Evaluating the Moynihan Report on the Negro Family 50 Years Later

Moynihan

A half-century after its publication, the Moynihan Report—The Negro Family: The Case for National Action—endures. It does so for many reasons, its prescience and courage chief among them. But the Report is more than a faithful contemporaneous portrait, and deeper than an accurate projection. It is a political document in the noble sense, reflecting searching and enduring principles about the nature of society and the place of political institutions within it. Assessments of the Moynihan Report at this milestone should therefore be more than historical. Its method of capturing truth in generality would enrich social science in 2015.  Its insights could…

Read More

The Anglosphere: A Viable Global Actor or Simply a Culture?

anglosphere

Given that I am of Scottish and English descent, grew up in Australia, did my doctorate in Britain, and now live and work in America, I am about as much a product of what is often called “the Anglosphere” as it gets. That such a sphere exists, culturally speaking, has never seemed in doubt to me, even beyond the common linguistic and historical connections to the British Isles of this grouping of nations. Though I attended Catholic schools in Australia, for example, we learnt far more about British history than that of the Catholic Church (or Australia for that matter). The…

Read More

Responses

The Yanks Made Us Do It

The central question addressed by Samuel Gregg in his timely ruminations about the Anglosphere is how ready and willing its member nations are to “collectively shape the global order” through collaboration beyond that in which they already engage. His chief contention is that, while the nations of the Anglosphere jointly possess the necessary economic, demographic,…

Read More

Snubbing the Anglosphere

Samuel Gregg rightly concludes that the political cooperation required for the nations of “the Anglosphere” to act as an effective international bloc rests upon choices by leaders. Cultural ties and longstanding security relationships open possibilities, but pursuing them requires conscious decision. To elaborate on Gregg’s analysis, one would have to consider what presuppositions and concerns…

Read More

Crisis of Identity: Here, There, and in the Canuckosphere

Samuel Gregg’s thoughtful Liberty Forum essay on the prospects for a functional “Anglosphere” leaves me perplexed. He is no Pollyanna on the matter, but to my mind he underestimates some monumental intellectual and practical difficulties confronting statesmen who would try to move the English-speaking peoples from ad hoc cooperation in various areas, animated by real…

Read More

Where Did the Noble Lawyer Go?: Looking for Cicero in the Boardroom or on the Billboard

Gregory Peck Dies at 87

Marcus Tullius Cicero, born to a little-known family of Rome’s minor nobility, rose to become the Republic’s great defender, chief conciliator, and enduring interpreter of its laws. His murder for opposing the tyranny of Mark Antony and Octavian, or Caesar Augustus, and the clarity of his writings on the law and republican ideals of Rome have rather obscured his weaknesses in memory.[1] Cicero remains the model of the lawyer as hero, not only standing for the ideals of law against its enemies but transcending class and interest to do so. It is no surprise that the writers of English law who…

Read More

Responses

Teaching the Law’s Moral Purposes

I am an admirer of Steve Sheppard and of his scholarship. His book on the ethical obligations of lawyers is not just as a reminder of the necessity for lawyers to comply with lawyerly standards. More than formal compliance with the canons of ethics is needed today.[1] Serious consideration of the true moral purposes of…

Read More

Wherefore Art Thou Cicero?

With “Where did the Noble Lawyer Go?: Looking for Cicero in the Boardroom and on the Billboard,” Professor Stephen Sheppard has provided us with a provocative, as one expects from the editor of the three-volume Selected Works of Sir Edward Coke,[1] rumination on the decline of the legal profession. He contrasts the lawyer of today…

Read More

Cicero, Demythologized and Disenchanted, and Still a Voice Worth Heeding

I am fascinated with Stephen Sheppard's essay on Cicero and the modern American lawyer.  In a sense, he is calling me back to those ideals I held so dear as an entering one-L a long time ago. Cicero, it is not too strong to say this, is one of the reasons I went to law school.…

Read More

Rebuilding a Ciceronian Legal Culture

It is daunting to be read by genuine scholars whom one admires.  The thoughtful comments, elaborations, and criticism of Stephen Grosby, Charles J. Reid, and Dick Helmholtz have surely given the reader much more wisdom and provocation than did my essay. Despite the many truths of my commentators’ criticism, Liberty Law Forum and its editor Richard…

