Heroes of the Right of Self-Defense

My last post ended by asking: where is the outrage at the disparagement of the struggle and sacrifice that the first generation of Black citizens made to vindicate their right to arms? The question was rhetorical, meant to emphasize how casually former Justice John Paul Stevens and Michael Waldman turn a blind eye to one of the foundational episodes in the story of Black Americans.

The tack taken by Stevens and Waldman is all too familiar. It takes for granted that some people more than others are allowed to play rough on the field of race.

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Patrick Allitt

I was pleasantly surprised to see this new podcast with Patrick Allitt.  I know Professor Allitt’s work from his lectures for the Great Courses (previously known as the Teaching Company).

I have listened to three of his courses, all of which I greatly recommend.  The first course I listened to by Professor Allitt was his Victorian Britain.  Both my wife and I loved this course, and we still laugh at Allitt’s impersonation of Queen Victoria.  Great fun and highly recommended.

The second course I enjoyed was History of the United States (2nd edition).  Allitt is joined here by two other excellent lecturers –  Allen C. Guelzo and Gary W. Gallagher – and the three of them provide a first rate review of the nation’s history.  I also listened to the first edition of this course, with different professors, and this version was far superior.

The third course was The Conservative Tradition.  This course covers modern conservatism, both exploring the main ideas and the main politicians who drove the movement.  As with all of Allitt’s courses, one remembers both the ideas and funny anecdotes, such as his discussion of Margaret Thacher handbagging the French.

Allitt’s courses do not strike me as conservative.  Instead, I am not quite sure what his politics are.  Instead, the courses are descriptive, entertaining, and insightful – exactly what good history should be.

The Whip and the Sting of the Law

Statua di Machiavelli, Galleria degli Uffizi a Firenze.

Statua di Machiavelli, Galleria degli Uffizi a Firenze.

Richard Reinsch’s post “Return to the Barbaric” leads me to think that there is indeed something different about the use of the executive power in the Obama Administration, though FDR set a new model–closing the banks and barring people from access to their savings, on the strength of nothing but the Trading with the Enemy Act of 1917. FDR also traded destroyers for naval bases, when his Attorney General, Robert Jackson, told him that those destroyers were not his property to sell or trade.  But as Reinsch and others have said, cashiering the president of GM, rewriting the law on Obamacare, and these other moves–they put this flexing of the Executive power on an entirely different plane.  He is indeed detaching himself now from the “structure” of the Constitution, with not even a faint connection to anything in the statutes.

What is striking is that it took President Obama to bring out a certain flaw lurking in the logic of the Madisonian system:  that the very things that form the “discipline of constitutionalism”–e.g, the difficulty of putting together a coalition to pass a bill–are the things that make it hard for Congress to act for the purpose of resisting a President who is grossly exceeding his powers.   And it’s curious that the Founders never anticipated the way that the party system would alter this constitutional arrangement:  During the Civil War the Republican governors became active in raising troops and overcoming the divisions of federalism in responding to the needs of Washington.  They managed to bring resources to bear, across the boundaries of the States, in a coordinated purpose of saving the national government. Washington itself was not secured until Governor Andrews got the Massachusetts 6th Regiment down there, after fighting their way past the thugs in Baltimore. When they finally landed, Lincoln said “You are the only real thing.” But now, a President abusing his authority can count on a large chunk of votes in the Congress to support him–the ties of party will rise, for them, above anything they share with people across the aisle as “members of Congress.”  The incentive to act for “institutional interests” will be undercut.   My reflexes are to oppose litigation here; for Congress should not be a mere litigant, inviting the Court to take on a position of primacy among the three branches. And yet it becomes more and more plausible that the Court can be invited in to police the separation of powers, in the way that Justice Scalia thought it could indeed become engaged in the case of the Independent Counsel (Morrison v. Olson).

In preparing for an upcoming meeting on the work of Harvey Mansfield, I find the curious thing (which I haven’t heard mentioned) is that Obama has given us the most precise example of the Machiavellian Executive–the one who knows that the law cannot do what it claims to do when it purportedly lays down universal rules. This Executive works by laying hands on particular persons and giving them the whip or sting of the law.  Those invested with this form of executive power know that their real power has little to do with statutes, but everything to do with their daring and decisiveness.

The Pathetic Record of Environmentalist Pessimism

Climate crisis

This conversation with Patrick Allitt on his latest book, A Climate of Crisis, provides a historical judgment on the environmentalist movement in postwar America. We see its causes, self-understanding, and the motives and beliefs driving its adherents. Allitt, unlike most in this area, does not come to propose or critique policies, but to note the benefits and consequences that have resulted from the particular brand of environmentalism that emerged in America. Curiously, Allitt notes, environmentalism received its initial energy from the immense capacity for wealth creation that America generated in the postwar environment. This freed us to notice the damage that had been inflicted on the environment by industry and our careless practices. One must be separate from nature in order to be sympathetic to it.

In this respect, concern for the environment was the offspring of a tremendous achievement. Yet, the same confidence that filled Americans with respect to growing the economy and generally getting on with it after the Depression and the War, soon departed when it came to the environment. Allitt notes that the apocalyptic rhetoric that frames our debates on environmental policy has been present from the beginning.

Allitt discusses those whom he terms pessimists as the true believers who have insisted at every turn that we face various ecological crises. However, despite a long record of failed predictions and impugned hypotheses, their rhetoric and overall framing of the issues still drives our approach to the environment. In short, why do the losers, with their morally superior demands that we change our way of life, still shape the debate, even when proved wrong by scientific evidence, or in the case of Paul Ehrlich, a really bad bet with Julian Simon? Less noted, but highlighted by Allitt, is the case made by the optimists who have generally insisted that markets, wealth, and increased technological sophistication will enable us to surmount our ecological troubles. They have been right far more often than their pessimist opponents.

