daughter. “Now, I happened one day to allow myself to say to her while laughing that she was worthy to be a French woman. Immediately her gaze became severe…. Do not think that what offended her so much was to be flirtatious; … it was to be not completely American” (n., 1086). Might this and other examples of “irritable patriotism” be attributed to the American love of the Declaration of Independence, which he had witnessed at a Fourth of July parade (letter to Chabrol, July 16 1831)? I would also have emphasized even more than Schleifer, Tocqueville’s anticipation of bureaucracy.

Finally, it should be reiterated that Schleifer’s translation of Democracy in America, with its notes and accompanying French text, is a blessing for all readers of Tocqueville.  Among many other virtues, his text’s partisans would hail as a major point his use of “liberty” versus Mansfield’s “freedom.” Here I favor Mansfield, as the reader should be aware that Tocqueville’s Rousseauan “freedom” differs from the understanding of ancient political philosophy as well as the liberty defended in The Federalist. Mansfield’s translation reflects, or perhaps even exaggerates, any ambiguity found in the French. This led at least one frustrated admirer to assign the Mansfield in his graduate courses, and the often creative but readable George Lawrence translation for his undergraduates. One mistranslation I spotted in Mansfield was “hatchet” for hatchette, when “ax” is needed, speaking of a pioneer, who “plunges into the wilderness of the New World with his Bible, a hatchet, and newspapers” (290).[vii] One clears forests with an ax, not a hatchet.

One might also profitably compare the translations’ first lines to understand their depth. Mansfield, “Among the new objects that attracted my attention during my stay in the United States, none struck my eye [mes regards] more vividly than the equality of conditions;” Schleifer, “… none struck me more vividly than the equality of conditions.” Later, Schleifer translates “When I arrived in the United States, it was the religious aspect of the country that first struck my eyes [mes regards]” (479). Mansfield, consistent, again has “struck my eye” (282). With Mansfield one can more quickly make the comparison with Tocqueville’s initial presentation of America—is it our equality or our religion that impresses him the most? Finally, another virtue of Mansfield is his correction of Tocqueville’s mistranslation of a passage in Federalist 51. He spots Tocqueville’s substitution of “tyranny of the majority” (la tyrannie des majorites) for “popular form of government” (compare Schleifer, 426, with Mansfield, 249).[viii]

Astonishingly, since 2000 five English translations of Democracy in America have appeared. Of the other three, the Library of America edition, translated by Arthur Goldhammer, is elegant, though it lacks extensive notes or an introduction.  Unfortunately, the edition most likely to be adopted for classrooms, as it is the cheapest, has some serious flaws. Isaac Kramnick’s introduction to the Penguin Classics edition makes the erroneous claim that conservative policy institutes, including the Claremont Institute, where I have worked, have been parading Tocqueville about as a “neoconservative superhero.” Given the criticism of Tocqueville by the Institute, following the work of West and Jaffa, this accusation is wildly wrong. More seriously, the translation, by Gerald Bevan, betrays a political correctness that Tocqueville would have scorned, for example, translating “sauvage” as “primitive people”—he means savages! Unfortunately, the fine edition of Stephen Grant and Sanford Kessler is heavily abridged—omitting, for example, the Russia-America comparison at the end of Volume I. So, use either the Mansfield or the Schleifer-Nolla, but study both.

The editor of the New York Times Book Review, Tanenhaus argues that “the intellectually fierce South Carolinian John C. Calhoun” had a decisive, enduring influence on the intellectual formation of the modern right.

This is not to say conservatives today share Calhoun’s ideas about race. It is to say instead that the Calhoun revival, based on his complex theories of constitutional democracy, became the justification for conservative politicians to resist, ignore, or even overturn the will of the electoral majority.

This is the politics of nullification, the doctrine, nearly as old as the republic itself, which holds that the states, singly or in concert, can defy federal actions by declaring them invalid or simply ignoring them. We hear the echoes of nullification in the venting of anti-government passions and also in campaigns to “starve government,” curtail voter registration, repeal legislation, delegitimize presidents.

Thus the Republican Party is “ceasing to be a national party” and rests on a shrinking base of white men (and married white women).

But as the GOP continued remolding itself into a Southern party … it resorted to an overtly nullifying politics …. The war on government … had become a metaphor for the broader “culture wars,” one reason that the GOP’s dwindling base is now at odds with the “absolute majority” on issues like gun control and same-sex marriage.

To promote closer attention to the core argument, I exclude here Tanenhaus’s more inflammatory claims that Republican policy embraces a mixture of plausible policy differences such as use of the Senate filibuster and wacko “Aryan nation militias.” Throughout the article he engages in innuendo, e.g.—“It is not a coincidence that the resurgence of nullification is happening while our first African American president is in office.”

Tanenhaus implies that the Republicans have seceded from America itself. For him the Tea Party, among other conservatives, is not about the Declaration of Independence and its constitutionalism but rather about what he derides as the “politics of frustration and rage”—as if the disputed election of 2000 did not elicit such passions on both sides.[i]  The right’s problem cannot be resolved by policy debates but rather by psychological analysis. Tanenhaus is as ruthless (and clever) as FDR was in attempting to isolate and demonize Republicans as Tories and fascists.

In a justifiably indignant response, “Sam’s Smear,” Jonah Goldberg and Ramesh Ponnuru contend that the essay “makes sense only as an attempt to identify racism as the core of conservatism.”

They convincingly show that Tanenhaus has “wildly exaggerated” Calhoun’s influence on the early (and certainly the present) National Review, the journal they write for and then proceed to confute his particular charges.[ii]

In an exasperated search for the origins of the Calhoun calumny the NR account lights on none other than the “brilliant” political theorist Harry V. Jaffa.

We suspect that an intramural disagreement among conservatives has confused Tanenhaus about Calhoun’s influence. For many years a group of conservative scholars led by the brilliant Harry Jaffa have contended that the Constitution must be read in light of the moral principles of the Declaration of Independence. It is a powerful argument even if not all of the implications Jaffa and his students draw from it are convincing. In his more recent and polemical works, unfortunately, Jaffa has often claimed that anyone who disagrees with any aspect of his theory is thereby taking Calhoun’s premises on board. If you didn’t believe in natural law, you were a Calhounist….

While Tanenhaus does not mention Jaffa, he seems to have exaggerated Jaffa’s insults. If that is what happened, one irony is that Jaffa’s views have largely prevailed among mainstream conservative intellectuals, who are far more Lincolnian in their thinking about the Declaration than they were before he began writing…. In short, Jaffa issued an incidental and gratuitous smear against rival conservatives, and Tanenhaus has made the incidental central and the gratuitous fundamental in constructing a political smear against all conservatives.

That Jaffa, always causing mischief, even to the extent of the self-indulgent “gratuitous smear”!  Even supplying the enemy with ammunition to be shot back at allies—as the odious Sidney Blumenthal did with Jaffa in his attack on Irving Kristol.  Of course the notion that “Jaffa’s views have largely prevailed among mainstream conservative intellectuals” wildly exaggerates his influence.  The actual attitude toward him is more accurately reflected in this Hudson Institute panel honoring Harvey Mansfield—note the stir caused by Ross Douthat’s story involving Jaffa and Mansfield.

But Jaffa is no amoral arms dealer, merely out to make a buck in his own cause. His assaults on leading conservatives (e.g., Justice Scalia) are intended to show how they share the fundamental premises of their liberal opponents. The reductio ad Calhounum applies to left and right alike. For Jaffa, Calhounism is the “original sin” of both contemporary conservatism and liberalism, just as Rousseau informs both.[iii]

Jaffa’s Calhoun is the evil genius who sought to undermine the central teaching of the American founding, the human equality that leads to the social compact. And the social contract leads to limited government. Unlike Jefferson, who thought that states might better protect natural rights than the national government, Calhoun banished natural rights from politics.  He did this under the guise of his “concurrent majority,” which he promoted as a means of guaranteeing consensus in politics and moderating extremes. And with the end of natural rights, there is no right to revolution and therewith no limited government. It is fitting that a political philosophy which tolerates slavery would point to unlimited government. Both Tanenhaus and his thoughtful NR critics were too hasty to jump to race as the most egregious symptom of contemporary Calhounism, when in fact it is unlimited government. [iv] This follows from Calhoun’s notion of unlimited sovereignty, which in turn followed from his assumption of historical development, culminating in a superior race. “In Calhoun’s worldview,” Jaffa succinctly states, “right is founded on might….”

Progressive political science affirmed Calhoun’s view of the Union and of race, with of course no regrets for the loss of natural rights and the limited government it required. Charles Merriam maintained, “The events of the Civil War firmly established the fact that the one and indivisible sovereignty belongs to the nation, or the Union as a whole. Calhoun’s idea of the nature of sovereignty was accepted, but it was applied in a manner wholly different from what he had expected or intended.”[v]  If war is simply chaos requiring naked force to subdue, Lincoln’s Gettysburg Address and Second Inaugural make no sense whatsoever. Moreover, Progressivism affirms racialist nationalism:

It would, of course, be a gross exaggeration to say that all those who maintained the supremacy of the Union [like Lincoln!] repudiated the social-contract theory, but it is necessary to recognize the fact that the nation was something different in the popular mind and in the philosophic mind from ‘the people’ of earlier days. Nation carried with it the idea of an ethnic and geographic unity, constituted without the consent of anyone in particular; ‘people’ was considered to be formed by a contract between certain individuals.

In Calhoun’s view, according to Merriam, “liberty is not the natural right of all men, but only the reward of the races or individuals properly qualified for its possession.” In this, multiculturalism is as much a denial of natural rights liberties as the racial superiority touted by most Progressives.  Both lead to unlimited government.

If we take the natural rights perspective urged by Harry Jaffa, we see that the American “original sin” is not essentially about race but rather about injustice—the tyrannical power of one over another. Slavery, with the British empire, was the most glaring example of that fundamental injustice. And today other instances now flourish, again in the form of Lincoln’s definition of slavery: “You work, I eat.”

Lloyd argues as Americans should, using political history and political philosophy to understand contemporary political life. This is a wise “recurrence to the fundamental principles” that the founders spoke of. Apparently he wants to say, with Jefferson, “We [friends of liberty and republican government] are all federalists, we are all antifederalists.”

When he and I were students, Martin Diamond recounted the Isadora Duncan fallacy: Uniting her dancer’s body with George Bernard Shaw’s brains would produce the perfect child. He responded that the child might have his body and her brains. In calling for the rightful place of the Antifederalist as part of our legacy of constitutionalism, we need to keep in mind this story.

In a succinct survey of Antifederalist scholarship, Lloyd explains why each leading school fails to help us on either the history or our contemporary struggle. He notes that the Antifederalists were right to suspect uniformity of legislation (see Tocqueville’s early fears of the logic of bureaucracy) and advocate instead federalism; to reject a fawning court around an “Imperial President” and insist on a Bill of Rights; and, perhaps most important for Lloyd, to oppose delegated government or bureaucracy in favor of trust in the people. Thus, “delegated powers can easily become delegated government”—as in the Administrative State.

