Will the Libya Debacle Cost Obama His Job?

Tom Van Dyke 56 Comments

Not if his “pals” in the respectable media can help it. Morning Joe doesn’t care, and apparently neither do mainstream media stalwarts like Nina Totenberg. The perennial Mark Shields and Evan Thomas* were also on the panel:

da man

CHARLES KRAUTHAMMER: I just want to respond to my liberal pals over here. I can’t believe you guys are covering for the administration on the Susan Rice thing when they themselves said five days later it was obviously a terror attack. Obviously, everybody could see it. So why for a week did the administration pretend that it was a demonstration?

NINA TOTENBERG, NPR: Well, it wouldn’t be a very good plan if they were pretending and then saying something different later.

KRAUTHAMMER: It’s a good plan because the longer you draw it out, the less that the media and the country will care about it. It’s an issue, you seize of the issue right away, and it’s worked. Who talks about it other than…

GORDON PETERSON, HOST: Well, we’re talking about it.

KRAUTHAMMER: The third PBS segment of the show. Come on, give me a break.

PETERSON: Now you’re insulting your audience, the people who are still with us.

KRAUTHAMMER: No, these are the nine people in America who really care about stuff. What about all the others?

The same nine people who read blogs like this one, I reckon. Perhaps there’ll be a few more of them by November 6. And a nice trick there by moderator† Gordon Peterson, accusing Krauthammer of “insulting” their audience. Actually, Krauthammer was insulting a show that bumped what should be an election game-changer to the third segment. A biased host, 3 leftward gentlepersons, and a righty. American public television.

[HT: Newsbusters. See also the estimable Walter Russell Mead, on the Washington Post’s latest coverage. The count of people who really care about stuff is now up to at least eleven. Perhaps even twelve, O gentle reader.]

________
*July 7, 2004: “The media, I think, wants Kerry to win and I think they’re going to portray Kerry and Edwards I’m talking about the establishment media, not Fox. They’re going to portray Kerry and Edwards as being young and dynamic and optimistic and there’s going to be this glow about them, collective glow, the two of them, that’s going to be worth maybe 15 points.” [Thomas later revised downward to 5 points.]

†July 20, 2012: “Gordo, you’re killing me. This is a week when Obama makes the gaffe of the year, and you lead with the [Romney] taxes. I’ll be a good soldier. I’ll play along. This is an arm of the DNC, I know, but I’ll play along.”

Be not troubled, Republicans…

Tim Kowal 36 Comments

…the polls are dirty. 

Hugh Hewitt cross-examines the pollsters and those who gleefully report them:

August 2, 2012 interview of Peter Brown of Quinnipiac, exposing the pollster’s circular reasoning in just two moves:

HH: I mean, when does it become unreliable? You know you’ve just put your foot on the slope, so I’m going to push you down it. When does it become unreliable?

PB: Like the Supreme Court and pornography, you know it when you see it.

HH: Well, a lot of us look at a nine point advantage in Florida, and we say we know that to be the polling equivalent of pornography. Why am I wrong?

PB: Because what we found when we made the actual calls is this kind of party ID.

September 14, 2012 interview of Dr. Lee Miringoff of Marist Institute, who suggests he has never seen a suspicious poll as he refuses to answer Hewitt’s repeated question (eight by my count in a one-segment interview) as to when disparity of Republicans and Democrats in a poll might suggest a problem in the poll. 

September 26, 2012 interview of National Journal polling reporter Steven Shepard, who admits that “Nothing bothers me.”  Really, he explains: 

HH: You know, how long have you, you’ve been a reporter for eight years. Have you ever run into a source that wouldn’t answer the simple question? I mean, would it cause you concern?

SS: I think I am answering your question. No, it wouldn’t cause me concern if there were 80% Democrat or 80% Republican.

HH: It would not cause you concern.

SS: I would write that and say there’s something going on here.

HH: I got my answer. It would not cause you concern.

SS: And that would run both ways.

HH: But I understand. But it would not cause you concern. If it was 100% Democrats, and they said Obama was ahead, it wouldn’t cause you concern?

SS: I would write that if in a random sample of voters in a given state, or across the country, if 99% were identifying themselves as Democrats, but the poll was adequately weighted according to race, according to gender, according to age, I would look at education, I would look at income. And if everything else checked out, I would say well, maybe there’s an important shift going on. Obviously, this is, you know, a big exaggeration.

