The restrained vision of the federal judiciary that has for some time dominated the jurisprudence of right-leaning American legal theorists and lawyers in this country is now under fire. In writings both academic and popular, many libertarian and classical liberal scholars clamor for the supposed symmetry of substantive due process or the bold recovery of an expansive listing of natural rights that is, we are told, embodied in the 9th Amendment, and the Privileges or Immunities Clause of the Fourteenth Amendment. Even George Will has reversed his own prior position on judicial restraint to now favor “judicial engagement” to protect so-called non-fundamental liberties and unenumerated rights from the rule of majorities, or what some might call the carefully qualified majorities of our republican constitution.
Clint Eastwood’s American Sniper tells the story of Navy Seal Chris Kyle, the deadliest sniper in American military history with 160 confirmed kills. The film opens in Fallujah with Kyle confronting what will be his first two kills, a woman and a young boy who advance with a grenade toward a column of Marines. Kyle’s juvenile Marine escort states the obvious: “If you’re wrong, they’ll send your ass to Leavenworth.” Kyle shoots the boy and then the woman when she picks up his dropped grenade and attempts to throw it.
Bradley Cooper’s portrayal of Kyle here and throughout the film might be called the “inward turn.” Kyle isn’t overwhelmed by the event, but we sense that it is merely the first of many dramatic killings whose troubled imprint on Kyle will emerge in due course. After their deaths, he breathes in, closes his eyes, and then prepares for the next shot.
Law and Liberty’s podcast with Danish journalist Flemming Rose, publisher of the 2005 Muhammed cartoons in the Danish newspaper Jyllands-Posten, took place in November. The occasion of our interview was the publication by the Cato Institute of Rose’s book The Tyranny of Silence, about the consequences he experienced after the cartoons were released. Rose’s voice is obviously powerful given what he endured, but he is also incredibly thoughtful on Europe’s post-liberal order. Europe, he says, now struggles to understand what it is about save for its thin belief in transnational EU governance and a nearly blinding commitment to egalitarianism, itself a contributing factor to the rise of…
1. Telling the Truth about Aleksandr Solzhenitsyn: A Conversation with Dan Mahoney 2. The Post-Constitutional Presidency Turns Inward--Greg Weiner 3. Injustice by the Numbers--Ken Masugi 4. Victim of a Practice Audit--Philip Hamburger 5. Now for a Really Destructive Innovation: A Europe-wide State--Theodore Dalrymple 6. Prescription for a Banana Republic--Michael Greve 7. How to Secure America's Peace--Angelo Codevilla 8. The Constitution's Structural Limitations on Power Should be the Focus of the Bill of Rights--Patrick Garry 9. On "Payback"--Angelo Codevilla 10. What Tocqueville Can Teach Us about the Culture War--Richard Samuelson
A great year of interviews in 2014. Here's a list of the 5 most downloaded: 1. A Conversation with Roger Scruton on How to be a Conservative 2. The Unlawful Administrative State: A Conversation with Philip Hamburger 3. Telling the Truth about Aleksandr Solzhenitsyn: A Conversation with Daniel J. Mahoney 4. Achieving America's Peace: A Conversation with Angelo Codevilla 5. Presidential Power Rising: A Conversation with Frank Buckley
Recently stumping for his cooperative federalism model of government-funded preschool, Barack Obama claimed that more money should be spent on these programs so that, in effect, women wouldn’t have to stay at home to take care of children. They should be working as the family’s core functions should be institutionalized by the state. This, of course, confirms what many on the Right think about these types of programs. They are back-door ways to ensure government gets more time with your children and you get more time at work, which you’ll need to pay the taxes for this program and the many other progressive bureaucracies.
Taking a different tack is Indiana Governor Mike Pence who says “This is a heart issue for me” when he urges renewal of his pilot program for government-funded preschool education.
Does that mean evidence-based debate on the subject is heartless? Well we’ll see.
Andrew Ferguson of the Weekly Standard said recently that the Common Core state standards will ultimately be nothing more than another pile of ashes on the smoldering fire of national education reform. His excellent article reviewed the long and sorry history of such efforts, detailing how the Common Core came to replace George W. Bush’s vaunted (and then hated) No Child Left Behind Act of 2001, itself an effort to replace President Clinton’s Goals 2000, which superceded, that’s right, George H.W. Bush’s America 2000.
The President’s use of executive power outside and above the bounds of the Constitution is well known at this point. In policies ranging from the railroading of creditors in the auto bailouts, to Obamacare by waiver, eliminating key work provisions in the 1996 welfare reform legislation, Deferred Action for Childhood Arrivals, and to the informed suspicion that he will unilaterally legalize 5 to 6 million illegal immigrants, this President has entered a new realm of abuse of power. Resulting from the stress he’s placing on our constitutional order have arisen significant interventions that attempt to underline how and why we have arrived at this new dimension of executive power, even in the case of Congress there is an attempt to reclaim its authority, if only in a pusillanimous manner.
I am beaming with delight to announce that Philip Hamburger, the Maurice and Hilda Friedman Professor of Law at the Columbia University School of Law, will be joining Law and Liberty for the month of August as a guest blogger. You might have heard of his latest impressive work of scholarship Is Administrative Law Unlawful? My podcast with Prof. Hamburger earlier this month explores his exposition on the extralegal capacity of the administrative state. Progressives claim that law-making executive agencies are a necessity for organizing a large commercial and urban society, but Hamburger convincingly argues that it really is a…
It’s no fun being the skunk at the garden party, but amidst the widespread praise of Paul Ryan’s recently announced anti-poverty reforms it appears some criticism is overdue.