Archive for the ‘Civics’ Category
Review of Adam J. MacLeod’s “The Age of Selfies”
In Academia, Arts & Letters, Books, Civics, Communication, Humanities, Rhetoric, Rhetoric & Communication on August 5, 2020 at 6:45 am
This review originally appeared here in The University Bookman.
Salma Hayek makes headlines each time she posts a selfie on Instagram. I know this because years ago I set a “Google alert” for the name “Hayek” so that I wouldn’t miss new articles about the great economist and legal theorist Friedrich Hayek. Now, for better or worse, Salma Hayek updates from around the Internet appear in my inbox every morning. We truly live in the Age of Selfies.
That’s the title of the latest book by my colleague, Adam MacLeod, a professor of law at Faulkner University Thomas Goode Jones School of Law in Montgomery, Alabama. The Age of Selfies is a quick read with a straightforward argument about the importance of reasonable, principled disagreement to our civic discourse, institutions, and education. Underlying our passionate disagreements about fundamental principles, MacLeod suggests, is an abiding agreement about the reality of right and wrong, good and bad, truth and error. We quarrel over political issues, he claims, because we hold sincere beliefs about what is or is not moral, presupposing that morality is not only existent but knowable. Most of us, anyway, reject nihilism. Effective, constructive disagreement is, therefore, possible among those who realize this central commonality that holds together otherwise incompatible convictions.
“That many of us speak and act as if moral and political questions have right and wrong answers,” says MacLeod, “indicates that, for all of our fractious disagreement, a consensus is emerging that there is moral truth—right and wrong—about questions that occupy our public discourse.” You would be correct if you guessed that the New Natural Law (an Aristotelian-Thomistic approach to jurisprudence popularized by John Finnis and Robert P. George) rests beneath the surface of this seeming optimism. To oversimplify, the new natural lawyers exposit that practical reasoning enables us to recognize and pursue ends that are intrinsically good and desirable, and that, moreover, fulfill our rational nature as human beings (“every person you encounter,” explains MacLeod, “is an agent of reason and reasoned choice”). It is only a small step, from there, to propose that sensible human beings of good faith can reason together to achieve workable peace and productive civility regarding even controversial matters involving, say, marriage or abortion.
Are the new natural lawyers correct about human nature? Is the human capacity for reason overstated? Do the horrors of the French Revolution caution against the Cult of Reason? What if David Hume was right that reason is the slave of the passions? What if the mind is inherently limited, its memory only partial and selective and its understanding of truth necessarily circumscribed? What if we see only through a glass darkly even if we follow the light of the world? What if many philosophical positions are merely pre-textual rather than genuine? What if they are expounded solely and perversely for political power or personal gain? What if their very terms reject compromise, dissent, or negotiation? What if most people are unreasonable and irrational, motivated more by passion and emotion than by logic and good sense? What if the ordinary response to conflict is anger and outrage rather than patient contemplation? What if hubris is more common than humility? I don’t know the answers to these questions, but, whatever they are, they could diminish the force of MacLeod’s arguments.
Yet they are great and hopeful arguments, predicated against the fashionable notion that what “we” are is simply “a collection of selfies, which are carefully crafted, externally projected images of individual self-constitution.” A person identifies himself or herself—or itself or they or whatever—with community brands (and the concepts they entail) without subscribing or adhering to the principles, doctrines, or teachings that define and govern that community. So, for instance, one can, today, identify as both a Muslim and a Christian even if those two religions are by their own tenets mutually exclusive. Who are we, the naysayers, to criticize this apparent contradiction if it feels authentic to the person professing it?
When people argue over the meaning of a guiding externality—a religious text, a statute, the language of a constitution, a novel—their interpretive differences are rooted in a common source (the document under consideration). MacLeod calls this common source a “neutral ground.” In a sense, MacLeod’s book is, more or less, an attempt to supply “neutral ground” where it is currently lacking, pointing out where people of differing viewpoints agree about the primacy and reality of morality itself.
