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The Antiwar Tradition in American Letters

In American History, American Literature, Arts & Letters, Book Reviews, Books, Christianity, Conservatism, Essays, Fiction, History, Humanities, Literary Theory & Criticism, Literature, Politics, Religion, Rhetoric, Writing on October 12, 2016 at 6:45 am

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This review originally appeared here at

A review of War No More: Three Centuries of American Antiwar and Peace Writing.  Lawrence Rosenwald, editor.  New York: The Library of America, 2016.  838 pgs.

James Carroll, the novelist and Christian man of letters who has won numerous accolades over a long, distinguished career, sets the tone for this fine edition, War No More, in his short foreword.  “Wars,” he says, “have defined the nation’s narrative, especially once the apocalyptic fratricide of the Civil War set the current running in blood – toward the Jim Crow reenslavement of African Americans, further genocidal assaults against native peoples, imperial adventures abroad, a two-phased World War that permanently militarized the American economy and spawned a bifurcated imagination that so requires an evil enemy that the Cold War morphed seamlessly into the War on Terror.”

We’ve seen editions like this before – We Who Dared to Say No to War, edited by Murray Polner and Thomas E. Woods Jr. comes to mind – but the focus here is different and decidedly literary.  Lawrence Rosenwald, the editor, believes the “antiwar impulse” requires a rich “vocabulary” that’s “visionary, sensual, prophetic, outraged, introspective, self-doubting, fantastic, irreverent, witty, obscene, uncertain, heartbroken” – in short, that signals a range of human emotions and experiences.  Rosenwald promises that “[a]ll of those traits are on display here,” and follows through with essays and memoirs by Ralph Waldo Emerson, Henry David Thoreau, Kurt Vonnegut, Edmund Wilson, and, among others, Norman Mailer.

Rosenwald has also achieved a diversity of genre. He includes poems by Henry Wadsworth Longfellow, Stephen Crane, Adrienne Rich, Herman Melville, Robert Bly, Sara Teasdale, Edna St. Vincent Millay, George Starbuck, and Walt Whitman; short stories by Ray Bradbury and Ambrose Bierce; a genre-defying piece by Mark Twain (“The War Prayer”); songs by Country Joe McDonald, Ed McCurdy, and Pete Seeger and Joe Hickerson; a statement before a federal grand jury; letters and an interview; a gospel song (“Down by the River-Side”); a leaflet on the Vietnam War (the conflict with the most permeating presence in the book); excerpts of the prefatory articles of the Constitution of the Iroquois Confederacy; and more.

Women as a class are underrepresented in Rosenwald’s selections.  I count 104 men and 35 women among the contributors.  Are there fewer women involved in the antiwar movement throughout American history?  Or did Rosenwald ignore females because of his preference for particular writers and writings?  We may never know because he does not address the gender disparity.  If antiwar writers are, in fact, disproportionally male, then further study of that curious fact – or at least some speculation about it – seems warranted.

Multiple traditions merge in these pages:  John Woolman, Benjamin Rush, and Reinhold Niebuhr speak as Christians; Eugene V. Debs, Jane Addams, Arturo Giovannitti, and Howard Zinn as proxies for the Left; and Andrew Bacevich as a representative of the Right.  Figures like Randolph Bourne cut across trite political labels.  And writers associated with certain styles and forms demonstrate their versatility with other kinds of writing.  For instance, Robert Lowell, known for his poetry, shows his mastery of the epistolary form in his letter to President Franklin D. Roosevelt.

Rosenwald proves to be far more astute than Jonah Goldberg in his assessment of William James’s “The Moral Equivalent of War.” Whereas Rosenwald submits that this essay is “intended as oppositional” to war, Goldberg, a senior editor at National Review, treats it as fascist and accuses it of presenting “militarism as a social philosophy” that was not only “a pragmatic expedient” but also the basis for “a workable and sensible model for achieving desirable ends.”  Of course, Goldberg has been wrong before.

Given that Rosenwald purports to have featured the writing of “pacifists,” the inclusion of John Kerry and Barack Obama is deplorable.  True, Kerry’s statement against the Vietnam War is notable as a work of peace activism, but Kerry also voted in 2002 to authorize President Bush’s use of force to disarm Saddam Hussein, advocated U.S. military involvement in Syria, and appears at least partially responsible for the US backing of Saudi-led bombings in Yemen.

If opposition to the Vietnam War is now the measure of pacifism, then most Americans today are pacifists, there being, as of the year 2000, just 30% of Americans who believe that that war was not a mistake, according to a Gallup poll. Thus, Kerry is hardly unique in such opposition. Nicholson Baker, in his energetic essay for this volume, seems more attuned than Rosenwald to Kerry’s foreign-policy prescriptions, castigating Kerry for inciting military involvement in Gaddafi’s Libya.

President Obama, for his part, has overseen regular bombings throughout the Middle East, including in Pakistan, Yemen, Iraq, and Somalia; ordered US military intervention in Libya; increased US troop levels in Afghanistan and escalated US military operations there; and urged Americans to support US military involvement in Syria. These positions are ironic in light of his warning, in his piece in this collection, against traveling “blindly” down “that hellish path” to war.

Rosenwald’s brief, personal introductions (he recalls hearing James Baldwin speak in the Cathedral of St. John the Divine in New York, for instance, and mentions a tribute he wrote for Daniel Berrigan) to each chapter engender an autobiographical feel. One senses that this book represents a patchwork of accumulated memories, that Rosenwald has recounted and repurposed old reading experiences for present political needs. Inviting Carroll to pen the foreword, moreover, was entirely appropriate and wise.  As this review opened with Carroll’s eloquent words, so it closes with them.

“Because the human future, for the first time in history, is itself imperiled by the ancient impulse to respond to violence with violence,” Carroll intones, “the cry ‘war no more!’ can be heard coming back at us from time ahead, from the as yet unborn men and women – the ultimate voices of peace – who simply will not come into existence if the essential American soul does not change.”  But all is not lost; Carroll remains optimistic.  “The voices of this book, a replying chorus of hope,” he says, “insist that such change is possible.”

A Conversation Between Terry Eagleton and Roger Scruton

In Academia, Arts & Letters, Books, Britain, British Literature, Communication, Conservatism, Creativity, Fiction, History, Humanities, Liberalism, Literary Theory & Criticism, Literature, Pedagogy, Philosophy, Politics, Rhetoric, Rhetoric & Communication, Scholarship, The Academy, Western Civilization on September 21, 2016 at 6:45 am

In 2012, the Royal Institution of Great Britain hosted Terry Eagleton and Roger Scruton for an evening of conversation and debate.  Here is the footage of that event:

The Conservative Mindset

In American History, Arts & Letters, Book Reviews, Books, Conservatism, Emerson, History, Humanities, Literary Theory & Criticism, Literature, Politics, Scholarship, Western Civilization, Western Philosophy on July 20, 2016 at 6:45 am

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The following review first appeared here in the Los Angeles Review of Books.  Some of the references, such as those to the presidential primary season, may be dated now, but they were timely on the date of original publication.

The presidential primaries are at last upon us. The leading Republican candidates, including frontrunners Donald Trump and Ted Cruz, have resorted to showmanship and grandstanding to make their case for the party nomination. Their harsh, uncouth rhetoric stands in marked contrast to the writings of Russell Amos Kirk, a founding father of modern American conservatism.

Books on Kirk exist, but they’re few. Fellow conservatives, many of them friends or colleagues of Kirk’s — like T. S. Eliot, William F. Buckley, Barry Goldwater, F. A. Hayek, Eric Voegelin, and Leo Strauss — have received more attention. In this regard, Kirk is the victim of his virtues: he was less polarizing, celebrated by followers and detractors alike for his measured temperament and learned judgments. He did earn numerous adversaries, including Hayek and Frank Meyer, who in retrospect appear more like ambivalent friends, but the staying power of Kirk’s congeniality seems to have softened objections to his most resolute opinions.