Read More

Meanings or Decisions? Getting Originalism Back on Track

SCourt

For what is the point of drawing up dumb, silent statements of laws, if anybody may attach a new meaning to the words to suit his own taste, find some remote interpretation, and twist the words to fit the situation and his own opinion? John Locke For originalists, must the guiding criterion of constitutional interpretation be original meaning (whether understood in intentionalist or public meaning terms)? You might thing the answer has to be yes. That is just what it means to be an originalist: to connect constitutional interpretation to original meaning. I think the question is more complicated—and more fraught. Ironically,…

Read More

Responses

Between the Original Decision and Abstract Originalism: An Unbiased Approach to Original Meaning

Introduction It is an honor to participate in this forum with my colleague Steve Smith and with Will Baude and Steven Sachs – all of them friends. Steve Smith’s essay continues his criticism of the new originalism in favor of the old originalism – a position that Steve previously defended in his paper “That Old-Time…

Read More

Originalism and the Positive Turn

For more than a decade, the “New Originalism” has been identified with a focus on the Constitution’s original meaning (not its original intent) and with the admission that original meaning won’t perfectly constrain judges. Steven Smith challenges that version of originalism. The challenge should be rejected, but in the course of rejecting it we may…

Read More

Saving Originalism’s Soul

What shall it profit originalism, to gain academic adherents but lose its soul? As Steven Smith tells it, the “new originalism” has made a disastrous Faustian bargain, with Jack Balkin playing Mephistopheles. It may have gained sophistication and intellectual respect, but it’s lost its ability to resist falsehood and manipulation—and lost the firm roots that…

Read More

Decisional Originalism: A Response to Critics

I’m sincerely honored that Mike, Will, and Steve (whose expertise in these matters, both individually and collectively, greatly exceeds my own) would make the effort to comment on my essay.  The comments advance powerful objections to “decisional originalism,” as I’ve reluctantly called it.  Even so, I’m not persuaded– not yet anyway-- to abandon the idea. …

Read More

Competency in Administration: James Q. Wilson and American Bureaucracy

FOLDER FOR DOCUMENTS

Ever since the reelection of President Obama, bureaucrats have been behaving badly. Conservatives may have steeled themselves to expect bad performance from bureaucrats at all times; but even fans of federal authority should be concerned about recent bungling and abuses. The Affordable Care Act (“Obamacare”) required millions of Americans to sign up for health-insurance policies, but last year’s rollout of the federal website failed disastrously and has been limping ever since. The Veterans Administration turned out to be falsifying records to conceal long waiting times and poor care at hospitals for military veterans. When it was revealed that the Internal Revenue Service…

Read More

Responses

How to Make the Bureaucracy More Accountable

Jeremy Rabkin has written a fine essay about the continuing relevance of James Q. Wilson’s 1989 book Bureaucracy: What Government Agencies Do and Why They Do It. I have been fortunate enough to benefit from Wilson’s analysis in my own writing on the Justice Department’s Office of the Solicitor General. His framework showed why the…

Read More

Bureaucracy and Some Bureaucracy Problems

It’s Bureaucracy’s twenty-fifth birthday. To celebrate, let’s state some basic facts that correspond with James Q. Wilson’s thinking. Americans want a lot from their government. We want more than we’ve wanted before. It doesn’t ultimately matter where these desires come from (rising standards of living? the inner logic of democracy? interest groups? politicians?). What matters…

Read More

When They’re Too Good at Their Job . . .

The 25th anniversary of James Q. Wilson’s Bureaucracy: What Government Agencies Do and Why They Do It marks an appropriate occasion to reflect on the contributions of this work to our understanding of bureaucratic behavior and performance, and the extensive—and, at least in some areas, growing—presence of the administrative state in the lives of American…

Read More

Falling Down

All the participants in this discussion seem to agree that James Q. Wilson’s book, Bureaucracy, still offers valuable insights, a quarter century after its initial publication. At the same time, we all seem to agree that Wilson’s book didn’t prepare readers for the scale of dysfunction we now see in the federal bureaucracy. We have…

Read More

Can America Remain a Nation of Immigrants in the 21st Century?

iStock_000044718154Medium

We often call ours “a nation of immigrants.” It is a peculiar and paradoxical phrase. A “nation,” as generally understood, is a tribal, ethnic, or historical group. In the era of the American Revolution, a nation, a people, a tribe, and a race were often interchangeable terms. Nation, as the word is usually used by scholars, often retains some of that heritage. Hence a noted academic like Ernest Gellner could write in his book Nations and Nationalism (1983) that “nationalism uses the pre-existing, historically inherited proliferation of cultures or cultural wealth.” Nationalism presupposes some sort of historical unity. Meanwhile, immigrants are…

