The Wrath of Cons

D Brooks

David Brooks is in an angry and spiteful mood. Perhaps he’s even getting to be a bit unhinged, as history is putting his vision of American conservatism onto its rubbish heap.

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“Don’t do stupid stuff”: A Conversation with Mark Moyar about President Obama’s Foreign Policy

strategicThis next edition of Liberty Law Talk is a discussion with historian Mark Moyar about his new book, Strategic Failure, which critiques the foreign policy pursued by the Obama administration.

“My Country, ’tis of Thee”


About the middle of the morning on Monday, the sixth of May 1776, 45 men assembled at the Capitol in Williamsburg, Virginia. They were members of the House of Burgesses, elected back in the summer of 1774. Having entered the chamber of the House, they sat, silent. Elsewhere in the Capitol there were no signs of the royal governor or his council. Soon the Burgesses got up and went back outside. There they met others who, joining them, reentered the chamber, this time as delegates to the fifth and final Virginia revolutionary convention; this time carrying instructions from the people in their home counties calling on them to instruct Virginia’s delegates in the Continental Congress to declare American independence and to draft a constitution for Virginia.

While such a launching, this little-remembered ritual, may not seem so much to many in the thrall of the apotheosis of the 1787 Constitution, it remains a bright metaphor to illustrate the seamlessness of the transition from colony to country in America generally and in Virginia. This vivid drama of a departure joined with that of a prospect shows how far these Virginians had come since April 1774, even as it puts in relief just how significant the next two months, May and June of 1776, would be, culminating as they did with Virginia declaring its independence, establishing a bill of rights, and, two weeks later, completing a written constitution.

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The Rise of Principled Jurists on State Supreme Courts

There is happy news from state supreme courts—more justices committed to correct methods of legal interpretation are being appointed.  To name just two of the most recent additions: Rebecca Bradley of Wisconsin and Joan Larsen of Michigan as well as a still relatively recent addition, David Stras of the Minnesota Supreme Court  All three have fine credentials. Stras and Larsen were professors before ascending the bench, and professors turned judges have often turned out to be the most influential of jurists.

The Federalist Society’s decision to establish chapters throughout the nation is in no small measure responsible for the flowering of state conservative jurisprudence.  The Society was founded on law school campuses and then migrated to Washington, as some of its leaders took jobs in the Reagan administration. But creating a presence in the hinterlands then made it possible for lawyers of like mind to focus on the judiciary in their states. All too often, Republican governors had not paid much attention to judicial nominees’ stances on legal interpretation, believing that identification with the Republican party was enough to assure good decisions. But even Republican lawyers emerge from a legal culture that leans decidedly left, and the recognition and awards from that culture move judges to in that direction unless they come anchored in the right.  The Federalist Society provides the merry fellowship that helps these jurists resist the temptation to drift.

The increase in the number of justices committed to fidelity to law on state benches has several good consequences.

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The Speaker of the House of Commons Appears to Have Been Required to Be a Member

In a prior post, I said it was not clear whether the Speaker of the House of Commons was required to be a member. A couple of scholars have now supplied evidence that strongly suggests that the Speaker was required to be a member.

Andrew Hyman in a comment to my prior post noted the following from a 1708 law dictionary:

Speaker of the Parliament, is an officer in that High Court, who is, as it were, the common mouth of the rest: and as that honorable assembly consists of two houses, so there are two speakers, the one termed the Lord Speaker of the House of Peers, and is most commonly the Lord Chancellor, or Lord Keeper of the Great Seal of England. The other (being a member of the House of Commons), is called the Speaker of the House of Commons; both whose duties you have particularly described in a book entitled, The Order and Usage of Keeping the Parliament.

Also, Seth Barrett Tillman writes with the following evidence:

At the opening of a new Parliament “the lord chancellor confers first with his majesty, and then in his name commands the commons to assemble in their house, and to choose one of their members to be their speaker.”

