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Archive for the ‘American History’ Category

Oliver Wendell Holmes Jr., Abraham Lincoln, and the Civil War

In American History, History, Humanities, Oliver Wendell Holmes Jr. on March 11, 2020 at 6:45 am

Should Libertarians Care About the Constitution?

In American History, History, Law, Libertarianism on March 4, 2020 at 6:45 am

Russell Kirk on Higher Education

In America, American History, American Literature, Arts & Letters, Books, Conservatism, higher education, History, Humanities, Imagination, liberal arts, Liberalism, Literature, Pedagogy, Philosophy, Scholarship, Western Civilization, Western Philosophy on February 12, 2020 at 6:45 am

This piece originally appeared here at the James G. Martin Center for Academic Renewal 

Russell Kirk isn’t known as a policy wonk. The Great Books, not the mathematical or statistical models of economic technicians, were his organon of choice. He devoted essays to broad, perennial themes like “the moral imagination,” “liberal learning,” and “the permanent things.”

Read his numerous columns about higher education, however, and you might come away with a different impression, one of Kirk as a political strategist with a strong grasp of educational policy.

Kirk wrote on a wide variety of issues involving higher education: accreditation, academic freedom, tenure, curriculum, vocational training, community colleges, adult education, college presidents, textbooks, fraternities and Greek life, enrollment, seminaries, tuition, teachers’ unions, collective bargaining, student activism, British universities, urban versus rural schools, boards of trustees, university governance, the hard sciences, grade inflation, lowering academic standards, libraries, private versus public schooling, civics education, sex education, school vouchers, university presses, and more.

One of his go-to subjects implicates several of those issues: federal subsidies. He believed that federal money threatened the mission and integrity of universities in numerous areas.

For starters, he believed that federal subsidies—and, it must be added, foundation grants—created perverse incentives for researchers, who might conform to the benefactor’s “preferences” and “value judgments.”[1] Recalling the proverb that “[t]he man who pays the piper calls the tune,”[2] he cautioned against financial dependency on outside influences, which, he worried, could impose ideological conditions on grants to advance or purge particular viewpoints.

Moreover, the grantors, whether they were foundations or the government, would, he believed, quantify the value of their funded work according to measurable outcome assessments that were “easily tabulated and defensible.”[3] The intrinsic value of reading Homer, Aristotle, Plato, Herodotus, or Euripides, however, is not easily assessed in instrumental terms.

More fundamentally, Kirk viewed federal involvement in higher education as a step toward the centralization and consolidation of power at the expense of local variety. He foresaw the creation of the U.S. Department of Education long before it occurred.[4] Fearing the growth of an “educationist hierarchy” or an “empire of educationism” corrupted by “sinecures” and “patronage,”[5] he favored small, private, liberal-arts colleges, which, he believed, flourished when they committed to mission and tradition.[6]

“The American college—the small liberal arts college—is worth preserving,” Kirk wrote, “but it can be preserved, in our time of flux, only if it is reformed.”[7] Kirk’s reform was reactionary, not progressive.[8] It rejected the popular focus on vocation and specialization and sought to train “men and women who know what it is to be truly human, who have some taste for contemplation, who take long views, and who have a sense of moral responsibility and intellectual order.”[9] Even if they can’t be calculated precisely, these vague-yet-discernable qualities of literate people are beneficial to society writ large, in Kirk’s view. In other words, there’s an appreciable difference between literate and illiterate societies.

Kirk decried the alarming escalation of tuition prices. In 1979, he wrote, “Attendance at colleges and universities is becoming hopelessly expensive.”[10] Forty years later, the costs of attending college have risen exponentially. Kirk opposed federal aid or scholarships to students,[11] but not, from what I can tell, for the economic reason that the ready availability of federal funding would enable universities to hike tuition rates to artificially high levels. Perhaps, even in his skepticism, he couldn’t conceive of university leadership as so systematically exploitative.

We continue to hear echoes of Kirk’s observation that the typical college student “oughtn’t to be in college at all: he has simply come along for the fun and a snob-degree, and his bored presence reduces standards at most American universities.”[12] Elsewhere, he claimed that “[w]e have been trying to confer the higher learning upon far too many young people, and the cost per capita has become inordinate.”[13] The question of why students attend college is closely related to that of the fundamental purpose of college.

Uncertainty regarding the point of higher education—whether it’s to develop the inquisitive mind, expand the frontiers of knowledge, equip students with jobs skills, or something else entirely—seems more pronounced today in light of technological, economic, and population changes. Moreover, it remains true that “most of the universities and colleges are forced to do the work that ordinary schools did only a generation ago.”[14] Shouldn’t higher education accomplish more than remedial education? Doesn’t it have a greater end?