More problematically, Lloyd maintains that the collapse of Congress and the undoing of the separation of powers resulted from a mounting assault on it from The Federalist through Woodrow Wilson and Franklin Roosevelt. When his teacher Willmoore Kendall wrote the penetrating essay, “The Two Majorities,” it made sense to describe the Congress (especially the House) as the “red” branch of government, the executive as the “blue.”  While some of that pattern abides, overall the Congress is collectively red—it has become the core of the Administrative State, as its primary post-Great Society function has been redistribution of resources and micromanaging the bureaucracy it has created. As John Marini has shown, the Progressives undermined Congress by assailing politics as the rule of party bosses and advocating their replacement by scientific experts. Progressive political science attacked Madison’s warnings about political power generally and promoted contempt of an individual rights-based politics. With his redefinition of rights, backed up by a more powerful centralized executive branch, FDR would complete what Wilson started. Thus, contrary to Lloyd’s reading of the American political tradition, Progressives’ attack on Congress actually opposes that of The Federalist. So where do we turn for the revival of republican virtue that Lloyd finds in the Antifederalists?

Antifederalist warnings about keeping power from being abused “culminated in their insistence on a Bill of Rights which they saw as the ultimate ‘auxiliary precaution’” and example of Madisonian “inventions of prudence” (from Federalist  51). But don’t we need, at our present juncture, a full-blown Bill of Rights—what the Declaration of Independence was to the Constitution? That is, rather than a Bill of Rights that is a kind of afterthought to the original Constitution—superfluous and even dangerous in Hamilton’s view—don’t we need a reaffirmation of the original meaning of a Bill of Rights, as in the Declaration or, for example, the preface and Article I of the Massachusetts Constitution of 1780? From such a document we can fully appreciate the meaning of citizenship in a republic. Republicanism requires citizen qualities even more than institutional ones.

At any rate, institutions cannot substitute for virtue, though they can of course encourage the qualities needed for self-government.  Institutions could give great men and women an opportunity to display their virtues. America’s battle is not one “between ancients and moderns…. It is a new world battle over how best to preserve liberty.” But the weapons wielded in the New World correspond if not identify with old world disputes. Tocqueville maintains that “The idea of rights is nothing other than the idea of virtue introduced into the political world.”  For him the “modern” idea of rights can be another mode of the “ancient” quality of virtue, the only political idea “more beautiful.”   

In the same way, “ancients and moderns” properly understood is no more an absolute divide than Federalist and Antifederalist, as two discrete parts or phases of the American founding. These are two emphases in thinking and acting about fundamental questions, ultimately controlled by prudence, taking into account the assumptions and experiences of the times.  Likewise, happiness remains the object of human life, in Aristotle and in Locke, and while it may appear different initially in “ancient” and “modern” political philosophy, in essence it remains the same.[i]  Of course, in western civilization, once the notion of virtue is introduced, it cannot be fully understood without reference to Scripture.  Hence Tocqueville emphasized the crucial place of the mores, that peculiar combination of enlightenment and religion in the making of America.

Enhanced, fully flourished rights produce a republican citizenry. Of course the Declaration of Independence is the real Bill of Rights in the tradition of the English bills of rights. See the first two articles of the Massachusetts Constitution of 1780, drafted by John Adams and a model for State Constitutions throughout the 19^th century.

Art. I.—All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.

II.—It is the right as well as the duty of all men in society, publicly, and at stated seasons, to worship the SUPREME BEING, the great creator and preserver of the universe….

Subsequently, Article XVIII calls for “A frequent recurrence to the fundamental principles of the constitution, and a constant adherence to those of piety, justice, moderation, temperance, industry, and frugality” as “absolutely necessary to preserve the advantages of liberty, and to maintain a free government.”   For the republican, essential duties follow from men’s natural rights—as the Declaration makes clear in requiring overthrow of a tyrannical government.

But we don’t need to rely on the State constitutions to appreciate our Federal and Antifederal roots. Just note Madison in The Federalist:

#14: In praising the State constitutions (which of course he’s trying to supersede) he refers to the “fellow-citizens” of America as “the mutual guardians of their mutual happiness.”

#55: “As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form.”

#57: “The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society, and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.”

Such republican rhetoric and concepts are a part of general teaching of free government.  “Inventions of prudence” means that prudence needs to keep re-inventing itself, innovating, as well as preserving. It goes well beyond structures such as separation of powers and federalism.

The late John Wettergreen clarified the issue in a rejoinder to an eminent historian of the founding period: “Republicanism is a chicken word for socialism.”  (I’m told Wettergreen actually used a stronger phrase originally.) After all, hadn’t Gordon Wood declared republicanism to be “essentially anti-capitalistic,” in contrasting the self-seeking individualism of the Constitution with the communitarian unity of the Declaration?[ii] All the classical language of liberty can be twisted into their opposites unless the abiding and underlying—nature—is the basis of argument that resists willfulness.

President Obama, when he speaks of our obligations as citizens, as in his Second Inaugural and 2012 campaign speeches, and Gordon Wood, when he invokes republicanism, are reading from the same anti-liberty script that establishes a new ruling class or oligarchy of intellectuals and administrators, a caricature of the established church and privileging of Harvard in the Massachusetts Constitution.  When the Progressives speak of citizens, republics, or patriotism, they mean the end of individual rights. Contrast Madison’s analysis that faction could be eliminated by destroying liberty or producing a uniformity of opinions, passions, and interests. (Of course moments of patriotism do produce a rough, often essential uniformity.) Progressive ersatz republicanism can even co-opt gun rights. Cass Sunstein in his Second Bill of Rights advocates a republican interpretation of the Second Amendment which turns out to be not a protection of the right to bear arms but a seduction to accept greater state regulation of everything.

The Antifederalist goal of a Bill of Rights might find itself corrupted into a Rooseveltian “Second Bill of Rights”—unless the natural rights basis of these rights is articulated and defended, guiding us back to the original meaning of republican government. In this struggle let us be inspirited by a major Antifederalist:  “The fickle and ardent in any community are the proper tools for establishing despotic government. But it is deliberate and thinking men who must establish and secure government on free principles.”[iii] It could scarcely be said any better. Defenders of liberty are indebted to Gordon Lloyd for his “recurrence” to the Antifederalist fountains of natural rights statesmanship.

I once attended an annual meeting of the American Political Science Association in Atlanta in the 1980s, at which Jimmy Carter was wildly applauded. And there are more conservatives in Hollywood than among political scientists. At least Hollywood split their tickets between Carter and Lincoln, while denying top prize to the Marxist musical. (I have already reviewed Lincoln for this site.)

Zero Dark Thirty and certainly its director, Kathryn Bigelow, deserved better, but politics got in the way. Their competition was not only singing communists but George Bush and Dick Cheney’s Iraq policies and bipartisan opposition to the alleged praise of torture in the film. Others wrongly feared the movie would be an Obama testimonial.  According to a Washington Post front-page analysis on Academy Awards morning, “[N]o other film has been mangled by the Washington spin machine as much as ‘Zero Dark Thirty.’”  In this view, part of the hit on ZDT is evidenced by this absurdity: “The Venn diagram of Hollywood and Washington achieved perfect consonance on Jan. 13, when former president and surrogate extraordinaire Bill Clinton introduced “Lincoln” at the Golden Globes ceremony.” It is not a good sign that “On Saturday, newly minted Secretary of State John Kerry even tweeted good luck to ‘Argo’ on Oscar night.”

But Zero Dark Thirty is no war propaganda movie. Bigelow’s two great war movies actually concern themselves with individual morality within a bureaucracy. Her 2010 Best Picture and Best Director-winner, The Hurt Locker, portrays the tensions within and around a U.S. Army bomb disposal team in Iraq. That movie and the hunt to get bin Laden have in common a paean to those who fulfill their duty, in the face of personal and professional danger. Those who don’t see the real dangers are destroyed either by their enemies’ bombs or their colleagues’ personnel reports. And the blindest are those in one’s own bureaucracy, whether in the field in Iraq or in the CIA.

The Hurt Locker’s Sgt. William James, the bomb-disposal unit leader, defies rules and common sense, risks his team’s safety, and displays extraordinary courage that goes beyond recklessness. Yet, at home, the man who knows which bomb wires to cut, in which order, is stymied by a supermarket wall full of offerings, when his wife asks him to pick up a box of cereal for their son. James is no better suited for peace than is Coriolanus. He is a contrast with his namesake pragmatic psychologist, behaving like an Achilles and certainly rejecting any “moral equivalent of war.” In this we are reminded of the dark end of Stephen Spielberg’s anti-terrorist drama Munich.

Whether Zero Dark Thirty’s Maya can find peace is also problematic. Best Actress Nominee Jessica Chastain showed steel beneath delicacy in Ralph Fiennes’s Coriolanus, where she played Mrs. Coriolanus—Virgilia, not Volumnia. Those qualities recur in her CIA analyst Maya, a dauntless Inspector Javert for bin Laden. Like Javert she rises through the bureaucracy but always keeps her eye on her goal. Maya succeeds in catching the old planner of 9/11 through clever detective work and the intelligent use of high-tech spying—not the sort of profiling and abstract analysis that have so often failed the CIA over the years. (How information received from torture assisted in the bin Laden killing was made clear in this panel with former CIA officials.)  Her struggle is more with her skeptical colleagues than with deadly assailants. Whether in the field or at Langley Headquarters, she meets with opposition. But once she persuades the higher-ups, and others, taking confidence in her, cooperate, she triumphs.

In her campaign, Maya encounters none other than Tony Soprano, the Mafia boss. James Gandolfini plays CIA Director Leon Panetta. The best-known actor in the film was downplayed in the preliminary billing, in order for him to make his appearance all the more striking. In showing how this head of the bureaucracy doesn’t know his people, when he approaches her at lunch to ask her about her bin Laden hunt, Soprano-Panetta casually asks Mara how the cafeteria food is. He doesn’t know his bureaucracy. (High-ranking officials in Washington occasionally take meals in the agency cafeteria to show that they are all part of one team.)

Is the choice of Tony Soprano here intended to put the torture controversy into perspective? Is what was formerly called “the global war against terror” actually a showdown between a Mafia-like murderous bureaucracy and a mysterious, tribal conspiracy of religious fanatics?

There is moreover a bin Laden backstory to be kept in mind. Obama created a brief stir during his 2008 campaign when he declared he would intervene militarily in a country (meaning Pakistan) without its consent in order to combat terrorism. This certainly anticipates both his bin Laden mission as well as his drone policy. Before he became president, Obama may well have reverse-engineered what would be his greatest foreign policy triumph and an important element in his re-election, in order to ascertain what he would have to do to get bin Laden. (I have always believed Obama to be one of our most transparent politicians—he wrote two autobiographies telling people how he thinks about policies and people.) In that regard, might one consider that perhaps Obama positively enjoys killing people with drones, as much as he enjoys downing clay pigeons with his shotgun.

The real questions concerning torture here are these: Do Americans still hate the perpetrators of 9/11 enough to kill our enemies? Do we still remember 9/11? The movie seems to have its doubts, since it begins by replaying footage from 9/11 and other terrorist episodes. But the world outside of Hollywood is not ready for the moral equivalent of war (as the President himself acknowledged in his Nobel Peace Prize speech).

As egregious was Mrs. Obama’s appearance at the Oscars, at least it was not combined with a Best Movie award to Les Miserables. Victor Hugo was an avowed enemy of the Catholic Church, who nonetheless spent over 100 pages at the beginning of his novel developing the character of the priest who would convert Jean Valjean. While acknowledging the beauty of spiritual conversion, the movie makes conversion to revolution far more attractive, however. Will a future Paris (or Moscow) Commune succeed Javert with an evil bureaucracy of its own? At the movie’s end we half-expect to see Obama appearing in a cameo role, as the rebels now all alive once again, resurrected as it were, appear together on the barricades.