Here’s Michael Barone with the cold water:

Having said all that, looking at, for example, these Quinnipiac results, as you note, we see that they are more Democratic now than went Democratic in the 2010 electorate, which nationally was 35% Democratic, 35% Republican in party identification, but more Democratic than the 2008 electorate, which was 39% Democratic, 32% Republican by party ID. That’s out of line with what most political observers would have expected the outcome to be this year. Up until the Democratic convention, polling showed a consistently higher degree of enthusiasm, significantly higher, among people identifying as Republicans than among people identifying as Democrats. That gap has diminished, and I think I’ve seen one Gallup poll that said that self-identified Democrats actually expressing more enthusiasm after the Democratic convention. So it’s possible that we, you know, that Democrats are more likely to pass through the screens as likely voters or registered voters, or people interested in voting through the pollsters’ screens than they were prior to the Democratic convention. But we’ve seen these kind of polls all along, and they’re, you know, I think that you want to look at them with an asterisk in mind.

HH: Now Michael, I want to remind myself of something I asked, or you told me the last time we talked, which is that no presidential candidate has polled grater than 3% of the turnout for his party in the previous off year election. Am I recalling that correctly?

MB: I’m not sure if that’s exactly what I said, or the point that I addressed. Oh, yeah, I know what you’re saying. Basically, in the last three presidential elections, what we’ve seen is that the percentage for the winning candidate has been equal to or within one percent of the percentage for his party’s vote, share of the popular vote two years before.

HH: Okay, one percent. Wow.

MB: One percent. Now that’s not an in an electable rule. It did not turn out to be true in 1994 and 1996, where Bill Clinton outpolled his party two years before, and of course, he shifted policy. And if you look at the data before 1994, it doesn’t work until you go back years and years, because basically, there were a lot more split ticket voting. White southerners were typically voting Democratic for president, Republican for president, Democratic for Congress, and there were other anomalies in a countervailing direction. So the rule only applies to the last three presidential elections. But I think it’s, you know, looking at that, it suggests some peril for the Obama candidacy.

HH: Jay Cost…

MB: Yeah.

HH: …who I have tremendous esteem for, said look, what he cares about most in all of these polls is not what they suggest the prediction is, but how the independents are breaking. And he keeps looking at Quinnipiac, at Marist, at all of them, and the independents are breaking for Romney. In some cases, it’s a little bit just above a tie, but Romney is winning the middle and the independents. And he finds this to be the most significant factor in the polls. Do you agree with his assessment on that?

MB: I think that that’s one good way to look at it. And it’s just another way of saying that those polls are showing a significant Democratic party ID edge among those who were polled, and one that in many cases is greater than Democrats enjoyed in the 2008 results.

Mortimer Adler on Plato, Legal Positivism, and Natural Law

Tom Van Dyke 580 Comments

Via George Anastaplo’s “In Re Antonin Scalia”, wherein we see Scalia as a legal positivist and no natural lawyer, more a “modern” than a Catholic conservative. But first, the great Mortimer Adler on Plato:

[In Plato’s Republic, we] find the sophist, Thrasymachus, arguing against Socrates, saying that “justice is nothing but the interest of the stronger” and Socrates trying to refute Thrasymachus by defining justice without any regard to the edicts or laws of those with the might to enforce them.

According to Thrasymachus, those with the power to ordain and enforce the laws of the land call those who obey their laws just subjects, and those who disobey them unjust. The words “just” and “unjust” have no other meaning, certainly no meaning whereby a despotic tyrant or a tyrannical majority, ruling in self-interest, not for the good of the ruled, can be called unjust.

With the statement that justice is nothing but the interest of the stronger, we have the origin of the doctrine that might is right, for those with the might to govern are the only ones who can determine what is right and wrong.

Mr. Adler goes on to trace the opposition between Socrates and Thrasymachus down to our day in this fashion:

The position taken by Thrasymachus is taken later by the Roman jurisconsult Ulpian for whom “whatever pleases the prince has the force of the law,” and still later by Thomas Hobbes in his Leviathan where he declares that, in any community, what is just and unjust is wholly determined by the positive or man-made laws enacted by those with the power to ordain and enforce them. In the nineteenth century, the positivist view is advanced by Jeremy Bentham in his Principles of Morals and Legislation, and by John Austin in his Province of Jurisprudence Determined, and in the twentieth century it is advanced by professors in American law schools who call themselves legal realists.

On the other side, the naturalist view initiated by Socrates in his dispute with Thrasymachus finds amplification in Aristotle’s distinction between natural and legal justice; in Cicero’s discussion of [the] natural; in Augustine’s statement that “an unjust law is a law in name only” (representing might without right, power without authority); in Aquinas’s philosophy of law wherein principles of justice are antecedent to, independent of, and applicable to positive or man-made laws; and in the doctrine of modern philosophers, such as John Locke and Immanuel Kant, for whom natural rights preexist positive, man-made laws and become the basis for assessing their justice and injustice.