When people argue, however, over internalities—that is, purely subjective preferences, emotions, or feelings—there is no common source, no independently measurable basis for assessing the validity or invalidity of the views a person embraces. The fact that a person holds them is supposed to suffice by itself. “The fundamental problem is that, on the whole,” MacLeod submits, “young people have made their moral reasoning thoroughly personal.” Accordingly, “[w]hat matters most to them—the only thing that matters to some of them—is that they are true to themselves.”
The ultimate wrong, according to someone who thinks along these lines, is to be judgmental or discriminating or otherwise unaccepting of the allegedly authentic identity of another. The supposedly non-judgmental person nevertheless believes that some actions are not okay, are out of bounds, or, to employ moral vocabulary, wrong. To condemn a person as judgmental is, after all, to express a judgment, to call someone else wrong. Relativism isn’t at play. To deem someone else’s judgment wrong is to suggest that a different judgment is right.
What is to be done about this muddle? This question is a variation on what MacLeod dubs “The Practical Question”: “What shall I do?” Every thinking human being must ask The Practical Question to act to fulfill an objective. For starters, we can stop treating the past as a monolithic category of horrible wrongs and mine it for the good, the beautiful, and the useful. Rather than dismissing all history outright, wrestle with it, search out examples and analyze tensions and contradictions. For an audience of teachers and students, this means working through disagreement and accommodating diverse viewpoints for the sake of clarity and understanding—not because each view is equally strong or valid but because the test of its strength or validity depends upon its being studied, weighed, and refuted.
The nature of rights and duties, the meaning and idea of truth, the concept of sin, the power of indifference—these and other subjects prompt MacLeod into showing that dialogue and conversation break down when, instead of enumerating reasons and arguments in favor of some belief, an adherent simply cites internal preferences as a sort of trump card to end debate. He celebrates private ordering and pluralism as key to self-governance and community harmony absent unwarranted state coercion or government compulsion. “We can,” he avers, “lower the stakes of our public controversies, lower the temperature of our civic discourse, and avoid zero-sum contests over totalizing plans of action if we will simply allow the plural domains of society to do their work.” Such diversity recalls the Catholic doctrine of subsidiarity.
MacLeod’s urgent refrain-of-musts will echo in the thoughts and prayers of sensitive, conscientious readers: “If we are going to get anywhere in our discourse, then we must move beyond stereotypes and personal attacks. We must stop attributing to each other the worst motivations. We must instead seek to understand the reasonable, even admirable, motivations of people with whom we disagree.” This seems, and, I daresay, feels right.
And who knows? Maybe Salma Hayek, browsing her daily Google alerts, will discover her name in this very review, read The Age of Selfies, and then use her celebrity to promote practical reasoning about fundamental rights. A man can dream anyway.
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.
Michael Anton vs. Samuel Gregg
In America, Civics, Conservatism, Economics, History, Humanities, Law, Philosophy, Politics, Western Civilization, Western Philosophy on July 17, 2019 at 6:45 am
Is Ocasio-Cortez Right About Rights?
In America, American History, Arts & Letters, Books, Christianity, Civics, Conservatism, History, Humanities, liberal arts, Liberalism, Philosophy, Politics, Western Civilization, Western Philosophy on August 29, 2018 at 8:45 am
This article originally appeared here in The Intercollegiate Review.
Colin I. Bradford writes fawningly that Alexandria Ocasio-Cortez, a member of the Democratic Socialists of America, reaffirms “the centrality of the individual, individual rights, liberty, and freedom in which respect, trust, fairness and responsibility loom large.” He depicts Ocasio-Cortez as the embodied union of individualism and collectivism, someone who, in his words, “sees the individual as both a solitary being with certain inalienable rights and as a citizen and member of society.”
There’s much to unpack in Bradford’s frightfully grand statements, but let’s briefly consider some historical context for them.
“Modern Western ‘democracies,’” says John W. Danford, “are actually better described as liberal commercial societies. They rest on principles of individualism and individual rights—especially legal rights—which are more fundamental than democracy, and also much newer.”
