This Liberty Law Talk is with political scientist Justin Dyer on his latest book, Slavery, Abortion, and the Politics of Constitutional Meaning (Cambridge University Press, 2013). In debates over the legality of abortion common opinion has focused on the connections between the legal treatment of slavery in the nineteenth century and the contemporary status of abortion as a fundamental right. Dyer takes this debate as his starting point but goes much deeper by showing the layers of constitutional, political, and philosophical meaning linking slavery and abortion in the American experience. This conversation covers the ground of the Dred Scott opinion, the 14th Amendment and its privileges or immunities and due process clauses, abortion and the common law, the historical legal record the Roe Court relied on, and Rawlsian public reason as a legitimating authority for political debate.
Liberty Law Talk
This next conversation is with Richard Samuelson on the constitutional principles that have guided our nation’s approach to immigration, that is, until recently. In an essay in the Summer 2013 Claremont Review of Books, adapted from an academic version published in Citizens and Statesman, Samuelson argues that
Our political institutions strive to treat individuals as individuals, who relate to the government on that basis, rather than as parts of groups, castes, or classes. A regime dedicated to protecting the rule of law and the rights of men–including the right of each individual to make his way in the world, and to keep the rewards he gains for his work and talent–was the key to making America a beacon for wandering peoples, and for immigrants in general.
Things changed, Samuelson observes, with the tremendous growth in government power and its centralized administrative capabilities. This fact alone threatens to fundamentally change our exceptional approach to welcoming new entrants to the country. In short, the federal government relates to Americans not as individuals but as members of divers groups, rent-seeking, special interest, race, gender, the list is long. Consequently, the federal government no longer understands the individual citizen as deserving of equal treatment apart from group membership. If this is true, and much evidence suggests it is, our approach to immigration will be the management of hyphenated groups and not persons “as equal citizens, creating together the government by which we secure those public goods that cannot be secured any other way.”
Mark Helprin, award-winning novelist, former member of the Israeli Army and Air Force, foreign and military policy strategist, comes to Liberty Law Talk to discuss his latest novel, In Sunlight and In Shadow. Strange, you say, for a site devoted to law and political thought to devote time to a novel, a love story at that. However, Helprin’s book is a story of many things that all seem to connect and hold together. The tapestry created is of love, honor, dignity, and the freedom to act heroically within a democratic political and social order that trims, calculates, and forgets the preconditions of its freedom and prosperity. Helprin’s novel might best be described as an extended meditation on Beatrice’s response in the second Canto of the Inferno, amor mi mosse, che mi fa parlare “love moved me and made me speak.” This, Helprin notes, was Dante’s explanation for why he wrote the Divine Comedy. Set in New York City in 1946, the novel is also about a confident and united postwar America. Within this setting we are treated to the grand love story of Harry Copeland and Catherine Thomas Hale.
Harry, a former paratrooper in the 82nd Airborne during the war, served as a “pathfinder” charged with marking the way, conducting reconnaissance, and creating havoc in advance of the main body of paratroopers. He doesn’t stumble in the aftermath of the war, but Harry isn’t exactly thriving either. Instead, he is somewhat aloof from his father’s fine leather goods business, and otherwise he forgoes choosing the life he should lead.
Harry’s indecisiveness soon leaves him when he spies Catherine on the Staten Island Ferry. His love for her, immediately evident, calls him out of himself, and demands the defense of the things he loves. He must win her and prove to himself that he is worthy of her love. His business is set upon by the mafia, so Harry will protect it when the law fails him, refusing, ultimately, to run or pay protection money. His actions of rising above the law to defend the law are not really about upholding the business as a going concern per se, or his need to impress Catherine, daughter of a fantastically wealthy family, but the vindication of his immigrant Jewish father and his family. Their memory will stand, as will the community formed among Harry and the employees that make its goods, many of them being immigrants and newly-minted American citizens. The story is beautiful. As one reviewer noted, his only displeasure with the novel was that it had to end. Agreed.
This next Liberty Law Talk is a conversation with Justin Litke on his new book, Twilight of the Republic. Our conversation focuses on the book’s attempt to situate twentieth century claims of American Exceptionalism within the context of the political symbols and public meanings that are revealed in significant political documents stretching back to the Mayflower Compact and forward to Albert Beveridge’s 1900 Senate speech “In Support of American Empire.” Along the way, we discuss the Declaration of Independence, Federalist Papers, the Constitution, and the presidency of Abraham Lincoln in order to better understand Litke’s powerfully argued claim that the constitutional consensus of our Founding has broken into competing meanings. We are no longer even aware of the prior political tradition of our Founding, Litke contends. As a result, America now authorizes its political actions under various ideologies in both the domestic and international spheres with such policies frequently resulting in deleterious consequences.