Bradley J. Birzer, a professor at Hillsdale College who holds a chair named for Kirk, fills a need with his lucid and ambitious biography. Birzer is the first researcher to have been granted full access to Kirk’s letters, diaries, and draft manuscripts. He has avoided — as others haven’t — defining Kirk by his list of accomplishments and has pieced together a comprehensive, complex account of Kirk’s personality, motivations, and influences.

Birzer offers five themes in Kirk’s work, and less so his private life, which Birzer only touches on: his intellectual heritage, his ideas of the transcendent, his Christian humanism, his fiction, and the reach and implications of his conservatism. Kirk isn’t a dull subject. One need not identify as a conservative to appreciate his polished charm and idiosyncrasies. A plump, bespectacled gentleman who feigned disdain for technology, Kirk was something of a spiritualist with a penchant for the weird. He considered himself a Stoic before he had converted to Catholicism, a regeneration that makes sense in light of the relation of Stoic to Pauline thought.

As a young man Kirk spent four years in the military. His feelings about this experience were conflicted. He suffered from a blend of ennui and disenchantment but occupied his free time with reading, writing, and studying. He was horrified by the use of atomic bombs in Hiroshima and Nagasaki, where the United States had decimated the most flourishing Western cultural and religious centers in the Japanese Empire, just as he was by the internment of Japanese Americans.

The tremendous violence of the 20th century, occasioned by the rise of Nazism, communism, and fascism, impressed upon Kirk a sense of tragedy and fatalism. He came to despise totalitarianism, bureaucracy, radicalism, and “ideology” as leveling systems that stamped out the dignity and individuality of the human person. Hard to place along the left-right spectrum, he was as critical of big corporations and the military as he was of big government and labor.

When Kirk inserted himself into political debates he supported Republican politicians, becoming temporarily more interventionist in his foreign policy before returning to a form of Taftian isolationism, but he always remained more worried about reawakening the moral imagination than in having the right candidates elected to office. His was a long view of society, one without a fixed teleology or secular eschatology, and skeptical of utopian thought. Kirk advocated a “republic of letters,” a community of high-minded and profoundly sensitive thinkers devoted to rearticulating perennial truths (such as the need to pacify human violence, temper human urges for power, and cultivate human longing for the transcendent or divine) and preserving humanist institutions.

Kirk’s politics were shaped by imaginative literature and characterized by a rich poetic vision and vast cultural literacy. Fascinated by such disparate figures as Edmund Burke, Irving Babbitt, Paul Elmer More, T. S. Eliot, Sir Walter Scott, George Santayana, and most of the American Founders, Kirk was also versed in the libertarianism of Albert Jay Nock and Isabel Paterson, whose ideas he admired as a young man but vehemently rejected throughout his mature years. Burke and Babbitt, more than any other men, shaped his political philosophy. And his irreducible imagination made room for mysticism and a curious interest in ghosts.

Kirk’s debt to Burke cannot be overstated. “Like the nineteenth-century liberals,” Birzer says, “Kirk focused on the older Burke, but he countered their dismissal of Burke’s ideas as reactionary and exaggerated.” Kirk also downplayed Burke the Whig, who championed the cause of the American Revolution, which Kirk considered to be not a revolution but a conservative restoration of ancient English liberties. Kirk was wary about the Enlightenment, as was Burke, because the scientism of that period tended to oversimplify inherently complex human nature and behavior. Kirk also thought the Enlightenment philosophes had broken too readily from the tested traditions of the past that shaped human experience.

Kirk appealed to American patriotism — which he distinguished from reckless nationalism — in The American Cause (1957) (which he later renounced as a “child’s book”), The Roots of American Order (1974), and Americas British Culture (1993), drawing attention to what he saw as the enduring customs and mores that guard against utopian conjecture. Yet American patriotism was, in Kirk’s mind, heir to the patrimony of Athens, Jerusalem, Rome, and London. From the mistakes and successes of these symbolic cities Americans could learn to avoid “foreign aid” and “military violence,” as well as grandiose attempts to “struggle for the Americanization of the world.”

Disillusioned with academia after his graduate work at Duke, Kirk was offered a position, which he turned down, at the University of Chicago. Kirk fell in love with the University of St. Andrews, however, where he took his doctorate and wrote a lengthy dissertation on Edmund Burke that would later become his magnum opus, The Conservative Mind. Kirk revised The Conservative Mind throughout his life, adding new permutations and nuances in an attempt to ensure the continued resonance of his cultural mapping.

The almost instant success of The Conservative Mind made Kirk an unlikely celebrity. The book featured sharply etched portraits of men Kirk considered to be representatives of the conservative tradition. Regrettably, and perhaps tellingly, Kirk tended to ignore the contributions of women, passing over such apposite figures as Julian of Norwich or Margery Kempe, with whom he, as a mystic Catholic anglophile, had much in common. Kirk shared more with these women, in fact, than he did with Coleridge or Thomas Babington Macaulay, who appear in The Conservative Mind.

Kirk was also woefully uneducated about American pragmatism. He overlooked Burke’s influence on, and compatibility with, pragmatism. (As Seth Vannatta ably demonstrates in Conservatism and Pragmatism (2014), Burke “is a model precursor of pragmatism because he chose to deal with circumstances rather than abstractions.”) Kirk failed to see the pragmatic elements of Santayana, whom he adored, and he seemed generally unaware of the work of C.S. Peirce. Kirk’s breezy dismissal of William James, Santayana’s teacher and later colleague, suggests he hadn’t read much of James’s oeuvre, for Kirk lumped the very different James and Dewey together in a manner that proved that Kirk himself was susceptible to the simplification and reduction he decried in others.

Conservatism, for Kirk, consisted of an attitude or mindset, not an explicit or detailed political program. Enumerating vague “canons” of conservatism that Kirk tweaked from edition to edition, The Conservative Mind was a “hagiographic litany,” a genealogy of the high-minded heroes of ordered liberty and convention. Kirk didn’t intend the book to be model scholarship. It was something more — an aestheticized bricolage cannibalized from Burke and Eliot and others, with inspirational and ritualistic value. It has never gone out of print.

Kirk is sometimes accused of being contradictory, holding simultaneously incompatible positions, in part because he lauded apparent antagonists such as John C. Calhoun and Abraham Lincoln. “Kirk found something to like in each man,” Birzer says of Calhoun and Lincoln, “for each, from [Kirk’s] perspective, embodied some timeless truth made sacramentally incarnate.” Tension between rivaling conservative visions is reconciled in Kirk’s desire never “to create an ideology out of conservatism, a theology at the quick and the ready with which one could easily beat one’s opponents into submission.” Ideology, Kirk believed, was a symptom of totalitarianism, and as such was the common denominator of fascism and communism. Kirk believed his own philosophy was not an ideology, because he, like Burke, preferred “a principled defense of justice and prudence” to any specific faction or agenda. He recognized that change was necessary, but thought it should be guided by prudence and historical sensitivity.

For a history buff, Kirk could be positively ahistorical and uncritical, ignoring the nuances and particularities of events that shaped the lives of his heroes. He ignored Calhoun’s commitment to the peculiar institution, and with a quick wave of the hand erased slavery from Calhoun’s political calculus, adding without qualification that “Calhoun defended the rights of minorities.” Kirk made clumsy caricatures out of his assumed enemies, calling men like Emerson “the most influential of all American radicals.” Emerson had met Coleridge, whose Romanticism partially inspired Emerson’s transcendentalism. Yet Kirk loathed Emerson and praised Coleridge and saw no inconsistency in doing so.

