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.
Drew Maciag's Edmund Burke in America is a historiographical essay. After a brief introduction, the author proceeds to a short chapter laying out his interpretation of Burke’s thought, then reviews and characterizes various interpretations of Burke’s work by Americans, beginning in the late eighteenth century and proceeding more or less chronologically through to the present day. Historiographical essays can be quite interesting and helpful for examining the preoccupations and prominent points of view of intellectuals over time. All thinkers of any real stature have within their work a set of assumptions, concerns, and goals that may receive varying emphases depending on…
A seemingly esoteric academic debate bursts forth in the Book Review of the Sunday New York Times that ought to turn us to the most significant political books of our times. The war between the West and East Coast Straussians, academics (and political players such as Bill Kristol) who have been influenced by the political philosopher Leo Strauss, involves no mere battle of the books but bears political consequences as well. His books and their interpretation and application are required reading for their wisdom about free and civilized societies. Strauss’s work encompasses grand themes of the West, including ancients and moderns, reason and revelation, natural right and history, and philosophy and poetry (in its root sense of creation). But in all this was saving the West Strauss’s intention? Was he instead a Machiavellian? A Nietzschean?[i]
It is frequently alleged or assumed that a tension exists between natural-law theory and constitutional originalism. The tension is undeniable if originalism is a naked form of democratic positivism—that, e.g., law is simply the expressed will of the sovereign, and the sovereign people have expressed their supreme will through the written Constitution. In such a case, the tension may even represent a contradiction. Originalism, thus understood, would indicate simple obedience to the Constitution’s text, as understood by its authors, while natural “law” would encourage judicial entrepreneurship: to go beyond, outside, or even against that text, in the name of some law that is allegedly prior or higher.
Commentators have missed the most significant element of Sam Tanenhaus’s controversial essay “Original Sin: Why the GOP is and will continue to be the party of white people.” Unfortunately both Tanenhaus and his critics have missed the major point about John C. Calhoun—Tanenhaus by overstating his influence on the right and him and his critics by missing Calhoun’s influence on our political understanding generally.
We were not aware at the time that they were twilight years, that time just before Roe v. Wade was decided, when statutes on abortion were sustained in the courts and only occasionally struck down. That is in part why Roe v Wade came with a jolt of surprise. In one case, just a year before Roe, the Supreme Court in Florida struck down a statute that barred abortions except when “necessary to preserve the life” of the pregnant woman. The Court affected to find “vagueness” in that statute (though it would be hard to imagine how judges could have…
In response to: Why You Can’t Understand the Constitution Without the Common Law
James Stoner’s essay on the common law and the constitution provides a very valuable perspective on our founding document. Stoner is wholly correct that the common law concepts are often essential to interpreting the Constitution. Nevertheless, I want to raise a note of caution about using the common law method of interpretation as applied to…
Recently Justice Clarence Thomas reflected on the American condition and its relation to the Constitution. He focused far less on specific legal issues and more on the enduring love of country “we the people” give it. He described how the founding documents still speak to us today, in particular those lovingly displayed at the National Archives, the site of the public interview conducted by Yale law school professor Akhil Amar.
The coverage in the Washington Post and New York Times emphasized different aspects of the conversation. The Times probed his views of religious diversity in America and on the Court.
The Post had a more interesting albeit incorrect take, that Thomas had admitted a flaw in the Constitution’s treatment of slavery and race, as though this was news. Thomas allowed that blacks were not perfectly part of “we the people.” Might this flaw in the Constitution confirm the hypocrisy of the “we hold these truths” of the Declaration? Moreover, the alleged admission might clash with Thomas’s opposition to race-preference policies. Might not then his original understanding approach to jurisprudence be fatally compromised? After all, following Justice Thurgood Marshall, why not begin celebrating the Constitution following the passage of the Reconstruction Amendments?
John Adams reconciliation of natural right with popular consent is the task of constitutional politics.
Timothy Sandefur seems to let his dislike for John Adams get in the way of his analysis. Sandefur thinks that the issue is “the transition from the common law principle of ‘toleration’ to the natural-rights principle of religious liberty.” More generally, he suggests the issue is the transition from the idea that law creates rights to the idea that men, by nature, have rights. That is not the issue here. Adams had robust ideas of individual rights, including the rights of conscience, from the time he was a young man, as Brad Thompson has demonstrated in his John Adams and the Spirit of Liberty. That’s why, as Sandefur notes, in one of the letters to which he links, Adams said that the effort to secure the rights of conscience in Virginia were “worth all the blood and treasure which has been or will be spent in this war.” It is also why he refused to endorse Massachusetts’s religious establishment. Many historians have mistakenly attributed the establishment, in Article III, of the Massachusetts’s Constitution’s Declaration of Rights, to Adams. Sandefur accepts the correction in the narrow sense, but does not consider what that means for our understanding of Adams.
In “Natural Law, Natural Rights, and Private Property,” Edward Feser offers a way for natural law theorists to be natural rights theorists, and he shows how natural law and natural rights provide the intellectual foundation for private property. This essay and his longer piece in Social Philosophy and Policy develop natural law theory in an interesting way. After all, Aquinas, a natural law theorist than which none greater can be thought, does not include private property in the natural law; he calls it an invention of human reason (ST IIa-IIae q. 66 a. 2 ad 1). Nicholas Wolterstorff, in chapter…
In response to: Natural Law, Natural Rights, and Private Property
Edward Feser provides a classical natural law theory of rights, and property rights in particular. According to Feser, human beings are naturally inclined to certain acts and ways of life. The fact of such natural inclinations makes acts and ways of life in accordance with them morally worthy or even obligatory. And, if I understand…