Some historical figures maintain their reputation, whatever our contemporary concerns. George Washington has remained one of our most admired Presidents for the entire history of the Republic. James Buchanan settled in the doghouse as soon as he left office and has stayed there ever since. But the assessments of most Presidents and public figures lying between these poles of excellence and of failure wax and wane depending on our current preoccupations. Biography can be the most presentist of historical disciplines.
No subject exemplifies these vicissitudes more than Ulysses S. Grant. When the nation wanted to emphasize the reconciliation of the South and North and forgot about civil rights for African Americans, Grant was derided both as a general and as President. He was said to have defeated Robert E. Lee only because of his greater willingness to sacrifice the lives of ordinary soldiers and the greater industrial might of the North. His Presidency was treated as a travesty almost as bad as Buchanan’s—that of a man in office over his head with a high tolerance of scandalous behavior of subordinates.
But today we see more of American history as a struggle for civil rights and thus Ron Chernow’s magisterial biography attempts to raise Grant to the pantheon of American generals and to a more than respectable position among American Presidents. Chernow is more successful in promoting a reassessment of his career as a warrior than as a statesman.
“Words had to change their ordinary meaning and to take that which was now given them.”
Houston voters, being Texan and therefore retrograde, have defeated an ordinance that Mayor Annise Parker, being progressive and therefore enlightened, says should never have been up to them. “No one’s rights,” she explains, “should be subject to a popular vote.” The ordinance—in pursuit of which Parker tried to subpoena the sermons of opposing pastors—would have prohibited discrimination, which is to say distinctions, in a variety of areas, including public accommodations (bathrooms), for a variety of reasons, including gender identity.
Have you heard the one about the Christian florist who declined to sell flowers for a gay wedding? She got sued by the Washington AG and by the ACLU. In a 60-page opinion, a state judge ruled against her. The florist is appealing. Also, she has since stopped selling flowers for any kind of wedding, lest “discrimination” break out yet again.
Have you heard the one about the young lady who showed up for a job interview with Abercrombie & Fitch wearing a black headscarf? You will: her fate is at issue in Equal Employment Opportunity Commission v. Abercrombie & Fitch, pending before the Supreme Court. Abercrombie’s strict regulations of its floor “models’” attire and appearance include a prohibition against headgear.
The status of judges in the constitutional regime is fundamentally a question of the place of politics, rightly understood, in human life—a point illustrated by the thoughtful exchanges between Richard Reinsch and Randy Barnett in this space and at Volokh. Reinsch argues the danger of giving judges indeterminate power over unspecified natural rights. Barnett replies that these need not be specified; judges need only ensure that governmental power is reasonably used to promote permissible ends.
Theirs was a productive conversation, and it might be usefully expanded to the following question: Even granting a robust reading of the Ninth and Fourteenth Amendments, what is the basis, and what are the costs, of empowering judges to safeguard the rights therein contained?
In “If Slavery Is Not Wrong, Nothing Is Wrong,” I proposed that the Civil War was fought to restore the original unity of the Declaration of Independence and the Constitution, and that the Thirteenth Amendment, adopted in 1865, was the culmination of that colorblind restoration. In the antebellum period, opponents of slavery could not specify what would result once slavery was ended. Would free blacks have equal rights? Vote? Intermarry with whites? Thus did Stephen Douglas mock Abraham Lincoln. The post-bellum answer of universal freedom nonetheless preserved much of the antebellum distinction between being anti-slavery and being anti-black. While Black Codes prevailed…
Bruce Ackerman of Yale Law School is one our most renowned constitutional law professors. His most famous theory is that of constitutional moments–one of the many alternatives to originalism offered in the academy. As a positive matter, a constitutional moment is period of heightened concern and deliberation about the Constitution. Controversially, as a normative matter a constitutional moment can change the Constitution without going through Article V. Here is a simplified synopsis of that theory: One political party proposes enactments of statutes that are not permitted by the Constitution as interpreted at the time, the people send this party to power, the party puts their program into effect and the opposition party acquiesces in the program when it comes to power. For instance, through his theory of constitutional moments Professor Ackerman has justified the transformation of the federal government’s enumerated powers that happened during the New Deal.
Comes now Joel Alicea opining in this month's Forum on Richard Epstein's essay "In Defense of the Classical Liberal Constitution." Hank Clark of the BB&T Center for the Study of Capitalism at Clemson provides our feature Books essay this week on George Smith's The System of Liberty: Themes in the History of Classical Liberalism. David Henderson @ Econ Lib catches noted inequality czar Thomas Piketty dodging a straight-forward question on inequality in America. In an interview with New York Times columnist Eduardo Porter Piketty was asked: Might inequality in the United States be less damaging than it is in Europe because the very…
Nathaniel Peters’ review of Robert George’s Conscience and Its Enemies is an insightful introduction to the Princeton scholar the New York Times Magazine resident anthropologist of conservatives, David Kirkpatrick, described as “this country’s most influential conservative Christian thinker.” Aptly titled, “The Dynamic Unity of Conscience,” the essay was almost entirely devoted to George’s understanding of marriage and the philosophic analysis that supported it. In summarizing George, Peters elegantly illustrates how conscience is the first pillar of a decent society, followed by marriage, justice, education, and wealth. Conscience is the central philosophic issue to be sure, but a broader audience might appreciate how George’s understanding of the conscience influences his public policy choices.
I have been away from this page for several months, working on book that is now nearing completion. Thought I would say hello again and give a preview of the book. You may recall my posts responding to eruptions from Bob Costas, Jason Whitlock and Danny Glover. Those posts tried to retrieve the debate from the swirl of myths, absurdities and glib chatter that often afflict the intersection of race, gun rights and firearms regulation. I have spent a substantial part of my scholarly effort over the years within that intersection. The culmination of that work so far, is my…