Does it come as a surprise that we have been living under a new Constitution anyway, a “Second Bill of Rights” that has devoured the original document? According to Harvard Law professor and former high-ranking Obama Administration official Cass Sunstein, it’s like discovering we’ve been speaking prose all our lives. In a recent op-ed Sunstein accurately observes that President Obama’s Second Inaugural (not to mention his major actions) faithfully follows Franklin Roosevelt, who first called for a “Second Bill of Rights” in his 1944 State of the Union Address.

A former University of Chicago law school colleague of Obama, Sunstein describes the 1944 Address as “the speech of the century” in his 2004 book, The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever.   FDR listed eight rights based on new, “self-evident” “economic truths”—most prominently “Necessitous men are not free men.” Through Supreme Court decisions and legislative action, a consensus has developed, such that in many ways “we live under Roosevelt’s Constitution whether we know it or not. The American Constitution has become, in crucial respects, his own.”  Not just history or legal analysis, this accessible book lays out the principles for Obama’s second term. Sunstein’s scholarly work and government service are together a remarkable example of theory being turned into practice, before our very eyes.

Throughout the book the challenge for Sunstein is to explain how Roosevelt’s New Deal can be reconciled with American exceptionalism—our stubborn adherence to individual rights and deluded belief in equality of opportunity, which he links to continuing discrimination against minorities. Our exceptionalism can be summarized as our historical aversion to socialism. He sees in the logic of the Second Bill of Rights an expansion of Americans’ notions of rights that they will come to accept and ultimately alter the meaning of America. Sunstein or Sunstein’s Roosevelt (and Obama) would refound America.

Only, as FDR did, by disguising individual rights as collective responsibilities can leftists get around this American stubbornness. “In a nutshell, the New Deal helped vindicate a simple idea: No one really opposes government intervention.”  For example, in his Commonwealth Club Address, on Progressive Government, Roosevelt declared that “The day of enlightened administration has come”—a line Sunstein does not note. Nor does he say that for FDR the limit on economic growth compels the rise of bureaucracy. FDR’s riveting campaign speeches, his ambitious presidential addresses, and of course his experimental policies culminate in his Second Bill of Rights:

We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. [Cf. “together, we” in Obama’s Inaugural.] “Necessitous men are not free men.” People who are hungry and out of a job are the stuff of which dictatorships are made.

In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all regardless of station, race, or creed.

Among these are:

• The right to a useful and remunerative job in the industries or shops or farms or mines of the Nation;
• The right to earn enough to provide adequate food and clothing and recreation;
• The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;
• The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;
• The right of every family to a decent home;
• The right to adequate medical care and the opportunity to achieve and enjoy good health;
• The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;
• The right to a good education.

All of these rights spell security. And after this war is won we must be prepared to move forward, in the implementation of these rights, to new goals of human happiness and well-being.

Of course these so-called rights are readily questioned and even ridiculed—a right to sufficient income enabling recreation? A good education? A few weeks ago Justice Thomas laughed at the argument that an attorney’s Ivy League law degree meant a defendant had enjoyed adequate legal representation. Only massive redistribution could begin to meet these requirements, which ultimately rest on a malleable psychological measure of “security.” We have enough to fear from the fear of insecurity itself. Sunstein scoffs arguments on this level:  “the fear of tyranny is jejune.” After all, the “New Deal might be described as an effort not to incorporate socialist thinking but to preserve capitalism by removing its harshest edges.”

And Sunstein cheerfully defends FDR’s revolution in an array of fascinating  arguments—reviving the Supreme Court social welfare opinions of the 1960’s and 1970’s (sadly stifled by Nixon’s appointees), creatively deepening the republicanism of the original Constitution and of Reconstruction, and expanding the meaning of “security”—with citizenship as a form of security (as in the immigration debates). And we need to look abroad to consider model Constitutions that contain full-throated “expressive rights” such as that of South Africa and various international accords, which, for example, recognize the rights of children.

In this sense, Sunstein argues, good constitutions are “countercultural,” taking us where we ought to go from where we are.  Rights must always be positive and require government, not simply oppose it. The Sunstein argument might go like this: For the defense of the founders’ negative right of property, police, courts, court houses, schools (including of course law schools to train the lawyers to argue cases), roads (so parties can keep at the court house) all reflect the need for government of some sort at some level. Immersed in thinking like this, one all too naturally blurts out thoughts like “You didn’t build that!” or that American exceptionalism isn’t all that exceptional.

We need to reply by revisiting his fundamental question about America’s rejection of socialism and his dismissal of tyranny as “jejune.” He takes neither individual rights nor the founders’ worries about tyranny seriously. To answer Sunstein, the founders did not include economic or social guarantees in the Declaration or Constitution because their commitment to individual natural rights required opposition to classes. James Madison’s definition of property, unrecognized by Sunstein: “as a man is said to have a right to his property, he may be equally said to have a property in his rights.” Sunstein even tries to create a collectivism out of republican principles in the Constitution, using the Second Amendment as an example: “Its central goal is to protect against an overbearing national government.”  The late John Adams Wettergreen smelled a republican rat and got historian Joyce Appleby to admit that “republican” in this sense (the sense of “citizen” for the French Revolutionaries) is “a chicken word for socialism.”

The heart of socialism is not collective ownership of the major means of production, but rather the insistence on the identity of each individual good with the common good. The politics of freedom means conflicts over the common good. Thus, a real Bill of Rights, such as Part I of the Massachusetts Constitution of 1780, contains not just basic individual freedoms but the separation of powers as well. To shake off any accretions, it also insists on kind of paleo-originalism:  “A frequent recurrence to the fundamental principles of the constitution.” Moreover, the governmental world is not the whole world, and the attempt to do so would produce tyranny. Hence Tocqueville carried out the founders’ logic and  emphasized civil associations as essential for freedom. In contrast, Sunstein’s bureaucratic proposals would squeeze out the charity in Christian charity as it diminishes religious freedom. (I have previously defended American constitutionalism against Sunstein’s aggressive regulatory regime.)

In this way, the creation of new rights erodes the older, fundamental ones. In a review of Sunstein’s republic.com  Edward Erler observes, “Sunstein concludes that the Internet is in need of regulation because free choice does not always produce genuine freedom. Nothing characterizes Sunstein’s concept of freedom more than Rousseau’s injunction that men must be forced to be free.” It follows that speech in a variety of forms may be regulated.

Finally, for a book this provocative, one must note a major omission in his thorough study of the text and nuances of the “Second Bill of Rights” address. How could Sunstein ignore the sixth from the last paragraph:

One of the great American industrialists of our day—a man who has rendered yeoman service to his country in this crisis-recently emphasized the grave dangers of “rightist reaction” in this Nation. All clear-thinking businessmen share his concern. Indeed, if such reaction should develop—if history were to repeat itself and we were to return to the so-called normalcy of the 1920’s—then it is certain that even though we shall have conquered our enemies on the battlefields abroad, we shall have yielded to the spirit of fascism here at home.

While Americans of all parties were dying abroad in defense of their country, Roosevelt equated Republicans of the 1920’s with fascists. FDR saw a single enemy on two fronts: fascists at home as well as fascists abroad. Suppressing this paragraph is a major act of intellectual dishonesty on the part of a scholar often praised for his openness to contrary thinking. Does the left require such thuggishness in order to prevail over American exceptionalism? Possibly not, but it is ever present, and it has never hurt them.

The speech’s sharp partisanship is immediately evident, though a conservative would have uttered many of its lines with pleasure (as with his 2004 Democratic convention speech). In this view, timidity, not excessive ambition, has undermined presidents in their second terms. What doesn’t destroy his second term will make him stronger.

Lincoln helps us understand the ambition that we’re dealing with. In his Perpetuation Address the young Lincoln, not even 29, warns his audience

Many great and good men sufficiently qualified for any task they should undertake, may ever be found, whose ambition would aspire to nothing beyond a seat in Congress, a gubernatorial or a presidential chair; but such belong not to the family of the lion, or the tribe of the eagle. What! Think you these places would satisfy an Alexander, a Caesar, or a Napoleon? Never! Towering genius disdains a beaten path. It seeks regions hitherto unexplored. It sees no distinction in adding story to story, upon the monuments of fame, erected to the memory of others. It denies that it is glory enough to serve under any chief. It scorns to tread in the footsteps of any predecessor, however illustrious. It thirsts and burns for distinction; and, if possible, it will have it, whether at the expense of emancipating slaves, or enslaving freemen.

Lincoln’s own ambition led him to restore the Constitution and the glory of George Washington—perpetuating the nation became his expression of “towering genius,” his source of fame.

Obama’s ambition is of a different sort, somewhat easier to execute than Lincoln’s. The object of his second term, and likely of his political career, is to do what eluded Franklin Roosevelt—to destroy the Republican Party and, more important, to delegitimize the conservative and libertarian beliefs and policies that it advanced. Obama’s address attacks the wellsprings of liberty and limited government in the political philosophy of the American founding.

Obama puts a personal twist on a patriotic tenet: “We recall that what binds this nation together is not the colors of our skin or the tenets of our faith or the origins of our names. What makes us exceptional—what makes us American—is our allegiance to an idea articulated in a declaration made more than two centuries ago….”  He then quotes the Declaration: “We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness.” Obama projects himself, with his mixture of races and faiths and his atypical name, as the model of the American creed. (By contrast, Lincoln had noted the Germans and French in his audience who would be included in his reading of the Declaration.)  To attack his view of the Declaration is to attack him personally—not a winning strategy. Obama is interested in perpetuation—how do we “continue a never-ending journey to bridge the meaning of those words with the realities of our time.” Throughout the address he relates the word with the deeds, as in the beginning of the Gospel of John, though he does not go as far as Roosevelt in his First Inaugural, comparing himself with Jesus driving out the moneychangers.

The major enemy is one whom his feckless liberal predecessor, Bill “the era of big government is over” Clinton, deferred to on too many issues—economic, social, and military. In his First Inaugural Ronald Reagan drew a line that even Obama had to acknowledge:

In this present crisis, government is not the solution to our problem; government is the problem. From time to time, we have been tempted to believe that society has become too complex to be managed by self-rule, that government by an elite group is superior to government for, by, and of the people. But if no one among us is capable of governing himself, then who among us has the capacity to govern someone else?

Reagan’s democratic, constitutional government understanding of the Declaration is completely opposed to that of the Progressives and liberals who had transformed its meaning throughout the twentieth century.

Proceeding to attack, Obama draws from the classics of Democratic Party rhetoric, including Woodrow Wilson’s 1912 campaign address “What is Progress?” (an attack on the founding) and Franklin Roosevelt’s campaign and inaugural speeches. (I do not deny he has other leftist sources for his learning, but these suffice.) He is also well aware that the most effective partisan speeches are those that appear nonpartisan, as we see in Thomas Jefferson’s First Inaugural—of course we agree on the first principles of our government! Of course we may continue to disagree on some things. Though he declines to equate conservative Republicans with fascists (as FDR did in his 1944 State of the Union Address), he will use the bulk of his speech to imply they are to be as disdained as the traitorous “Tories” FDR ridiculed in 1932. Otherwise, we cannot continually make “ourselves anew.”

