The Scopes Trial and the Problem of Democratic Control

Jury in the Scopes Trial in Dayton, Tennessee.  (Photo by Hulton Archive/Getty Images)

For decades, defenders of liberty and self-rule have been fighting what seems like a continuous battle about the power, reach, and accountability of the federal government. Thoughtful critics of the federal invasion of our liberties draw from rich intellectual, political, and constitutional arguments. But few think as deeply about the cultural conditions of a free and self-reliant people.

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Of Competence and Cabrera, Continued


In response to a recent post of mine, Mark Pulliam asks: “How and when did higher education administration in America become completely captured by knaves, fools, and cowards?” Great question. “Completely” doesn’t quite capture it: Purdue and Baylor and Hillsdale are run by responsible, courageous people. Conversely, Mark’s question doesn’t quite capture GMU. “Just last evening,” GMU President Cabrera breathed in his missive to the GMU “community,” a “racially offensive” picture was found in a residence hall that was “demeaning, dehumanizing, and unfit for our community.” That picture appears nearby. Nobody at GMU—not any students’ association, not nobody—has been able to…

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The Constitution’s Design for Promoting Civic Virtue: Part I

At the Federalist Society Convention I had a debate with my friend, Professor Robert George, on a famous quote by John Adams: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” In the next three posts, I will excerpt my speech. And then I will add a postscript on Washington’s Farewell Address. Here is the beginning:

John Adams famously said “Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” His claim assumes that we can afford to have the limited government created by the Constitution because the people are already possessed of an abundance of virtue—indeed crucially virtues fortified by religion. But the Constitution itself reflects a very different faith: that a people blessed with a constitution like our own are likely to develop the virtues of self-restraint and social trust needed in order to thrive.

Religion can certainly help actualize virtues but so can other kinds of culture and practices. And the Constitution is premised on the enlightenment view that its very design can create the necessary virtues for civic life from elements of human nature, including raw self-interest.  The constitutional structure thus maintains itself and does not necessarily depend on any religious system.

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The Paris Massacre and the European Future: A Conversation with Mark Helprin

PARIS, FRANCE - NOVEMBER 16:  A general view of the tributes outside the Le Carillon restaurant, one of the scenes of last friday's terror attacks, on November 16, 2015 (Photo by Christopher Furlong/Getty Images)Award-winning novelist Mark Helprin is also one of the most significant voices writing on American foreign policy. Liberty Law Talk interviews Mr. Helprin about the recent terrorist attacks in Paris and what they mean for France, the European Union, and the United States.

Does Inaccuracy in Madison’s Notes Matter?

Constitutional historian Mary Bilder has a new book entitled Madison’s Hand: Revising the Constitutional Convention, which argues that Madison’s Notes, which are the principal source of the Philadelphia Convention’s activities in drafting the Constitution, were revised more extensively than most people realize.  While I have not read Bilder’s book yet (but here is a brief summary), I very much like Bilder’s work, including this book and this excellent article.  I am, however, aware of the criticisms and accusations about Madison’s work from previous scholars.

The extent to which the possible inaccuracy of Madison’s Notes affects originalism depends in part on the type of originalist one is.  If one favors an original intent approach, then it is normally thought that the possible inaccuracy would be a big problem.  By contrast, if one favors an original public meaning approach, then many people believe such inaccuracy would not matter much, because it is the meaning of words that matter, not what went on in the Philadelphia Convention.

Here I want to explain in what ways the Philadelphia Convention debates are relevant to an original public meaning approach.  Such an approach inquires into the public meaning of the terms that the Constitution employs (rather than the subjective intent of the people who wrote the Constitution).  An original methods originalist version of original public meaning – which is my view – looks to the original interpretive rules to determine that public meaning.

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Is the European Project Falsifiable?

3D abstract background with flag of Europe Unio

The attacks in Paris have left EU-elites remarkably unwavered in their beliefs. Jean-Claude Juncker stated on Sunday that there was no need to change the EU’s immigration agenda, while Guy Verhofstadt argued for ‘a common anti-terrorism capacity’ and even ‘a European CIA’. This absence of self-doubt pairs with a call for ‘more Europe’ in the face of clear policy failure.

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Competence, Cultural and Other


Last Friday, the following missive (sent, I believe, to the entire George Mason University “community”) landed in my inbox:

Dear Patriots,

Racism has no place at George Mason University.

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Rise of the Academic ‘Identitarians’

John Harvard statue in Harvard University

Perhaps I’ve been away too long. But as I tentatively grope my way back into the hallowed gloom of the Ivory Tower (pursuing a doctorate in history), I see that I have picked up a jaded impatience with the effete posturing of the professoriate. Not scholars, mind you, but rather that class which is busily employed in self-aggrandizing instead of innovative inquiry, job security instead of meaningful synthesis.

Granted, this may be unfair. Coming back to academic study after an interlude of national service and entrepreneurship—honing a capitalist worldview in the blazing light of the real world—I may have become insensitive to historical-political nuance. Perhaps further study will reveal that history as a profession is producing magnificent, valuable work that I am still too blinded to see. I doubt it, though.

It appears that history is a profession in crisis, a victim of its own brand of 1960s vintage radicalism.

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Calabresi on the Goodness of Federalism and Presidentialism in the U.S. Constitution

While many of us greatly value the United States Constitution, there are numerous critics of the Constitution including in the United States.  In particular, the critics argue that other countries should not attempt to emulate the U.S. Constitution.  Two features of the U.S. Constitution have been subject to scrutiny: its establishment of a federalist system and its use of a presidentialist executive.

Steve Calabresi has a new article out that ably defends the U.S. Constitution.  Calabresi acknowledges the problems with federalist and presidentialist systems, but argues that the U.S. Constitution avoids these problems with distinctive features that have not been employed by other countries that have adopted these systems.

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For More Privatization and Less Unionization at the TSA

I travel a lot and one of most unpleasant problems I encounter is the TSA. The lines are frequently long and the employees on occasion discourteous. But the most annoying aspect is that I have very little confidence that its procedures are well designed to keep us safe or that its personnel even assiduously follow these procedures. Over the summer confirmation of my fears came in the form of Homeland Security’s revelation that in over ninety percent of the instances, a “red team” designed to test security got through with some sort of dangerous contraband. Such failures should force us to reconsider the structure of TSA.

What the agency most needs is more private competition. Currently few passengers go through private screening. If the agency put more private contracts out for bid, the government could incentivize better results.   The contracts could include clauses that would reward companies for passing the tests that the government run screening has so miserably failed. More competition would also aid innovation and efficiency over time.  A centralized bureaucracy is unlikely to come up on its own with the all best ideas. At first, the government could continue to centralize various aspects of security, like background checks of screeners. But even those could be outsourced as if contractors could show that they had better methods.

The government should also reconsider unionization of TSA screeners currently employed by the agency.

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