Demonstrators arose at last week’s American Political Science Association annual meeting with signs exhorting their fellow members to “Stand Up to Torture” by bodily turning their backs on John Yoo, late of the George W. Bush administration, who presented to two sessions on wholly unrelated topics. The protests’ premise was apparently that some views so exceed the pale that those who espouse them ought not to be given a scholarly hearing even on other topics. One might have more confidence in their judgment that Yoo—of whose views on presidential authority and the legality of torture I have been sharply critical—resides beyond that pale if the pale’s scope were not permanently shifting.
In the July Liberty Forum essay, Joseph Postell boldly takes on the core problem of representative government: how a representative legislature can be made to serve the common good instead of the parochial interests to which its members are tied. While the argument is strong—that congressional deliberation requires patience and tolerance of “inherent messiness,” and that the design of political institutions matters a great deal—none of the solutions from Willmoore Kendall that Postell proffers solves the problem. More critically, the idea that political institutions can foster virtue, civic or otherwise, is alien to the political thought of the Framers of the…
Legal historian Mary Sarah Bilder’s op-ed in the Boston Globe means to level originalism. Her effort has produced responses from Lawrence Solum and from John McGinnis and Mike Rappaport on this site. The criticisms sum to the notion that Bilder is shooting scattershot rounds at a defined scholarly target.
Bilder’s argument is that the members of the Constitutional Convention did not have “the luxury of even imagining that each and every word possessed an invariable, sacred meaning.” Who said they did?
A good explanation of the Clinton-Trump clash we are living through, and of Trump’s having taken the Republican Party by storm, is in Eric Posner and Adrian Vermeule’s 2010 brief for executive supremacy as the way we do constitutionalism. The Posner-Vermeule thesis in The Executive Unbound is that the Madisonian philosophy of separation of powers as a constraint on the presidency no longer exists, and good riddance. The more authoritative check on executive power, they say, is majority opinion and the fact that the President must face the voters every four years. This, and not Greg Weiner’s paean to Jemmy Madison, is the only source we have now for safe, effective, and informally limited government. Those wanting Madison on demand, Posner and Vermeule inform us, are whistling past the graveyard of a constitutionalism that no longer fits this American nation.
Here and at Volokh, Ilya Somin and Mike Rappaport have been conducting a fruitful exchange over the extent of individuals’ moral obligation to obey the law, but the debate should not obscure the deeper and important philosophical ground on which they apparently agree: a shared assumption that the duty arises from something like an individual utility function. Their dispute seems to pertain to whether the individual should deploy his or her moral calculus at the personal (Somin) or systemic (Rappaport) level. The tougher question is whether any society so conceived and so dedicated—namely, one in which individuals calculate their moral obligation to obey the law as atomized individuals—can long endure.
Our Books section featured two great essays this week. In "Jewish Learning, Human Liberty," David Conway evaluates Moshe Halbertal's Maimonides: Life and Thought. Arnold Kling considers the economics and societal implications posed by rapid advances in computer technology in his review of The Second Machine Age. Scott Sumner @ EconLib: Central banks do not deserve our respect or our condemnation; they deserve our skepticism. Rick Garnett @ the Conglomerate on religious liberty and the rights of employees. After oral arguments in the Hobby Lobby case this week, which Marc DeGirolami profiled well, Richard Samuelson's older essay "What Adams Saw over Jefferson's Wall" is…
Ken Masugi argues that conservatives and libertarians must be “radical to grasp the truth.” He certainly is radical in casting Robert Nisbet and, with him, it would seem, other Burkeans who see little platoons rather than isolated individuals as the building blocks of society outside “the foundation of American politics,” which Ken identifies with the Declaration of Independence.
July 4 is separated from Bastille Day by a week and a half on the calendar but by eons in political culture. The interim is an appropriate interval for reflection on why exactly the two events were so different. One reason is arguably that America is precisely not what one might be led to believe from exclusive emphasis on the Declaration of Independence: a simply creedal nation bound solely by political belief. The creation of a new people connected by creed alone rather than shared tradition and history would, like the French Revolution, have been a radical event. As Willmoore Kendall would remind us, the American Revolution is better understood as a restorative or conserving one.
For the bulk of the last generation, a conjunction of conservative legislatures and liberal courts enabled judicial conservatives to avoid a theoretical tension it is now time to confront: that between original intent and judicial restraint.
The tension was alleviated by the fact that, given the blend of conservatism in the electoral branches and liberalism on the bench, advocates of original intent and judicial restraint reached the same conclusions in 99 cases of 100: If majorities made decisions compatible with constitutional originalism and courts were inclined to overturn them—see Roe v. Wade as the paradigmatic example—the natural default for conservatives was judicial restraint. Conservatives, led intellectually by Judge Robert Bork, preached a doctrine of deference to majorities.
In previous posts I’ve looked at what Raymond Bruckberger, formerly of the French Resistance turned student of American Constitutionalism, John Courtney Murray, and Willmoore Kendall have had to teach about the American commitment to modern republicanism and its theoretical and practical commitments for effectuating it. We should affirm Murray’s notion that
Civilization is formed by men locked together in argument” and then connect this to the American Proposition and its components of human dignity, constitutionalism, government limited by law as given to America by the common law tradition, self-government as faith in citizens to exercise the duties of moral judgment in basic political decisions, and the constitutional consensus that forms the Proposition and serves as the basis for rational argument and the compromises that it forges. This is the deep background that enables “the deliberate sense of the community” effectuated by our republican institutions to be reasonable.
To do so permits a process of compromise, animated by principles while also informed by property and interests, history and legends, under a distinctive bond of reason that can be seen in the arguments over the Declaration of Independence, the Constitution, the state constitutional ratification debates, and the debate in the First Congress over the content and wording of the Bill of Rights. These debates display the compromise and the synthesis of the American constitutional tradition, and these foundational debates help achieve the constitutional consensus that can then be further debated and developed. The question stalking our tradition now is the resolute or ideological manner in which central questions are answered and the institutional mechanisms chosen to implement them. Put differently, our politics is war-like, and the answers for difficult social and socioeconomic questions are seen as too significant to be settled by the deliberate sense of the community.