Individual Rights Came from Christianity
The belief that humans by their nature possess “rights” against which governments may not transgress has not always been commonly held. Larry Siedentop’s Inventing the Individual: The Origins of Western Liberalism (2014) made the compelling case that natural rights theories are distinctively Christian in origin. He presents the ancient pagans as tribal and patriarchal, characterized by fierce loyalty to kin and clan and lacking conscientious differentiations between public and private life. (The operative differentiation was between public and domestic life.) Inequality was accepted as a given; the notion of rights was practically nonexistent. What mattered was the family unit: secure lineage, child bearing, and glorification of the paterfamilias as the powerful hero. Cities emerged from familial corporate associations around which property relations were structured according to class hierarchies.
Correlated with the rise and spread of Christianity in the West was the proliferation of the concept of the individual as a rights-bearing creature with inherent dignity, which any legal order properly so called must recognize and protect. The teachings of Jesus Christ and St. Paul redirected political thought away from the material, phenomenal world and toward the afterlife, eternity, and the soul. The message that grace through Christ was available to anyone, not just rulers or the highborn, underscored the autonomy of the individual, the self-aware subject. A Christian emphasis on personal moral agency and responsibility, moreover, undercut Greek and Roman aristocratic culture and its attendant traditions of ancestor worship.
Siedentop contends, therefore, that Christianity, not the Renaissance, was the fountain of individualism. If the Enlightenment was the height of philosophizing about the relationship of the individual to society, then it was also the natural outflow of earlier eras shaped by Christianity. This narrative runs counter to the portrayal of medieval Christianity as closed and authoritarian and of the Enlightenment as predominately secular. It illuminates Danford’s description of modern liberal societies as fundamentally committed to individual rights embedded in the law.
Mutual Submission, Similar Ethics
A distinguishing feature of Enlightenment thinking was social contract theory, which is particularly important to the Anglo-American legal tradition as manifest in Magna Carta (1215), the English Bill of Rights (1689), the Virginia Declaration of Rights (1776), the Declaration of Independence (1776), and the U.S. Bill of Rights (1789–91). These documents enshrine the principles of equality under the law, basic human dignity, rule of law, consent of the governed, popular sovereignty, and natural rights.
The most celebrated delineations of social contract theory belong to Hobbes, Locke, and Rousseau. A simplistically synthesized account of their three hypothetical origins of political society runs like this: humans once existed as free agents in an ungoverned state of nature and eventually banded together in protective social units to enforce claims to property and defend against outside threats; voluntarily entering into these social units required individuals to give up unfettered liberty by consenting to the authority of a superintending body—a government— that exercised only those powers to which the individuals in the society corporately assented, either expressly or impliedly.
The social contract for a mature, successful society involves a collection of individuals wise enough to appreciate the reciprocal advantage of mutual submission and similar enough in ethics and morals to prescribe the proper scope, limits, and structure of the approved ruling authority. The U.S. Constitution, in theory, represents a social contract: a pact between citizens and its rulers that restrains government, divides power, and sets competing interests against one another with offsetting effect.
U.S. Supreme Court “Expansions”
The U.S. Supreme Court, in cases regarding the Fourteenth Amendment, began in the twentieth century to evaluate claims of unremunerated, allegedly fundamental rights in light of the history of judicial safeguards. A purported right was deemed presumptively fundamental if it enjoyed an established tradition of formal recognition by Anglo-American courts. Under this interpretive scheme, when the Supreme Court determined that an alleged right was nonfundamental, the alleged right would not be incorporated (via the doctrine of substantive due process) to apply against the states. The Supreme Court, however, gradually recognized particular suspect rights within broader categories of long-established rights. The so-called right to privacy, for example, that had valid antecedents in the common law was repurposed to include phenomena unknown at the common law.