Kirk was not alone during the 1950s. The decade witnessed a renaissance of conservatism, exemplified by the publication of not only Kirk’s The Conservative Mind, but also Robert Nisbet’s The Quest for Community, Strauss’s Natural Right and History, Ray Bradbury’s Fahrenheit 451, Eliot’s The Confidential Clerk, Voegelin’s New Science of Politics, Gabriel Marcel’s Man against Mass Society, Christopher Dawkins’s Understanding Europe, C.S. Lewis’s Mere Christianity, Whittaker Chambers’s Witness, and Buckley’s God and Man at Yale. It was The Conservative Mind, however, that “gave one voice to a number of isolated and atomized voices.” It also lent intellectual substance and credibility to the activist groundswell surrounding such politicians as Goldwater a decade later.

When Kirk joined Buckley’s National Review, the manner of his writing changed. Previously he had contributed to literary and scholarly journals, but, as Birzer points out, his “contributions to the National Review slowly but surely crowded out his output to other periodicals.” Working for National Review also drew Kirk into personality conflicts that passed as theoretical disagreements. Kirk sided with Buckley, for instance, in banishing from the pages of National Review any writers associated with the John Birch Society. Kirk despised the egoism of Ayn Rand, scorned the label neoconservative, and did not take kindly to the doctrines of Irving Kristol. Yet Kirk held Leo Strauss in high regard, in no small part because of Strauss’s scholarship on Burke and natural rights.

Strauss is sometimes treated as the fount of neoconservativism, given that his students include, among others, Allan Bloom, Harry Jaffa, and Paul Wolfowitz. But Kirk never would have considered the esoteric and conscientious Strauss to be in a league with neoconservative provocateurs like Midge Decter and Norman Podhoretz, who indicted Kirk for anti-Semitism after Kirk, in a speech before the Heritage Foundation, stated that some neoconservatives had mistaken Tel Aviv for the capital of the United States — a tactless comment that was blown out of proportion.

“Kirk never sought conformity with those around him,” Birzer argues, “because he never wanted to create a sect or a religion or a cult of personality.” Kirk labored for the sake of posterity, not self-promotion. “The idea of creating ‘Kirkians,’” as there are Straussians, Misesians, Randians, and Rothbardians, “would have horrified [Kirk] at every level of his being”; Birzer insists that Kirk “desired only to inspire and to leaven with the gifts given him,” adding that “[h]e did well.” “I hope,” Birzer concludes, “I have done at least half as well” in writing Kirk’s biography.

Bringing Kirk into renewed focus during a contentious election season, as the term conservatism is bandied about, contested, and abused by commentators as varied as David Brooks and Phyllis Schlafly, Megyn Kelly and Rush Limbaugh, Karl Rove and Michael Savage, Birzer reminds us that conservatism, properly understood, is a “means, a mood, an attitude to conserve, to preserve, and to pass on to future generations the best of the humane tradition rather than to advocate a particular political philosophy, party, or agenda.”

One wonders, watching the campaign stops and debate spectacles, the ominous political advertisements and alarmist fundraising operations, what’s left of this humane tradition in our current political discourse. When our politicians lack a responsible and meaningful awareness of the residual wisdom of the ages, we get the leadership and politics we deserve. Would that we had more Russell Kirks around to remind us of the enduring things that, in times like these, are hard to find and difficult to believe in.

The Moral Case for Property Rights

In Arts & Letters, Books, Conservatism, Economics, Ethics, History, Humane Economy, Humanities, Jurisprudence, Law, Liberalism, Philosophy, Property, Scholarship, Western Civilization, Western Philosophy on March 9, 2016 at 8:45 am

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This review originally appeared here at the Library of Law and Liberty.

The James Madison Program in American Ideals and Institutions at Princeton University has become a hub of conservative constitutionalism and natural law theory, a forum where mostly likeminded scholars and public intellectuals can come together for constructive dialogue and critique. Directed by Robert P. George, the McCormick Professor of Jurisprudence at Princeton, the program has hosted established and emerging scholars alike. Adam MacLeod is one of the latter—a figure to watch, a fresh and tempered voice in the increasingly ideological field of jurisprudence and legal theory. During his James Madison fellowship, with the support and advice of his colleagues, MacLeod wrote Property and Practical Reason, his first book.

MacLeod frames his normative claims and pleas within the common law context. And he gives us his thesis in his crisp opening sentence: “This book makes a moral case for private property.” He adds that “institutions of private ownership are justified.”

That institutions of private ownership are now jeopardized is upsetting. Before the 18th century, it was simply taken for granted in most Western societies that private property rights incentivized both work and custodianship and served moral ends. Leaders of advanced nations understood that the opportunity to own land or goods motivated people to work; that work, in turn, contributed to the aggregate health of the community; and that once ownership was attained, owners preserved the fruits of their labor and likewise respected the fruits of others’ labor as having been dutifully earned. There were, of course, violations of these principles in Western societies, which is why the law protected and promoted private ownership.

Even absolute monarchs across Europe centuries ago understood the instinctual drive for personal ownership and, consequently, allowed their subjects to obtain at least qualified possession of land and real property. During the Enlightenment, however, philosophers such as John Locke awakened the Western intellect to the stark reality that private property rights were routinely violated or compromised by monarchs and sovereigns at the expense of morality and at odds with the natural law. Because humans own their bodies, Locke maintained, any object or land they removed or procured from nature, which God had provided humanity in common, was joined to those people, who, so long as no one else had a legitimate claim to such object or land, could freely enjoy a right of possession exclusive of the common rights of others.

It’s surprising that Locke isn’t mentioned in MacLeod’s defense of reason and private property, since Locke more than any other figure in the Western tradition—let alone the British tradition in which the common law emerged—made the reason-based case for the morality of private property ownership. “God,” Locke said, “who hath given the world to men in common, hath also given them reason to make use of it to the best advantage of life and convenience.” On this score MacLeod echoes Locke without giving him attention.

MacLeod advocates the type of mediated dominion of private ownership that, he says, existed at common law. Under the common law, he argues, dominion was mediated because it was restrained by the normative guides of “practical reasonableness.” He does not fully delineate what unmediated dominion looks like. But presumably it has something to do with “many contemporary accounts” that, he claims, “view property as an individual right” and facilitate an “atomization of private property” that’s “unnecessary and unhelpful.” An example might have polished off this point, since in the opening chapters it’s not always obvious to which property arrangement mediated dominion is allegedly superior.

He does, however, supply helpful examples of mediating private institutions under the common law: families and family businesses, religious associations such as churches or synagogues, civic associations, and other such cooperative forms that exercise modest control or otherwise influence a person’s claim to outright ownership. For instance, one’s community may reasonably insist that my absolute ownership of a weapon does not permit one’s use of that weapon to threaten or injure another except in self-defense. It may likewise restrict the profligate use of scarce resources, or the reckless use of intrinsically dangerous resources to the manifest detriment of one’s immediate neighbors.

The author submits that, under the common law, which illustrates constructive administration of property rights, private ownership is never total or unqualified but always subject to reasonable restraint as prescribed by custom and community. He intimates that one thing that makes private ownership reasonable is its promotion of reasonable behavior; the very reasonableness of private property is self-perpetuating. The owner of property who’s confident his ownership is legally honored and enforced will pursue future gain; as the number of such owners multiplies, the corporate prosperity of society increases.

MacLeod rejects consequentialist arguments for private property and seeks to justify private ownership on the basis of morality. He shows that private ownership is not just optimal by utilitarian standards but is practically reasonable and morally good.