This next Liberty Law Talk is with Marc DeGirolami on his new book, The Tragedy of Religious Freedom (Harvard University Press, 2013). Central to DeGirolami’s argument is the failure of monistic accounts that seek to resolve religious liberty disputes by cosmic appeals to neutrality, equality, or other universal rationales. These fail because they do not consider the range of conflicts, practices, traditions, and meanings that are at stake in these highly controverted cases. Similarly, DeGirolami takes issue with those who deny even the possibility of the concept of religious freedom. Instead, he looks in a Burkean manner to how the practices and traditions of religious liberty have inherent meaning and worth to their participants. The existence of various forms of outward religious expression testifies to their goodness in virtue of having become living projects of individuals and citizens. It follows that disputes between litigants advancing secular arguments against religious expression should be weighed and judged not by “abstracted, absolute values” but by social history and a pluralistic perspective. In doing so, courts would recognize that these are “irreducible conflicts” that should be judged with balance and a common law methodology that would move slowly and refrain from issuing sweeping decisions one way or the other.
This Liberty Law Talk is with philosopher Eric Mack on Friedrich Hayek’s 1973 magnum opus, Law, Legislation and Liberty. Hayek’s significant trilogy distinguishes between law and legislation, considers the appropriate rule of judges within a spontaneous order, observes the difficulties of even defining social justice, and attempts to set forth the principles of a new constitutional order for a free people. This conversation considers at length the major ideas that Hayek advances in his incredible work on the principles of law and just order.
This Liberty Law Talk is with Ted Frank on reforming class action litigation and, in particular, the settlements plaintiffs receive under the current system. Frank, the founder of the Center for Class Action Fairness, argues that class-action suits contribute little to plaintiffs and substantially benefit only their lawyers. Monitoring and agency problems reign because most plaintiffs lack the incentives to ensure that the class’s lawyers are actually representing their interests and not the lawyer’s monetary desires. We also discuss the turn to arbitration by companies as an exit from class actions and Frank’s work that contests egregious attorney fee awards in class settlements. To date, the CCAF has had over a quarter of a billion dollars in attorneys’ fees reduced in class action awards.
This next Liberty Law Talk is with John McGinnis, the George C. Dix Professor of Constitutional Law at Northwestern University, on his book Accelerating Democracy: Transforming Governance through Technology. McGinnis aims for an updated government that will use technology enabling it to fit with the progression of change in the twenty-first century. This involves improving the government’s capability to better utilize accumulated information to make sounder public policy. Part of this, McGinnis argues, is in using prediction markets and ensuring that information flows more transparently to citizens. Also, government must not stand in the way of new developments like Artificial Intelligence. In the case of prediction markets, McGinnis asserts that government should actually support such technologies to ensure increased accountability in government.
The next Liberty Law Talk is with Paul Horwitz on his new book, First Amendment Institutions. Horwitz challenges the dominant legal perspective on free speech in American law, which focuses on speaker and state. Instead of this acontextual approach, Horwitz poses that speech is impossible without the institutions that both form it and give it the opportunity to be heard. Institutions are the “scaffolding” of the individual’s right to free speech and should be accorded greater autonomy from the state in their self-government. Horwitz would include many state institutions in this category. Thus, the law, in regulating or permitting speech, must be guided by the shape and contour of these institutions and their meaning to civil society. When this is done the legal results will seem surprising but more in tune with how citizens actually live as neighbors, students, members of religious bodies, volunteers, etc.
So we were told with the passage of the Dodd-Frank Act that too big to fail was now behind us. Except it isn’t. In fact, the conditions supporting bank bailouts have only gotten worse with the nation’s largest banks actually increasing in size and scope since 2008. TBTF, however, goes back farther than you might think. This podcast with Vern McKinley on his book, Financing Failure, discusses the regulatory history of bank bailouts rather than winding down insolvent institutions. Contrary to the Hank Paulson and Ben Bernanke narrative of the 2008 crisis, although the scope of the problem was new, the subject matter of the problems faced by regulators was anything but unique. McKinley provides this account in interesting detail and considers our future under Dodd-Frank.