The tendency of the Supreme Court in the twentieth century to expand (and, in some cases, to limit) the scope of alleged rights reveals, I think, that a privileged group of robed lawyers are inadequately equipped to philosophize about rights. The validity of alleged rights accrues socially, from the bottom up, when they can be traced over time to long-standing, if not immemorial, usage, customs, mores, and traditions, and when their practical applications have been tested by successive generations. Certain rights are natural, that is, prior to government promulgation, but their intelligibility is deeply historical, rooted, contextual, situational, and embedded.
Rights or Privileges?
One could argue, and Siedentop suggests, that Christianity’s institutionalization of rights discourse created the conditions necessary for secularization, in effect that Christianity ushered in a culture that led to its gradual removal from civic society. Siedentop postulates, in other words, that the success of Christianity eventuated its demise in the Western public sphere. The story of rights discourse in U.S. Supreme Court decisions lends credence to this perspective, revealing that prevailing notions of rights have grown to encompass what were once merely privileges.
If institutions follow culture, however, then a constitution that contemplates individual rights is only as good as the people it controls: a populace without extensive virtue will weaken or decline regardless of its organizational governance and administrative framework. Christianity may not have promoted ideas that caused its erasure from our governing institutions; rather, the people of the United States may have drifted away from the Christian ideas that made those institutions effective and stable.
Bradford recognizes that “individualist values of liberty, property rights, freedom and sovereignty worked well in the 20th century as the foundations of competition, free markets, democracy and the nation state.” Yet he sees these concepts as inadequate today, lacking something he believes Ocasio-Cortez can supply, to wit, a form of collectivism that in his representation facilitates community and social harmony. He simply fails to see that the unique individualism that emerged out of Christianity generated the community and social harmony he now desires.
There is no individualism absent the recognition that every human life, anywhere and everywhere, is precious and important. It follows from that premise that no one may violate the rights of others who themselves have not violated another’s rights. This principle, extended to society writ large, creates the conditions necessary for community to flourish. Individualism in Christian societies aided the growth of cities, institutionalized the dignity of the human person as a bearer of rights, and challenged rather than empowered abusive government. Ocasio-Cortez should not hope to eradicate this kind of individualism, for it has accomplished more good for humanity than the socialism she purportedly embraces.
Making Legal Education Great Again
In America, Civics, Conservatism, History, Humanities, Jurisprudence, Law, Law School, Legal Education & Pedagogy, liberal arts, Liberalism, Pedagogy, Philosophy, Scholarship, Teaching, The Academy, Western Civilization, Western Philosophy on August 30, 2017 at 6:45 am
This piece originally appeared here and was published by the James G. Martin Center for Academic Renewal.
Legal education has become a surprisingly regular topic of news media for several years now. Most of this commentary has focused on enrollment and matriculation problems, bar passage rates, accreditation standards, student debt, and the job market for recent graduates. These are pressing issues that raise vexing questions for law school administrators, and they warrant the attention they’ve received.
Little attention, however, has been paid to curriculum, except as it pertains to those issues. And not just curriculum, but subject matter within the curriculum.
There are certain subjects—let’s call them “the permanent things”—that always have and will interest scholars of the law because of their profound influence on legal norms and institutions: history, philosophy, literature, and theology. Whether they belong in law schools or some other department, whether they prepare students to become practice-ready or not, these topics will remain relevant to subsequent generations of jurists and legal scholars. There will be a place for them somewhere within the world of legal learning and letters.
Law school faculty and research centers have expanded over recent decades to include studies of these humanistic fields. As long as these fields populate law school, there’s a felt need for rigorous liberal education in them.
Ordered liberty in the United States has historically rested on a commitment to religious faith and pluralism, fidelity to the rule of law, and traditional liberties grounded in the conviction that all humans are created equal and endowed by their creator with certain inalienable rights. These values characterize the American experiment. Our society is built on them, and its continued vitality depends upon maintaining and promoting our commitment to them.
Yet these values are ridiculed and attacked in universities across the country. When they’re taught, they’re often treated as products of a morally inferior era and thus as unworthy of our continued respect. And because these values aren’t seriously or rigorously taught, students lack working knowledge about them and are therefore unprepared for the kind of civic engagement that young people desire and demand.
