Who Are the True Heirs of the Reconstruction Republicans?

In a post at Balkinization, Mark Graber criticizes the five more conservative justices on the Supreme Court, seeking to link them to the Democrats who championed slavery:

Roberts Court justices and their allies take the post-bellum Democratic position on constitutional equality. During the debates over the Second Freedmen’s Bureau Bill, Republicans insisted that Congress could take into consideration American racial history when passing legislation that provided specific benefits to destitute freedmen. Democrats insisted that any legislation that favored persons of color violated constitutional commitments to equality. Chief Justice Roberts agrees with those who hoped African-Americans would remain in a state as close to slavery as constitutionally possibly.

For years, originalists have told us that constitutional language must be interpreted consistently with how that language was understood when constitutional provisions were ratified. Apparently . . .  what they have meant is that constitutional language ought to be interpreted consistently with how persons who opposed constitutional provisions interpreted that language after ratification.

Graber’s argument, which has also been made in the literature, is not persuasive.  In my view, it makes a tendentious political argument that is easily defeated by those it criticizes.

Graber’s argument focuses on the legislative debate concerning the Freedmen’s Bureau Act, which provided special benefits to former slaves. He claims that the defenders of slavery and white supremacy, the Southern Democrats, made the same arguments that the modern Republicans make concerning affirmative action. And the party of freedom for blacks, the Northern Republicans, make the same arguments that the modern Democrats make. Graber also claims that the modern Republicans, who tend to be originalists, are not really purporting to enforce the original meaning of the Constitution concerning this issue. 

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Revenge of the Sacred


In the month after the November terrorist attacks that killed 130 people in Paris, the French government launched airstrikes against ISIS targets in the Middle East—responding with all the ferocity of an irritated sleeper slapping at the alarm clock to get it to shut up.

The alarm had rung before: in the March 2004 Madrid train bombings that killed 191 people; in the July 2005 London attack that killed 56; in the January 2015 assault on the satirical newspaper Charlie Hebdo that killed 17. Europe has swiped at the snooze button several times in recent years—but why, really, should the Continent wake up? Why should the Island of the Lotus-Eaters ever rouse itself from dreams?

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Politics Anchored in the Past v. Politics Oriented Toward the Future

The transition from one year to the next prompts reflections on how our relation to the past constitutes the politics of the present.   Before the 1700s politics was wholly oriented toward the past. As Robert Tombs puts it in his brilliant new book, The English and Their History: “Legitimacy came from the past: rights, status, property, laws—all were inherited. So desirable changes were conceptualized as a return to a pristine past. The idea was of a stable ordered hierarchy in which all knew and accepted their place.” In that world the culture made political arguments naturally conservative. Public ideals had to be put in the categories created by past practices.

The hierarchy described by Tombs started to break down with the rise of capitalism. But the nature of political legitimacy persisted, as the memory of the people still preserved an idealized past.   Thus, even in the eighteenth and early nineteenth century political arguments were almost entirely founded on continuity with past political settlements, real or imagined.   The American Revolution was fought on the basis that the British government was violating what they understood as the ancient prerogatives of Englishmen, which were then codified as the Bill of Rights.

But as technology created one new revolutionary invention after another and the market broadly delivered these benefits, the culture necessarily became focused on the future.

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Should the Thoughtful Libertarian Be Rationally Pessimistic?


In 2010, the British science writer Matt Ridley debuted as a classical liberal with his book The Rational Optimist. Ridley’s “coming out” was eventful and exciting for libertarians all over the world. A former staff writer and head of the Washington bureau of The Economist, a successful science author and, more importantly, a gifted narrator, Ridley condensed in his thick book much research and wisdom. The financial crisis appeared to many to have dispensed with free market ideas once and for all. Ridley pointed out that, to the contrary, free markets were actually producing prosperity, food, cleanliness all over the world—particularly for the world’s poor.

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Misleading the Public on Anti-Muslim Vandalism

Eugene Volokh notes a significant discrepancy between the press release issued by the Department of Justice concerning a case of vandalism against an Islamic Center and the underlying facts of the case based on the plea agreement.  According to Eugene:

The press release describes the graffiti painted on the Islamic Center this way:

The graffiti included explicit and offensive language in addition to such statements as “Bash Back,” “Now is our time!” and “You bash us in Pakistan we bash here.”

But the plea agreement reports that the graffiti, put up in early 2011, contained “the following statements”:

(i) “Allahu Fuckbar;” (ii) “Queer insurrection;” (iii) “It’s okay to be gay!” (iv) “Now is our time!” (v) “Bash Back;” (vi) “You bash us in Pakistan we bash here;” (vii) “Allah was gay;” (viii) “[illegible] unite;” (ix) “Satanic trans” (with circle around Star of David above); (x) “Fuck straights;” and (xi) “Bash Back lives.”

What’s more, Eugene explains that “Bash Back” is a gay and lesbian activist group.  This context, Eugene writes, “puts a different cast on the graffiti that the press release did quote — at least two and possibly all three of those statements also appear to be pro-gay-rights.”

Eugene’s post points out the misleading nature of the press release.  Here I want to speculate on the motivations for the deception. 

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The State of Classical Liberalism at Year’s End

review of 2015 year typography

In a blog dedicated to formulating and promoting classical liberalism, it is useful at year’s end to evaluate the state of these ideas in the politics and culture of our nation. And sad to report, classical liberalism is now weaker than it has been for decades.

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Fundamentally Transformed


Usually when we decide that a sci-fi author has become “fashionable” again, we only mean that filmmakers have grabbed the idea behind his or her stories and run with it.

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The Police: A Middle Ground

The police situation in the United States is distressing.  Amidst charges that the police regularly engage in misconduct, especially towards minorities, it seems like much of the country is split into two camps: 1) those who believe the police often engage in misconduct and therefore more needs to be done to address their misbehavior and 2) those who believe the police almost always behave properly and who emphasize that harm that occurs to minority communities when the police are unable or discouraged from doing their job.

I don’t really understand why one needs to choose one or the other of these camps. On the one hand, it seems obvious to me that many police officers often engage in wrongful behavior, ranging from the relatively unimportant (requiring citizens to treat them with great deference or hassling them when they don’t) to the horrific (shooting citizens in the back for no good reason). Also quite distressing are the special rules, promoted by police unions, that grant officers charged with wrongdoing special privileges and the code of behavior of officers who lie and cover up for another.

On the other hand, it seems equally obvious that many police officers who are accused of wrongful conduct actually behaved properly, that being a police officer is a dangerous job, and that the good they can do (by protecting the public from violence) is enormously valuable. Good police officers deserve our respect and gratitude.

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“Public Use” Means Public Use

Susette Kelo's condemned home

“Nor shall private property be taken for public use, without just compensation.”  U.S. Constitution, Amendment V

Justice Oliver Wendell Holmes coined many pithy aphorisms, including the frequently-cited cliché that “hard cases make bad law.”  Sometimes this may be true, but in reality “bad law” has many sources, often sloppy or unprincipled reasoning by the judge(s) in question.  It is particularly infuriating when easy cases make bad law, highlighting the potential for error (or, worse, dishonesty) in judicial decision-making. 

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Thucydides’ Pursuit of Freedom: A Conversation with Mary Nichols

thucy1In this Liberty Law Talk, Mary Nichols discusses her new book, Thucydides and the Pursuit of Freedom, which explores the idea of freedom in Thucydides' History of the Peloponnesian War. This work, which Thucydides offered as a possession for all time, permits us, Nichols observes, to consider the manifestations of freedom in both cities and individuals.