Three-fourths of the speech of about 2100 words is given to a series of false choices—in paragraphs beginning with “Together, we” or “We, the people.” Obama even revived his most notorious campaign bluntness of “you didn’t build that:” “No single person can … build the roads and networks and research labs that will bring new jobs and businesses to our shores. Now, more than ever, we must do these things together, as one nation and one people.”

The purpose of these assertions is not to make arguments but to read dissidents out of the country, out of the company of respectable people—much as the Tories fled, the Federalists crumbled, the slaveholding regime was destroyed, and the moneychangers driven from the temple. Each time the victors revived the Declaration of Independence, or a compelling interpretation of it, to justify a new political arrangement. Obama sternly declares the enemies of the people to be out of touch if not downright unpatriotic—an elite party, discriminating in favor of a tiny portion of wealthy, favoring superstition over science, obsessed with guns, opposing women’s rights and health, and of course racist, bigoted, and behind the times. The rights the founders gave us imposed a duty to fight these latter-day traitors.

With each critical election the new ruling party prevailed for at least two generations. Obama proposes once again to bend the arc of history. “That is our generation’s task—to make these words, these rights, these values of life and liberty and the pursuit of happiness real for every American.”  The “values” come from our individual (and communal) wills; they are made up by us. The task is without end—in any sense. We live in a postmodern universe.

We must act, knowing that our work will be imperfect. We must act, knowing that today’s victories will be only partial and that it will be up to those who stand here in four years and 40 years and 400 years hence to advance the timeless spirit once conferred to us in a spare Philadelphia hall.

The Declaration is now in “a spare Philadelphia hall!” History advances. But Obama needs to pull a punch at the end of his speech, when he compares as “not so different” the oath he takes as President with the oaths a soldier or immigrant takes—what is this Constitution that he swears to “preserve, protect and defend”? Like Lincoln, he will act against latter-day errant interpretations of the Constitution by a reactionary Supreme Court. Unlike Lincoln, for whom the Constitution meant self-government, limits on power, Obama will heed some “call of history.” He will be the prophet of that call.

At least one major political voice who views the Declaration differently was on the stage with Obama. He, more than any other national officeholder, has stood for a limited-government understanding of the Declaration together with the Constitution. Natural rights require that the principle of consent limits the powers of government. Supreme Court Justice Clarence Thomas, first appointed to the federal government by Reagan, and President Obama, together on Martin Luther King Day—a moving sight for those who believe that liberty’s greatest struggles are still ahead.

The essays point to a problem, only alluded to, of governing a regime of individual rights. How does legitimate government arise? From the account we see of the Revolution and the founding, the Declaration would be, as Lincoln put it, a “merely revolutionary document”—not an “abstract truth,” the truth of human equality, from which all other political, moral, and social goods are derived. A fuller account of the founding would require scholarship such as James Stoner’s common law essay here.  But the book’s title reads “Natural Rights Individualism”—not “Natural Rights Constitutionalism.”  Thus the editors claim that natural rights individualism culminates in abolitionist (and anarchist) Spooner.   But, in effect, Spooner is a moocher—e.g., attacking the government-run Post Office, after the founders did the heavy lifting of defeating the British Empire and Lincoln defeated the secessionists and reaffirmed the founders.

Thus, one key question of the book is “Who is John Locke?”   Thomas West explicates Locke, the philosopher of America, of revolution, of natural rights, and of the social contract, as comparable to Plato in his complexity. His Locke, like Aristotle, is to be understood primarily terms of a teaching about human happiness, as the complete human good, through observing the reason taught by the law of nature.  In contrast to Thomas Pangle, who contends that “’Preservation is the regulatory principle for happiness’ in Locke,” West argues “the opposite: happiness is the regulatory principle for preservation….”  But what of Leo Strauss’s characterization of Locke in such statements as, “Locke is a hedonist”; “the negation of nature is the way toward happiness”; “Life is the joyless quest for joy.” In a subsection of his essay, “Why Locke Uses Bad Arguments,” West ingeniously argues that Strauss deliberately exaggerates Locke’s “hostility of nature” and his difference from the ancients. Locke and the ancients are agreed on the summum bonum of philosophy. Liberty provides different means for activities short of complete happiness. Hence West’s Locke sought to reinforce the reasonable conventions of society, while enabling men to protect their political liberty against tyranny.

With a similar purpose, Adam Mossoff seeks to distinguish Locke’s labor theory of value from that of Karl Marx. Most usefully and nobly, Mossoff quotes Cicero from De Officis: “nothing more pernicious can be introduced into human life” than “separating virtue from expediency.”  In distinguishing Lockean intellectual property rights argument from Marx’s materialistic understanding, his essay provides Lockean background to Madison’s formulation: “In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.”

Consider Michael Zuckert’s rather different Locke, who might favor a powerful government, once legitimately established by consent. We hear the Madison of Federalist 51 in Zuckert’s account: “you must first enable the government to control the governed; and in the next place oblige it to control itself.” The volume’s libertarians view the matter differently.  Thus “radical libertarian Lysander Spooner,” in Mack’s account “strikingly Lockean,” rejects Locke’s “manifestly weakest component: Locke’s belief that governments have attained legitimate authority through the consent of the governed.”  But what happens when consent is violated? Nullification? Secession? We recall here the words of Lincoln’s First Inaugural: “Plainly, the central idea of secession is the essence of anarchy.” And anarchy is virtually synonymous with despotism.

But is America more than Lockean? Paul Rahe, author of prodigious volumes on modern political philosophy, maintains that Montesquieu “works out the unstated implications of Locke’s argument but goes beyond it entirely….”  But he develops these from a “pre-political sociability of man,” not the Lockean account of a state of nature.  Montesquieu would have legislators exercise judgment about the peculiar circumstances that a country finds itself in. Monarchies, he notes, may be more friendly to liberty than republics. The prudent mixture of moderation and circumstances will determine this outcome. The founders took Montesquieu’s suggestions to heart in their constitutionalism, their peculiar form of republicanism, representation, separation of powers, and federalism.

The American Revolution was about turning theory into practice. In a careful examination of the documents of the Imperial Crisis (1763-1776), Craig Yirush details how American political consciousness developed from that of British subjects and pleaders for the equal rights of Englishmen to those who championed the natural rights of all men. American colonists used the language of natural rights and the law of nature in their arguments against the Crown. Yirush goes further than other historians in maintaining “Contrary to the claims of some recent scholarship [including Barry Shain!], none of the colonial writings in the imperial crisis spoke of these rights as subordinate to a set of overarching or binding natural law duties.” Individual autonomy was the purpose of the revolution.  Similarly, Bradley Thompson argues that the “thinking Revolutionaries” sought the “moral law of nature” that would look past conventions. They agreed that “the political laws of a free and just society should reflect the fundamental moral laws of nature” that are “fixed, absolute, universal, and eternal.” He concludes that the Revolution was about individuals having the right to pursue “their own rational self-interest unhindered by the force or coercion of others” and that “the individual is the primary unit of moral and political value.” Rights are both a license and a fence, to be understood as reciprocal. Thompson focuses on nature, rights, and liberty, and not happiness. Thompson’s Declaration represented “a heroic integration of mind and body. Thus the linchpin that united theory and practice in the Founders’ moral universe was the virtue of integrity—the principle of being principled.”

The Progressive Rejection of the Founding

James Ceaser provides a useful overview of the Progressive critique of the founding. Progressivism sought to delegitimize the Constitution, as an outdated and antidemocratic document, though the book’s various authors dispute whether there was a break or a development. Ceaser draws his understanding of Progressive principles mostly from John Dewey, though he also cites Woodrow Wilson and Franklin Roosevelt. We respect natural rights when Madison’s constitutional government and its principles of self-government are preserved. The metaphysical argument here is that founders held to an unchanging human nature that Darwinian science denied. Darwin liberated minds from the old order: “John Dewey insisted that the concept of nature in any form was dangerous to democracy.” But Dewey would “reconstruct” Americans from the rights-exercising individuals of the Founding era to completely socialized beings molded by modern social sciences.

As Ceaser notes, natural rights have been controversial throughout American political history—recall Confederate Vice President Alexander Stephens’ contempt for the Declaration of Independence and embrace of historical progress. Tiffany Jones Miller picks up on Progressive racism, which also relied on scientific progress. Concluding that human nature was diverse and that races developed differently, Progressives rejected inherent equality of all men. Contrast the Jefferson who believed in racial differences also insisted that morally all men had the same natural rights. Miller properly excoriates the Progressives for their dubious versions of positive freedom and for substituting a socialistic understanding of “general welfare” for individual rights. Here she contends that “The Founders’ conception of freedom is essentially ‘negative’….”  Would Miller understand “the pursuit of happiness” in the Declaration of Independence to be a negative freedom—with one defining happiness as one wills—or a positive freedom, to be respected insofar as the freedom results in some version of what true happiness is? Compare Lincoln: “there is no right to do wrong,” and that “right makes might.” Because America is a liberal regime, it assumes freedom and thus appears to embrace negative freedom but always within Lincolnian confines. The profoundest political arguments in America are always about competing versions of positive freedom—ranging from George Washington to Barack Obama.

The book’s remaining essays continue the critique of Progressivism introduced by Ceaser, with Eldon Eisenach, James Ely, and Zuckert all expressing some skepticism about how it deviates from the founding. By contrast, Ronald J. Pestritto argues that the bureaucracies advocated by Theodore Roosevelt and Wilson undermine Madisonian fears of majority faction and thereby the principle of constitutional goverenment. Pestritto’s Woodrow Wilson and the Roots of Liberalism, a thorough study of his break with the founders, reexamines Wilson’s relevance and overthrows the standard portrayal of him as “conservative.” “Wilson could reconcile expert or elite governance with democratic theory because, for him, elites are able to discern the public’s objective mind better than the public itself,” which is not to be confused with mere majorities—i.e., the winners of elections.

While affirming the distinctions between founders and Progressives, others note significant continuities. Objecting to a radical division between the founders and Progressives, Eisenach maintains that Dewey’s communitarianism is a perfection of the founders’ freedom. Progressivism replaced “the American national regime of ‘courts and parties’” with national institutions of direct democracy, a growing administrative state,  centralized executive control, ambitious social science, and a living Constitution. He argues that the progressives were Tocquevillean in the sense that they wished to restore the sovereignty of the people by diminishing political parties but deepening the notion of the state or the public.  Likewise, in its assault on property rights and individualism, and its confidence in regulation and suspicion of the courts, Ely submits that the Progressive  legacy was “decidedly mixed.” Ely unearths a chilling1912 novel, published anonymously by future Wilson “alter ego” Colonel House, Philip Dru, Administrator: A Story of Tomorrow, 1920-1935.  Defeating by military force a constitutional coup, Dru assumes dictatorial powers, proclaims himself Administrator of the Republic, and proceeds to implement the Progressive agenda. “[T]he work affords troublesome insight into the Progressive mindset.”