A decline in civic education has caused misunderstanding and underappreciation of our foundational norms, laws, and liberties. Religious liberty is mischaracterized as license to harm and on that basis is marginalized. Economic freedom is mischaracterized as oppression and is regulated away. Well-positioned reformers with good but misguided intentions seek to fundamentally transform the American experiment from the ground up. They work to limit foundational freedoms and increase regulatory power.
Without well-educated lawyers and civil servants equipped to resist these reformers, the transformation of America will result in the destruction of the freedoms enabled by our founding generation. We cannot allow this to happen. The Blackstone & Burke Center for Law & Liberty at Thomas Goode Jones School of Law, for which I serve as executive director, therefore seeks to educate the legal community in such areas as natural law, natural rights, religious liberty, economic freedom, freedom of speech, freedom of association and assembly, and other liberties that find expression not just in the American but in the larger Western jurisprudential tradition.
I define “legal community” broadly to include law students, law professors, public policy institutes, political theorists, judges, and businesses in addition to practicing lawyers. Because my center is housed in a law school, it’s well positioned to instruct future lawyers while bringing together faculty from different disciplines who are steeped in liberal education.
Numerous organizations promote these values in the political arena, but few attempt to reconnect foundational values with the law. The Blackstone & Burke Center aims to fill this gap by bringing together scholars and students committed to American constitutional government and the common law foundations of our cherished liberties. Our target audience will include law students, judges, and civics groups.
For law students, we offer the Sir Edward Coke Fellowship. We’ve accepted our inaugural class of fellows, who, beginning this fall, will study formative texts in Western jurisprudence in monthly seminars that supplement their core coursework. Next semester, we’ll read and discuss works by Aristotle, Grotius, Hayek, Alasdair MacIntyre, and Robert P. George. The center will be a key networking opportunity for fellows seeking careers at foundations, think tanks, universities, and public policy organizations.
Fellows will also help to organize a judicial college for state jurists. Thanks to the Acton Institute, Atlas Network, and the Association for the Study of Free Institutions, the Blackstone & Burke Center possesses the grant money needed to host its first judicial college in October. Professor Eric Claeys of Antonin Scalia Law School at George Mason University will direct this event, the readings for which include selections from not only cases (old and recent) but also Aquinas, Locke, Blackstone, and Thomas Jefferson. The readings for judges are extensive, and the seminar sessions are meant to be intensive to ensure that judges get as much out of the experience as possible.
The center will also provide basic civics education to local communities. For several years, the Intercollegiate Studies Institute issued reports on the poor state of civic literacy in the United States. The National Association of Scholars recently issued a detailed report on the inadequacies and politicization of the “New Civics.” The current issue of Academic Questions, moreover, describes the sorry state of civics knowledge in the United States and the tendentious methods and institutions that teach political activism rather than deep learning.
Against these alarming trends, my center organized and hosted a reception featuring a U.S. Library of Congress interactive Magna Carta exhibit, which was displayed in the rotunda of the Alabama Supreme Court for three weeks and now remains in the possession of the Alabama Supreme Court Law Library. The reception included prominent judges, business and university leaders, lawyers, and the general public.
For example, Chief Justice Lyn Stuart of the Alabama Supreme Court and Judge William “Bill” Pryor of the Eleventh Circuit Court of Appeals delivered remarks about Magna Carta during the reception, and young people conversed casually with judges about the legal system, federalism, and the challenges and opportunities facing the legal profession in the 21st century. This fall, the center is cosponsoring an event with the Foundation for Economic Education on the campus of Auburn University to explore the relationship between law and markets, and I hope to see as many high-school students as college students in attendance.
Legal education is strikingly different today than it was when Thomas Jefferson apprenticed under George Wythe, or when Abraham Lincoln read law before receiving from a county circuit court certification of his good moral character, then a prerequisite to practicing law.