Mr. Adler, in his usual systematic fashion, spells out “the consequences that follow from embracing the positivist or the naturalist side of the issue”:

If the positivist view of the relation between law and justice is correct, it follows:

1. that might is right:

2. that there can be no such thing as the tyranny of the majority;

3. that there are no criteria for judging laws or constitutions as unjust and in need of rectification or amendment;

4. that justice is local and transient, not universal and immutable, but different in different places and at different times;

5. that positive laws have force only, and no authority, eliciting obedience only through the fear of the punishment that accompanies getting caught in disobeying them; and

6. that there is no distinction between mala prohibita and mala in se, namely, between

a. acts that are wrong simply because they are legally prohibited (such as breaches of traffic ordinances) and

b. acts that are wrong in themselves, whether or not they are prohibited by positive law (such as murdering human beings or enslaving them).

Mr. Adler then spells out, in opposition to each of these points, “the naturalist view of the relation between law and politics,” beginning with the observation that “might is not right” and that “majorities can be tyrannical and unjust.”

George Anastaplo is Professor of Law, Loyola University of Chicago; Lecturer in the Liberal Arts, The University of Chicago; and Professor Emeritus of Political Science and of Philosophy, Dominican University.

American Process and Its “Occasional Services to Liberalism”

Tim Kowal

imageLiberals endure much teasing for their inability to articulate just what liberalism means.  Even their best and brightest flounder at the task.  “[T]here is something deep within liberalism,” Michael Tomasky attempts, “that prevents it from degenerating into fascism, and that is its explicit recognition that the state must serve both common purposes and individual liberty.”  Sound nice?  Have some more:  “[W]here that collective urge crosses the line into coercion, well, that is where liberals—I mean liberals who know something about liberalism—get off the train, and do their noncoercive best to derail it.”  Charming, nonthreatening, superficially profound—everything you’re looking for in an ideology to settle down with.

But that’s liberalism’s Dr. Jekyll.  Let me introduce you to Mr. Hyde, its activist alter ego known as Progressivism.

Following World War I, many Americans distrusted and generally scorned German-Americans.  As a result, many local ordinances forbade the German language within town limits, and some state legislatures passed laws forbidding it throughout the state.  Other laws extended to private and even religious education.  Nebraska passed such a law.  Oregon, especially concerned about the influence of immigrants on the general culture, passed a law requiring attendance at public school, with designs on eliminating the parochial schools that many immigrants attended.

The Supreme Court struck down both laws in Meyer v. Nebraska and Pierce v. Society of Sisters in 1923 and 1925, respectively.  Although he personally opposed the Oregon and Nebraska laws, Felix Frankfurter—a leading Progressivist and future Supreme Court Justice—expressed grave concerns about the effect these liberty-protecting decisions would have on Progressive causes, which diminished liberty in the service of social improvement.  Writing in The New Republic in 1927, Frankfurter warned:

In rejoicing over the Nebraska and Oregon cases, we must not forget that a heavy price has to be paid for these occasional services to liberalism. The New York bakeshop case [Lochner], the validation of anti-trade union laws . . . are not wiped out by the Oregon decision. . . . For ourselves, we regard the cost of this power of the Supreme Court on the whole as greater than its gains. [Emphasis added.]

In other words:  Liberty can fend for itself.  Progressives want control, and adherence to Process—such as courts paying “occasional services to liberalism”—only gets in the way.

The project of liberty, of American values, is based on the idea that we play by a set of rules, that we follow a “Process.”  Progressivism, in contrast, is based on the idea that rules generally ought to give way to the righteousness of particular “Policies.”

Process has to do with how institutions work.  Some of these Processes are codified in the Constitution, but by no means all.  Principles such as equality, for example, are implicit in the very nature of constitutional democracy. Some examples of Processes characteristic of American government include:  self-government, representative democracy, the rule of law, due process,  separation of powers, enumerated powers and limited government, checks and balances, federalism, accountability and non-delegation, bicameralism and presentment, the judicial protection of individual rights, equal protection of the law, and institutional ethics such as preventing conflicts of interest.

Policy, on the other hand, refers to the political goods institutions can or do provide.  Some examples include:  public safety, national security, immigration control, health care, education, a living wage, a social safety net, infrastructure, including clean water, energy, and roads, rail, and transit, energy, a safe working environment, safe food and consumer goods, public parks, a healthy environment, environmental justice, or eliminating racial, sexual, and religious discrimination in private life.