Michael Zuckert’s concluding essay challenges almost all the others on the books themes. He favorably cites Herbert Storing, an admirer of the British civil service for putatively aristocratic qualities, in defending Wilson as “building upon and to some extent restoring the work of the Founders.”  Thus, against Pestritto (as well as Charles Kesler, Robert Eden, and John Marini), he understands Wilson as merely applying the Declaration to new social conditions.  He is simply being a cautious Burkean (but recall Strauss’s charge of historicism against Burke). “[T]he new freedom” required “more positive government, more tasks to be done, and a government better fitted to them.”  Thus, Wilson divided politics and administration for the sake of “positive governance” and democratic responsibility. His misguided desire to eliminate the separation of powers should be understood in this light. Wilson wants to liberate America from “laissez-faire orthodoxies” and “empower needed governmental action” and so “gives up the guidance these rights [natural rights] supply”—which we saw in his interpretation of Locke. No wonder Zuckert dismisses as “zombies” the Progressives’ recent resurrection in the political battles between left and right.

The enduring struggle in the book reminds one of Nietzsche’s dismissal of the notion of a common good as inherently contradictory. This is the old tension between the noble and the just, the subjects of political science for Aristotle. But politics requires both, in addition to practical wisdom (phronesis). In this view, it makes more sense to rely on divine revelation than on spontaneous order to produce the best practicable regime.

Stoner’s concern for common law is an essential historical inquiry but as well part of a broader attempt to recover the meaning of the American founding for both theory and contemporary practice.  Professor McGinnis finds troubling the potentially expanding and arbitrary power in the content of contemporary common law, while Professor Arkes would further develop Stoner’s argument, to embrace specific consequences of natural law reasoning. Among them, and the work of other scholars, they bring out major schools of interpretation put forth by conservative legal scholars.

For Stoner, “[A]lbeit indirectly, common law might be said to adopt the law of reason or of nature: not that natural law or unassisted reason could replace statute or custom, but that judges were entrusted to ensure that unreason was confined as narrowly as possible and allowed to expire with the passions that happened to bring it forth.” McGinnis (co-author with Mike Rappaport of the forthcoming Originalism and the Good Constitution) wants to protect the written law and an original understanding of the text and thus fears “the inherent mutability” of the common law. He demands instead “a structure that privileges the text and gives it a generative force, no matter how dense the thicket of precedents.”

In contrast to McGinnis’s fear of replacing the text of the Constitution with arbitrary judicial impulses (including those masquerading under the natural law), Arkes insists that proper judicial judgment rests “not on the persons who endorsed it, or its inclusion in a text, but on the force of the principle [in this instance the law of contradiction] itself” (italics added). That is, “legal axioms claim their respect as laws of reason, quite apart from whether they are in the text of the Constitution.” (Italics added. Cf. Rappaport’s postings such as  ”Eliminating the Absurdity in the Vice President’s Impeachment Trial“)  As Arkes has often argued, the natural law, which he here identifies with right reason or principle, can best prevent arbitrary and unjust laws from prevailing. We adopt a written Constitution for a reason, one rooted in principles drawn from natural rights and natural law, as one can argue, based on the Constitution’s history.

Here is the battle, as Arkes sees it being lost: “[W]hy do we find some of our conservative jurists so distracted that they rail against the appeal to principles outside the text instead of concentrating their genius on the question at the core of matter—namely, whether those new principles floated by the liberal judges can survive a hard test for their truth?” Was Judge Bork one of these railers or was he, as Arkes has sometimes observed, one of those textualists who was in fact speaking natural law all his life? In a brief appreciation Rappaport brings out the significance of Bork’s jurisprudence: “Bork’s insight was to extend Herbert Wechsler’s requirement that principles be applied neutrally to the requirement that principles be derived neutrally.”   Furthermore, “that neutral derivation could only occur if the  principle existed in the Constitution.” Graglia fears that a court ruling may be mere “statement of the policy preferences of a majority of the justices.” “New natural law” scholar Robert George sounds close to Graglia when he raises this question about Amar:

Almost everyone agrees that the Constitution includes whatever its text logically requires or more or less clearly implies. More provocative but also persuasive is Amar’s contention that it includes principles inferred from how the written Constitution was enacted. But can constitutional principles, even broadly construed, include some derived from George Washington’s presidency, or Martin Luther King’s “I Have a Dream” speech, as Amar suggests?

But George is not asking rhetorical questions (“Does [“the unwritten constitution”—notice the lower-case “c”] constrain government actors as stringently as principles of the written Constitution do, or less so?”) but real ones, as his writings on natural law indicate. What is meant by whether, as Rappaport put it, “the principle existed in the constitution”?

Further, textualist scholars would allow a place for natural law and other principles as long as they are reflected in the final text. Even natural law scholars would resist what Francis Canavan derided as the “justice amendment”—which would allow judges to seek justice in any constitutional controversy, regardless of what the text says. So are we stuck debating what the meaning of “existed in” is? Yes, but also by keeping an eye on the political situation in which we exist.

Rabkin advises of our current rhetorical and political battle in his review of Amar:

Finally, there is something self-defeating about a conservative constitutionalism that leaves all the structural inferences and extrapolations from core principles—all the “reading between the lines,” as Amar says—to liberal advocates, and simply grumbles about the need for precise documentary warrants from the framers. Once you acknowledge that the Constitution is not simply what courts say it is, you must be able to press arguments and perspectives that compete for public attention and respect. Denying that the Constitution actually has much to say is no way to encourage attention to, and respect for, your constitutional arguments. If the Left alone can appeal to the spirit of the Constitution, the Right will be left with no spirit and a set of constitutional interpretations with no capacity to inspire. [(underscoring added]

The textualists want to preserve a fading legal world of neutral principles from one that had mixed politics and law for partisan advantage. The defenders of natural law and the common law provide the textualists with deeper arguments for their work—and arguments with a political edge as well. The central problem with, e.g., Cass Sunstein is not just that he has politicized jurisprudence.  Such work must be seen in all its confusion and injustice, metaphysical as well as legal. Nonpartisanship or “neutral principles” of the sort Judge Bork advocated in his Supreme Court hearings are not the answer to the spirited left. The conception of law that protects people’s rights from arbitrary power requires more than recalling its past majesty and authority, while we live under the Progressive administrative state.

What to do? My modest proposal: Note that over the years a disproportionate number of these mass slaughters are carried out by Asian-Americans—two out of the last 13 this year. Asians—they have better educations and incomes, get into super-selective schools, and disproportionately slaughter innocents. Should Asians (or at least Koreans) be banned from owning guns? Of course that wouldn’t stop all such atrocities, but as President Obama said, “no set of laws can eliminate evil from the world, or prevent every senseless act of violence in our society.” But why not try? It makes more sense than most of what will be proposed over the coming weeks.

Lincoln concludes the movie by delivering the Second Inaugural. Most of the time in between is an elaboration of his wartime and Reconstruction strategy and thus a commentary on the purposes of the First Inaugural and the Emancipation Proclamation. These occasions are the rhetorical high points of Lincoln’s presidency, though most of the movie is focused on events in early 1865.

Lincoln instructs us in prudence—the virtue of choosing what is truly good insofar as it can be realized. In giving this invaluable lesson, the film displays the high and the low of statesmanship of liberty and equality—in particular, we see how the low can be in service of the high, without corrupting what is high. As instances of the high, there are even a dialogue about conflicting meanings of natural law and Lincoln’s explication of a Euclid Common Notion on equality as an argument for human equality and therefore emancipation. The transportation to 1865 is graced with gripping narrative; two and a half hours never went by so smoothly.

Some careless friends and of course enemies of Lincoln, then and now, equate his greatness with lawlessness. Lincoln, not quite 29 years old, was well aware of this vice of the ambitious, at its highest (or basest) to overthrow George Washington. He knew full well that some would achieve greatness, whether by “emancipating slaves or enslaving freemen.”

In Lincoln we see a man committed to both emancipation and the Constitution. Lincoln knows his executive power as commander-in-chief is expanded by a war power soon to cease. Once peace comes, how can he preserve the freedom of the emancipated slaves from the States no longer in rebellion? To make sure there is no ambiguity about their continued liberty as well as those of the other slaves, Lincoln needs the 13^th Amendment before peace terms.

The Democratic opposition, as their just-defeated candidate McClellan, demands peace, a powerful appeal that might move some Republicans too. Can Lincoln keep the Republicans united and get enough Democrats to secure a two-thirds majority for the passage of the amendment? Though the account relies on Doris Kearns Goodwin’s Team of Rivals, Kushner bases his account on a range of eminent Lincoln scholars, as well as Lincoln’s own eloquence and wit.

The House Democrats, led by former New York Mayor Fernando Wood, cheer the vile caricature of Lincoln still alive today in some fevered quarters:  King Abraham Africanus. Isolating the extremists, Lincoln refers to the earlier war need to keep the border states—his native, slaveholding Kentucky—in the Union. He moderates the firebrand Thaddeus Stevens, making him a statesman of liberty not a showman of Radical Republicanism. The redeemed Stevens sounds like the Lincoln of the Dred Scott response: the Declaration “intended to include all men, but they did not intend to declare all men equal in all respects.”

Amid these struggles, Lincoln strives to bring to her senses his fiery wife, who fears he will commit her to an insane asylum. Can the man of the rule of law rule his household, both his mad wife and his rebellious son, who wishes to serve in the army? Even his wife’s black maidservant petitions him. The blacks in this movie are anything but submissive.

Yet a man caught up in war and domestic strife can reach to Euclid for his justification to pursue passage of the 13^th Amendment as well as peace talks. All men are created equal, not only as in his counting back to 1776 in the Gettysburg Address via the “four score” years of the 90^th Psalm, but in the very nature of things. “Things equal to the same thing are also equal to one another.” Geometry affirms the certainty to proceed with the Thirteenth Amendment.

Lincoln scours the ranks of the Democrats to find the weakest members he can pry away. Idealism has limited appeal here. So he delegates the hiring of agents who can offer patronage appointments to the defeated Democrats in the lameduck session that is taking up the 13^th amendment. Can the House of Representatives be an instrument of God, a Lincoln ally asks? Statesmanship requires consent; the separation of powers, at the core of the Constitution, demands respect. The rule of law is not a clean instrument of reform.

Certainly Lincoln appeals to the high. “The fate of human dignity is in our hands…. Now, Now Now,” he implores his cabinet. “I am the President of the United States clothed with immense power. You will procure me these votes.”  Is the Lincoln here too close to the FDR of the First Inaugural, who calls for a temporary suspension of the constitutional order, so he can deal with this crisis of the Depression?  But in context Lincoln is urging finding votes; he is not violating the Constitution. We see an imperfect man who nonetheless is a great one.

The black Americans we see are ready for equality. The forward if not brash blacks replace absent Frederick Douglass; it would not do to attempt to include another strong figure in an account of another, without diminishing both. Lincoln strove to make America safe for all races—and by implication the emancipated blacks safe for America: One black soldier speaks of the revenge they took on the Southerners who massacred black prisoners.

Kushner and Spielberg produce a complex but loveable Lincoln who can still unite the country. To be sure, those aware of the director’s and the screenwriter’s politics might see the movie as yet in another series of attempts to appropriate Lincoln to the political agenda of the left. Theodore Roosevelt made an early attempt to hijack Lincoln for the Progressive cause. But if it has any immediate political effect, Lincoln will end any the oafish comparisons between Lincoln and Barack Obama.