In so arguing, he navigates around two anticipated criticisms: first that his defense of private property and promotion of common law standards and conditions are remedies in search of an illness, and second that beneath his proposed remedy is the sickness he wants to cure.

By discussing the work of Pierre-Joseph Proudhon, Jeremy Waldron, J. E. Penner, and Larissa Katz, among others, MacLeod proves he’s not remonstrating against straw men but engaging actual thinkers with real influence on our working perceptions of property rights. The problems he confronts are palpable: regulatory takings, trespass, taxation, riparian-right disputes, adverse possession, and waste, among others.

In depicting mediated dominion as a form of voluntary “plural ownership” that excludes state coercion, moreover, he reassures readers that a common law property regime does not contravene private ordering, despite the fact that the common law dates back to periods when English monarchs retained total and ultimate control of the land within their jurisdiction under the Doctrine of the Crown; forced owners to hold property rights in socage; confiscated property from rivals and dissidents; redistributed property in exchange for loyalty and political favors; and permitted and at times approved of slavery and villainy.

These unreasonable elements of the common law tradition do not square with the case that MacLeod makes for practical reasonableness; yet the common law tradition he invokes is sufficiently flexible and adaptive to modify or eradicate rules that perpetuate unreasonable practices and behaviors. He reminds us, too, that “slavery was for a long time unknown at common law, and its rise in positive law derogated common law rights and duties.” In other words, the rise of the English slave trade “is a story of lawmakers first departing from, then returning to, common law norms.”

Following if not synthesizing John Finnis and Joseph Raz, MacLeod recommends in the property-law context something akin to perfectionist liberalism and value pluralism. The pluralism championed by MacLeod involves multiplying the options for deliberating agents: the more room there is for rational choice, the more diverse and numerous are the opportunities to exercise human reason. These opportunities may be circumscribed by the morality of the community that is inherent in the rules that reflect basic values. The law is by nature coercive, but it is good to the extent it enables practical reason and restricts bad behavior, as determined by the net, collaborative efforts of non-state actors. MacLeod calls these combined actors members of “intermediary communities.”

The trope of individualism and community is for MacLeod a framing device for advocating mediated dominion as an incentivizing force for moral action. He skillfully and meticulously affirms that private ownership, which is conditional on the reasonable limitations established by collective norms, is reasonable not only for instrumental purposes (because it works well and facilitates constructive social relations) but also because it is good in itself. Summoning the commentary of Thomas Aquinas, William Blackstone, James Madison, Alexis de Tocqueville, Joseph Story, Georg Friedrich Hegel, F.A. Hayek, Neil MacCormick, Ronald Dworkin, Richard Epstein, and Robert P. George, MacLeod also manages to work in unexpected references to writers who do not immediately spring to mind as jurisprudents: Richard Weaver, Wendell Berry, Charles Murray, John Tomasi, and Milton Friedman. This range demonstrates the importance of property law across disciplines and in broad contexts.

To profit from this book you must, I think, hold in abeyance any assumptions or readymade generalizations you have about the nature and function of private property. You’d benefit as well from a prior familiarity with the field and discourse of property jurisprudence, not to mention the new natural law theories. I make this observation as an outsider myself. If you can’t immediately define terms like “usufruct,” either because you’ve never heard of them or because it’s been too long since you studied for a bar examination, you’ll likely need Black’s Law Dictionary and other resources close at hand as you piece through MacLeod’s rationale. Readers in other disciplines might find that the chapters presuppose an awareness of, say, the essentialist debate over whether exclusion or use defines property norms, or might question the meaning and import of “personalist” approaches to private property that emphasize the doctrines of positive liberty and personal autonomy.

Such disciplinary specificity isn’t a bad thing. One hopes, in fact, that it would motivate curious readers to undertake further study and inquiry. Yet specialization limits what a book can accomplish.

MacLeod exhibits a disposition to be philosophical rather than sociological, adopting as he does a neutral, academic tone free of animus and personal pique, arguing from logical deduction rather than concrete data or statistics. Whether this approach redounds to his advantage depends on what he wants to achieve. If he’s writing only for an academic audience of philosophers and political theorists, he’s succeeded admirably, but if his goal is to reach beyond the narrow confines of the academy, spreading his influence as widely as possible, he has fallen short. The prose is accessible to scholars and advanced graduate students, but the average lawyer will find no practical instruction in the book and might even question the at times challenging syntax and vocabulary that can obscure basic points. If economists ignore the book for its rejection of consequentialist arguments, however, it’s to their disadvantage.

No common reader, I’m afraid, will read this book from cover to cover, and that’s a pity because the subject is important, especially given the spread of eminent-domain abuse and the general embrace of egalitarianism, redistributivism, and Rawlsian notions of social justice by Americans today. The desire for private ownership is a primordial fact. We need more books and treatises that examine at a fundamental level how and why we alienate, possess, and exchange property. At around $100, Property and Practical Reason is prohibitively expensive for curious undergraduates, and also for courses in graduate studies. Moreover, the law schools may well ignore it due to its focus on abstract jurisprudence.

All that said, this book should be read—and will be, by the people who know about and are sympathetic to the work of the James Madison Program. Unfortunately, that’s not many people. Not enough, anyway. There’s no cottage industry for the philosophy of practical reasonableness. Yet there ought to be, and the reception of MacLeod’s work might tell us whether there can be. Those of a philosophical bent will delight not just in the conclusions MacLeod reaches, but in the way he reaches them: framing and reframing his sinuous arguments until his central theses become refrains. This reviewer found it a delightfully industrious, hard-won defense of private property, and well worth the high sticker price.

Attuned to the Daimon

In America, Arts & Letters, Book Reviews, Books, Conservatism, History, Humanities, John William Corrington, Philosophy, Western Civilization, Western Philosophy on January 27, 2016 at 8:45 am

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This review originally appeared here in the Library of Law & Liberty.

Richard Bishirjian wears many hats. He’s a businessman, speaker, educator, regular contributor to Modern Age, founder and president of Yorktown University, and champion of online education. He has been a visible presence at conservative conferences and colloquia and an active member of the Intercollegiate Studies Institute, the Philadelphia Society, and the National Association of Scholars. As a young man he studied under Gerhart Niemeyer, Ralph McInerny, Eric Voegelin, and Michael Oakeshott, whose philosophical influences are on display in The Conservative Rebellion, Bishirjian’s latest book, which seeks to reclaim that evocative and oft-abused signifier, “rebel.”

The author disavows the term “conservative movement” even as he uses it out of convenience. Movements as he describes them are “anti-traditional and ideologically motivated revolutionary currents” such as communism or National Socialism that have nothing to do with conservatism, which, he maintains, is constitutionally anti-ideological and anti-utopian. The conservative rebellion, then, is not a movement but a state of mind shared by enough individuals to comprise a community of purpose.

Bishirjian assures us that “this is a work of political theory by which its author affirms a reality that ‘is’ at the same time that he and his fellow Conservative Rebels are its representatives.” He thus locates himself and others like him—the conservative rebels—in a moment of American history that he calls the period of recovery.

This recovery follows four paradigmatic, transitional stages of the American body politic: 1) the revolutionary “spirit” that galvanized the Declaration of Independence; 2) the circumspect limited-government ethos that found expression in the U.S. Constitution; 3) the quasi-religious new nationalism of Abraham Lincoln, which was spiritual and democratic in substance; and 4) the civic religion of modern millennialism in which Progressive idealism, characterized by Woodrow Wilson’s crusading reforms, actualized Lincoln’s mystical vision by replacing limited government with nationalized and centralized power.