Any form of government can provide these various political goods.  However, only a certain kind of government conducts itself according to a particular set of Processes. If two countries, A and B, have basically the same Policies, but A is a liberal democracy and B is a dictatorship, no one would say that A and B are similar to one another. Governments are defined primarily by how they operate, not the stuff they provide.  It is Process, then, not contingent Policies, that define a nation’s core values.  The ideas represented by the People’s Republic of China, for example, wouldn’t change if China stopped polluting its air and water, but they would if they started holding democratic elections.

Because Processes tend to be absolute and are more closely related to a nation’s identity, subverting Process in the service of a contingent Policies demands strong justifications. Otherwise, we would replace an ideal that is wrapped up in our national essence and identity with something that is not, or is only contingently so.

Predictably, Conor Williamson demurs to my argument by pointing to Lincoln’s efforts to end slavery:  When Lincoln compromised certain Processes in this pursuit, was he acting as a “Progressive” by subverting Process to reach a Policy objective?

There are two parts to the answer.  First, there is a strong argument to be made that the campaign against slavery actually was one over Process, not Policy—that it was over fixed and fundamental notions of fairness and moral equality of human beings.  In fact, the Framers used great care to avoid specifically legitimizing slavery in the Constitution.  Moreover, slavery was not authorized by law when it was first introduced in the country.  Instead, it was merely tolerated without any law.  According to a decision of the King’s bench in 1772 and the colonial charters, there was no right of property in man.  Even when slaves became so numerous as to require regulations, legislatures simply assumed the existence of slaves and still passed no laws legitimizing the practice.  There was no law and no language in the Constitution defining which persons may be made slaves, and certainly no authority prescribing or defending enslavement on the basis of race.  Thus, as Lysander Spooner concluded, “there was no constitutional slavery in the colonies up to the time of the revolution.”

Even the three oblique allusions to the practice in the Constitution—Article 1, section 2; Article 1, section 9; and Article 4, section 2—do not acknowledge or sanction the institution as it existed.  After a careful survey of these clauses, Spooner found:

There is in it nothing about color; nothing from which a liability to slavery can be predicated of one person more than another; or from which such a liability can be predicated of any person whatever. The clauses, that have been claimed for slavery, are all, in themselves, honest in their language, honest in their legal meaning; and they can be made otherwise only by such gratuitous assumptions against natural right, and such straining of words in favor of the wrong, as, if applied to other clauses, would utterly destroy every principle of liberty and justice, and allow the whole instrument to be perverted to every conceivable purpose of tyranny and crime.

In other words, the Framers took every precaution to ensure that, though they could not eradicate that lawless Policy of slavery, it would at least find no support in the Processes established in the Constitution.   As Spooner correctly saw the issue, support for a Policy that infringed fundamental Processes must be expressed with, what the Supreme Court called in U.S. v. Fisher, an “irresistible clearness,” and with what Lincoln described as“evidence so conclusive, and argument so clear, that even [the Framers’] great authority, fairly considered and weighed, cannot stand.”  But one can point to nothing in the Constitution in support of slavery except by improperly deviating from the four corners of the document.  For these reasons, Lincoln accused the South of “rejecting and denouncing the old policy of the fathers,” of prohibiting the expansion of the peculiar institution, in favor of new policies—including the “‘gur-reat pur-rinciple’ … fantastically called ‘Popular Sovereignty’”—none of which “can show a precedent or an advocate in the century within which our Government originated.”

In his February 1860 Cooper Union Address, Lincoln addressed the South’s accusation that Republicans were proposing to agitate public sentiment to deprive slave owners of their Constitutional rights.  Lincoln responded that no less than the destruction of the Union was at stake over this issue of an alleged Constitutional right to slavery that was neither mentioned in the text nor supported by natural law:

And how much would it avail you, if you could, by the use of John Brown, Helper’s Book, and the like, break up the Republican organization? Human action can be modified to some extent, but human nature cannot be changed. There is a judgment and a feeling against slavery in this nation, which cast at least a million and a half of votes. You cannot destroy that judgment and feeling – that sentiment – by breaking up the political organization which rallies around it. You can scarcely scatter and disperse an army which has been formed into order in the face of your heaviest fire; but if you could, how much would you gain by forcing the sentiment which created it out of the peaceful channel of the ballot-box, into some other channel? What would that other channel probably be? Would the number of John Browns be lessened or enlarged by the operation?