Lincoln teaches prudence in a way approached only by A Man for All Seasons. And its instruction in civic piety is nonpareil. In an interview, Kushner, amid some partisan sniping, notes that the film is coming out, after the election, when “it’s just become axiomatic that politicians are a dirty word and that politics are a sleazy game that we all wish we didn’t have anything to do with. I think it’s a good thing to remind people that some of the greatest Americans of all time were politicians. This man was a great military leader, a great writer, a great human being, and he was also a great politician.”

At issue was Proposal 2, whose victory in 2006 via popular vote of 58-42% amended the Michigan Constitution to reject race, ethnic, and sex preferences in public institutions, including universities.  Judge R. Guy Cole maintained that erecting a constitutional hurdle to such preferences would violate

a guarantee that minority groups may meaningfully participate in the process of creating these laws and the majority may not manipulate the channels of change so as to place unique burdens on issues of importance to them…. Ensuring the fairness of the political process is particularly important because an electoral minority is disadvantaged by definition in its attempts to pass legislation; this is especially true of “discrete and insular minorities,” who face unique additional hurdles.

Judge Cole had allowed that “Of course, the Constitution does not protect minorities from political defeat: Politics necessarily produces winners and losers. We must therefore have some way to differentiate between the constitutional and the impermissible.” Yet, for practical purposes this decision means that no civil rights law may be altered decisively—e.g., a law declared unconstitutional. Of course the “loser” here was the rule of law, whose scope is ever-shrinking.

The Sixth Circuit court bases its reasoning on a radical reinterpretation of two decades-old civil rights cases, Washington v. Seattle Sch.Dist. No. 1, 458 U.S. 457, 467 (1982) and Hunter v. Erickson, 393 U.S. 385, 393 (1969): ”The ‘simple but central principle’ of Hunter and Seattle is that the Equal Protection Clause prohibits requiring racial minorities to surmount more formidable obstacles than those faced by other groups to achieve their political objectives.”

As Judge John M. Rogers dissented, “Under the majority opinion, it is hard to see how any level of state government that has a subordinate level can pass a no-race-preference regulation, ordinance, or law.” One might expand that with the re-election of Barack Obama, the green light is signaled for the triumph of the non-elective branches of government to wield arbitrary power over individual Americans. This is the real “class warfare” that might have been a subject of discussion in the mercifully ended campaigns. (See Cass Sunstein.)

In this view, security is the highest aim of American politics: “Necessitous men are not free,” FDR insisted. He wanted to replace the Declaration’s pursuit of happiness with security. And the rights involving employment and other forms of security are to be realized, he implies, through the final right he lists, the “right to a good education.”  This right of all rights is the key to all freedoms.

But what is this “good education”? How does higher education promote liberty?  In fact, universities have become schools for slavery, not of freedom—both in the content of their teaching and now in the practical lessons they teach. The college debt issue illustrates this bondage beautifully. Debtors are of course not free men and women (even if their debts are huge enough to sink the lender). Not to mention that what colleges have been teaching is not conducive to liberty either.

College debt, with its burdens on graduates, epitomizes how colleges have shrunk their freedom. Their four plus years have freed them neither for work nor for a life beyond work, neither for the necessities of life nor for its purposes. In fact, their debt may leave them in a worse position to pursue either than before they began their costly studies.

Enlightened by Christopher DeMuth, I find two types of debt—one narcissistic and morally blameworthy, the other shrewd and at the heart of a modern commercial republic. Debt for the sake of personal consumption (an exotic vacation, for example) signifies a lack of republican or self-governing virtue. But borrowing for the sake of investment is prudence and essential for personal well-being and a flourishing modern economy. Jefferson and Hamilton belong together. Frugality and the Franklin virtues should shape sensible purchases of modest homes or useful cars. Until recently, going into debt to attend college seemed an act of prudence, a sensible investment toward a better job and classier friends.  And clever parents might convert the low-interest student loan into subsidies for their own expenses.

But with diminished job prospects in a grim economy what seemed like a good investment appears more like self-indulgent consumption debt, a four-year splurge of languor, parties, study abroad, and the enjoyments of youth. The dramatically escalating costs of higher education have made this debt a risky bet, a careless gamble. For not even bankruptcy can free the student loan defrauder.

And why should universities reduce expenses? The ready availability of loans reduces the incentive for them to scrutinize their budgets.

Besides, the government can make loan-forgiveness offers to the advantage of the administrative state.  In a recent policy shift government forgiveness programs target employment in government (of course) and in the non-profit sector (though not in religious institutions, as with the HHS mandate).  Thus the bureaucracy subsidizes at public expense the poor or frivolous education choices, who can be redeemed by this and other liberal policies.

Tragedy follows on this Rube Goldberg absurdity. Minority students, who have at least as much or even more faith in the power of education to transform their lives, are often the most cruelly exploited victims of increasing tuition. The mismatch of relatively less qualified minority students with highly selective university reduces their chance of success at such a school. They might well have succeeded and graduated at a school for which they were more appropriately matched. Race-based scholarships further distort minority enrollment.   Most questionable of all, the Supreme Court ruling in Grutter v. Bollinger would allow admission of minority students to a state institution because they help form part of a minority “critical mass”—an utterly dehumanizing rationale for a student’s admission. And the minority student enrollment justifies a huge diversity industry in higher education, featuring a lavishly funded minority bureaucracy supporting ethnic studies and multiculturalism. Yet all this might disappear, but the fundamental problem of the liberal arts college would remain.

For college debt cannot be separated from college education and its purposes, high as well as utilitarian. The goal of college or advanced education is liberal education, the art of being free in mind and in soul, mentally and politically. But we cannot be free and enslaved by debt. Thus, the theory and practice of the academy is the opposite of instruction in liberty—and the enslavement to debt is the practical expression of their lost academic mission.

And what do students learn in school? They want careers, not wisdom, and first they need to have knowledge of their ignorance.  They are not ready for a Socratic turn. The rare situation where an instructor can liberate their minds is by chance on both sides, with chance being reduced with the selectivity of the school.  Can most students imagine their lives might be transformed by the books they read? As ridiculous as Doonesbury’s classics professor who would protest his low salary by putting himself on the open market.

(Everyone has their own favorite examples of the Orwell saying about an idea being so stupid that only an intellectual could believe it. Here’s mine: According to more than one first-hand report, students at highly selective universities were stockpiling contraceptives for fear that a President Romney would have them banned.  One side had its low-brow birthers, the other its sophisticated birthcontrollers.)

Until fairly recently Americans have based their lives on embracing independence. In Democracy in America Tocqueville describes the American as having learned “from birth that he must rely on himself to struggle against the evils and obstacles of life; he has only a defiant and restive regard for social authority and he appeals to its power only when he cannot do without” (italics added).  Independence and self-government were ingrained in Americans. But when will the realm of assistance expand, making it easier for the individual to call upon the state? Tocqueville’s fears have come to pass, as more Americans call upon a central government with centralized administrative power to relieve them of their self-imposed burdens.

In both its content as well as its cost, higher education has too often had the opposite result of its original intention. It has produced absorption in mass life, where it should have brought forth distinction; dependency, instead of freedom. Liberal education, to recall Leo Strauss’s penetrating essays, would make its students free in mind and in action, lovers of wisdom and guardians of freedom, “the mutual guardians of their mutual happiness,” in James Madison’s words.

Is this too lofty a view of liberal education? Did not the sober Tocqueville urge that the teaching of Greek and Roman classics be confined to a few institutions, to give balance to the money-making focus of most Americans? But his admonition here should be qualified by the changes in our mores. Tocqueville points out that he first read Shakespeare’s Henry V in a frontier cabin. Today we need colleges to teach the Shakespeare (and other works) that were part of the earlier common culture. Certainly the academy has discovered infinite ways to assail greatness, but ingenuity can find ways of cherishing it as well.

Is college worth it? Only the liberal arts justify the original mission of the university.  And in a free society only a flourishing economy makes such institutions possible (and even remotely affordable). Only the liberal arts can transform debt for personal consumption into debt as investment in incorruptible riches. And only through such efforts will there be free men and women—the best public security of happiness.

Of course these enrollment percentages are multifold greater than the Asian population, even in southern California. As President Clinton once hyperbolically asserted, without racial preferences for others, some universities would have all-Asian freshman classes. At the University of Texas, Austin the freshman class was just under 16%, while the Asian population of Texas was just under 4%.  In light of such figures, how can Asian-Americans, the argument goes, claim discrimination?

A glance at the briefs in the upcoming (October 10) Supreme Court case of Fisher v. Texas reveals the variety of arguments for and against preferences. The appellant, an unsuccessful white applicant, Abigail Fisher, claims that she was denied admission to the University of Texas while minority students who had considerably lower SAT and academic achievements were admitted. Not granted automatic admission under the top ten percent of one’s public high school class track, she did not qualify under the other track. (Disclosures: My wife, Althea Nagai, cosigned the Abigail Thernstrom et al. brief and also works for the Center for Equal Opportunity, which filed a brief together with the Pacific Legal Foundation and National Association of Scholars. I co-signed the brief of Current and Former Federal Civil Rights Officials.)

The opposing sides in debates over affirmative action generally fall into two camps—the conservative one of color-blind merit, and the multiculturalist one of transforming society along racial and ethnic lines. Of course the universities can’t say they are interested in producing racial and ethnic diversity for its own sake and need to allege some other goal. Moreover, they may not impose racial quotas, though they may take account of race (see Justice Breyer’s differing votes in the University of Michigan undergraduate versus the law school cases). But universities simply don’t exist for the sake of academic merit by itself, and multiculturalism, an exotic flower of contemporary nihilism, is an assault on reason and intellectual honesty. Universities have longstanding roles in developing citizenship (“leadership”), commerce, faith, and character. Even before the aspirations of early modern political philosophy and Progressivism, the universities were not solely devoted to fostering the contemplative life. A color-blind Constitution does govern America, including its public universities, but its application to particular instances is always a prudential, that is, political matter. Political theorists will recognize this as the problem of the best practicable regime.

To seek a more practical end, some try to work between these contrasts of merit and multiculturalism. The brief by Richard Sander and Stuart Taylor dwells on academic “mismatch”—putting unqualified students into selective colleges where they are in the bottom of their classes statistically imperils their academic and professional future. (In another study, Sander and Taylor also show how the color-blind standard, following quickly made adjustments, improved overall black outcomes in California.) The admissions office sets the stage for a slow-motion trainwreck that the faculty and ethnic studies counselors try to clean up. When minority background is being “rewarded” a huge plus by admissions, the harm is even greater than the inappropriateness of the policy—Ms. Fisher’s exclusion aside. What sadist would want to put the first kid in the family to go to college to enter into what would all too often become a demolition derby? Is affirmative action a live-fire, four (or more)-year reality show?

In the face of these and other disasters, I know affirmative action programs that led to recruitment of black students who were academically superior to the white students. It was actually pretty simple. At the large Midwestern state university I once taught at, quite renown for drinking and sports, the admissions standards for the overall student body were so low that any element of academic selectivity, such as an affirmative action program might produce, led to those recruits being a cut or more above the majority white students. There you have it: affirmative action that produces meritorious results. (N.B.—to file away for future reference—I believe without exception these African-American students all graduated from inner-city Catholic high schools. N.B. #2: The State of Texas has a “color-blind” affirmative action plan that guarantees admission to the top ten percent of each graduating class at public high schools. Private schools, including religious ones, are excluded.)