Kirk certainly thought so—at least if higher education were properly liberal. “By ‘liberal education,’” he explained, “we mean an ordering and integrating of knowledge for the benefit of the free person—as contrasted with technical or professional schooling, now somewhat vaingloriously called ‘career education.’”[15]

Kirk’s surprising wonkishness, and his facility in policy debates, always submitted to this overarching goal: Defending order against disorder, in both the soul and the larger polity.[16] “The primary purpose of a liberal education,” he said, “is the cultivation of the person’s own intellect and imagination, for the person’s own sake.”[17]

The aspiration of policy wasn’t policymaking. Kirk’s short-term strategies serviced a paramount objective: Namely, to seek wisdom, virtue, truth, clarity, and understanding. You can’t simply quantify the value of that.

[1] Russell Kirk, “Massive Subsidies and Academic Freedom,” Law and Contemporary Problems, Vol. 28, No. 3 (1963), 608.

[2] Ibid. at 607.

[3] Ibid. at 611.

[4] Russell Kirk, “Federal Aid to Educational Bureaucracy,” National Review, Vol. 10 (February 25, 1961), 116.

[5] Russell Kirk, “The Federal Educational Boondoggle,” National Review, Vol. 5 (March 15, 1958), 257.

[6] See generally Russell Kirk, “The American College: A Proposal for Reform,” The Georgia Review, Vol. 11, No. 2 (Summer 1957), 177-186.

[7] Ibid. at 177.

[8] Ibid. (“our age seems to require a reform that is reactionary, rather than innovating”).

[9] Ibid. at 182-83.

[10] Russell Kirk, “More Freedom Per Dollar,” National Review, Vol 31 (April 13, 1979), 488.

[11] Russell Kirk, “Federal Scholarships,” National Review, Vol. 2 (November 24, 1956), 18.

[12] Ibid.

[13] Russell Kirk, “Who Should Pay for Higher Education?” Vol. 23 (May 18, 1971), 534.

[14] Russell Kirk, “Federal Education,” National Review, Vol. 4 (December 28, 1957), 592.

[15] Russell Kirk, “The Conservative Purpose of a Liberal Education,” in The Essential Russell Kirk, edited by George A. Panichas (Wilmington, Delaware: ISI Books, 2007), 398.

[16] Ibid. at 400.

[17] Ibid.

Alabama Constitution Symposium, Blackstone & Burke Center, Session Five

In American History, Historicism, History, Humanities, Law on January 1, 2020 at 6:45 am

On October 30, 2019, the Blackstone & Burke Center for Law & Liberty hosted a symposium on Alabama’s six constitutions at the Alabama Department of Archives and History (ADAH). The event was funded by the Alabama Humanities Foundation (AHF) and cosponsored by ADAH, AHF, and the Alabama Bicentennial Commission. This video features session five of the symposium. The speakers are Ms. Ashley Penhale (Alabama State Bar), Dr. J. Mills Thornton (University of Michigan), and Professor Susan Pace Hamill (University of Alabama).

Alabama Constitution Symposium, Blackstone & Burke Center, Session Four

In American History, Historicism, History, Humanities, Law on December 26, 2019 at 6:45 am

On October 30, 2019, the Blackstone & Burke Center for Law & Liberty hosted a symposium on Alabama’s six constitutions at the Alabama Department of Archives and History (ADAH). The event was funded by the Alabama Humanities Foundation (AHF) and cosponsored by ADAH, AHF, and the Alabama Bicentennial Commission. This video features session four of the symposium. The speakers are Dr. Allen Mendenhall (Faulkner University Thomas Goode Jones School of Law) and Mr. Julian D. Butler (Huntsville attorney and member of the boards of ADAH and AHF).

Alabama Constitution Symposium, Blackstone & Burke Center, Session Three

In American History, Historicism, History, Humanities, Law on December 18, 2019 at 6:45 am

On October 30, 2019, the Blackstone & Burke Center for Law & Liberty hosted a symposium on Alabama’s six constitutions at the Alabama Department of Archives and History (ADAH). The event was funded by the Alabama Humanities Foundation (AHF) and cosponsored by ADAH, AHF, and the Alabama Bicentennial Commission. This video features session three of the symposium. The speakers are Dr. Allen Mendenhall (Faulkner University Thomas Goode Jones School of Law), Judge W. Keith Watkins (United States District Court, Middle District of Alabama), and Chief Justice Brent E. Dickson (retired, Indiana Supreme Court).