Nevertheless, legal education looks much the same as it did in the late nineteenth century, when Christopher Columbus Langdell, dean of Harvard Law School, instituted a curriculum, pedagogy, and case method that came to characterize “the law school experience.” If there’s been a paradigm shift, it’s been toward more practical aspects of legal education such as clinical programming. Yet many lawyers remain ignorant of the history and philosophical conventions that shaped their profession over centuries.
The Blackstone & Burke Center for Law & Liberty is a modest corrective in that it doesn’t seek to remake legal education or demolish longstanding practices and procedures in one fell swoop. Rather, it does what it can with the resources and tools available to strive to renew an America where freedom, opportunity, and civil society flourish. In the long run, I think, these reasonable efforts will have powerful effects and far-reaching benefits, both within the legal academy and beyond.
What Is the Rule of Law, Anyway?
In America, Civics, Economics, History, Humanities, Jurisprudence, Law, Libertarianism, Philosophy, Western Civilization, Western Philosophy on June 7, 2017 at 6:45 am
This piece originally appeared here in The Intercollegiate Review.
“Donald Trump Could Threaten U.S. Rule of Law, Scholars Say.” So declared an ominous headline in the New York Times roughly one year ago. MSNBC likewise ran a suggestive interview in January entitled, “Will the ‘rule of law’ survive under Trump?”
Such alarming commentary presupposes the existence of the rule of law in the United States and appears designed to portray Donald Trump as a threat to that rule. In March, however, Reason republished and retitled a curious piece that first appeared in The Week: “The Immoral ‘Rule of Law’ Behind Trump’s Deportation Regime.” The implication of this revised title (the original read, “How today’s pro-immigrant activists are adopting the tactics of abolitionists”) is that Trump is staunchly committed, rather than antagonistic, to the rule of law.
So which is it? Does Trump jeopardize or safeguard the rule of law?
The answer, if we assume the rule of law is in full force and effect in the United States, is probably situational: In some cases, Trump undermines the rule of law, while in others he reinforces it. But to know for sure, and to appreciate the difference, one must first understand what the rule of law is.
The rule of law encompasses multiple legal principles, chief among them is that the rules that govern society apply equally to all individuals within the prescribed jurisdiction. No person, not even the king or the president, is above the law. Law, not the arbitrary commands or categorical dictates of human rulers, is supreme.
Thus, the opposite of the “rule of law” is the “rule of man,” or the idea that the formal, discretionary imperatives of a powerful sovereign necessarily bind his subjects and subordinates.
The rule of law is a philosophical concept and a liberal ideal that gained ascendency during the Enlightenment (think Locke and Montesquieu) but that can be traced to antiquity (think Aristotle). The British jurist Albert Venn Dicey listed as its prime characteristics:
- “the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power”;
- “equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary Law Courts”; and
- “a formula for expressing the fact that with us the law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the Courts.”
These suggest that the rule of law is a bottom-up rather than a top-down system of governmental ordering based on already enunciated and widely accepted precepts. The operative rules that regulate the normative order of human activity in a free society under the law are rooted in custom and tradition. A ruler or judge is, in such a happy jurisdiction, responsive to the controlling principles that are antecedent to his or her political election, appointment, or empowerment.
F. A. Hayek identified the rule of law as a defining attribute of the common-law system, which, in his view, stood in contradistinction to the civil-law system that instituted vast codes and complex administrative agencies to superintend the unvigilant populace. Legislatures, of course, are accountable to the people through elections; thus, their enactments must reflect extant social practices and beliefs to satisfy voters. Administrative agencies, with their extensive rulemaking powers, are not so accountable. They are by design removed from legislative procedures and thus isolated from voters.
Hayek saw the common law as a decentralized form of social organization, and civil law as centralized planning and design. The rule of law, he thought, inhered in the former system but not in the latter. “The possession of even the most perfectly drawn-up legal code does not, of course, insure that certainty which the rule of law demands,” he warned, “and it therefore provides no substitute for a deeply rooted tradition,” which the common law embodied.