We close our discussion with the central issue of the day: global warming. Here, too, Allitt notes that we have a problem, but he looks to the past record to conclude that science and markets will ultimately make this issue manageable by a mediated solution versus the rather dramatic demands for economic transformation still issued in order to, you guessed it, save the planet.

Replicating Experiments in the Social Sciences

Slate recently had an interesting article discussing the issue of replication of findings from experiments in social psychology.  While I am an academic, the issue of replication does not come up much in the legal world.  Most legal academic articles make normative arguments, although it is true that in some areas, such as legal history, issues similar to replication do arise.

Perhaps I would feel differently if I had more experience with the issue of replication, but from my perspective replication seems like an essential aspect of science, even (or especially) soft social science.  If one is relying on an experiment, then that experiment better be replicable or else the findings do not constitute reliable information and should not be considered science.  The point is so basic that it is hard to know how anyone could argue with it.

Yet, some social scientists disagree.  There appear to be two counter arguments: that the academics doing the replication are not skilled enough to perform it competently or that they incorrectly conducting the experiment because subtle aspects are not being followed (in part because they were not stated in the original article announcing the experiment).

These counters seem weak.  Starting with the second one, if the original publication omits pertinent information, then that information should have been included – either in the original publication or online.  After all, it is relevant to evaluating the study (even if one is not attempting a replication).  As to the first counter, the skills of the scientist will be evaluated by the journal in deciding whether to publish the experiment.  After all, the journal that published the original article also had to evaluate the skills of the author.

I am sure that it is annoying for one’s study to be criticized if the criticisms are wrong.  But there is, of course, a check on incorrect replications – other replications that support the original study.  It might be thought that all of these replications are a waste, but of course they are not – if we are to increase our knowledge it is essential that we determine whether experiments can stand up to scrutiny.

It is sad that scientists who attempt to replicate other findings seem to be held in less esteem than the scientists who do the studies in the first place.  In law, I am not sure that is the case.  If a significant piece comes out which relies on historical assertions, there will be substantial interest in a piece that disputes these assertions.  My co-blogger, John McGinnis, once published a piece that took down two very prominent academics who had made sloppy and incorrect assertions about the Appointments Clause.  The piece was not treated as unimportant because it merely critiqued others.  Quite the contrary.

As an outsider, it is hard to know whether, and if so, how corrupt – yes that word is appropriate – social psychology is.  If important people are resisting replications – and if journals are refusing to publish replications that fail – then the field is corrupt.  But that may not be the case.  Perhaps it is only a small minority who oppose this replication movement.  Let’s hope.

The Constitution as Law Nested in Other Law

I am late to the party discussing whether the Constitution is best understand through the prism of “popular” or “elite” meanings.  There have already been fine contributions by Ilya Somin, Timothy Sandefur, Mike Ramsey and Mike Rappaport.

As Mike Rappaport has noted, he and I believe the Constitution is a legal document and thus legal rules will tell us how to determine meaning, including what degree we should look to evidence from popular as opposed to more technical meanings. I just wanted to add that there is substantial evidence from the Constitution itself that is was to be interpreted with legal rules. In that sense, it often cannot be understood without an elite sensibility, assuming we understand lawyers to be elites.

As we note in our article, Original Methods Originalism: a New Theory of Interpretation and the Case Against Construction:

The Constitution defines itself as the “supreme Law of the Land.” The fact that the Constitution was a legal document was not simply left to implication by the enactors but was set forth explicitly in the Constitution itself.

There are also specific indications in the text of the Constitution that the document would be interpreted according to legal rules. We provide some examples in our article. I want to add one more.

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Taking Political Advantage . . . And Then What?

By practicing racial prejudice regarding the fatal shooting of Michael Brown in Ferguson, Missouri, the Obama administration, Governor Jay Nixon, and the media stoke racial strife among Americans. Apparently they intend to bump the Democratic Party’s share of the black vote up yet another notch.

Reasonable observers cannot but take note when persons who know what they are doing promote judgments about a case before all the facts of that case have been put forward, and do so on the basis of race. That those promoting such strife are Democrats, that black Americans are their immediate audience, and that voter-registration tables have been set up among the demonstrators they help to mobilize, all raise the question: cui bono? Conscience should abhor the purchase of political advantage at the cost of further dividing American society along its starkest fault line.

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Justice Scalia, Ordinary Meanings, and Legal Meanings

Mike Ramsey, Ilya Somin, and now Tim Sandefur have been having a debate over whether the original meaning of the Constitution should be interpreted in accordance with the meaning as understood by the ordinary public or by people with legal knowledge.  I may have more to say about this next week, but for now I want to note a significant issue.

Under the original methods originalism position that John McGinnis and I defend in Originalism and the Good Constitution, the Constitution should be interpreted in accordance with the interpretive rules that would have been deemed applicable to it at the time of its enactment.  Since the Constitution is a legal document, we believe these interpretive rules are those that would have been applied to a legal document.  These legal interpretive rules would sometimes require that the ordinary meaning apply rather than a more technical meaning, but they would often require legally informed meanings and understandings to be employed.

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Remembrance of Things Past


How persistent is memory, politically speaking? Machiavelli argued that “the memory of ancient liberty,” possessed by republican peoples, is tenacious, presenting an obstacle for a ruler bent on tyrannizing those long used to self-government. In chapter 5 of The Prince, he counseled harsh measures like wiping out the entire population as the only sure mode to exterminate the remembrance of things past. Instead of Carthage-scale eradication, the society in The Giver has found a new mode—seemingly kinder and gentler—by which to neutralize memory, thereby creating a pliant citizenry.

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