But you will break up the Union rather than submit to a denial of your Constitutional rights.

That has a somewhat reckless sound; but it would be palliated, if not fully justified, were we proposing, by the mere force of numbers, to deprive you of some right, plainly written down in the Constitution. But we are proposing no such thing.

When you make these declarations, you have a specific and well-understood allusion to an assumed Constitutional right of yours, to take slaves into the federal territories, and to hold them there as property. But no such right is specifically written in the Constitution. That instrument is literally silent about any such right. We, on the contrary, deny that such a right has any existence in the Constitution, even by implication.

Your purpose, then, plainly stated, is that you will destroy the Government, unless you be allowed to construe and enforce the Constitution as you please, on all points in dispute between you and us. You will rule or ruin in all events.

And then, of course, there was Dred Scott v. Sanford, a bizarre and labyrinthine opinion, one of the longest in Supreme Court history, and filled with so many denials of plain facts—and assertions of facts that were not so—that it utterly failed to command the respect of reasonable minds: one Justice resigned from the Court on principle (the only such instance in the Court’s history), and the New York‘s highest court refused to follow it.  Only the most hardened positivist could insist that Scott was entitled to respect as the law of the land.  Even then, it was overruled by the Thirteenth and Fourteenth Amendments.

As to the second part of the answer, recall that I acknowledged in my response to Conor that conservatives are in many ways just as interested in legislating their values as Progressives are—it’s just that conservatives will not presume Process may be ignored without the giving of strong justifications.  So let’s now assume you don’t buy Lincoln’s and Spooner’s arguments that slavery was never constitutional to begin with.  Let’s assume instead that slavery was codified in the Constitution and entitled to every bit as much protection against “progress” as the electoral college and the presidential age limit.  Even still, are there any who are so lacking in imagination that they cannot draw a principled distinction between the quests to end the slavery of blacks, on the one hand, and to establish garden-variety economic regulation and social welfare projects, on the other?  If there is any Policy as important as ending slavery, let Progressives say so before waiving the bloody shirt, and enforce his position by all truthful evidence and fair argument which he can.

Lincoln reconstituted America’s rules of governance by looking backwards—four score and seven years backwards—to the Declaration, whose moral logic America had, to that point, failed to adopt when it came to slavery.  Lincoln revealed the so-called “conservative” institution of slavery to be anything but, finding support nowhere in the written or natural law, but only through force.  He championed the democratic Process and its inclinations against slavery, and won a war he did not start to preserve those Processes.  In so doing, Lincoln became this nation’s greatest Republican and its greatest Conservative.

As Conor said, it’s not possible to offer a full historical account of what Progressivism is. Moreover, Progressivism is not monolithic, and does not always prefer Policy over Process, even if, in general,it regards “these occasional services to liberalism” as a cost “greater than its gains.”  Progressives harangued G.W. Plunkitt that Tammany Hall was anti-democratic, for example. Yet Conor affirmed that Frankfurter’s sentiment was alive and well when he said “The ends of democracy are the key” for Progressives.  And despite insisting that I’m wrong, he didn’t recant his confession but instead doubled-down on it in his most recent post, saying: “The American tradition has always been about its ends—not its specific processes.”

Mr. Hyde still lives.

[Cross-posted at the main page]

Waxing Un-American

Tim Kowal 1 Comment

Conor Williams is exasperated and disappointed with the response to his criticism of conservatives criticizing Progressivism.  I’ll excuse his missing my comments, set forth below, which answer his criticism directly.  But on re-reading Conor’s post, I see that he actually had his finger on the answer—that Progressivism subverts process, and process is the thing, if you’re a conservative—yet tucks it away in a passing “by the way” comment.  Here, let me show you.

Conor observes that “The original progressives were almost entirely concerned with rehabilitating the American Founders’ ideals in a new political and economic era.” So far, so good.  Elihu Root observed the same thing, stating that government must “do something more than merely keep the peace—to regulate the machinery of production and distribution and safeguard it from interference so that it shall continue to work.”  And yet, Root went on:

The utmost that government can do is measurably to protect men, not against the wrong they do themselves but against wrong done by others and to promote the long, slow process of educating mind and character to a better knowledge and nobler standards of life and conduct. We know all this, but when we see how much misery there is in the world and instinctively cry out against it, and when we see some things that government may do to mitigate it, we are apt to forget how little after all it is possible for any government to do, and to hold the particular government of the time and place to a standard of responsibility which no government can possibly meet.

