Pantagruel Comes for the Establishment Clause


In the second book of the 16th century novel by Rabelais, the voracious young giant Pantagruel, “large as life and much nosier,” is sent to Paris for his education. There he displays prodigious academic aptitude, mastering every conceivable subject with the greatest ease and besting the most able rhetoricians and philosophers in debate. So great is his reputation that he is summoned to adjudicate a law suit—a “controversy so involved and jurisprudentially abstruse that the highest court in the land found it about as clear as Old High German.”

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Defining America Down

It was inevitable that some supporter of President Obama’s would come along and compare his executive action on immigration to the most famous executive order of them all, President Lincoln’s Emancipation Proclamation. Yale law professor Bruce Ackerman has done the honors, and his comparison is, not to put too fine a point on it, weak.

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The Politics of Moral Outrage

shutterstock_136213418Moral outrage, when it is not fatuous, is politically potent. Vivid examples of politicians and commentators in full-throated, red-faced attacks against malignant motives and vicious political acts come easily to mind for all but the most apolitical. In some cases these outbursts are reactions against assaults on how things are or have been—on the decent order of things as inherited. But any honest observer must acknowledge that the more successful production of moral outrage has issued from those seeking fundamental transformation.

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Eleven Propositions that Sum to Zero

2014 Democratic State Convention

Over the weekend Elizabeth Warren, the Senator from Massachusetts and a former professor at Harvard Law School, outlined eleven propositions, dubbed by the National Journal as “eleven commandments” for progressives.  Warren is a very bright leader of today’s progressivism. Her propositions provide a window on the future trajectory of the Democratic party and its approach to law, three aspects of which seem particularly notable:

1.Opposition to crony capitalism. Warren wants government to make sure the banking system and Internet are run for the benefit of the people not big corporations.

2.Use of the regulatory system rather than tax system. Nowhere does Warren expressly call for higher taxes. But she does endorse a slew of regulatory interventions—a higher minimum wage, stronger protections for unions and “equal pay” provisions for women.

3. A relentless focus on equality.  In marriage, in pay, and in access to higher education and contraceptives paid for by the government.

If these are the tenets of future progressivism, friends of liberty need to sharpen their critique.

1. They need to co-opt the attack on crony capitalism.

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Free-Floating Liberty?

In a previous post, I asked what may strike some readers as an obtuse question. If our society is no longer grounded in Christianity, as it once was, or in the biblical tradition, and if the normative passion of our time– namely, equality– is a not an affirmative ideal or vision so much as a negative and parasitic one, then what sort of society do we live in now? How should we describe the affirmative convictions or commitments (if any) that give meaning and shape to our society?

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America’s Egalitarian Edge over Europe

World Cup 2014 competition resumes this week, with 32 teams in eight groups competing for 16 spots. Each group features four teams in a round-robin format, so every team will play three matches. The two top point-earning teams in each group will advance to the round of 16. (The Americans’ prospects for advancement appear somewhat but not altogether bleak.)

European football has always puzzled me in comparison to American sports. Europeans often pride themselves in advancing a more egalitarian society in which opportunities for success are widespread rather than concentrated. By contrast, the Americans, they argue, allow for great disparities and inequalities of income and wealth. (Some argue that the facts do not support this fulmination against income inequality, but leave that aside for purposes of this argument.)

The basic impulse of this criticism is a desire to promote equality of outcome, rather than greatness. If some at the top have to be moved down a notch or two, we may sacrifice magnificence at the top, but we will provide greater and more widespread opportunity overall.

The reason I find this puzzling is that, when applied to sports, Americans tend to prefer egalitarianism – known in sports as parity – when compared to their European counterparts. All joking about the Yankees and Lakers aside, championships are more widespread in American sports than in European football.

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The Mirage of Income Mobility

A recent study by Raj Chetty and several co-authors suggests that income mobility has not greatly changed over the last generation. It is still as easy to move up the income ladder as it once was, contrary to the premise of many politicians who want to justify new government programs to increase income mobility. But why should we care about the degree of income mobility in society? Would greater churning improve society, such that, in every generation, the children of the poor would become rich and the children of the rich would become poor? This merry-go-round would open up prospects for the current poor but could also mean more conflict, as the rich would redouble efforts to use the law to keep their children on top.

Perhaps the focus on income mobility serves as a proxy for concern about social structures that prevent people from rising to the heights their talents warrant. And certainly if such structures are backed by the force of law, they are very bad and should be eliminated.  Titles of nobility, for instance, are to be condemned but fortunately the United States Constitution already forbids them.   Other state-forged manacles impede the rise of the talented.  For instance, lousy K-12 education supported by the taxpayer dollars hurts the poor in particular and is in urgent need of reform.

But changes in income mobility, even if they were demonstrated, are poor proxies for gauging the existence of such barriers, let alone their root causes.

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Straussian Civil Wars

strauss nyrbA seemingly esoteric academic debate bursts forth in the Book Review of the Sunday New York Times that ought to turn us to the most significant political books of our times. The war between the West and East Coast Straussians, academics (and political players such as Bill Kristol) who have been influenced by the political philosopher Leo Strauss,  involves no mere battle of the books but bears political consequences as well. His books and their interpretation and application are required reading for their wisdom about free and civilized societies. Strauss’s work encompasses grand themes of the West, including ancients and moderns, reason and revelation, natural right and history, and philosophy and poetry (in its root sense of creation). But in all this was saving the West Strauss’s intention? Was he instead a Machiavellian? A Nietzschean?[i]

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Shakespeare’s Women and the Rule of Law

Chaucer’s Wife of Bath entertains us with a tale about the question, What does every woman most desire? Plot spoiler: To rule her man. Shakespeare’s comedies respond to this desire.

His comedies portray cunning and attractive women who win the object of their desires and fend off evil that threatens their love (Portia in The Merchant of Venice). The plot could easily lead to tragedy (Romeo and Juliet), but instead powerful will, aided by chance, enables the perfect matches to take place (Midsummer Night’s Dream).

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The Theologico-Political Question (Part II): A Review of “42”

Early in one of the best sports movies, Knute Rockne, All-American, the immigrant kid Knute learns to play football with the neighborhood boys, including a black one.  The logic of the movie, following the recognition of Catholics in higher education, is that the opportunities will open up for blacks, too. 42, another biopic of baseball star and civil rights pioneer Jackie Robinson, takes the next step from that classic.

Frankly proclaiming Robinson’s importance for America, Brooklyn Dodgers owner Branch Rickey opens the movie by declaring to his assistant, “I have a plan.”  In fact Rickey and Robinson deserve comparison with Martin Luther King. Claiming to be interested in winning and thus in profits, Rickey’s signing of Robinson exemplifies Tocqueville’s observation that Americans say that they are interested in profit but in fact often have higher motives. He is Tocqueville’s American, a self-professed Methodist focused on acting righteously, doing good while doing well.

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