Just as each paradigm supplanted its predecessor, so the conservative rebellion of today—a fifth paradigmatic stage—is working to undermine the normative principles bequeathed to us by Lincoln and magnified by Wilson. Bishirjian believes we are struggling with the tensions between the fourth and fifth stages, even within conservative circles, insofar as neoconservatism recalls Lincoln’s and Wilson’s “consciousness of order.” He’s used a Voegelinian term there. It’s the Voegelin in Bishirjian that elicits his overall critique of neoconservatives, whose vision for global democracy and human rights, in his mind, resembles the Gnostic conception of a heaven on earth within history.

The Conservative Rebellion is part memoir, part prescription. It recalls Bishirjian’s formative university years and might be described, in part, as the story of his intellectual awakening. The prose is anything but pedantic, its muscular quality seen, for example, when he writes that “from 1961 to 1964 I read any and every book I could get my hands on to try to figure out what in the hell was going on.” Political incorrectness abounds, as when he describes where he studied:

Take a backwater graduate institution along the St. Joseph River like Notre Dame, have it focus on a backwater region like Latin America, and you seal Notre Dame’s fate as just another graduate program in government.

Bishirjian here refers to the chairman of the Department of Government deciding, in the late 1960s, to reorient the curriculum toward Latin American studies rather than capitalizing on the talent and specialties already existing among a faculty that included Voegelin, Niemeyer, and Stanley Parry. This reconfiguration followed the alleged purging of Notre Dame’s conservative faculty under Father Theodore Hesburgh, its president from 1952 to 1987. The criticisms of the university’s administration during his graduate studies reveal the intensity with which Bishirjian approaches ideas. So does his recalling the fact that he wept the first time he read Voegelin’s The New Science of Politics (1952).

He primarily considers the conservative rebellion he participated in from the time of the Kennedy presidency through that of Jimmy Carter. With the ascendancy of Ronald Reagan and the fall of the Berlin Wall, Bishirjian and his cohorts saw the fruits of their labor and rejoiced, but only for a time. Eventually infighting and enforced ideological standards slowed their momentum and sent well-meaning friends along differing paths. Bishirjian relates that traditional conservatives in the Reagan administration were gradually displaced by neoconservatives after the resignation of Richard V. Allen as National Security Adviser. From that moment on, he suggests, Republican presidential administrations were increasingly peopled by neoconservatives, a word that goes undefined.

The object of Bishirjian’s animus is Progressivism, or Woodrow Wilson’s “political religion.”  That he also calls communism a “political religion” suggests how destructively ideological he believes Wilson’s programs and legacy to have been. He submits that political religion is “ersatz religion” in that it’s a “false construction that intervenes between us and the experience of reality,” a bold and curious claim that makes sense only in light of Voegelin’s teachings.

At times, though, the author denominates Progressivism as liberalism. Not to be mistaken for the classical variety, his targeted liberalism is “intolerant, illiberal, devoid of magnanimity and devoted to the expansion of state power.” So defined, liberalism stands in contradistinction to conservatism, which, he says, is a “political theory linked to an attitude of spirit and mind, not a political philosophy by which the greater universe becomes visible.”

The Wilsonian worldview is most obviously manifest in foreign policy. Bishirjian articulates his longstanding discontent with the Vietnam War and believes “it is not a moral obligation of the American people to die so that others may realize their nationhood.” At the same time, he condemns the coordinated ostracizing of faculty who spoke out in favor of that war. He lambasts both Bush presidencies for their grandiose foreign policy and cautions that

Nothing grows more quickly during war than the powers of the state with the result that by the end of the twentieth century the American administrative state had become the enemy of all Americans, but only social, political and economic conservatives seemed concerned.

Although bitter, Bishirjian is something of an optimist. He sees the potential for cultural restoration, hoping our decline will be followed by prophetic renewal. He notes that Plato and Augustine, respectively, arose from the collapse of the Greek city-state and the Roman Empire. Anxiously alive to the intellectual bankruptcy of mainstream conservatism of the prepackaged, mass-market television variety, he laments “the decline in conservative scholarship and influence in academe,” where institutions of knowledge and learning ought to breed contemplative figureheads.

St. Augustine’s Press has put out a handsome hardback edition of this book. (One would have liked to see more careful copy-editing, though. The typographical errors are distracting.) Its normative assessments and presiding themes should provoke readers on the Left and the Right. Its main thrust is that, to recover the lost tradition of conservatism, what is required is the leadership of men and women attentive to the redemptive and visionary powers of the daimon.

The Conservative Rebellion reaches print just three months after the publication of Harold Bloom’s The Daemon Knows, in which the notion of the daimon (Greek), or the daemon (Latin), figures prominently as a sublime, aboriginal force of human imagination. The daimon prophesies a cosmology, not a short-term political platform or “get-out-the-vote” campaign. He consults Boethius, not Karl Rove. He counsels a consciousness of time and order, not a debate strategy or partisan wager. The luminosity of consciousness isn’t a purely pragmatic strategy capable of yielding quick results, but it does fulfill the mundane task of disclosing a way forward. It’s a prudent plan, in other words, not just a numinous agency, and it has the potential to instantiate once again the fusionism of Frank Meyer.

If Bishirjian is correct, then those attuned to the dynamism of the daimon might be found among “philosophers, knowledgeable political leaders, non-ideological publications, wealthy benefactors and supportive institutions.” It’s telling that he doesn’t name living examples. One wonders if there are any.

John William Corrington: A Different Kind of Conservative

In American History, American Literature, Arts & Letters, Books, Conservatism, Essays, Fiction, History, Humanities, John William Corrington, Joyce Corrington, Literature, Politics, Southern History, Southern Literature, Television, Television Writing, The South, Western Philosophy, Writing on November 18, 2015 at 8:45 am

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A slightly different version of this article originally appeared here in The American Conservative.

When John William Corrington died in 1988, Southern conservatives lost one of their most talented writers, a refined Cajun cowboy with a jazzy voice and bold pen whose work has been unjustly and imprudently neglected.

A man of letters with a wide array of interests, an ambivalent Catholic and a devotee of Eric Voegelin, a lawyer and an English professor, Bill (as his friends and family called him) authored or edited over 20 books, including novels, poetry collections, and short story collections. His most recognized works are screenplays – Boxcar Bertha, Battle for the Planet of the Apes, and Omega Man – but he hoped for the legacy of a belletrist. “I don’t give a damn about TV or film for that matter,” he once wrote somewhat disingenuously, adding that he cared about “serious writing – the novel, the story, the poem, the essay.” William Mills, who, after Bill’s death, collected the commemorative essays of Bill’s friends under the title Southern Man of Letters, declared that, should Bill have a biographer, “the story of his life will be very much the life of a mind, one lived among books, reading them and writing them.”

Bill was born in Ohio, a fact he sometimes concealed. He claimed on his C.V. that he was born in Memphis, Tennessee, home to the Dixieland brass that inspired him to take up the trumpet. His parents, who were in fact from Memphis, had not intended to stay in Ohio but were seeking temporary work there to get through the Depression. Bill spent his childhood in Shreveport, Louisiana, where he remained for college, taking his degree from Centenary College. He then earned a master’s in English from Rice, focusing on Renaissance drama, and later a doctorate in English from the University of Sussex in England. His doctoral dissertation was on Joyce’s Dubliners. He taught at LSU, Loyola University of the South, and California-Berkeley before tiring of campus politics and university bureaucracy. This was, after all, the late 1960s.

Film director Roger Corman discovered Bill’s fiction at this time and contracted with him to write a screenplay about the life of Baron Manfred von Richthofen, better known as the Red Barron. As a child Bill was often bedridden with asthma, and his hobby was to build WWI and WWII model airplanes – as a young man he attempted to join the Air Force but was turned away for being colorblind – so Bill was already familiar with the Red Barron’s story. Having completed his assignment for Corman, Bill was confidant he could secure new sources of revenue when he left the academy and entered Tulane Law School as an already accomplished poet, novelist, and now screenwriter. During his first year in law school, he and his wife, Joyce, penned the screenplay for Battle for the Planet of the Apes, the popularity of which ensured they would always have a job in film and television. Bill’s grades in law school may have suffered from his extracurricular writing, but it was writing, not the law, that ultimately proved profitable to him.