Root knew there was a tension between progress and American ideals about process:  limited government, democratic process, respect for individual rights, and so on.  Ah, but the Progressives saw no such tension.  That is because the Progressives adhered to a different set of ideals.  As Conor put it:

“Most progressives believed in the profound importance of the Founding’s ideals, but they realized that some of the Constitution’s rules were being used to perjure those very ideals. The ends of democracy are the key.”

In other words, the “rules” and “procedures” prescribed in the Constitution and in the principles of self-government, separation of powers, and individual rights are merely the “specific means”—no more important in Conor’s view, apparently, than the election of senators or the number of presidential terms (both of which were changed via the Constitutional amendment process, thanks very much).  These American ideals concerning process, for Progressives, are considerably less important than the “ends” that Progressives would from time to time see fit to advocate.

Frankly, I don’t know why Conor pressed on any further since, by this point, he’d already answered his own question:  Conservatives care deeply about process as something central to the American idea, as something that ought to be considered too big to fail.  That’s certainly a point of disagreement between conservatives and Progressives, as I’ll explain in a moment, but we can certainly recognize that it’s the sort of disagreement about what American ideals are.  Conor also runs into trouble when he characterizes the dispute as one over “different policy goals.”  When it comes to the original Progressives, I can’t think of any serious policy differences that incite conservative opposition against Progressivism.  What incites that opposition, again, is exactly what Conor already laid out:  the fact that Progressives are willing to order policy above process.

With that said, I simply don’t see any basis for Conor’s assertion that Paul Ryan or Glenn Beck ever said Progressives are “not our fellow citizens.”  They didn’t say that or anything like it.  Nor does any serious conservative make this debate personal, as Conor suggests when he says that “today’s Right leans heavily upon a narrow and shifting definition of who counts as an American.”  Ryan and Beck talk in terms of a “war of ideas” and “attacks on the American idea,” but again, even Conor recognizes there is a real breach between process and policy.  Nor is it fair to tar the Tea Party as racists on the basis of outlier crackpots.  Even Larry Lessig admits that the Tea Party is a serious force for reform in Congress, having aped Democrats as the only group serious about fixing the venal corruption in Congress—i.e., focusing on process as central to the American idea.

So why make this personal other than for rhetorical effect?  And why use divisive rhetoric when calling for less divisive rhetoric?  Not that there’s any point in asking.  Means don’t matter.

As for my original comments to Conor’s post, I pointed out that attacks on Progressivism often backfire on conservatives because it was conservative values that gave Progressivism its start. It was only later, when the success of the project was established, that the left largely took it over. But there’s a fundamental difference between the ways conservatives and Progressives go about their respective values projects. For conservatives, values arise from and are tested in society, and only later make their way into our political and legal institutions. That is, government is meant to play a supporting role in the underlying society’s culture and norms; it is not meant to conceive and advance and foist them on society who otherwise would not go along with it.

For Progressives, on the other hand, this is exactly what government does. Through either minority factions or temporary populist flare-ups, most Progressive laws are political or factional phenomena that in large part do not reflect the values of the underlying society. Minimum wage or maximum hours laws, for example, are not even the sorts of laws that are traditionally harbored by an underlying society. That is, a conservative society might adopt laws forbidding work on Sunday, in expression of its Christian beliefs and rituals. However, that same society would search its underlying values in vain for anything compelling it to adopt laws forbidding a worker to labor more than 10 hours in a given day. This isn’t the stuff of natural law, after all.  Birth control and “family planning” programs are another easy example: the goal of eliminating children born to poor families is one felt more strongly by government planners than by the society itself.  Thus, you could go through the work of building consensus.  Or, you could, you know, have your Secretary of the HHS pass some regs and off you go.  This stuff is all about the end result, after all.  It’s just getting the policy right while telling a story to the American people.

Progressivism, I think, was borne of two new presumptions: that the federal government should make society “nice” (a justifiable presumption in the example of bringing emancipated blacks “up” from slavery, for example); and, due to technological and intellectual innovations, that government could make society “nice.” With few exceptions, however, conservatives have not sought to advance its policies through Progressivist means since the early 20th century.  Progressivism is about remaking society and propagating values through the law. The law would not be an anchor but a sail. This aspect of the Progressive agenda was clear by the time of Woodrow Wilson’s presidency, who stated: “Our problem is not merely to help the students to adjust themselves to world life. . . . Our problem is to make them as unlike their fathers as we can.”