The rule of law encapsulates other seminal concepts as well: the predictability, consistency, reliability, neutrality, and clarity of working rules, for instance. These, however, are in some way derived from the principal teaching that, in Hayek’s words, “all rules apply equally to all, including those who govern.” By any appreciable standard, the United States has not lived up to this high ideal in light of the growth of sovereign immunity and qualified immunity for government officials, the disparate treatment of individuals based on their political power and connections, and, among others, the rapid rise of the administrative state.
Lately the rule of law has become associated with a law-and-order mentality that emphasizes punishment, severity, and rigidity as touchstones of the legal system. The rule of law, on this view, is the instantiation of brute force or the execution of raw power, or perhaps an ideological construct meant to condition the populace into servile submission to government authority.
This understanding of the rule of law has some merit: John Hasnas’s article “The Myth of the Rule of Law” explains how rule-of-law rhetoric indoctrinates people into casual acceptance of the harmful government monopoly on the institutions of law. He decries the gradual acquiescence of ordinary people to, in his words, “the steady erosion of their fundamental freedoms” in the name of the rule of law.
But the rule of law as an ideal, rather than a felt reality, aims to preserve rather than imperil fundamental freedoms. Perhaps there are those with ulterior motives who champion the rule of law to achieve concealed goals; perhaps government in its current form cannot actualize rule-of-law ideals. When rule-of-law discourse does serve the repressive function that Hasnas describes, it is unduly coercive and abusive. In its proper form, and as it was originally understood, however, the rule of law aspired to restrain government power.
In the minds of yesteryear patriots like Thomas Paine, the United States epitomized the rule of law. He averred that “in America the law is king,” whereas “in absolute governments the king is law.” He said, as well, that “in free countries the law ought to be king; and there ought to be no other.”
If the law is no longer king in America, it’s not because of Trump. That he enjoys immense and immeasurable power is evidence of the extent of the decline of the rule of law in this country.
Having flouted and subverted the rule of law for decades, the radical elements of the progressive left in the United States now face the inevitable consequence of their concerted activity—namely, that their coercive methods and institutions may be turned against them, and the authoritarian structures they created may service policies at odds with their own.
We can all learn a lesson from this revealing irony.
Civics Education and the Blackstone & Burke Center for Law & Liberty
In Academia, Civics, Conservatism, Humanities, Law, Law School, Legal Education & Pedagogy, liberal arts, Libertarianism, News and Current Events, Pedagogy, Philosophy, Politics, Scholarship, Teaching, The Academy, Western Civilization, Western Philosophy on April 26, 2017 at 10:49 am
A version of this piece will appear in Faulkner Magazine.
Our country has suffered a decline in civic literacy. From 2006 until 2011, the Intercollegiate Studies Institute (ISI) conducted annual studies that evaluated the civic literacy of students and citizens.
The results were discouraging. Most Americans were unable to pass a basic test consisting of straightforward, multiple-choice questions about American heritage, government, and law. One of the ISI studies suggested that students knew more about civics before they began college than they did after they graduated college.
It’s not just students and ordinary citizens displaying civic ignorance. Our political leaders have demonstrated that they lack the understanding of law and government befitting their high office.
Judge Arenda Wright Allen of the U.S. District Court for the Eastern District of Virginia recently began an opinion by stating that the Constitution declared that “‘all men’ are created equal.” This line appears in the Declaration of Independence, not the Constitution.
Senator Chuck Schumer told CNN that the three branches of government were the House, the Senate, and the President. He not only failed to mention the judicial branch, but also treated the bicameral legislature in which he serves as if it were bifurcated into separate branches of government.
Congressman Sheila Jackson Lee, while criticizing the alleged unconstitutionality of proposed legislation, claimed that the Constitution was 400 years old.
These anecdotes suffice to show the extent to which Americans no longer respect their founding principles or the framework of government established in our Constitution.
That is why the Blackstone & Burke Center for Law & Liberty was founded at Thomas Goode Jones School of Law. We seek to promote the principles of the common-law tradition and American constitutionalism so that the next generation of civic leaders will make informed, thoughtful decisions about the future of our country.
