It is good to be reminded, at the fourth centenary of his death, that William Shakespeare (1564-1616) approached the relationship between law and liberty as a matter of arguing both sides of an interesting question.
When America’s most sophisticated social scientist warns that America is on its last legs, it is time to start paying attention. Charles Murray has come to the conclusion that Donald Trump is “an expression of the legitimate anger that many Americans feel” about the state of the country.
The Trump phenomenon was to be predicted, writes Murray in a recent essay. “It is the endgame of a process that has been going on for a half-century: America’s divestment of its historic national identity.”
For those whose knowledge of Justice Scalia was limited to a casual acquaintance with the exquisite certitude of his judicial writings, the tone of his son’s moving homily—suffused, to what surely would have been the late jurist’s liking, with talk of grace and sin—must have been jarring. But Scalia’s judicial philosophy was always modest, not just with respect to the judge’s role in the constitutional orbit—that much is well known, or should be—but also when it came to the inherent limits of human knowing. Scalia’s was a jurisprudence not merely of original meaning, but of original sin.
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…