Joyce wasn’t Bill’s first wife. He’d married briefly to a young Protestant girl whose father was a minister. Bill’s Catholicism and academic interest in mystical, pagan, and heretical traditions meant the marriage was doomed. Bill claimed it was never even consummated because she found sex to be painful. Over almost as soon as it began, the marriage was officially annulled.

Bill’s fascination with Catholicism, the South, and the works of Eric Voegelin, combined with his disgust for Marxism and campus radicals, made for a unique blend of conservatism. Early in his career Bill and Miller Williams went on the lecture circuit together to defend the South and Southern intellectuals against what they considered to be an anti-Southern bias within universities. Bill kept photos of Robert E. Lee and Stonewell Jackson on the wall of his study and named two of his sons after them. With the rise of the conservative movement during the Reagan Era and the slow separation of traditionalist and neoconservatives, epitomized by the controversy over Reagan’s nomination of Mel Bradford as the chairman of the National Endowment for the Humanities, Bill felt compelled to offer a Southerner’s perspective on conservatism. He considered his conservatism to be regionally specific, explaining that “I am a Southerner and for all my travel and schooling, I am not able to put aside the certain otherness that sets a Southerner apart from the rest of America even in the midst of the 20th century.” “The South,” he maintained, “is a nation buried within another.” His essay “Are Southerner’s Different?” was published thirty years ago in The Southern Partisan but still resonates even now when Southerners have become less “different.”

Calling something “different” presupposes another something that’s not the same. The title of Bill’s essay therefore begs the question: “Different from what?” Bill crafted the essay for an audience of Southern conservatives. At the expense of style he might have framed his question this way: “Are Southern conservatives different from conservatives in other regions of America?” To which he would have emphatically answered yes.

He used the essay to compare three icons of conservatism – Ronald Reagan, George Will, and William F. Buckley – to ascertain whether they expressed regional distinctions within American conservatism and to suggest that each failed to formulate or represent the essence of conservatism. Constituted by disparate and oft-competing traditions, “conservatism” in America, he suggested, failed as a meaningful category of discourse in matters of national rather than local importance. Its characteristics among Southerners, however, were readily apparent.

Because Bill identified himself as a Southern conservative, he doubted whether he could sit down with Reagan, Will, and Buckley “over glasses of sour mash” and achieve “such sweet agreement on the range of problems facing the world” that “any opinion one of us stated might by and large draw nothing more than approving nods from the others.” He rejected as “mere sentimentality” and “downright delusion” the “notion that conservatives east, west, midwest and south” could “find themselves in agreement on most matters of public policy.”

Bill criticized Reagan for stationing marines in Lebanon “without a clear-cut combat role” or a “mission to achieve.” He doubted whether he and Reagan held “the same view of the use of military force.” Bill regarded his own view as “simple and founded purely on Roman principles: Avoid battle whenever an interest or purpose can be obtained by other means, political, diplomatic, or economic; fight only for clear-cut interests which can be won or preserved by force; fight when and where you will be able to achieve a determinable victory. If you engage, win – at whatever costs – and make sure the enemy suffers disproportionately greater loss than you do.” This view of war materialized in Bill’s first novel, And Wait for the Night, which, inspired by Hodding Carter’s The Angry Scar, depicted the devastation of the South during Reconstruction. And Wait for the Night begins with a long section on the fighting that resulted in the fall of Vicksburg. If there’s a theme common to Bill’s fiction about war, including his short stories and his third novel, The Bombardier, it’s pride in a soldier’s duty but sensibility to the horrors of war.

Bill’s dislike of Will arose from the controversy ignited by the failed Bradford nomination. Will had taken to the Washington Post to decry Bradford’s attachment to the “nostalgic Confederate remnant within the conservative movement.” Bradford’s singular offense was proposing that Lincoln was a “Gnostic” in the sense that Voegelin used the term. A friend and admirer of Voegelin who would eventually edit Voegelin’s works, Bill did not think Lincoln was a Gnostic. As Bill put it in a 1964 letter to Anthony Blond, the British editor who had published And Wait for the Night, Lincoln stood “in relation to the South very much as Khrushchev did to Hungary, as the United Nations apparachiks did to Katanga.”

Bill was one of those conservatives Will decried for having a not unfavorable view of the Confederacy. He once dashed off a missive to Charles Bukowski that referred to Lee as “the greatest man who ever lived” and he later asked to be buried with a Confederate flag in his coffin. A statue of General Sherman on a horse inspired – rather, provoked – Bill’s book of poems Lines to the South. Robert B. Heilman observed that 75% of Bill’s short stories involved the Civil War. Asked whether he was a Southern writer, Bill quipped, “If nobody else wants to be, that’s fine; then we would have only one: me.”

Unlike Will, Bill was not about to let Lincoln mythology become a condition for conservative office or to disregard the different historical circumstances that shaped political theories about the role of the central government in relation to the several states. “Will’s stance,” Bill announced with typical bravado, “comes close to requiring a loyalty oath to the Great Emancipator, and I for one will not have it. It is one thing to live one’s life under the necessity of empirical events long past; it is quite another to be forced to genuflect to them.”

Bill was unable to put his finger on what irked him about Buckley. Rather than criticizing Buckley directly, he criticized things associated with Buckley: “the Ivy League mentality” and “the American aristocracy.” Bill had an earthy dynamism and a brawling personality and didn’t take kindly to (in his view) pompous sophisticates who seemed (to him) to put on airs. He preferred the matter-of-fact, muscular qualities of those rugged Americans who possessed, as he mused in a rare moment of verbosity, “a hard-nosed intelligence, an openness to experience, a limited but real sense of classical past and a profound respect not only for institutions in place but for the work of a man’s hands and mind as well as a deep and unshakeable certainty of the role of divine providence in the affairs of humanity not to mention a profound contempt for inherited title, place and dignity.” This did not describe Buckley, at least not entirely.

Bill’s outline for conservatism, unlike Reagan’s and Will’s and Buckley’s, involved what he called “traditional Southern thought and sentiment,” to wit, the land, the community, and a foreign policy of “decency and common sense,” which is to say, a “realistic, non-ideological orientation toward the rest of the world.”

This last aspect of his conservatism, couched in such plain diction, simplifies what is in fact a ramified element of his shifting Weltanschauung. He hesitated to “presume to enunciate a ‘Southern view’ of foreign policy” but acknowledged that “there remain a few antique verities stretching from President Washington’s Farewell Address to the Monroe Doctrine.” These verities had to be, he believed, “reviewed” and “reinterpreted” in light of what was then the most pressing threat abroad to American values at home: “the rise of a Russian empire bound together by force.”

The policy of containment that was a shibboleth for some policy experts during the Reagan years was for Bill a waste of time. “I do not recall that our liberal predecessors argued for the ‘containment’ of National Socialism as it ravaged Europe in the late 1930s and 40s,” he said. That did not mean he categorically favored military intervention. “Obviously,” he qualified, “direct military force to attain specific goals is not among our options.”

What then was among the options? Bill’s answer was less quixotic than it was unhelpfully obvious: “political economics.” He anticipated that the Soviet Union would “find itself pressing the last drop of economic usefulness out of the poor befuddled bodies of its subjects” if the West quit supplying the Soviets with “western technology, western food, and vast sums of western credit.” Despite its artlessness, this approach won the day but never played out as neatly or innocently as Bill envisioned it.