Henry Elsynge, The Manner of Holding Parliaments in England 155 (London, printed by Richardson and Clark for Tho. Payne 1768) (First print 1660). And:

At the opening of a new Parliament “the Lord Chancellor confers first with his Majesty, and then in his Name, commands the Commons to assemble in their House, and to choose one of their Members to be their Speaker.”

George Petyt, Lex Parliamentaria: or, A Treatise of the Law and Custom of Parliaments 265 (London, Henry Lintot, Third Edition, 1748).

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Liberate U: Bernie Proposes Free Higher Education

University building with white columns

What Common Core has done for elementary and secondary education, Senator Bernie Sanders (D-VT) wants to do for higher education: eliminate variety, locality and, with them, quality.

Such would be the result of Sanders’ plan—which he touted at last night’s debate—to finance free higher education at all public colleges and universities. The financing is a pipe dream. The new federal funding, for example, could not be used for administrators’ salaries. It’s a classic instance of government-by-press-release—or by socialist—according to which we pretend that disincentives to behavior amount to prohibitions on behavior rather than inducements to creativity in its pursuit.

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More on the Speaker: The House Rules Require the Speaker to Be a Member and the Absence of Judicial Review

In my prior post, I argued that it is not clear that the Constitution requires the Speaker to be a Member of the House of Representatives. Here, I thought I would mention two related issues. First, while the Constitution does not require that the Speaker be a member of the House, there is a strong argument that the House Rules do require it. The Rules of the House, adopted in January of 2015 for the two year period, provide The Speaker is not required to vote in ordinary legislative proceedings, except when such vote would be decisive or when the House is…

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Seems Like Old Times


Reading through John Adams’ Defence of the Constitutions, (I am currently preparing an edition for Liberty Fund), several passages have brought me up short, as they shed much light upon our current circumstances.  Adams was among those who believed that, human nature being constant, history was a source of humane wisdom.  His “Discourses on Davila,” which Adams often called the fourth volume of the Defence begins with an epigraph from Aesop that translates roughly as “happy are those who can learn wisdom from the misfortunes of others.” 

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Time Magazine’s Bad Survey of the Worst Supreme Court Decisions


Time asked 16 law professors what they thought were the worst Supreme Court decisions since the 1960s. It is an illuminating enterprise, not because the answers are particularly interesting but because it perfectly illustrates the mindset of the traditional media and the legal academy today.

Begin with Time. While the academy leans about eleven to two to the left, Time managed to exacerbate that disparity, picking only one conservative to participate and what appear to be 15 professors on the left side of the American political spectrum. Then it gave the professors an absurdly small amount of space to explain their reasons—so small that it would be almost impossible to give a reasoned legal critique of any decision. Thus, Time encourages the view that what is important about a decision is whether the result accords with one’s preferences rather than if it is correctly reasoned.

But even given the poor structure for the assignment, the answers are often thoughtless and sometimes wrong even on their own terms.

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It Is Not Clear that the Speaker Needs to Be a Member of the House

In a post last week, Diana Schaub argues that the Speaker of the House must be a member of the House of Representatives.  Here is the initial part of her argument:

There is an inescapable logic to the setting forth of the Constitution’s sections which should guide interpretation. In Article 1, Section 1, we learn that Congress is vested with specified legislative powers and that Congress “shall consist of a Senate and House of Representatives.” In Article 1, Section 2, Clause 1, we learn that “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.”

These definitions govern the meaning of subsequent clauses. I admit that it would have put the kibosh on the present foolishness if the fifth clause had included the words in italics: “The House of Representatives shall choose from among their number their Speaker.” I think it simply never occurred to them that someone would take it into his head to contend that the Speaker of the House could be an individual who was not a fellow legislator. The possessive pronoun is important. The House chooses “their” Speaker—a Speaker, we might say, who is of the House, by the House, and for the House. According to Article 1, Section 2, Clause 1, the House is composed of members and only members. The existing members of the House cannot summon into being a new member. The drafters thought the chain of connection from Sections 1 and 2 to Section 5 was clear enough; and for over 200 years, it was.

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