Alabama Constitution Symposium, Blackstone & Burke Center, Session Two

In American History, Historicism, History, Humanities, Law on December 11, 2019 at 6:45 am

On October 30, 2019, the Blackstone & Burke Center for Law & Liberty hosted a symposium on Alabama’s six constitutions at the Alabama Department of Archives and History (ADAH). The event was funded by the Alabama Humanities Foundation (AHF) and cosponsored by ADAH, AHF, and the Alabama Bicentennial Commission. This video features session two of the symposium. The speakers are Dean Charles Campbell (Faulkner University Thomas Goode Jones School of Law), Dr. Richard Bailey (historian and author), and Dr. Steven Brown (Auburn University).

Alabama Constitution Symposium, Blackstone & Burke Center, Welcome and Session One

In American History, Historicism, History, Humanities, Law, Southern History on December 4, 2019 at 6:45 am

On October 30, 2019, the Blackstone & Burke Center for Law & Liberty hosted a symposium on Alabama’s six constitutions at the Alabama Department of Archives and History (ADAH). The event was funded by the Alabama Humanities Foundation (AHF) and cosponsored by ADAH, AHF, and the Alabama Bicentennial Commission. This video features the welcome and session one of the symposium. The speakers for the welcome are Mr. Steve Murray (ADH), Mr. Armand DeKeyser (AHF), and Chief Justice Tom Parker (Alabama Supreme Court). The speakers for session one are Dr. Allen Mendenhall (Faulkner University Thomas Goode Jones School of Law, Blackstone & Burke Center) and Dr. R. Volney Riser (University of West Alabama).

Discussing Alabama’s Constitution

In American History, History, Law, Politics on November 20, 2019 at 6:45 am

St. George Tucker’s Jeffersonian Constitution

In American History, Arts & Letters, Books, Civics, History, Humanities, Jurisprudence, Law, Legal Education & Pedagogy, liberal arts, Nineteenth-Century America, Philosophy, Politics, Western Civilization, Western Philosophy on October 30, 2019 at 6:45 am

This piece originally appeared here in Law & Liberty. 

One could argue that there are two basic visions for America: the Hamiltonian and the Jeffersonian. The former is nationalist, calling for centralized power and an industrial, mercantilist society characterized by banking, commercialism, and a robust military. Its early leaders had monarchical tendencies. The latter vision involves a slower, more leisurely and agrarian society, political decentralization, popular sovereignty, and local republicanism. Think farmers over factories.

Both have claimed the mantle of liberty. Both have aristocratic elements, despite today’s celebration of America as democratic. On the Hamiltonian side we can include John Adams, John Marshall, Noah Webster, Henry Clay, Joseph Story, and Abraham Lincoln. In the Jeffersonian camp we can place George Mason and Patrick Henry (who, because they were born before Jefferson, could be considered his precursors), the mature (rather than the youthful) James Madison, John Taylor of Caroline, John C. Calhoun, Abel Upshur, and Robert Y. Hayne. The Jeffersonian Republicans won out in the early nineteenth century, but since the Civil War, the centralizing, bellicose paradigm has dominated American politics, foreign and monetary policy, and federal institutions.

St. George Tucker falls into the Jeffersonian category. View of the Constitution of the United States, published by Liberty Fund in 1999, features his disquisitions on various legal subjects, each thematically linked. Most come from essays appended to his edition of Sir William Blackstone’s Commentaries on the Laws of England.

Born in Bermuda, Tucker became a Virginian through and through, studying law at the College of William and Mary under George Wythe, whose post at the law school he would eventually hold. On Tucker’s résumé we might find his credentials as a poet, essayist, and judge. He was an influential expositor of the limited-government jurisprudence that located sovereignty in the people themselves, as opposed to the monarch or the legislature, which, he believed, was a surrogate for the general will in that it consisted of the people’s chosen representatives.

Tucker furnished Jeffersonians with the “compact theory” of the Constitution:

The constitution of the United States of America . . . is an original, written, federal, and social compact, freely, voluntarily, and solemnly entered into by the several states of North-America, and ratified by the people thereof, respectively; whereby the several states, and the people thereof, respectively, have bound themselves to each other, and to the federal government of the United States; and by which the federal government is bound to the several states, and to every citizen of the United States.

Under this model, each sovereign, independent state is contractually and consensually committed to confederacy, and the federal government possesses only limited and delegated powers—e.g., “to be the organ through which the united republics communicate with foreign nations.”