Read More

Responses

Immigration Bolsters American Freedom

There is much to agree with in Richard Samuelson’s essay. My disagreement arises from three main sources. First, Samuelson undervalues how important relatively freer immigration is for maintaining American values and institutions. Second, his view of the country’s past assimilation of immigrants is too rosy. Third, his pessimism concerning the assimilation of current immigrants is…

Read More

The Past, Present, and Future of American Immigration

Richard Samuelson has provided us with a thoughtful discussion of immigration in modern America, focusing on its philosophical meanings and its place in American society. He defends the idea of America as a “credal” nation built upon the political principles of the Founding era and sees the assimilation of immigrants to that Founding creed as…

Read More

Assimilation is a Brutal and Necessary Bargain

Let me begin by acknowledging that I share Professor Samuelson’s concern that many immigrants today are not assimilating to “classic American values of thrift, hard work, and cooperation in civil society.” I, too, am uneasy at the prospect of immigrants being influenced by “trans-national” elites to the point where they, and especially their children, may…

Read More

Law, Culture, and Immigration: Richard Samuelson Responds

I thank Peter Skerry, Vincent Cannato, and Alex Nowrasteh for their thoughtful comments about my essay. As I wrote more about the political context in which immigration and assimilation happen, perhaps I was pushing too far beyond what they take to be the topic at hand. That might explain some of the character of the…

Read More

How to Secure America’s Peace

U.S. Soldiers at Camp Bucca in Iraq. Photo Credit: DAVID FURST/AFP/Getty Images

Our historically literate founding statesmen elaborated a foreign policy to shield Americans’ exceptional way of life in a hostile world through the timeless principles of statecraft. For more than a century, their successors held to the Founders’ purpose and to those principles. America grew great. Since the beginning of the 20th century, however, a new generation of statesmen, consciously abandoning the Founders’ way of thinking, has turned U.S. foreign policy from shielding the American people against danger to improving or otherwise leading the rest of mankind. Imagining that everyone, everywhere shares their good intentions, they have conducted America’s international affairs…

Read More

Responses

Finding Fault in Our National Insecurity

Angelo Codevilla has been a legend in our house since the 1980s when my wife and I first encountered this Renaissance force of nature radiating virtú. Somehow Angelo manages a vineyard in California, a horse ranch in Wyoming, a large, loving family, a prolific academic career, and world travel without strain, indeed with unfailing ebullience.…

Read More

A Trenchant Yet Flawed Analysis of American Foreign Policy

Angelo Codevilla’s analysis of the many problems associated with U.S. foreign policy provides an abundance of important insights. He is devastatingly on the mark when he contends that since the beginning of the 20th century, U.S. officials have transformed the Founders’ emphasis on shielding the American people against external dangers into an arrogant, unattainable objective…

Read More

Principle and Prudence in American Foreign Policy

There is much with which to agree in Angelo Codevilla’s thoughtful essay. To the extent that he and I differ, it is with regard to means and not ends. We both agree that U.S. foreign policy is in shambles, characterized by drift and incoherence. It is at best a-strategic at worst anti-strategic, lacking any concept…

Read More

Benevolent Hegemon, Illiberal, or Too Far Gone Already?

Walter McDougall writes: “Congress and the American people…want to believe their ‘indispensable nation’ can be a ‘benevolent hegemon’ doing good on the cheap and doing well by doing good.” As a description of how Americans view our role among nations, this is arguable. But it is a fair summation of our foreign policy establishment‘s view…

Read More

Freedom of Religion and the Freedom of the Church

iStock_000001211229Medium

It is widely accepted—in American law, in other countries’ laws, and in human-rights law generally—that “freedom of religion” is fundamental and that it should be protected, respected, and promoted. The Universal Declaration of Human Rights of 1948, for example, called on all political communities to “promote respect” for the right to religious freedom and to “secure [its] universal and effective recognition and observance.” However, and to put it mildly, a commitment to religious freedom is easier to profess than to operationalize. Identifying the content, reach, and limits of religious freedom; working out its implications and applications; and constructing effective doctrines and…

Read More

Responses

Freedom of the Church Not Freedom of Religion

I have long benefitted from Professor Garnett’s work in the area of law and religion. Given the sometimes contentious climate in and out of the academy, it is worth highlighting the tone of his writing as well as its substance. Both are admirable. One of Professor Garnett’s core scholarly pursuits has been to argue for a…