I do not mean to define Progressivism too narrowly.  My précis, supported by Conor’s original post, is that Progressivism may be defined, at least in one important respect, by its view that process is less important that policy, generally speaking.  Progressivism thus defined—as a movement fundamentally defined by its ordering of policy over process—is at odds with ideas that, according to conservatives, define what Americanism is.  In other words, the Progressive vision of Americanism is directly at odds with the conservative vision of Americanism.

It’s an important debate.  There’s no crying in baseball.  Game on.

[Cross-posted at the main page]

Alexander Hamilton’s Natural Law Reading List

Tom Van Dyke 25 Comments

“If you will follow my advice, there still may be hopes of your reformation. Apply yourself, without delay, to the study of the law of nature. I would recommend to your perusal, Grotius, Puffendorf, Locke, Montesquieu, and Burlemaqui. I might mention other excellent writers on this subject; but if you attend diligently to these, you will not require any others.”–Alexander Hamilton, The Farmer Refuted [1774]

Jean-Jacques Burlamaqui [1747]:

“Moral instinct I call that natural bent or inclination which prompts us to approve of certain things as good and commendable, and to condemn others as bad and blameable, independent of reflexion. Or if any one has a mind to distinguish this instinct by the name of moral sense, as Mr. Hutchinson has done, I shall then say, that it is a faculty of the mind, which instantly discerns, in certain cases, moral good and evil, by a kind of sensation and taste, independent of reason and reflexion.

Examples.II. Thus at the sight of a man in misery or pain, we feel immediately a sense of compassion, which prompts us to relieve him. The first emotion that strikes us, after receiving a benefit, is to acknowledge the favour, and to thank our benefactor. The first disposition of one man towards another, abstracting from any particular reason he may have of hatred or fear, is a sense of benevolence, as towards his fellow-creature, with whom he finds himself connected by a conformity of nature and wants. We likewise observe, that without any great thought or reasoning, a child, or untutored peasant, is sensible that ingratitude is a vice, and exclaims against perfidy, as a black and unjust action, which highly shocks him, and is absolutely repugnant to his nature. On the contrary, to keep one’s word, to be grateful for a benefit, to pay every body their due, to honour our parents, to comfort those who are in distress or misery, are all so many actions which we cannot but approve and esteem as just, good, honest, beneficent, and useful to mankind. Hence the mind is pleased to see or hear such acts of equity, sincerity, humanity, and beneficence; the heart is touched and moved; and reading them in history we are seized with admiration, and extol the happiness of the age, nation, or family, distinguished by such noble examples. As for criminal instances, we cannot see or hear them mentioned, without contempt or indignation.”

This is what separates man from the mere beasts.  Man knows what is good and what is not-good when he sees it. “Natural law” is rooted in man’s nature, not the Bible, nor in arbitrary positive law.

Read the whole thing.

Scalia on Reading Law

Tim Kowal 3 Comments

Supreme Court Associate Justice Antonin Scalia spoke on his new book, Reading Law, at a lunch at the California Club in downtown Los Angeles today, hosted by the Federalist Society.  The majority of Justice Scalia’s remarks were responses to questions submitted via note cards by a crowd well over 250 in number, by my estimate – attorneys, mostly.  Justice Scalia was charming, incisive, and funny as always.  Here are some of the highlights.

On His Influences:  Asked for his most important influences on his judicial philosophy, Scalia responded that he’d never given it much thought.  Judging is about the meaning of words, and one doesn’t need a mentor to do a job that, at its core, is a basic human ability.  Bearing that in mind, he concluded by saying: “I like Jackson.  I hate Holmes.”

On Precedent:  Asked for his take on overturning bad precedent, Scalia outlined his three basic criteria:  How bad is the precedent?  How settled is it?  Does the precedent set a lawyerly standard?  He presented two examples.  When Scalia was a law student, the Incorporation Doctrine was still a controversial issue.  While he still disagrees with it, it doesn’t do tremendous harm; it’s well settled such that lawyers and judges rarely give it a second thought; and it’s not hard for lawyers and judges to apply – you simply take the standard applied to the federal government and apply it to the states.  When it comes to the cases dealing with “the big ‘A’” however, things change.  Roe is widely agreed to be a badly written opinion, including by those who agree with its outcome.  It is still hotly contested, vowed to be overturned, and thus not taken for a given.  And it sets a standard – “undue burden” – that is fundamentally legislative and not judicial.  The 200 years of precedent before Roe suggests that no burden was “undue,” so that’s no help.  So judges are basically left to voting their conscience — the opposite of exercising “judicial” power.