Employing the term “strict construction,” Tucker decried what today we’d call “activist” federal judges, insisting that “every attempt in any government to change the constitution (otherwise than in that mode which the constitution may prescribe) is in fact a subversion of the foundations of its own authority.” Strictly construing the language of the Constitution meant fidelity to the binding, basic framework of government, but it didn’t mean that the law was static. Among Tucker’s concerns, for instance, was how the states should incorporate, discard, or adapt the British common law that Blackstone had delineated.

Tucker understood the common law as embedded, situated, and contextual rather than as a fixed body of definite rules or as the magnificent perfection of right reason, a grandiose conception derived from the quixotic portrayals of Sir Edward Coke. “[I]n our inquiries how far the common law and statutes of England were adopted in the British colonies,” Tucker announced, “we must again abandon all hope of satisfaction from any general theory, and resort to their several charters, provincial establishments, legislative codes, and civil histories, for information.”

In other words, if you want to know what the common law is on this side of the pond, look to the operative language of governing texts before you invoke abstract theories. Doing so led Tucker to conclude that parts of English law were “either obsolete, or have been deemed inapplicable to our local circumstances and policy.” In this, he anticipated Justice Holmes’s claim that the law “is forever adopting new principles from life at one end” while retaining “old ones from history at the other, which have not yet been absorbed or sloughed off.”

What the several states borrowed from England was, for Tucker, a filtering mechanism that repurposed old rules for new contexts. Tucker used other verbs to describe how states, each in their own way, revised elements of the common law in their native jurisdictions: “modified,” “abridged,” “shaken off,” “rejected,” “repealed,” “expunged,” “altered,” “changed,” “suspended,” “omitted,” “stricken out,” “substituted,” “superseded,” “introduced.” The list could go on.

The English common law, accordingly, wasn’t an exemplification of natural law or abstract rationalism; it was rather the aggregation of workable solutions to actual problems presented in concrete cases involving real people. Sometimes, in its British iterations, it was oppressive, reinforcing the power of the king and his agents and functionaries. Thus it couldn’t fully obtain in the United States. “[E]very rule of the common law, and every statute of England,” Tucker wrote on this score, “founded on the nature of regal government, in derogation of the natural and unalienable rights of mankind, were absolutely abrogated, repealed, and annulled, by the establishment of such a form of government in the states.”

Having been clipped from its English roots, the common law in the United States had, in Tucker’s view, an organic opportunity to grow anew in the varying cultural environments of the sovereign states. In this respect, Tucker prefigured Justice Brandeis’s assertion in Erie Railroad Company v. Tompkins (1938) that “[t]here is no federal general common law.” Tucker would have agreed with Brandeis that, “[e]xcept in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state.”

In fact, summarizing competing contentions about the Sedition Act, Tucker subtly supported the position that “the United States as a federal government have no common law” and that “the common law of one state . . . is not the common law of another.” The common law, in Tucker’s paradigm, is bottom-up and home-grown; it’s not a formula that can be lifted from one jurisdiction and placed down anywhere else with similar results and effects.

By far the most complex essay here is “On the State of Slavery in Virginia,” which advocated the gradual extirpation of slavery. With admirable clarity, Tucker zeroed in on the hypocrisy of his generation:

Whilst we were offering up vows at the shrine of Liberty, and sacrificing hecatombs upon her altars; whilst we swore irreconcilable hostility to her enemies, and hurled defiance in their faces; whilst we adjured the God of Hosts to witness our resolution to live free, or die, and imprecated curses on their heads who refused to unite us in establishing the empire of freedom; we were imposing upon our fellow men, who differ in complexion from us, a slavery, ten thousand times more cruel than the utmost extremity of those grievances and oppressions, of which we complained.

Despite his disdain for the institution of slavery, Tucker expressed ideas that are racist by any measurable standard today—for instance, his notion that slavery proliferated in the South because the climate there was “more congenial to the African constitution.”

On the level of pure writing quality and style, Tucker had a knack for aphorism. “[T]he ignorance of the people,” he said, “is the footstool of despotism.” More examples: “Ignorance is invariably the parent of error.” “A tyranny that governs by the sword, has few friends but men of the sword.”

Reading Tucker reminds us that for most of our country’s formative history the principal jurisprudential debates were not about natural law versus positivism, or originalism versus living constitutionalism, but about state versus federal authority, local versus national jurisdiction, the proper scale and scope of government, checks and balances, and so forth. To the extent these subjects have diminished in importance, Hamilton has prevailed over Jefferson. Reading Tucker today can help us see the costs of that victory.

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