Read More

Negotiating the Freedom of the Church

One of the challenges in commenting on Rick Garnett’s essay is that I think his deeply thoughtful and measured analysis is basically right on target. If we are going to take individuals’ freedom of religion seriously, we need take into account the importance of their religious communities. Exactly what that means is, unfortunately, hard to…

Read More

With Non-Interference Comes Responsibility

Richard Garnett’s Liberty Forum essay argues eloquently for the importance of institutional religious freedom in our system of government and our broader society. As Garnett writes, some form of institutional religious liberty, or “freedom of the church,” is an “old but still important idea.” It’s an idea, moreover, that in one form or another has…

Read More

Freedom of the Church

I am grateful to the Liberty Law Forum for publishing my short essay, Freedom of Religion and the Freedom of the Church and for securing thoughtful, helpful responses from John Inazu, Paul Horwitz, and Donald Drakeman. These three first-rate scholars are my friends and teachers; I have learned a great deal from their work and through…

Read More

The Rise of Adversarial Corporatism

corporatism

Timothy F. Geithner, former U.S. Secretary of the Treasury and savior of the free world,[1] has lamented the intractable paradox of financial crises: government must lend freely to actors who by all rights should bear the price of their own reckless conduct and be wiped out. The post-crisis years have been marked by a related but somewhat different paradox: On the one hand, the government has recapitalized financial institutions, subsidized them, and drawn them closer to its ample bosom. On the other, it has hit those same institutions with an avalanche of prosecutions. Settling these cases is very costly; one…

Read More

Responses

The New Cronyism of the Old Rent-Seeking State

Michael Greve’s essay vividly describes some deeply troubling trends in the relationship between the government and the economy. It provides a much needed perspective at a time when politics and policy-making are nothing if not adversarial, and more casual observers succumb to the temptation simply to choose sides without asking how we came to this…

Read More

Does a Sophisticated Theory Miss the Facts?

Michael Greve introduces “adversarial corporatism,” a new conceptual lens through which to view the growing and contentious collaboration of industry and government. Adversarial corporatism takes the conventional story of crony capitalism and regulatory capture—a story appealing to critics on the left and the right alike—and adds a dose of a starker reality: the cooperation is…

Read More

Adversarial Corporatism: Additional Thoughts

I am deeply grateful to Brian Mannix and to Peter Conti-Brown for their thoughtful, indeed profound comments on my “adversarial corporatism” post. I am equally grateful to Richard Reinsch and the Liberty Forum for hosting this exchange. To paraphrase the Boss, we learn more from three minutes on this blog than we ever learned in…

Read More

Our Civil Rights Rest on Fundamental Arguments, Not Racial Ones

Martin Luther King, Jr.

Celebrations of the Civil Rights Act at 50 remind us just how anachronistic the common understanding of civil rights has become. They are treated as the product of a momentary movement in the latter portion of the 20th century or as a work of legislative artistry by President Lyndon Johnson. Today it seemingly suffices to name President Johnson and Dr. Martin Luther King, Jr. to say all that is necessary about civil rights. Ironically, the observations most associated with each of these men undermine their claims to be advocates of civil rights constitutionally understood. In Johnson’s case, the observation was…

Read More

Responses

Civil Rights, the Civil Rights Act, and Martin Luther King, Jr.

The Civil Rights Act of 1964 is surely the most renowned piece of legislation enacted in 20th century America. It stands (with the Voting Rights Act passed the following year) as the culminating achievement of the Civil Rights movement, itself now enshrined in conventional opinion as the latest and greatest of America’s great awakenings. By…

Read More

Restoring the Color-Blind Foundation of the 1964 Civil Rights Act

The Civil Rights Act of 1964 banned much government and private-sector discrimination, mostly on the basis of race and ethnicity (“color” was specified in addition to “race,” and “national origin” was the term used instead of the now-more-common “ethnicity”), but often on the basis of religion, too, and sometimes on the basis of sex as…

Read More

Race, Rights-Talk, and Equity

W. B Allen’s essay impresses upon us how different our understanding of civil rights is from that of the Founders and the authors of the Fourteenth Amendment. Back then “civil rights”referred to our most fundamental rights, those closely tied to and only slightly more expansive than our natural rights. Today most of us think of…

Read More