Talk about a teachable moment: I couldn’t believe it when I found a reference to “natural law” in a Washington Post article about Rowan County Clerk Kim Davis’ ill-fated conscientious objection to our new marriage regime. I couldn’t resist taking it to my students, all sophomores in a core class where we’re currently reading and discussing John Locke’s Second Treatise of Government.
In the 16th century, Europe experienced a long series of nasty and violent religious wars. With Christianity splitting into many sects, each one wanted its own political power. Once a sect gained that power, it used it to oppress the others. The oppressed sects then fought that much harder to achieve their own independence.
Into this fray of religious warfare, Thomas Hobbes entered and proposed a solution: Instead of fighting about which religion would hold sovereign power so as to extend its influence, we could all just collectively decide that sovereign power would only promote peace and stability for its citizens. By defining sovereignty down, Hobbes hoped to avoid bloody religious warfare. Amidst this redefined sovereignty, Hobbes proposed picking one overriding religion—it didn’t really matter which one since all were equally untrue—and imposing it on all.
Who would argue with the Declaration of Independence’s claim that “all men are created equal”?
But one immediately runs into trouble. What about the Declaration limiting it to “men”? Are women equal? They did not have the right to vote at the beginning. Yet, Thomas Jefferson and the other Founders certainly believed women were morally equal and were covered under the generic term “men,” for mankind. Was that enough?
The death of Walter Berns (1919-2015) has deprived this country of a patriot both remarkably devoted and remarkably thoughtful. He was a thinker resolutely loyal to, yet resolutely reflective about, the United States. These two qualities were also characteristic of Walter as a person and as a friend.
Among the numerous subjects that this political theorist addressed, I am selecting for special (though far from exhaustive) attention these: constitutionalism, patriotism, punishment, public morality, civic education, and religion. How, and to what extent, has he illuminated these subjects? How consistent are his viewpoints regarding them, advanced in various contexts over many years?
We will soon know if the U.S. Senate changes hands, but I’m not one of those waiting with bated breath. I had lunch with a prominent conservative columnist a while back. “It’ll be different in November,” he exulted. “We’ll take the Senate!” “And then what will happen?” I asked. “We’ll pass legislation and send it up to Obama,” he answered. “And then what will happen?” I asked.
My friend thought that the most arrogant and narcissistic President the country has ever seen would blanche before Mitch McConnell. Count me a skeptic. We have gridlock this year, and we’ll very likely have gridlock in 2015, whatever happens in November.
Oh, I know there’s the Senate’s advise and consent role, when it comes to judicial appointments. Conservatives like to pretend that that’s important. All it means is that, with divided government, we won’t see Justice Eric Holder. So we’ll see Justice Elena Kagan. Tell me what’s the difference.
Anyone who takes higher education seriously attends to the words of legendary teachers. They are likely to be undisciplined, witty, and unfashionable; about great books; ironic about the careerism of their colleagues, students, and administrative bosses; self-indulgent; and insistently erotic, without being creepy.
Scores of textbooks attest that John Locke is the most important intellectual influence on America’s Founding. No other first-tier philosopher can provide a moral and theoretical justification for the United States, its traditional culture, and its form of government. Even the skeptics who question Locke being the only influence concede he was the most significant. The practical problem is that modern experts are confused about what Locke actually thought.
Libertarian futurists such as Tyler Cowen and Brink Lindsey sometimes write as if the point of all our remarkable techno-progress—the victory of capitalism in the form of the creative power of “human capital”—is some combination of the emancipatory hippie spirit of the 1960s with the liberty in the service of individual productivity of Reagan’s 1980s. Cowen says “the light at end of the tunnel” is the coming of a world in which we will have plenty of everything, and all the time in the world to play enjoyable games. Lindsey writes that Karl Marx’s view of communism was wrong in only one respect: In order to live in a world of bohemian enjoyment, we’ll need to remain productive.
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 a detailed historical review of Timothy Sandefur’s new book entitled The Conscience of the Constitution, Adam Tate raises the practice of federalism as a principled method that representatives used in the early republic for handling difficult issues. Rather than face political paralysis or endure efforts at national coercion via constitutional provisions regarding slavery or religious freedom, for example, Tate notes that the Founders looked to the states and their separate interests as the best solution. So Tate argues that there was no natural rights code of law with exact specifications nationally applied.
If we were such a republic, then why were natural rights not relied upon in the tough cases and appealed to with precision? If there was consensus on natural rights as the baseline, then surely it would have governed these disputes, rendering them noncontroversial. More plausible is that the natural law and natural rights were seen as an ultimate source of law, but what this meant in concrete application was not firmly agreed upon by the Framers. As a result, particular resolution of constitutional questions via a detailed code of natural rights wasn’t ventured.