These peculiarities of affirmative action aside, the real problem we face is the discrimination against Asian Americans. Here is a group whose mean SAT scores are 230 points above those of black applicants. With a policy of attempting to mirror the demographics of the State (or some other measure), one Asian group protested that Asian applicants had to meet a far more rigorous evaluation than black or Hispanic applicants. The statistical variance also reflected, critics say, unflattering stereotypes of Asians held by admissions officials. All that suffering under a Tiger Mother, only to meet with rejection! Let the traditional civil rights standard of “strict scrutiny” protect Asian-Americans in their admissions, and justice will be done, this argument goes.

In contrast, two Asian-American briefs bluster on behalf of the Texas preferences, arguing that the high numbers alone show that this enlightened policy is expanding opportunity and not promoting discrimination. Texas has 11.8% blacks but only 4.5% at the University of Texas. As with blacks, some academically lagging Asian subgroups may eventually benefit from preferences (how, they never say). One brief even boldly asserts that the higher rejection rate for Asians comes about because they apply for the most competitive programs in the University (e.g., sciences and engineering). Of course, they cannot make such a case without offering group comparisons (not to mention comparative graduation rates), which they decline to do.

It is hard to resist comparing Asian discrimination with the appalling injustice of anti-Jewish policies in various selective universities. The comparison works only partially. The Jewish quotas were part of an attempt to preserve a Protestant establishment against the rise of a group that threatened its dominance in not only the universities but in the ruling elite of the country—and that opposition applied to other unwelcome groups, too, such as  southern Europeans, Catholics (see McGeorge Bundy’s dismissal of William F. Buckley’s God and Man at Yale), and others. This threat to established power may be involved in Asian exclusion today, but there is a more obvious and insidious explanation. Asians, along with high-achieving white groups, are mere “bumps in the road” or collateral damage in the ongoing war for ideological transformation of the universities. Indeed, I heard the Asian-American representative on President Clinton’s Commission on Race, a Korean-American woman, make the argument that other groups had suffered more than Asians, and they should get deference. Asians should relish their role as houseboys on the liberal plantation. The best essay on Asian-Americans as immigrants can be found in Richard Rodriguez’s  collection,  Days of Obligation—a lovely parallel with the Merchant of Venice, on how immigrant children betray their fathers—they are Jessicas.

Truth to tell, ethnic Japanese in particular have encountered challenges in American jurisprudence. To abbreviate the history, the Yellow Peril (I prefer Das gelbe Gefahr, as it sounds worse in German) was contained in Korematsu v. U.S., a case Justice Stephen Breyer assails with all the conventional pieties in his recent book, Making Our Democracy Work. In trying to justify the Court’s Guantanamo decisions, he misses the connection between nationality and political loyalty, which is at the heart of Korematsu. He would apply everyday legal standards to a potential wartime invasion. Of most interest here is how Breyer’s liberal Court predecessors reaffirmed Korematsu’s ethnic  categorization, with the intention of justifying affirmative action categorizations and preferences. See Justice Douglas’s dissent in DeFunis v. Odegaard (416 U.S. 312, 1974), and, far worse, Justice Brennan’s joint majority opinion in Bakke v. Regents of the University of California (438 U.S. 265, 1978).  Of sounder judgment on Korematsu is the late Chief Justice William Rehnquist’s defense in his All the Laws But One: Civil Liberties in Wartime.

As my parents were relocated in WW II, these events are part of my biography. A cousin’s daughter attended Lowell High School in San Francisco (also Justice Breyer’s alma mater). She could not have gotten in had she checked the Chinese box (her mother’s ancestry) and not the Japanese one (her father’s). In the meantime as the courts sort out this mess and as private universities continue with their social experimentation, I will tell my daughter to have a “Not with Dad” on her college application.

The coverage in the Washington Post and New York Times emphasized different aspects of the conversation.  The Times probed his views of religious diversity in America and on the Court.

The Post had a more interesting albeit incorrect take, that Thomas had admitted a flaw in the Constitution’s treatment of slavery and race, as though this was news. Thomas allowed that blacks were not perfectly part of “we the people.”  Might this flaw in the Constitution confirm the hypocrisy of the “we hold these truths” of the Declaration? Moreover, the alleged admission might clash with Thomas’s opposition to race-preference policies. Might not then his original understanding approach to jurisprudence be fatally compromised? After all, following Justice Thurgood Marshall, why not begin celebrating the Constitution following the passage of the Reconstruction Amendments?

But this distortion is just another episode in the elites’ savaging of Thomas over his career—commentary has swung from him being the dumbest and “cruelest” justice to being the evil legal genius who engineered the Court’s move to the right, bringing it to the point of overturning Obamacare.

What makes Thomas intellectually intriguing? What accounts for his truly, literally radical view of constitutional interpretation ?(I should say at the start that I was a special assistant for then-EEOC Chairman Thomas from 1986 through 1990, when, at about 48 minutes into the conversation, he says he revived his interest in the Declaration of Independence. I have also enjoyed Professor Amar’s thoughtfulness at several academic conferences over the years.)

The National Archives is in fact an excellent setting—rivaled only by Independence Hall—for Thomas to explicate his core political philosophy.  And that is what he did throughout the hour and a quarter conversation, whether he was talking about the tension between the Declaration and the Constitution, growing up in the segregated South, the growing ethnic diversity of America, or life on the Court.  It was not an academic lecture.

That radical core political philosophy can be seen in Thomas’s regard for natural law. This considered view, that an objective, trans-political standard of justice and morality exists and that legitimate governments must observe natural law scarcely reflects the political or legal establishment’s views—though it still dwells in the hearts of the people. Yet the Declaration’s “laws of nature and of nature’s God” not only justify the separate existence of the United States but inform the Constitution’s being and purpose. The Justice referred in his Adarand concurring opinion to “the principle of inherent equality that underlies and infuses our Constitution. See Declaration of Independence ….” (Adarand v Pena, 515 U.S. 200 [1995]).

But explicit references to natural rights or natural law do not reveal the significance of natural law for Thomas’s statesmanship. Just as nature refers us to roots or what is radical, his understanding of natural law drives him to the roots of American constitutionalism in the original understanding of the document.   Thomas’s mild-mannered radicalism was evident throughout the program.  Natural law demands conventional proprieties, for, as Leo Strauss observed, “Natural right is dynamite.”

The Post account portrayed Thomas as allowing a contradiction between the Declaration and the Constitution. While the Constitution’s “we the people” may have excluded blacks, the Declaration’s “we hold these truths” did not. In what has now become an academic bromide, a tension or even contradiction exists between the Declaration—variously portrayed as a libertarian, republican, or even socialistic document—and the Constitution—here cast as oligarchic, commercial, and selfish. We saw this first in Charles Beard and then reworked by diverse scholars through the present. But Thomas does not fall into this lazy, conventional position.

Of all the Justices, Thomas appreciates that an imperfect America required a “new birth of freedom” in the reconciliation of the Declaration and the Constitution. As he notes, this was most eloquently proposed by Abraham Lincoln at the bloody deed and fixed intention of Gettysburg. And in his response to the Dred Scott decision Lincoln defends the founders against the charge that they categorically opposed political and civil liberty for blacks. He agreed with dissenting Justice Curtis that free blacks “‘were not only included in the body of `the people of the United States, —by whom the Constitution was ordained and established; but in at least five of the States [including the slave state of North Carolina] they had the power to act, and, doubtless, did act, by their suffrages, upon the question of its adoption.’”

Moreover, as Frederick Douglass, whom Thomas often dwells on, pleaded in his own denunciation of the Dred Scott decision,

I ask, then, any man to read the Constitution, and tell me where, if he can, in what particular that instrument affords the slightest sanction of slavery?

Where will he find a guarantee for slavery? Will he find it in the declaration that no person shall be deprived of life, liberty, or property, without due process of law? Will he find it in the declaration that the Constitution was established to secure the blessing of liberty? Will he find it in the right of the people to be secure in their persons and papers, and houses, and effects? Will he find it in the clause prohibiting the enactment by any State of a bill of attainder?

These all strike at the root of slavery, and any one of them, but faithfully carried out, would put an end to slavery in every State in the American Union.

This is the radical abolitionist reading of the Constitution, which Lincoln could not embrace politically. Douglass the rhetorician required Lincoln the statesman.

Thus the full inclusion of blacks would await formal emancipation, urged on by the moral and political necessity of the Declaration: each man owns himself and can be governed only by his consent. White men had to acknowledge this truth for their own freedom—and, in their self-interest, would have to recognize it in others as well. As Lincoln argued of a black slave woman, “in her natural right to eat the bread she earns with her own hands without asking leave of any one else, she is my equal, and the equal of all others.”

This Lockean act of human dignity—owning and working for oneself—is the natural right that makes equals of all human beings and establishes a “standard maxim for free society.” Lincoln’s rhetorical cleverness in this speech includes his pandering to immigrant voters (French and Germans), his playing on sentiments about the Fourth of July, and his acknowledging the possibility, however futile, for black migration to Liberia. But each appeal to self-interest reflects a deeper commitment to equal natural rights.

Likewise, Justice Thomas’s love of the founders, appreciation of civility, and his recollection of the hopes of African-Americans exemplify enduring hope for liberty. Moreover, the concern for natural right is not just an archaic argument about slavery—the fight for self-government remains today, in the face of bureaucratic willfulness.  Accordingly, such freedom and equality of opportunity would promote a natural aristocracy and not a conventional elite, as he recently demonstrated in attacking law school rankings and choosing his clerks from a range of law schools. Of this rankings snobbery he asks, “Isn’t that the antithesis of what this country is supposed to be about?”

Justice Thomas’s calling forth the Declaration reminds us of one elected politician-intellectual who has often done so, though with a contrary purpose. In citing the Declaration in his books and speeches Barack Obama emphasizes the need for government to have the powers to right the perceived wrongs against that document. The Declaration, in his view, becomes a justification for unlimited government. In Thomas’s view the Declaration necessarily limits government powers for the sake of individual freedom. Their visions pose a clear choice for Americans.

Experimentation? Did Obamacare grant him a medical license? Did he at least obtain a human subject release form? All he knows is that he must be the total (“bold, persistent”) master of the situation. Whether we are the subjects of behavioral economics or of happiness commissions or rats in a maze is of no matter.

But there is far more here than Obama’s apparent admission of ignorance—it is his vision of a scientific controlled experiment that most alarms.  Such “bold, persistent experimentation” requires a tyranny. The subjects of experiments, no more than inmates in a prison, may not control their treatment. Scientific utopias demand elimination of freedom, as we know from dystopian speculations from Plato through Bacon to Skinner.

Indeed, the phrase “bold and persistent experimentation,” though appearing without quotation marks, comes from President Franklin Roosevelt’s campaign speech at Oglethorpe University, May 22, 1932.     FDR’s focus on experiment doubtless comes from John Dewey. As I have argued, Dewey’s  “new American will understand himself not as someone reflecting self-evident truths about human nature, liberty, and happiness but as someone who has come to be of, by, and for liberal experimental social policy,” with the intent of making liberty-loving Americans more social and cooperative.

