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 past, I have noted that there are three main arguments for originalism: 1. Originalism as an interpretive theory (the most accurate meaning of the original document); 2. Originalism as a normative theory (the most normatively desirable interpretation of the Constitution); and 3. Originalism as positivism (the original meaning is the law).
Here I want to explore a type of theory that intersects between the second and third categories: a theory that views the original meaning as the law, not based on positivism, but based on a normative or idealized conception of the law.
If one looks back at some of the old originalist theories, I think it is possible to read them as adopting an idealized conception of the law. The law is not what the rule of recognition requires, as in the positivist theory. Nor is the law what would lead to the best results in general, as some versions of the normative theory hold. Instead, the law is determined through an idealized conception of the law.
President Obama may have escaped the widespread carping at his West Point speech by bringing even greater embarrassment upon himself with the Bowe Bergdahl deal, and now the implosion of Iraq, but the recent D-Day celebrations impel us to revisit the offensive speech. There is much more here than the widely-noted hackery: e.g., “Those who argue otherwise—who suggest that America is in decline, or has seen its global leadership slip away—are either misreading history or engaged in partisan politics.” The captivating orator had become the whining demagogue many had previously perceived; the admired student body president appeared a petulant schoolyard bully.
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.
The firing of New York Times editor Jill Abramson has excited controversies for the wrong reasons. The bicker over sex discrimination ignores the most fundamental issue: her integrity as a journalist.
Christopher Lazarski comes to Liberty Law Talk to discuss his deep inquiry into Lord Acton's attempt to understand the dimensions and nature of liberty as it unfolded in Western history. In this podcast, Lazarski underscores Lord Acton's historical quest to find the conditions of liberty, as well as his formal understanding of what constituted liberty. The conditions of Acton's ordered liberty we can describe as "arbitrary law," national history, and a bottom-up development of positive law. Arbitrary law was Acton's way of describing divine and natural law, which he believed a pillar in support of political liberty because it was law…
Nathaniel Peters’ review of Robert George’s Conscience and Its Enemies is an insightful introduction to the Princeton scholar the New York Times Magazine resident anthropologist of conservatives, David Kirkpatrick, described as “this country’s most influential conservative Christian thinker.” Aptly titled, “The Dynamic Unity of Conscience,” the essay was almost entirely devoted to George’s understanding of marriage and the philosophic analysis that supported it. In summarizing George, Peters elegantly illustrates how conscience is the first pillar of a decent society, followed by marriage, justice, education, and wealth. Conscience is the central philosophic issue to be sure, but a broader audience might appreciate how George’s understanding of the conscience influences his public policy choices.
Much of President Obama’s speech commemorating the 1963 civil rights March on Washington deserves praise–or at least admiration. Speaking from the Lincoln Memorial, he began by reciting the most famous lines from the Declaration of Independence. He reminded his cynical audience that the cause of civil rights comes from the heart of our national existence. And he reinforced that principle by later quoting Lincoln, in his brief speech on the meaning of the Declaration, that “the weights should be lifted from the shoulders of all men, and that all should have an equal chance.”
Robert Nisbet was certainly a conservative theorist of some prominence, as Mike Rappaport indicates. Mike was picking up on Steve Hayward’s post, which called to task today’s “quantum conservatism” for its uncertainty principle. For good reason, Mike holds Nisbet as an exemplar of the differences between conservatives and libertarians. But like Tocqueville, whose insights his best work elaborated on, sociologist Nisbet overlooks the core of American politics, which is the Declaration of Independence. Unless conservatives are selective about what it is they are conserving, they are no better, theoretically, than the radicals they claim to be combating. And libertarians cannot claim to defend…
So I’ve been deep in the bowels of the Georgia Historical Society archives the past week laying the groundwork for a new project on slavery and the law. Of course, as far as bowels go, the Georgia Historical Society is mighty fine, located in wonderful Savannah and adjacent to beautiful Forsyth Park. Repeated trips to Elizabeth’s restore the soul and the body after a long day with the super efficient archivists who continually fed me pamphlets and speeches on slavery and the Constitution, and the Bible, and science, and the progress of civilization.
Of interest to me, although by no means core to my project, is the civilizational confidence both Northern and Southern speakers evinced about their political, social, and cultural orders. It is a confidence, I think, almost absent from any state in the West today.