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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This Republic of Federalism

Timothy Sandefur’s The Conscience of the Constitution contributes to the debate over the best way to limit the powers of the United States government in order to secure liberty. Sandefur, a lawyer and legal scholar, believes that Conscience“American constitutional history has always hovered in the mutual resistance of two principles: the right of each individual to be free, and the power of the majority to make rules.” (1) For Sandefur adherence to the natural rights theory of Declaration of Independence manages the tension between the two principles.

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The Great Debate: Edmund Burke, Thomas Paine, and the Birth of Right and Left

Great Debate

This edition of Liberty Law Talk is with Yuval Levin, author of The Great Debate: Edmund Burke, Thomas Paine, and the Birth of Right and Left. A 2013 Bradley Prize recipient, Levin connects us with the actual contest between Burke and Paine as they debated the central claims of the French Revolution and much of modern political thought with its focus on rights, individualism, the social contract vs. Burke's more expansive notions of social liberty, the contract among the dead, the living, and those yet to be born, and his belief in prescription or the notion that change should be…

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The Conscience of a Madisonian Conservative

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.

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Obama as Originalist Orator

obama lincolnMuch 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.”

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Steven Eagle on Eminent Domain

Steven Eagle, George Mason University law school professor, appeared today on C-SPAN’s morning show (39 mins @ 34:50) discussing the origins of eminent domain and its drastic expansion prior to and following the 2005 Kelo decision.  Eagle gave a superb introduction to the abuse of the eminent domain power and the failure of congress to address it. In fact, governments continue to delegate their eminent domain powers to utilities and railroad companies. The callers were eloquent in relating their own abuses from government. Eagle’s Cato Institute monograph on property rights and eminent domain can be found here; his vita  listing books and links to articles is here.

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The Real America

Thanks to Greg Weiner (and the commenters) for taking on my original piece, which has gathered far more attention than I had anticipated.  Greg argues that, “It has become commonplace to see the Declaration as a radical break with this tradition—and, in some circles, the Constitution as a radical break again—but a continuum of this symbol is clearly traceable.” Yet, though there is some “traceable” continuity, the Declaration is of a different order.

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The Right against America

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…

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The Propriety and Necessity of Natural Law to Originalism

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.

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The Journey of Indefinite Government

So what is “liberalism” today?  Is it a mere grab-bag of miscellaneous policy preferences, or some coherent thing, with an intelligible cause and purpose?

In an ambitious project, historians Donald T. Critchlow and W.J. Rorabaugh aim to answer these questions.  In their book, Takeover: How the Left’s Quest for Social Justice Corrupted Liberalism, the authors argue that contemporary liberalism represents an coherent political project that was launched in the 1960s by the “New Progressives.”  These reformers rejected the modest aims of the old liberals, who, according to the Critchlow and Rorabaugh, had sought merely to mitigate the evils of industrial capitalism.  Instead, the New Progressives aimed for a comprehensive transformation of the American economy and even the whole society, by means of a massive expansion in the size and scope of the government.  Consequently, today’s liberal agenda “is much more radical and encompassing.”

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