With the boldness of a Roosevelt instead of the hapless Herbert Hoover, whom he more closely resembles, Obama dismisses such frightful scenes with their revolutionary implications by his argument about citizenship.  In what might be the most successful rhetorical ploy of Obama’s speech, the threatening talk about experimentation is smoothed by exploiting and transforming the American political tradition: “[W]e also believe in something called citizenship – a word at the very heart of our founding, at the very essence of our democracy; the idea that this country only works when we accept certain obligations to one another, and to future generations.” Obama is channeling one element of Lincoln’s Gettysburg Address here–employing patriotic language to disguise his radical change in the meaning of basic political concepts. Yuval Levin observes that in the founding period that Obama hails the term citizen was “often used to refer derisively to radicals,” as in the Federalist references to the French Revolution-friendly “Citizen Jefferson.”

Obama and the entire convention pitted a corporate identity (in the form of race, sex, sexual orientation, unions, and other groups) against natural rights-bearing individuals (greedy white males). Moreover, Obama’s seemingly Burkean notion of ties and obligations across generations in fact merely excuses one generation robbing the fruits of future generations, as national debt does. And he embellishes this with the declaration that “a freedom without love or charity or duty or patriotism is unworthy of our founding ideals and those who died in their defense.” From the perspective of the new citizen, “America is not about what can be done for us; it’s about what can be done by us, together, through the hard and frustrating, but necessary work of self-government.”  This of course legitimates the continuing redistribution of wealth for the sake of expanding the welfare state and strengthening the social safety net. He mentions rights only twice in an American context, because, contrary to his purpose, they strengthen individuals.

This patriotic disguise is evident in the whole Democratic convention, which boldly led with conventional wholesomeness, e.g., Elizabeth Warren as Sunday school teacher rather than affirmative action supplicant. The expansion of the welfare state is not based on self-interest of any sort. Quite the contrary. The revision of the language transforms the Democratic Party, the party of Jefferson, into another European social democrat party.

One appreciates Obama’s radicalism when seen against its backdrop in Franklin Roosevelt’s major speeches. Obama and FDR assume the Charles Beard thesis about the founding, pitting the equality, liberty, and fraternity of the Declaration against the inequality, commerce, and oligarchy of the Constitution.  In this view the one promises youthful openness, the other reactionary restrictions. (More recently the younger Gordon Wood and James Morone have developed more sophisticated versions of this argument.)  As Woodrow Wilson and other early Progressives made clear, the object of this approach was to separate the Declaration of Independence from American attachments and to obliterate the individual rights and the Constitution as their safeguard as the core of American authority and replace them with the administrative state.

Thus Obama follows the most transformative Presidents in American history, including Jefferson, Lincoln, and Franklin Roosevelt, who sought to reinterpret the Declaration and American political history to tar enemies, bless friends, and form governing coalitions that would last generations. Obama’s arguments in his convention speech about citizenship, the superiority of duties to rights, and the American purpose all conform to Franklin Roosevelt’s vision, in particular that set forth in his speeches on Progressive Government and on the Second Bill of Rights.

In his Commonwealth Club Address during the 1932 campaign Roosevelt reinterpreted American political history to conclude with the picture of an economically exhausted America at its limits. “A glance at the situation today only too clearly indicates that equality of opportunity as we have known it no longer exists.” The reality of “drab living” demands “a re-appraisal of values” concerning political economy. The industrial titan who would create and expand is now “as likely to be a danger as a help.” Our wealth can less be expanded than redistributed: “The day of enlightened administration has come.” Hence Roosevelt called for “the development of an economic declaration of rights, an economic constitutional order. This is the common task of statesman and business man. It is the minimum requirement of a more permanently safe order of things.” “You didn’t build that” naturally follows from this thinking.

In place of the Declaration of Independence that recognized pre-political rights via “the laws of nature and of nature’s God” and a limited government based on consent, Roosevelt proposes a new version of the social contract.  After all, “The task of statesmanship has always been the re-definition of these rights in terms of a changing and growing social order.” The new social contract is not between individuals, who authorize government, but rather between the government and the people. From the Founders’ Lockean notion that each American owns himself, we have surrendered to the idea that we all serve each other, at the command of the government.  Appropriately the Democratic Convention opened with a video declaring that “the government is the only thing we all belong to.”

The old principle of equality of opportunity applied to rights of the old order, which would produce inequalities. Thus, in this new economy, a second Bill of Rights, guaranteeing “true individual freedom,” would have to provide “a new basis of security and prosperity.” In his 1944 State of the Union Address Roosevelt proposed eight provisions, among them:

• The right to earn enough to provide adequate food and clothing and recreation;
• The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;
• The right to a good education.
• All of these rights spell security….

In order to meet “adequate” or “good” standards economic redistribution would be continuous. And in order to combat “economic fears” and assure “security” the government’s powers would need to expand in order to satisfy the anxieties of the most anxious of citizens, who, of course, would have every incentive to feel more economic and other fears.  The government creates rights, duties, and the common good. Obama’s new patriotism enforces these new rights and provides security.

Finally, Roosevelt declares not just a moral imperative but a life and death necessity that his vision of government be established. For “if history were to repeat itself and we were to return to the so-called normalcy of the 1920’s—then it is certain that even though we shall have conquered our enemies on the battlefields abroad, we shall have yielded to the spirit of fascism here at home.” The fight against fascism occurs both abroad and at home. FDR and Truman did not hesitate to label their Republican opponents as fascists conspiring to rob people of their liberties as they have redefined them. Hence Democratic politicians today have virtually no restraint today in making outrageous charges against their opponents. After all, they are following successful models.

Lincoln described the Declaration as an apple of gold set in the Constitution’s frame of silver. Obama’s founding has no such beauty in it—only the bright lights of a laboratory.

Eastwood’s now notorious GOP convention rambling riff on President Obama was no less artistic, reflecting his own audacity as an actor and director.   While reducing Obama to an invisible man spouting unheard obscenities, Eastwood made a plainspoken case against his re-election. “You, we –we own this country…. And when somebody does not do the job, it’s time to let them go.”

Eastwood employed the esotericism of Al-Farabi’s ascetic who disguises himself as a drunkard. The renegade, seemingly stumbling improvisation protected the Establishment convention managers by giving them plausible deniability. Eastwood brought with him his anti-bureaucratic Dirty Harry (was this not the dirtiest negative ad of all?) and his pre-political, “no-name” western heroes. His characters confirm for us that the rule of law requires, at various key moments in a nation’s history, individuals who are above it but nonetheless respect it—likewise the theme of many a John Wayne movie.

But more to the point here, Eastwood was also channeling, in delivery and purpose, vox populi Jimmy Stewart in Mr. Smith Goes to Washington. Recall him saying he cried when Obama was elected and cried when he saw the unemployment go to 23 million, and then view Mr. Smith at the Lincoln Memorial.

Law professor Ann Althouse observed that “Millions of folks who didn’t bother watching the convention are watching Eastwood’s performance out of the context within which it was anomalous. They’re watching viral video.”   He was “seemingly speaking straight from his head”—what people yearn for most in political speech. And, FWIW, the Washington Post in its long profile of an independent voter noted that she “loved” the Eastwood moment.  The lethality of Eastwood’s 11 minutes was confirmed by President Obama who was obliged to say that he did not “take offense” and remained a “great fan” of him—though this clearly did not make his day.

Causing consternation for several days, the APSA, which was founded in New Orleans in 1903, had wanted to defy the laws of nature and proceed to meet in the city of its makers. (To be fair, several hundred convention participants, of the 6000 or so anticipated, were already in New Orleans prior to the long-scheduled Thursday, August 30 formal opening.)

Musing on a catastrophe of Katrina proportions, one person involved in organizing the Annual Meeting joked about a political science version of “Hunger Games.” However satisfying the vision of political scientists spearing each other might be (after making rational choice calculations), the APSA finally acknowledged the sovereignty of the laws of nature and likely averted disaster.

But the confrontation with brute nature brings attention to how political science scholarship set out to manipulate human nature.  The first two decades of the APSA produce shocking examples of open assault on the American founding and the Declaration of Independence in particular.  The APSA’s first presidents sought counterrevolution against the natural rights and the limited government that flows from them.

The first President of the APSA, Frank Goodnow (1903-05), made clear his basic distinction between the real world and the speculative one. Political science should study the real world of the state and its activities, not mere thought about the state.  And thus he contrasts the work of the political scientist with that of the “mere political philosopher.”  It is not an exaggeration to say that the ultimate purpose of the APSA is to marginalize and destroy political philosophy, including the political philosophy of the founders, as a legitimate part of political science.

This attempted eradication of political philosophy becomes even clearer in the Presidential Address of W.W. Willougby (1912-13), in which he wildly asserts, among many dubious statements, that the Greek and Oriental views of an oppressive relationship between the state and the individual are essentially the same. Thus he cannot even make the elementary distinction between Greek and barbarian. All this comes to a head in Willoughby’s Hegelian “acceptance of the socialist’s general theory that it is the proper province of the state to do whatever it can to secure the true interests of its people, unrestrained by an a priori limitations growing out of the essential nature of political philosophy.”

This means that a civilized politics must reject natural rights (“a priori limitations”) such as life, liberty, and the pursuit of happiness.   It gets worse. In advocating a “scientific” understanding of politics, the distinguished University of Chicago political scientist, civic activist, and APSA President (1924-25) Charles Merriam rejects archaic concepts such as natural rights and natural law. Justice and liberty are mere creations of the state, which has the duty of bringing about “the apotheosis of man.” But because human equality is a self-evident lie, the Teutonic races have the duty of civilizing mankind and, if necessary, wiping out the barbaric races. In this view, which would of course have terrifying consequences, there is no single human nature.

Although sophisticated political scientists agree that the natural rights, limited-government standards of the Declaration of Independence are antiquated, Merriam continues, they unfortunately still seem to have a hold on the American people.  Progressive scholarship has much work to do! Merriam spoke in his APSA Presidential Address of  a “freer spirit” who will “go on to the reconstruction of ‘the purely political’ into a more intelligent influence on the progress of the race toward conscious control over its own evolution.”  This “freer spirit” is the divinization or “apotheosis of man” he had promoted in his earlier writings.

Merriam’s immediate successor as APSA President, Charles Beard (1925-26), was of course notorious for his view that the founders devised the Constitution to protect and advance their economic interests and that it represented a reaction to the humane Declaration: democratic and fraternal Declaration, oligarchic and commercial Constitution.  Yet this gesture toward the Declaration only masks its use as an instrument to attack America, a technique quite familiar from the books of Barack Obama, among other contemporary intellectuals.

But the most successful blending of the theory and practice of Progressive political science is Woodrow Wilson, the only man to be both President of the APSA (1909-10) and of the United States. He became the first American President to attack the founding.  Evolutionary Darwinian science should replace the old Newtonian premises that required the separation of powers. Nature is in flux. A renewed Constitution would enable active governments to attack corporations and other special interests and transform America into “a perfected, coordinated beehive.”  Politics, for Wilson, embraced both the “statesmanship of thinking and the statesmanship of action.” It had no use for documents or doctrines that limited the power of intellectuals to transform the country.

Following the lead of its Progressive founders, the political science profession has indeed marginalized the study of political philosophy. Yet in recent decades the study of political philosophy and therewith of natural law, natural rights, and American political principles has made a comeback. At the APSA itself “non-affiliated groups” like the Claremont Institute for the Study of Statesmanship and Political Philosophy and the Voegelin Institute are permitted to host numerous and heavily attended panels that feature political philosophy in its rich and varied splendor. It would seem that the “laws of nature of nature’s God” have an enduring significance lost on the founders of the APSA.