Within weeks of publishing “Are Southerners Different?,” Bill delivered a paper in Chattanooga that decried the “rise of ideologies from the Enlightenment egophanies of the philosophes through the scientism and materialism of the 19th century to the political mass-movements and therapies of the 20th century, including, but not limited to, National Socialism, Marxist-Leninism, secular humanism, and logical positivism,” all of which, he claimed, had “resulted in a virtual decerebration of the Humanities.” Bill had entered a melancholy, meditative phase in which he began to portray political extremism of all stripes as a vicious assault on the humanities, those organizing aesthetic and social principles that “bear witness to the truth insofar as they penetrate noetically to the common experiential symbols of human beings.”

Bill resisted categories and defied simple classification. He informed Bukowski, for instance, that he had taken up the sonnet just to throw “dirt in the eyes of those would love to put some label on my ass.” Shortly after discovering Voegelin, Bill began to read Russell Kirk. Bruce Hershenson, then a producer with a Los Angeles television station who had come to prominence through a documentary on the funeral of John F. Kennedy, commissioned Bill to write a screenplay of Kirk’s Roots of American Order. Bill drew up the script, but it was never produced. Kirk later entrusted the script to Richard Bishirjian. (That script is now on file at the Russell Kirk Center for Cultural Renewal.) Bishirjian intimated that the script’s failure had to do with “the new political appointees at NEH that Bennett recruited.” These appointees, Bishirjian said, were “ideologues for whom John Locke, the Declaration of Independence, Abraham Lincoln, and Harry Jaffa define America.”

The heavy burden of the past on Southern consciousness suits Southerners for the type of humanistic inquiry that interested Bill: the humanities, according to him, “remember” and “re-collect” and “force upon us the memory of humanitas in all its experiential and symbolic variety.” “It is a handy thing for a writer to discover that his geographical and spiritual situations are parallel,” he said. “It makes the geography live, and lends concreteness to the soul.”

Bill’s soul, as it were, was shaped by the South, to which his spirit belonged. Tapping Robert Frost, he speculated that the symbolism of General Lee’s and General Joseph Johnston’s surrenders “made all the difference” in terms of his “development as a writer.” Whatever he wrote or thought, he knew he’d already lost. In a basic sense this is true of us all: life heads unswervingly in one fatal direction. Better to realize we’re fighting battles we cannot win: that we cannot, of our own accord, bring about a permanent heaven on this temporary earth. We may take solace and even rejoice in our shared inevitability. We all go the way of the South: We die, no matter how hard we try to stay alive.


Was Oliver Wendell Holmes Jr. a Conservative?

In American History, Arts & Letters, Conservatism, History, Humanities, Judicial Restraint, Jurisprudence, Law, Oliver Wendell Holmes Jr., Philosophy, Politics, Pragmatism on November 4, 2015 at 8:45 am

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Oliver Wendell Holmes Jr. can seem politically enigmatic in part because he was a jurist, not a legislator. He was no conservative, but he was no progressive, either. Misconstruing and mislabeling him only leads to the confusion and discrediting of certain views that conservatives and libertarians alike seriously ought to consider. One must not mistakenly assume that because Lochner-era Fourteenth Amendment due process jurisprudence favored business interests, Holmes stood against business interests when he rejected New York’s Fourteenth Amendment due process defense. (I have avoided the anachronistic term “substantive due process,” which gained currency decades after Lochner.)

Holmes resisted sprawling interpretations of words and principles—even if his hermeneutics brought about consequences he did not like—and he was open about his willingness to decide cases against his own interests. As he wrote to his cousin John T. Morse, “It has given me great pleasure to sustain the Constitutionality of laws that I believe to be as bad as possible, because I thereby helped to mark the difference between what I would forbid and what the Constitution permits.”

All labels for Holmes miss the mark. Holmes defies categorization, which can be a lazy way of affixing a name to something in order to avoid considering the complexity and nuances, and even contradictions, inherent in that something. “Only the shallow,” said Justice Felix Frankfurter, “would attempt to put Mr. Justice Holmes in the shallow pigeonholes of classification.”

Holmes was not conservative but more like a pragmatist in the judicial sense. His position on judging is analogous to William James’s suggestion that a person is entitled to believe what he wants so long as the practice of his religious belief is verifiable in experience and does not infringe upon the opportunity of others to exercise their own legitimate religious practices. James exposited the idea of a “pluralistic world,” which he envisioned to be, in his words, “more like a federal republic than like an empire or a kingdom.” Holmes likewise contemplated the notion of a federal republic in his majority opinions and dissents.

The above text is adapted from an excerpt of my essay “Justice Holmes and Conservatism,” published in The Texas Review of Law & Politics, Vol. 17 (2013). To view the full essay, you may download it here at SSRN or visit the website of The Texas Review of Law & Politics.

“A Selected Bibliography on the Political and Legal Thought of Oliver Wendell Holmes, Jr.,” by Seth Vannatta

In Academia, American History, Arts & Letters, Books, Conservatism, History, Humanities, Jurisprudence, Law, Oliver Wendell Holmes Jr., Politics, Pragmatism, Scholarship on October 7, 2015 at 8:45 am

Seth Vannatta

Seth Vannatta is an Associate Professor and Interim Department Head in the Department of Philosophy and Religious Studies at Morgan State University. He earned a PhD in Philosophy at Southern Illinois University Carbondale (2010), where he lived from 2006-2010. Before attending SIUC, Seth taught grades 5 through 12 in the History, English, and Religion Departments at Casady School. He served as head varsity volleyball coach for ten years and head varsity soccer coach for three years. He also served as chair of the history department for two years. He has a BA from Colorado College in History (1995) and a Master’s in Liberal Arts from Oklahoma City University (2002). His wife, Rachel, has a BA from Northwestern University (2006), an Master’s in Counselor Education from Southern Illinois University (2010) and is a doctoral candidate in Counselor Education at George Washington University.

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von Savigny, Fredrich Carl. Of the Vocation of Our Age for Legislation and Jurisprudence.  North Stratford: Ayer Company Publishers, 2000.

Schedler, George. “Hobbes on the Basis of Political Obligation.” Journal of the History of Philosophy. April (1977), 165-170.

Sullivan, Michael and Solove, Daniel J. “Can Pragmatism Be Radical? Richard Posner and Legal Pragmatism.” Yale Law Journal. Vol. 113. No. 3. (Dec. 2003), 687-741.

Sullivan, Michael. Legal Pragmatism Community, Rights, and Democracy. Bloomington: Indiana University Press, 2007.

______________. “Pragmatism and Precedent: A Response to Dworkin,” Transactions of the Charles S. Peirce Society: A Quarterly Journal in American Philosophy, Vol. 26. No. 2. (Spring 1990), 225-248.

Thomson, Judith Jarvis “A Defense of Abortion,” in Contemporary Moral Problems. Edited by James E. White. Eighth Edition. United States: Thomson Wadsworth, 2006.

Part II

Alexander, Tom. John Dewey’s Theory of Art, Experience, and Nature The Horizons of Feeling.   Albany: State University of New York Press, 1987.

Anderson, Douglas. Strands of System The Philosophy of Charles Peirce. Purdue University  Press, 1995.

Cardozo, Benjamin. The Nature of the Judicial Process. New Haven: Yale University Press, 1961.

Dworkin, Ronald. Law’s Empire. Cambridge: Harvard University Press, 1986.

Fisch, Max. “Was there a Metaphysical Club in Cambridge?—Postscript.” Transactions of the       Charles S. Peirce Society: A Quarterly Journal in American Philosophy. 17 (Spring    1981), 128-130.

Hart, H.L.A. The Concept of Law. Second Edition. Oxford: Oxford University Press, 2005.

