Fusionism and Federalism

I spent the weekend at an excellent conference on the work of Frank S. Meyer, a leading post-war thinker of the right.  His major effort has generally been called fusionism –an attempt to marry classical liberalism and traditional conservatism. But he himself did not claim the term “fusionism”: that was a label others affixed.  He saw himself as revealing the complementary nature of liberty and tradition rather than creating a new alloy out of disparate materials.   For Meyer, liberty was the end of politics, and that fact could be apprehended by reason. But because of the constraints of human knowledge, traditions were important as  a guide for the appropriate realization of liberty. And traditions help men choose virtue when political freedom appropriately gives them that choice.

Besides its importance in reconciling liberty with tradition analytically, fusionism had and continues to have important political implications.

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To Make Men Thin

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‘Men,’ said Marx in his 18th Brumaire of Louis Napoleon, ‘make their own history, but they do not make just it as they please; they do not make it under self-selected circumstances, but under circumstances already existing, given and transmitted from the past.’ This is true, despite its provenance; indeed so obviously true that it is virtually a truism. For if it were otherwise, men would find themselves behaving in no circumstances at all, which is literally inconceivable. Circumstances are like the poor, only even more so: ye have circumstances with you always.

But it does not follow from the fact that men don’t make their history just as they please because they inherit particular circumstances (in part self-created, as our past always is) that they have no choice but to act as they do, any more than grammatical rules determine what people say. Those rules prohibit, or rather make meaningless, certain utterances, but there remain an infinite number of possible meaningful utterances.  

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Stan Evans, RIP

Stan Evans died this past week at the age of 80. Other, much closer friends have celebrated and will continue to celebrate his lasting contributions to the cause of liberty. I miss the man because he was never one for a conservative pity party; always willing and eager to go one more round; deeply serious and at the same time hilarious, at hard-to-match levels. Two memories stand out: A few years ago the Philadelphia Society invited me to give a talk on (what else?) federalism. What they didn’t tell me was that Stan would introduce me. So we sit down at…

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Meaning and Consequences in King v. Burwell

Supreme Court Hears Case Challenging Obama's Affordable Health Care Act

Jack Balkin has made an interesting observation about the argument in King v. Burwell:

One of the strongest arguments for the government’s position in King v. Burwell has been based on consequences: if the Supreme Court denied insurance subsidies to customers on federal exchanges, the consequences will be disastrous both for insureds and for the states.

But he goes on to note that not all the justices agree on the consequences, pointing out that unlike some of the other justices, Scalia thinks that Congress would fix the statute if subsidies become unavailable on federal exchanges. Balkin thinks this disagreement may prove a problem for the success of the government’s argument. I think the disagreement provides yet another reason that arguments based on such consequences have no place in the judiciary’s determination of the meaning of a law.

In my view, the meaning of a statute, like the meaning of a constitutional provision, is established at the time it was enacted.

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Promising Developments on Sexual Assualt and Due Process

Injustice And Discrimination

I want to mention two additional developments in the sexual assault area that suggest that people are beginning to protest and push back against infringements of due process and fairness.

First, 16 members of the University of Pennsylvania Law School faculty have written an Open Letter criticizing the University’s new procedures for investigating and adjudicating complaints of sexual assault.  The letter refers to the pressure placed on the University to adopt these procedures under threat of withdrawal of federal funds, but notes that the procedures undermine “many protections long deemed necessary to protect from injustice those accused of serious offenses.”  The 16  faculty members comprise a politically diverse group with both liberals and conservatives significantly represented.  This Open Letter builds upon the momentum of another such letter from members of the Harvard Law faculty.

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Obamacare Meets Rudy

Yesterday’s extended argument in King v. Burwell brought moments of something bordering on joy and gratitude. The exchanges between Justice Elena Kagan and Mike Carvin, both at their very considerable best, stand out: serious questions, serious answers; obvious mutual respect. No matter whose side (if any) you’re on, that’s the way the system is supposed to operate. Give thanks when it (still) does. And then, there were moments that made your heart sink: JUSTICE SCALIA: What about Congress? You really think Congress is just going to sit there while—while all of these disastrous consequences ensue. I mean, how often have we come out…

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Honor the Man, Not the Demi-God

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In his Second Inaugural Address, Lincoln reprises the brevity and complexity that has made his Gettysburg Address so well known and so cherished. He also reprises the Biblical allusions and spirit that animated some of that earlier speech. But the tone is strikingly different. For us, the speech rings tragically in our imaginations because of its author’s fate—known well to us, but as yet unknown to him. Lincoln’s Second Inaugural is framed in terms of eternity and clouded by the inscrutability of God’s mind. It takes this perspective because of his very different aim: unity in the aftermath of approaching victory.

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Lincoln’s 700 Words of Biblical Meditation

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A hundred and fifty years ago today, as the sun broke through the clouds shortly after noon on a wet Washington day, Abraham Lincoln, with one hand raised and the other on an open Bible, took the presidential oath of office for the second time. The speech he just gave had been received by an enthusiastic crowd on the East Portico of the U.S. Capitol. It took about six minutes. Then the oath. Then he said, “So help me God,” bent forward, and kissed the Bible to conclude the solemn ceremony.

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Breathing Homer’s Pure Serene

Why Homer Matters is the best book about literature I have read in decades. Significantly, its author, Adam Nicolson, is not a tenured professor at some famous university or even an independent classical scholar. And this difference shows, all to the benefit of the reader.  An accomplished sailor, Nicolson has endured gales and felt the spume and spray of sail, like Odysseus. He has faced the cold steel of a dagger point against him on the plains of the Levant, not unlike the warriors of Troy.  He is not some old, bald head, annotating lines from his study, but instead advances our understanding of the poems through his own travels and personal discoveries from a life fully lived.   Particularly in this age when so much literature is refracted through the prism of political correctness, it is invigorating to read a book so loud and bold in its reassertion of the centrality of these canonical texts to seeing our own world.

That is not to say that the book is not learned. Nicolson has a comprehensive understanding of the most important aspects of Homeric scholarship.

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The Dismal Performance in Federal Policy-Making: A Discussion with Peter Schuck

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Peter Schuck comes to Liberty Law Talk to discuss Why Government Fails So Often. Like James Buckley and John DiIulio, Schuck doesn’t have much good news for the large majority of Americans who are disgusted with the performance of the federal government and its ability to devise and execute policies. Schuck notes that in April 2013, only 28% of Americans had a favorable opinion of the federal government. Many have tried to explain this phenomenon with various government affirming answers, but Schuck is forthright in the book and this interview when he states that the best answer is that the…

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