The Donald, the Impartial Spectator, and the Command of the Passions

Adam Smith statue in Edinburgh's High Street.

I spend the better part of my professional life teaching “Great Books.” This semester’s lineup so far has included Jean-Jacques Rousseau’s Second Discourse (1775), Adam Smith’s The Theory of Moral Sentiments (1759), John Milton’s Areopagitica (1644), John Locke’s Letter Concerning Toleration (1689), and Niccolo Machiavelli’s The Prince (1532). I’m committed to the proposition that these old books continue to speak to us, if only we have ears to hear.

My students don’t always agree, but they really perked up when I speculated about how Adam Smith would approach the phenomenon—the yuuge phenomenon—of Donald Trump.

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Clean Power, Dirty Hands

Washington, DC - Environmental Protection Agency

The brawl over the Obama EPA’s “clean power” plan—an ambitious design to de-fossilize the entire economy and to make Planet Earth spin westward for a change—has reached the Supreme Court.

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A Time for Congressional Hardball

American flag in front of US Capitol dome

The fundamental constitutional question presented by the case of United States v. Texas is not whether the President is constitutionally required to enforce immigration laws (he is), but whether the Supreme Court is constitutionally empowered to police every constitutional dispute. If it decides to do the work of Congress and restrain the executive, it will, more than it did in Cooper v. Aaron (1958), proclaim a doctrine of judicial supremacy over constitutional questions.

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The Unnatural State

The Economist reports that in five nations net transfers (private plus public) go from the young to the old rather than the other way around. Some of these nations are deeply social democratic (Germany, Austria, Slovenia). Some are thought to be conservative (Hungary, Japan). But all have in common large social entitlements.

This trend shows show how welfare states can reverse the natural order of things, where the old give more to the young than the young can ever repay. Families exemplify this principle. Socially too, the intergenerational flow of resources is what creates civilization as each generation receives benefits from the previous one.

Now to be sure, not everything that is natural is good. But few people criticize the special solicitude parents feel for their children or the old feel for the young generally. And entitlements to the elderly cannot easily be justified by abstract appeal to the justice of redistribution. It is simply not the case that the elderly as class are poorer than the young.

The social consequences of this unnatural flow are deeply unfortunate.

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No Joy in Mudville


Remember that Saturday Night Live commercial for “Shimmer” and how Dan Aykroyd and Jane Curtin quarreled about whether it was a floor wax or a dessert topping? They could quarrel just as much about Joy, the latest film by director/screen writer David O. Russell starring Jennifer Lawrence.

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Lawyers Should Read Dostoevsky


Moments of disorienting despair, or of painful honesty, can strip away our comforting self-conceit and force us to recognize what a disquietingly thin barrier it is that separates the decency of civilized life from the brutality of barbarism. If the barrier is thin—and there is too much evidence to deny it—do we have the strength, character, and means to maintain, and thereby meet the challenge of defending, that decency?

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Comparing Traditionalism and Originalism

In my first post of this series on law and tradition, I said that though a judicial opinion might exhibit both originalist and traditionalist features, these are nevertheless distinct interpretive categories. In this post and the next, I will briefly explore the similarities and differences in two opinions decided by the Supreme Court in 2014—Town of Greece v. Galloway and NLRB v. Noel Canning—both of which are traditionalist but not (necessarily) originalist in method (though Town of Greece is complicated). My claim is not that these decisions are correct; only that each exhibits a distinctive interpretive approach that is intentional about maintaining coherence and continuity with very long-standing patterns of legal and cultural practices and that each determines constitutional meaning primarily on the basis of practices rather than principles.

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Other People’s Money

In a very fine investigative article in the Washington Examiner, Sean Higgins reports on “Obama’s Big Bank Slush Fund.” As part of their “settlements” with the feds over alleged misdeeds, big banks routinely agree to make donations to various “fair housing” outfits, to the tune of several hundred millions of dollars.

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Marilynne Robinson and the Mystery of Progressive Democracy

Old abandoned white wooden chapel on prairie at sunset with cloudy sky.

My favorite novelist is also Barack Obama’s. That shouldn’t be a problem, you might say—two people of widely different political opinions can love the same beautiful things. As Paul Seaton has observed on this site, studying Marilynne Robinson’s nonfiction, marked as it is by her very conventional academic-liberal political opinions, is not very conducive to appreciating the exquisite subtlety of her fiction.[1]

The New York Review of Books late last year published an extensive conversation between the President and the novelist (which Joe Knippenberg commented on here). Obama and the author of Housekeeping (1980), Gilead (2004), and Home (2008) come to an immediate meeting of minds, or rather hearts, on their faith in “democracy,” which, the ostensibly Calvinist Robinson posits, is based on “the willingness to assume well about other people.”

Asked by the President to explain the convergence between her Christianity and her “concerns about democracy,” Robinson offers the simplest possible explanation: she believes “people are images of God” and that “democracy is the logical, the inevitable consequence of this kind of religious humanism at its highest level.” To the President’s and the novelist’s joint chagrin, though, the “loudest voices” for Christianity in American politics don’t really take their Christianity seriously; supposedly they fail to follow Christ’s injunction to love one’s neighbor as oneself. Robinson has gone so far as to describe Christian America as “associating the precious Lord with ignorance, intolerance, and belligerent nationalism.”

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Obama’s Responsibility for Political Polarization

In his state of the union and again in his recent interview with Politico, President Obama expressed sorrow that he has not been able to end political animosities. As he put it in the interview, “a singular regret for me is the fact that our body politic has become more polarized, the language, the spirit has become meaner than when I came in.”

Obama blames different factors from the media to gerrymandering for our angry divisions. But Obama himself is in no small measure responsible for polarization. His reliance on executive action, most egregiously his order on immigration, is a primary cause. Unsupported by any express delegation from Congress, this extraordinary act is enormously controversial. It seeks to permit five million people who have come to this country illegally not only to stay but to work.

Legislation on divisive issues is much less likely to lead to polarization than executive fiat.

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