Here Comes Everybody

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.

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God, Political Science, and Werner Dannhauser

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.

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The Real John Locke—and Why He Matters

LockeScores 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.

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Deconstructing the Transhumanist Impulse

Her filmLibertarian 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.

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Critiquing Leo Strauss from the Right

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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,…

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The Declaration’s Grievances and the Constitution

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.

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Friday Roundup, October 4th

October's Liberty Forum on Congressional power to define the substance of the 14th Amendment is now available and features essays from Joshua Hawley, Kurt Lash, and John Harrison. Losing the gun in Canada: Pierre Lemieux reviews Arming and Disarming: A History of Gun Control in Canada in our feature Books essay this week. Bart Wilson @Econ Lib: What's wrong with utilitarian behavioral economics? Daniel McCarthy on John Locke's colonial capitalism: Liberal, Libertarian, or License. Mollie Hemingway: Can We Finally Start Talking About the Global Persecution of Christians? Daniel Mitchell on October 3rd, 1913 as the worst day in American history. The Unwinding: Reviewing George Packer's account…

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Does the President Possess the Prerogative? Part I: Characterizing the Power

I recently was at a Liberty Fund Conference where the issue of whether the President – in particular, Abraham Lincoln – enjoyed a prerogative. Some of the other participants argued that the President possessed a prerogative. My basic position is that the President does not have this power, but that he possesses a substitute which can serve the same function in a superior way.  I plan to address this question in three related posts.

In the Second Treatise, John Locke describes the prerogative as:

This power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it, is that which is called prerogative: for since in some governments the lawmaking power is not always in being, and is usually too numerous, and so too slow, for the dispatch requisite to execution; and because also it is impossible to foresee, and so by laws to provide for, all accidents and necessities that may concern the public, or to make such laws as will do no harm, if they are executed with an inflexible rigour, on all occasions, and upon all persons that may come in their way; therefore there is a latitude left to the executive power, to do many things of choice which the laws do not prescribe.

One set of questions involving the prerogative is whether it is legal, illegal, or some how distinct from the question of law. That is, does the Constitution legally authorize the violation of other laws in special circumstances? Or does the Constitution require the President to follow such laws, in which case his prerogative actions are illegal. Or finally is the prerogative somehow distinct from the Constitution and laws in some unspecified way?

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A Marxist Historian Offers a Counter-History of Liberalism

New in the Books section this week @Law and Liberty is a wonderful review by frequent contributor David Conway of Domenico Losurdo’s Liberalism: A Counter-History. Conway’s reviews are always worth considering because he quotes the author at length allowing them to speak in their original voice before he weighs their arguments. Losurdo’s account of liberalism, Conway observes, is premised on disputing its worth because the interests and motives of those who are seen as its chief spokesmen so frequently run counter to the ideas they contend for. Thus the philosophy of liberalism is not analyzed so much for its content as are the failures and complexities of those thinkers who have championed it. 

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From Sacrament to Contract: Marriage, Religion, and Law in the Western Tradition

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In this new installment of Liberty Law Talk, I discuss with renowned legal historian John Witte the recent reissuing of his classic work, From Sacrament to Contract: Marriage, Religion, and Law in the Western Tradition. I discuss with Professor Witte the evolution of marriage law since the late Roman Empire and the pivotal aspects of the religious, public, and legal duties that were attendant upon marriage in the Roman law and Canon law traditions. The conversation then turns to the increasing role for the state in regulating marriage that emerged with the Protestant Reformation and its own dismissal of marriage…

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