Many supporters of a policy of same-sex marriage, and even many supporters of a constitutional right to same-sex marriage—there is a difference—have felt compelled to disavow the shoddy analysis-cum-emotivism by which Justice Kennedy imposed that conclusion. What the euphoria over newly released Supreme Court decisions seems always to obscure is that the same method will be available to other jurists in other cases. Conclusions reached in future may not be so agreeable to those celebrating Obergefell v. Hodges today.
At the Federalist Society national student symposium, my colleague Josh Kleinfeld was the deserving recipient of the Paul Bator Award given to an outstanding law professor under 40. His beautiful acceptance speech focused on the importance of Burkean conservativism. And Kleinfeld is correct: the right owes an enduring debt to Burke’s skepticism of ordering society according to the abstractions of the kind advocated by the French philosophes. That debt is all the greater, now that these types of philosophes have gone global.
But I do wonder whether one aspect of Burkean conservatism—deference to past historical experience—deserves quite as much weight today as it once did. Burke had both religious and more instrumental reasons for valuing that experience. For Burke, history was “the known march of the ordinary providence of God.” More secularly, it was also the best repository of human prudence and wisdom and thus the best guide to policy in an uncertain world.
But the value of historical experience as a guide for policy depends on the technological and social rate of change and on the availability of alternative methods of sifting experience.
The knock on the CIA is that its interrogation program, exposed as ineffective and abusive in the Senate Select Committee on Intelligence’s recent report, was lawless. But the agency’s worst excesses may have resulted from the attempt to be excessively lawful.
Such a paradox can only come about when what Edmund Burke called “the first of all virtues, prudence,” has fled the scene. The Intelligence Committee’s voluminous report (even its summary is 525 pages long) is an in-depth account of that decline.
This conversation with Roger Scruton engages his defense of the conservative disposition. Scruton’s just-released book, How to be a Conservative, might be said to take on the challenge Friedrich Hayek issued in his famous essay “Why I Am Not a Conservative.” There, you will recall, Hayek argued that conservatism does not offer a program, or any substantive content that would affirm a free society. It is always in prudential retreat. This conversation explores Scruton’s Burkean-informed notion that tradition and habit aren’t blind guides, but are teachers and modes of social knowledge by which the perennial problem of social coordination is…
This next episode of Liberty Law Talk is a discussion with author and professor Grant Havers on his conservative critique of Leo Strauss. Many conservatives hold Strauss in high regard as a thinker who shaped their intellectual commitments. Havers discusses the question: what's so conservative about Strauss' philosophy? Havers' recent book Leo Strauss and Anglo-American Democracy: A Conservative Critique contends that Strauss was a liberal Cold War warrior who most wanted to defend the foundational principles of British and American democracy. Going to the heart of Strauss' philosophical principles and his grounding of modern constitutional liberty in classical Greek political thought,…
In her first formal appearance as head of the United States Federal Reserve, Janet Yellen obliquely suggested the Fed might not raise its mighty “federal funds” rate to tighten the economy until months after its Quantitative Easing bond purchasing ended completely, coyly portending cheap money indefinitely. The market shuddered but soon calmed at the soothing voice of its controller.
Ilya Somin has posted an essay at Volokh that narrows that gap between our views on the source of the moral obligation to obey the law—I certainly agree, for example, that there are exigent circumstances in which one might be not merely entitled but obliged to disobey—but our underlying disagreement persists: whether the calculation itself is an individual or a political one.
Timothy Sandefur’s The Conscience of the Constitution contributes to the debate over the best way to limit the powers of the United States government in order to secure liberty. Sandefur, a lawyer and legal scholar, believes that “American constitutional history has always hovered in the mutual resistance of two principles: the right of each individual to be free, and the power of the majority to make rules.” (1) For Sandefur adherence to the natural rights theory of Declaration of Independence manages the tension between the two principles.