Ordered liberty in the United States has rested on a commitment to religious faith and pluralism, fidelity to the rule of law, and ancient liberties grounded in the conviction that all humans are created equal and endowed by their Creator with certain inalienable rights. These values characterize the American experiment. Our society is built upon them, and its continued vitality depends upon maintaining and promoting our commitment to them.
Therefore, the Blackstone & Burke Center will educate students, teachers, judges, and political leaders in the areas of religious freedom, freedom of association, freedom of speech, and economic freedom. We will coordinate educational programs, research initiatives, and judicial conferences that examine the norms and nurture the institutions of ordered liberty.
We believe that the principles and ideas of the American Founding are worth conserving and celebrating. Our vision is to help renew an America where freedom, opportunity, prosperity, and civil society flourish.
The Blackstone & Burke Center has recruited of board of advisers consisting of internationally recognized thought-leaders such as Judge Andrew Napolitano, Senior Legal Analyst for Fox News; Dr. Robert P. George, McCormick Chair in Jurisprudence at Princeton University; Dr. James R. Stoner, Hermann Moyse Jr. Professor and Director of the Eric Voegelin Institute for American Renaissance Studies at Louisiana State University; Professor F. H. Buckley, George Mason University Foundation Professor at Antonin Scalia Law School; Dr. Don Devine, former Director of the U.S. Office of Personnel Management in the Reagan Administration and Senior Scholar at the Fund for American Studies; Dr. Ingrid Gregg, past president of the Earhart Foundation; and Dr. Daniel Mark, Vice Chairman of the U.S. Commission on International Religious Freedom and Professor at Villanova University.
In our first few months of operation, we organized and hosted a reception featuring a Library of Congress traveling Magna Cart exhibit, which was displayed in the rotunda of the Alabama Supreme Court for three weeks. Judges, business and university leaders, lawyers, students, teachers, and the general public attended the reception to commemorate and learn about Magna Carta, and Acting Chief Justice Lyn Stuart of the Alabama Supreme Court and Judge William “Bill” Pryor of the Eleventh Circuit Court of Appeals delivered remarks about Magna Carta.
The Blackstone & Burke Center received a grant from Liberty Fund, Inc., to gift the entire Liberty Fund book and media catalog to the law library, as well as a grant from the Association for the Study of Free Institutions to bring a prominent speaker to our campus next fall.
The Blackstone & Burke Center also established a formal affiliation with Atlas Network and, through Atlas Network, partnerships with such organizations as the Acton Institute, American Enterprise Institute, American Legislative Exchange Council, Becket Fund for Religious Liberty, Cato Institute, Center for Competitive Politics, Claremont Institute, the Federalist Society, the Foundation for Economic Education, the Foundation for Individual Rights in Education, Freedom Foundation, the Goldwater Institute, the Heritage Foundation, the Hoover Institution, the Hudson Institute, the Independent Institute, Institute for Justice, Intercollegiate Studies Institute, the Law & Economics Center at George Mason University, Liberty Fund, Mackinac Center for Public Policy, Mont Pelerin Society, National Review Institute, Pacific Legal Foundation, the Philadelphia Society, the Pope Center for Higher Education Policy, Reason Foundation, State Policy Network, Students for Liberty, the Fund for American Studies, Young Americans for Liberty, and more.
Finally, the Blackstone & Burke Center received a grant from the Charles Koch Foundation under the auspices of the Philadelphia Society to direct a professional development conference on academic freedom at a meeting of the Philadelphia Society in Pennsylvania. Attendees included graduate students and university administrators from across the country who shared an abiding interest in the meaning, purpose, and characteristics of intellectual exchange in university settings.
We at the Blackstone & Burke Center look forward to a promising future as we inspire and educate new leaders in the principles and foundations of ordered liberty. To learn more about the Blackstone & Burke Center, visit our website at www.blackstone&burke.com.
The Literary Lawyer: A Forum for the Legal and Literary Communities 