 The Blackwell Guide to the Philosophy of Law and Legal Theory. Ed. Golding and Edmundson.   Oxford: Blackwell Publishing, 2005.

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Howe, Mark DeWolfe. Justice Oliver Wendell Holmes II: The Proving Years, 1870-1882 (1963).

Johnson, Michael. “Posner on the Uses and Disadvantages of Precedents for Law.” 23 Review of Litigation. 144 (2003), 143-156.

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Luban, David. “The Bad Man and the Good Lawyer: A Centennial Essay on Holmes’s The Path of the Law.” NYU Law Review. Vol. 72. No. 6, (1997), 1547-83.

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An Issue of Supreme Importance for 2016

In America, Conservatism, Judicial Activism, Judicial Restraint, Jurisprudence, Justice, Law, News and Current Events, Politics, The Supreme Court on April 22, 2015 at 8:45 am

Allen 2

This piece originally appeared here in The American Spectator.

The time has come for politicians to announce their candidacy for president. In the following weeks we can expect more names to be tossed into the hat of presidential hopefuls. Already Senator Ted Cruz and Senator Rand Paul have proclaimed their desire to lead our country. Hillary Clinton made her candidacy official Sunday, and Senator Marco Rubio announced on Monday night.

The 2016 election is shaping up to be the most pivotal in decades, including for reasons not everyone is talking about.

It’s true that Republicans will challenge Obama’s legacy and that everything from Obamacare to payday loans will receive renewed and energetic scrutiny on the campaign trail.

Yet these won’t be the most pressing domestic issues facing the next president. Even more important will be the president’s judicial philosophy. That’s because the probability is high that the nation’s next chief executive administration will nominate at least three candidates to the U.S. Supreme Court.

Although confidence in the Court is at an all-time low, voters do not seem particularly concerned about the Court’s future composition. Perhaps the typical voter does not understand the role the president plays in nominating justices. Perhaps the goings-on of the judicial branch seem distant and aloof and out of the purview of our everyday worries. Perhaps most people are too short-sighted to consider the long-term and far-reaching effects that a president can have on the legal system. Whatever the reason, voters should re-prioritize. Conservatives should move this issue to the forefront of the debates.

When the president is inaugurated in January 2017, Justice Ruth Bader Ginsburg, widely thought to be in poor health, will be two months shy of her 84th birthday; Justice Antonin Scalia and Justice Anthony Kennedy will be 80; and Justice Stephen Breyer will be 78. Is it reasonable to expect these justices to serve out four more years under another administration?

Justice Ginsburg and Justice Breyer are considered members of the left wing of the Court whereas Justice Scalia is considered to be on the right. Justice Kennedy is famously known as the Court’s “swing vote.”

If a Republican wins in 2016 election, he could replace two liberal members of the Court, leaving just two other remaining: Justice Sonia Sotomayor and Justice Elena Kagan. If Justice Kennedy were also to step down during the next administration, a Republican president could further expand the conservative wing of the Court to seven, making room for a vast majority in contentious cases. If the right wing of the Court enjoyed a 7-2 majority today, for instance, there would be less media speculation about how the Court would decide cases on same-sex marriage, religious freedom, immigration, or campaign finance.

The Senate Judiciary Committee, which conducts hearings on presidential nominees to the High Court, currently consists of 11 Republicans and 9 Democrats. Republicans hold a 54-member majority in the Senate, the governing body that confirms presidential nominees to the Court. If these numbers remain unchanged or only slightly changed under a Republican president, that president would have wide latitude to nominate candidates who have tested and principled commitments to conservatism.

Let’s say the presidential election favored a Democrat. A Democratic president could simply replace the departing Justice Ginsburg or Justice Breyer with a jurist in their mold, in effect filling a liberal seat with another liberal. If a Democratic president were up against a Republican Senate, however, his or her nominees would have to appear less liberal than Justice Ginsburg to ensure their confirmation.

Replacing Justice Scalia, arguably the most conservative justice on the Court, with a liberal would be transformative. Although depicted as an unpredictable moderate, Justice Kennedy was nominated by a Republican and more often than not votes with the right wing of the Court. Replacing him with a liberal justice would be a victory for the left. It is possible for the left wing of the Court to gain a 6-3 majority if a Democrat succeeds President Obama.

It’s not inconceivable that in the time he last left, President Obama could name at least one successor to the Court. Barring some unforeseen illness or act of God, however, that is unlikely to happen this late in his presidency. Justice Ginsburg insists on remaining on the Court, and Justice Breyer still has some healthy, productive years ahead of him.

Judges’ and justices’ judicial philosophies are not easily pressed into two sides—conservative or liberal, Republican or Democrat—because law itself usually is not reducible to raw politics or naked partisanship, and a judge’s job entails more than interpreting the language of legislative enactments. Law deals with the complex interactions of people and institutions under disputed circumstances that are portrayed and recounted from different perspectives; therefore, law rarely fits cleanly within simplistic political frameworks.

For this reason, among others, it can be difficult to predict how potential justices will rule from the bench if they are installed on the Court. Chief Justice Earl Warren ushered in the progressive “Warren Court Era” even though he had served as the Republican Governor of California and, in 1948, as the vice-presidential running mate of presidential candidate Thomas E. Dewey. More recently President George H.W. Bush nominated Justice David Souter to the Court. Justice Souter tended to vote consistently with the liberal members of the Court.

The Senate confirmation process has grown more contentious in recent years, and that has made it more difficult for another Souter to slip by the president. But it has also watered down our nominees, whose lack of a paper trail is considered a benefit rather than evidence of a lack of conviction or philosophical knowledge (lawyers are trained, not educated). It has come to a point where if you’re confirmable, you’re not reliable, and if you’re reliable, you’re not confirmable. Chief Justice John Roberts’ acrobatic attempt to uphold the individual mandate in Obamacare on the ground that it was a “tax” reveals just how squishy and unpredictable our justices have become.

There is, of course, the trouble with categorizing: What does it mean to be a “conservative” or a “liberal” judge or justice? Our presidential candidates may have different answers. In January Senator Paul declared himself a “judicial activist,” a label that is gaining favor among libertarians. He appears to have backed away from that position, recently bemoaning “out-of-control, unelected federal judges.” Activist judges, at any rate, can be on the right or the left.

Ted Cruz has not advertised his judicial philosophy yet, but by doing so he could set himself apart because of his vast legal experience, including his service as the Solicitor General of Texas. Two potential presidential nominees, Marco Rubio and Lindsey Graham, are also attorneys, but Rubio’s legal experience, or non-experience, is subject to question, and Graham has been out of the legal field for some time—although he serves on the Senate Judiciary Committee and has intimate knowledge of the Senate confirmation prospects for potential nominees.

It matters a great deal what our presidential candidates believe about the hermeneutics and jurisprudence embraced by potential Supreme Court justices. In the coming months voters will have the power to force candidates to address their judicial philosophy. The candidates must articulate clearly, thoroughly, and honestly what qualities they admire in judges because those qualities might just shape the nation’s political landscape for decades to come.

Conservatives have much to lose or gain this election in terms of the judiciary. Supreme Court nominations should be a top priority for Republicans when debate season arrives.

Paul H. Fry on “Influence”

In Academia, American Literature, Arts & Letters, Books, British Literature, Conservatism, Creativity, Fiction, History, Humanities, Literary Theory & Criticism, Literature, Pedagogy, Philosophy, Scholarship, Teaching, The Academy on March 25, 2015 at 8:45 am

Below is the next installment in the lecture series on literary theory and criticism by Paul H. Fry.  The previous lectures are here, here, here, here, here, here, here, here, here, here, here, here, and here.

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