What Are the Antifederalists to Us?

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

Read More

Historians and Originalists Part II: The Adequacy of Originalist Scholarship

In a prior post, I discussed some of the disagreements between historians and originalists.  I argued that more information is generally better than less information and therefore both groups of scholars are likely to make contributions as to constitutional interpretation.  Here I want to examine the relative contributions of the two groups and in particular whether the standard methods used by originalists are adequate to the task. Jonathan Gienapp argues that, without the skills of the historian, originalist law professors will not be able to determine the original meaning of constitutional language, because the language games and other aspects of 18th…

Read More

Conservative Elitism and Flyover Colleges: Why Stanley Kurtz Is Wrong about Higher Education

College campus

On National Review Online’s “Corner”, Stanley Kurtz, a senior fellow at the Ethics and Public Policy Center, discussed the nature and origins of recent campus disinvitations and disruptions, such as the Black Lives Matter intimidation of Heather Mac Donald at University of California Los Angeles. The essay has two parts. The first provides a narrative history of how American campuses embraced anti-free speech disruptions, and the second half offers policies to end them. Kurtz’s piece offered the now familiar complaint that tenured radicals are at the root of campus disruption, and Republican majorities in Congress should reform the Higher Education Act to force universities to protect speech and, if possible, rescind tenure. Professor Peter Augustine Lawler, the Dana Professor of Political Science at Berry College, critiqued Kurtz’s piece on two grounds. This first is that administrators are now in charge and have pushed faculty to the margins of decision-making. The second is that legislation is precisely the opposite of the proper solution, because federal regulation of various kinds has facilitated the erosion of the true diversity of American colleges.

Read More

Will Blaine’s Descendants Finally Be Disinherited?

In his magisterial Separation of Church and State (2002), Philip Hamburger demonstrates that anti-Catholic animus contributed significantly to the post-Civil War movement to separate church and state. In the 19th century, this separation was usually between states and “sectarian” Catholic institutions and programs. “Non-sectarian” Protestant institutions and programs were largely exempt.

At the national level, the most notable manifestation of this anti-Catholic animus was the constitutional amendment proposed by Representative James Blaine (R-Maine) to prevent, among other things, public funding of schools “under the control of any religious sect.” Proposed in 1875, the amendment passed overwhelmingly in the House but did not receive the necessary two-thirds majority in the Senate. However, many states soon amended their constitutions to include similar amendments. Missouri did so in the same year that Blaine’s Amendment failed in the Senate.

Read More

Whining About Article III

The latest tract by Erwin Chemerinsky, liberal law professor and dean of the University of California at Irvine School of Law, is depressingly familiar. Like his Enhancing Government: Federalism for the 21st Century (2008), The Conservative Assault on the Constitution (2011), and The Case Against the Supreme Court (2014), his new book is a diatribe masquerading as legal scholarship. The usual villains—conservative Supreme Court justices, malevolent government officials, rapacious corporations, racist police officers—are pitted against the wrongly accused, helpless consumers, and oppressed victims of discrimination. Closing the Courthouse Door: How Your Constitutional Rights Became Unenforceable presents one-sided vignettes drawn from actual…

Read More

Originalism and the Future of Religious Freedom

fourteenth amendment

For historians seeking the original meaning of the Fourteenth Amendment, few issues are trickier than the question of national religious liberty. At the time of the Founding, the entire subject of governmental regulation of religion was left to the states. There was no single “principle of religious freedom” beyond widespread agreement that the federal government had no delegated authority over the issue. This left Virginia free to embrace the principles of Jeffersonian separationism and Massachusetts free to embrace the Adams-esque principle of semi-coercive, government-supported religious belief.

Adoption of the Fourteenth Amendment ended this freewheeling religious regulatory federalism and demanded that no state enact or enforce any law abridging the privileges or immunities of national citizenship.

Read More

Dreher’s Benedict and the First Amendment

The Benedict Option, Rod Dreher’s much-discussed book, has largely been portrayed as a way to rethink Christian political and cultural engagement. How, exactly, the rethinking ought to play out has been debated incessantly, albeit often superficially, as only the Internet can ensure. Dreher does attempt to make clear, in any case, that Christians should focus “all the attention they have left for national politics” on expanding religious liberty. Religious liberty is naturally necessary for any religious undertaking and Dreher is right to recognize that without it no one could take his advice to focus on cultivating local politics and community. But…

Read More

Diversity Policies Favoring Minorities and Women Create Less Ideological Diversity

Professors at law schools are overwhelming left-liberal, as I made clear in a 2005 study published in the Georgetown Law Review. Just as it was said in the late nineteenth century that the Anglican Church was the Conservative Party at prayer, our law schools today are the Democratic Party at the podium.  The hard resulting policy question is whether law schools should adopt affirmative action for libertarians and conservatives to foster the debate that should inform legal subjects with a substantial political valence.

While I have not supported preferences of this kind, the strongest arguments in their favor are the existence of preferential policies in favor of race, gender, and ethnicity that are themselves justified as a way of creating a fuller debate. Indeed, one particularly powerful point—rarely if ever made made—is that the widespread intentional discrimination in favor of certain preferred groups in faculty hiring has a disparate impact on conservative and libertarians and reduces their presence at law schools. That is, since minority and female law professors are likely to be even more left-liberal than white males, the routine diversity policies of law schools decrease the number of conservatives and libertarians compared to a baseline of purely merit selection.

A new study of the ideological imbalance in the legal academy,  The Legal Academy’s Ideological Uniformity, provides hard statistical support for this proposition. It shows that minority and female faculty members are  indeed substantially more likely to be left-liberal than white males and be even more left-wing.  Racial and gender diversity does reduce ideological diversity.

Read More

North Korea and the Qaddafi Double Cross

With the Trump Administration engaged in a soft conflict with North Korea, it is worth noting how the actions of the Obama Administration have made it a harder to reach a resolution with North Korea. When a country attempts to secure nuclear weapons, it is of course extremely difficult for the United States and other countries to prevent them from entering the nuclear club.  A country gains a tremendous amount of military power, influence, and prestige from having nuclear weapons.  And so it would be expected that it would be difficult to persuade them not to do so.  Various administrations from…

Read More

The Radical Jefferson: A Conversation with Kevin Gutzman

jefferson-bookIn this edition of Liberty Law Talk historian Kevin Gutzman discusses his latest book, Thomas Jefferson—Revolutionary. We focus on Jefferson's account of federalism, conscience rights, education, and race.