Between the breathless whispers that Judge Neil Gorsuch intends to impose either medieval Catholicism or, worse, Oxford sensibilities from the bench through the mechanism of natural law and the fear that he might otherwise glide into the legal positivism of which Justice Scalia was unreasonably accused lies another possibility: The Constitution can neither be interpreted through natural law nor reduced to positive law. It is more profitably understood as fundamental law.
Sandy Levinson joins this edition of Liberty Law Talk for a conversation about his latest book, An Argument Open to All: Reading The Federalist in the 21st Century.
Peggy Noonan recently suggested that “elites are often the last to see their system is under siege. ‘It couldn’t be, I’ve done so well.’” There is much to this idea, especially in a nation like America where many are, in fact, doing very well, and are often socially isolated from others who are not doing so well. Near zero interest rates have flooded the stock market with money, and that, among other things, has been good for the wealthy. Outside of that, however, things are tougher, and not only economically. Because Americans are increasingly isolated socially and economically, our governing class often has trouble seeing this reality.
Our system was supposed to be designed to ensure regular contact between elites and the common citizen.
The presidential nominating contests continue to befuddle prognosticators, but the consensus winner of the Syntactical Caucus of 2016 is already in. Whether Republican or Democrat, the next President will almost certainly display an unreasoning proclivity for the first person singular.
This past week, at the invitation of a dear friend (Christopher Wolfe —no, wait: this guy), I visited the University of Dallas. On some accounts it’s the ugliest campus in America. On all accounts it’s among the most amazing: where else would you find students who sit in rapt attention for a six-hour (!) debate on inequality (featuring William Galston, Ross Douthat, and yours truly)?
Pending the webilcation of the entire event, herewith my opening remarks. I’m way out of my league here but what the heck:
Inequality, we have it on presidential authority, is “the defining challenge of our time.” Arguably it’s the (or at least a) defining challenge of all times—a profound question that invites deep reflection. Jerusalem had one answer; Athens had another. Hobbes and Machiavelli had different answers yet. A bit closer to home, this country was famously founded on the “self-evident” truth that all men are created equal.
The raging contemporary debate, for good or ill, has nothing to do with any of that. It is limited to income inequality, and it says that r is greater than g: the returns to capital will exceed the economic growth rate and so the rich get richer and the poor get poorer over time. That’s not quite inevitable, or always true. The post-War era experienced a “great compression.” But income inequality has increased dramatically since the 1980s and especially after the 2008-2009 financial crisis: all the gains from growth have gone to the 10 percent or the one percent or whatever. Surely we should do something about that.
On my European excursions I’ve made it a habit of flipping through newspapers from Germany, Britain, and the good old U.S. of A. Lately and maybe belatedly, I’ve been struck by the sheer mendacity of politics on both sides of the pond. I don’t mean nasty little lies, fed by ambition (“I didn’t wipe my server; it’s the cleaning girl’s fault”), nor any of the stuff that earns you Pinocchios in the Washington Post. I mean deliberate falsehoods that are central to the operation of government—the “regime,” as Straussians are wont to say.
To gauge how carefully they have read Federalist 10, I often ask students on what constitutional institutions Madison relies to solve the problem of majority factions. It’s a trick question, the last refuge of the professor. The answer is none. Madison reaches the end of the essay, proclaiming a “republican remedy for the diseases most incident to republican government,” without mentioning the Constitution, a Bill of Rights or, significantly, the courts.
That has not dissuaded advocates of an assertive judiciary from quoting Madison on the “mischiefs of faction” to support their cause. The most recent is Evan Bernick of the Institute for Justice, who, at the Huffington Post, has taken my post on judicial restraint to pointed task. “Professor: Who Needs Judges?” the headline announces. “Let’s Put Our Constitutional Rights to a Vote.”
“Have you heard of the wonderful one-hoss shay, that was built in such a logical way, it ran a hundred years to the day?” If you haven’t, you’ve missed one of the most amusing poems of the nineteenth century, Oliver Wendell Holmes Sr.’s splendid satire of the American constitution. Shays or carriages break down, said Holmes, when one joint is stronger than the next. “There’s always somewhere a weakest spot, … and that’s the reason, beyond a doubt / A chaise breaks down but doesn’t wear out.” And so the Deacon built a carriage that wouldn’t break down because each part was a strong as the rest. On and on the carriage went, until 100 years from the day it was made it all turned into dust. “End of the wonderful one-hoss shay, logic is logic, that’s all I say.”
The poem was written three years before the outbreak of the Civil War, when the defects of a logical constitution seemed all too apparent to Holmes’ fellow Bostonians. Not that the Framers were logicians, of course. They were almost all practical politicians and simply strove to give us something better than what they had had.