Paradise Lost?

Medieval Muslims in al-Andalus playing chess. From the Book of Games by King Alfonso X.

In 711 A.D., a Muslim raiding party, made up mostly of recently conquered and converted Berbers, crossed to Spain from Africa and unexpectedly defeated Roderic, the king of the Visigoths. This represented the farthest western expansion of the Ummayad Empire, which had come to power in 656 in the first Islamic Civil War, and whose seat was in Greek-speaking Damascus.

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A Libertarian Ticket Hostile to Elements of Liberty

Presidential Candidate Selection

As a classical liberal, I regard libertarianism as I would a wilder, younger brother. Libertarianism is younger because it is largely a product of modernity, while classical liberalism is more rooted in the 18th and 19th centuries. It is wilder, because it posits that the public-good function of the state is more limited and the externalities less frequent than I and other classical liberals believe. Yet the philosophies are close kin: they both see that the state poses a perpetual danger to its citizens, only disagreeing at the margin on when it is necessary to relax the strictures on governmental action. And at least with the most sensible libertarians and classical liberals, these disagreements are largely empirical.

Thus, in a race where the Republican candidate for President is careering away from classical liberalism and the Democratic candidate is flirting with the socialist elements of her party, a classical liberal might find a natural home in the Libertarian Party. Sadly, however, the Libertarian ticket has taken some important positions hostile to liberty. Begin with religious freedom.

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Is SCOTUS a Good Reason to Support Trump? has a piece by Damon Root asking various libertarian and conservative legal experts what they think about the matter.  There are a range of answers.  Here is my response: I certainly believe that the future of the Supreme Court is "a reason" to support Trump. There are no assurances, but I do believe it is likely that he will choose someone from the list he issued previously (or someone similar). Is it a strong enough reason to overcome the other reasons not to vote for him? To me, it depends on one's perspective. If one is simply voting for the candidate…

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Reviving Pluralism: A Conversation with John Inazu

confident pluralismJohn Inazu has emerged as one of the leading scholars on freedom of association and religious freedom. His earlier book, Liberty's Refuge: The Forgotten Freedom of Assembly revived our understanding of the significance of freedom of association in American constitutional history. He joins us in this episode of Liberty Law Talk to discuss his latest book, Confident Pluralism on why we must rebuild both the legal and civic engagement aspects of a pluralist society.

A Profile in Courage

Sen. Robert A. Taft

When National Review debuted in 1955, the liberal columnist Dwight MacDonald lamented that the thrust of the new magazine was not conservative. In MacDonald’s lexicon, a true conservative was one who “sticks to his principles even when the results go against his prejudices,” for conservatives do not “appeal to the hearts of men” but to the “laws and traditions of a country.”

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Media Policy and Government Failure

Recently, I had a conversation with a liberal law professor about government policy and bias in the media.  I argued that there was government failure.  The media was dominated by liberals and the government supported liberal public television and radio, which reinforced that domination.  This could not be justified.  Instead, it was an example of the dominant group exercising their power in both the private and government sphere.

The professor countered that while public broadcasting was liberal, the private media was capitalist, implying that public broadcasting was providing something that was missing from the private sector.

I thought of this conversation the other day when I read the New York Times the morning after Hillary Clinton’s acceptance speech at the Democratic National Convention.  During the entire Republican Convention, including after Donald Trump’s acceptance speech, the Times had negative headline after headline.  I should have taken a screenshot of it, but did not think to do so ahead of time.  But after Clinton’s acceptance speech, I did take a screen shot.  The stories were uniformly positive, and in some cases triumphant.  The titles: “Clinton Declares Election a Moment of Reckoning,” “Nomination Claimed and a Barrier Falls,” “Clinton Makes History, and Wears It, Too,” “Writing Her Own Story,” and on and on and on.  No one could reasonably claim that the Times was impartial about these matters. 

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Mind-Reading and the Rule of Law

Application Store

What did Satoshi Uematsu and Adel Kermiche have in common? Both were young men, both were psychologically unstable, both were in the grip of vicious ideas, and both killed their victims pitilessly with knives in fulfilment of those ideas. Uematsu wanted to rid the world of the disabled, Kermiche of unbelievers. They both had some vision of perfection that would be brought about by clearing the world of those they deemed unworthy to live in it.

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Modern Progressives as the New Iconoclasts

Progressivism was born in no small measure from opposition to the rule of law, because it wanted to overthrow the Constitution by means other than the amendment process, if necessary.  But today progressivism’s opposition to the rule of law is not confined to the Constitution.

The latest example comes from Yale, a bastion of progressivism.  There a dining hall employee purposely destroyed a stained glass window that depicted African Americans picking cotton, because he found it offensive. Initially, Yale fired him and referred him for prosecution. But after protests from professors and students, Yale declined to prosecute and is in negotiations to reemploy him. The protesters celebrated his act of “civil disobedience.”

The support for this act of vandalism and Yale’s pusillanimous climb down are misguided on many levels.

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Baude on Tillman on the Constitution’s Provisions Regarding Officers

One of Justice Scalia’s primary influences on constitutional law and theory has been the growth of originalist textualism – the view that takes close textual readings of the Constitution seriously and draws important consequences for constitutional law from the text rather than someone’s view of what is normatively desirable.  One of the people who has a particular keen interest in such textual differences and their consequences is Seth Barrett Tillman, who has over the last several years sought to closely examine seemingly minor textual variations and to draw significant consequences from them.

In Jotwell, the Journal of Things We Like, Will Baude summarizes and appreciates Seth’s scholarship in this area.  Will explains how Seth has looked at various terms in the Constitution —  “Officer,” “Officers of the United States,” “Officer under the […] United States,” “Public Trust under the United States,” “Offices of Honor/Trust/Profit under the United States,” and “Office under the Authority of the United States.”  Could each of these terms really have distinct meanings?  For many years, even originalist textualists have often assumed the answer is no.

But Seth argues there are important differences between these terms.  Will discusses some of the interpretations and evidence that Seth has used to justify these distinctions.  And he has an extremely useful chart with all six categories and the meanings offered by Seth. 

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Divine Rights and Human Rights

Woman meditating in yoga position on the top of mountains

The eminent political theorist Harvey Mansfield once wrote that the “religious question” is the crucial one for the modern age, because it concerns the ultimate repository of authority and control. Is it human or is it divine?

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