Are our laws producing “identity politics” and the divisions it fosters?
A scientist, or perhaps it was an engineer, once asked the political philosopher Harry Jaffa for a general scientific rule about politics. After reflecting upon the bizarre request, Jaffa came up with the following:
S = 2P, where “S” = solution and “P” = problem. Politics is tragic; there are no final solutions.
In the July Liberty Forum essay, Joseph Postell boldly takes on the core problem of representative government: how a representative legislature can be made to serve the common good instead of the parochial interests to which its members are tied. While the argument is strong—that congressional deliberation requires patience and tolerance of “inherent messiness,” and that the design of political institutions matters a great deal—none of the solutions from Willmoore Kendall that Postell proffers solves the problem. More critically, the idea that political institutions can foster virtue, civic or otherwise, is alien to the political thought of the Framers of the…
The protestors who pressured Yale University into scrubbing the legacy of John C. Calhoun—racist, slaveholder and forthright apologist for African bondage; statesman, philosopher and critic of excessive executive power and American imperial ambitions; and, unto Saturday, namesake of a residential college at the alma mater where he was valedictorian of the class of 1804—have no palate for moral nuance, so assume they have no taste for irony either. Consequently, they are probably unaware that the identity politics they champion are Calhounian to their core.
Among the current body of U.S. Senators, Elizabeth Warren (D-Mass.) is certainly the intellectual favorite of many liberals in the country, and she is already being spoken of as a potential Democratic presidential candidate in 2020. The former Harvard law school professor and consumer protection advocate has a great command of the issues, but her ideological commitments undermine her abilities, making her less effective as a legislator, and an often insufficiently decorous member of the U.S. Senate. Now that she has become a cause célèbre in the matter of Senator Jeff Sessions’ nomination to be Attorney General, the rebukes she is receiving from Republicans will come back to haunt them.
Students at the Oxford College of Emory University can spend their semester living in Haygood Hall. The college website describes the dormitory as the “smallest, most intimate community on campus” and is the closest student residence to the dining hall. It is also named after one of the most emphatic defenders of African American education and civil liberties in Georgia during the years after Reconstruction.
Perhaps we should add this affirmation to the orientation session for federal judges: The Supremacy Clause means the Constitution and laws arising under it outrank their state counterparts. It does not mean the judiciary is supreme over the coordinate national branches of government. Judge David Bunning of the Eastern District of Kentucky did not quite assert the latter in ruling this week, correctly, that an elected county clerk cannot exempt herself from a decision, however errant, of the Supreme Court. He flirted with it, though: “Our form of government will not survive," he wrote, "unless we, as a society, agree to respect…
“I understand you are preparing to celebrate the ‘Fourth,’ tomorrow week. What for?” —Abraham Lincoln‘s words to the people of Springfield in 1857, reacting to the newly announced Dred Scott decision
The ferocity of the dissents in the final days of the Supreme Court’s term obscured the most profound of the dissents, that of Justice Clarence Thomas in the same-sex marriage case, Obergefell v. Hodges. In fact the Thomas opinion gives the most radical recent account of how American government has deteriorated.
The current issue of the New York Review of Books contains a delightful yet potentially bewildering interview with Supreme Court Associate Justice Stephen Breyer on the pleasures of reading Proust and other French writers in their original language. Long obsessed with all things French, Breyer has consistently endorsed the incorporation of European jurisprudential insights into American constitutional decision-making in an attempt to refute originalist interpretations of the American legal and political tradition. Judge Richard A. Posner, in a now-famous critique of Breyer, correctly suggests that what is ultimately at stake is a disavowal of the “liberty of the ancients” for a new and “active” liberty and theory of unrestrained democracy embodied in recent studies of European law and political thought.