On the Natural Law:  My question was among those asked about the natural law.  My specific question was:  “Does textualism make any presumptions about human nature, such as the way they interpret language and the purpose of their laws, that render textualism a subset of natural law theory?”  Unfortunately, the moderator asked Scalia simply to comment on the natural law and textualism.  Scalia responded that he believes in the natural law, but he doesn’t apply it – he applies the positive law of the United States.  He did confuse things a bit by saying that, were he a judge in Nazi Germany, he would not follow the positive law that resulting in the misappropriations from and ultimately extermination of the Jews.  One wonders where the line is between here and there for the good Justice.

On the Confirmation Process:  On whether the confirmation process is too partisan:  Scalia thinks it is “disgusting,” but that the alternative would probably be worse.  He points out that the process was not always this way, and that it was after judges began interpreting the Constitution as they believed it ought to be, rather than as it is, that they effectively became regarded by the people as quasi-legislators.  And we vote on legislators in a partisan manner.  It should be no surprise, then, that in this age of quasi-legislative judges, the confirmation process is as partisan as it is.

On Law Schools: Finally, Scalia criticized the legal academy for continuing to train “common law lawyers.”  Common law lawyers, says Scalia, were “making up the law” in an age where positive laws were sparse.  These were the “king’s men,” and they were often legislators, too, in fact.  That is not the age we live in anymore, says Scalia.  We live under democratic self-governance where the common law tradition is no longer appropriate.  We need more lawyers who know how to follow the laws the people enact, not rogues who seek to enact the laws they see fit.

I was disappointed that time ran out before Scalia could be asked by question about Jonathan Turley’s proposal to increase the number of justices from 9 to 19.

Bill Clinton’s History Lesson

Tom Van Dyke 17 Comments

“We champion the cause for which our founders pledged their lives, their fortunes, their sacred honor— to form a more perfect union.

If that’s what you believe, if that’s what you want, we have to re-elect President Barack Obama.”

Except that “our sacred honor” was the Declaration of Independence in 1776. “A more perfect union” is the Constitution replacing the Articles of Confederation government, over a decade later in 1787. But screw it, he was on a roll.

Natural Law and the Giving of Justifications

Tim Kowal 45 Comments

In my contribution to the Democracy Symposium, I acknowledged that modern economic realities may well require more of our government than our Founders contemplated some 22 decades ago.  CK MacLeod worries that, as a Constitutional Conservative, I’ve wandered into a contradiction.  By my own terms, according to Mr. MacLeod, our founding documents are expressions of absolute principles.  Thus, the Constitutional Conservative is stuck in a Morton’s Fork:  Either we are stuck with the rules designed for a 18th century world, or Constitutional Conservatism is kaput.  Here’s Mr. MacLeod: 

Leaving aside the question of whether the DoI can be considered as in any way binding, I don’t see it quite making an argument that ignoring the first principles of anti-monarchists necessarily leads to “absolute Despotism.” The deeper problem is that when, in statements like the above, you assert absolute principles and then at the same time admit, as TVD also does, that fairly fundamental compromises can and must be made, and even woven into the fabric of the nation, then we’re just left with absolute principles that aren’t even remotely absolute as actually applied, are honored only in the breach, as they say. They seem to be ideals or aspirations, apparently among others – including very practical ones like justice, general welfare, defense, and so on. So attacking Democrats or progressives or anyone else for violating the first set of principles (which are not in any way binding and which were already recognized as completely insufficient even within the document itself and certainly in the early history of the republic) begins to look completely arbitrary. There is no predictable system for turning any absolute moral precept into a real world policy – and the attempt to do so has historically been at least as often typical of despotism, especially in the modern age, as compromising and muddling through has been. Why shouldn’t we expect that the Constitutional Conservatives, if ever in a position to govern, would immediately set about to picking and choosing when to apply their preferred and loudly advertised ideals – either that or bring the whole structure crashing down chaotically?

Emphases mine, and I’ll begin with the first.  Some of the principles in our founding documents are indeed expressions of the natural law.  Take the freedoms of speech and religion, and the right to property, as examples.  Deny these rights and, yes, the whole structure would come crashing down, as they are the cornerstones of our American project. 

But others of the tenets in our Constitution are simply a recognition of other natural law principles.  As just one example, consider James Madison recognition that men, by their very nature, are not angels—the recognition of which obsessed the framers with separating powers and installing checks and balances.  And yet we can tweak the separation of powers and limits on government while still making appropriate safeguards against factions and injurious self-interest.  The precise separations and checks and balances in the Constitution are not expressions of the natural law itself, like individual liberties are. The former are contingent propositions; the latter are necessary truths. 

As to Mr. MacLeod’s second point emphasized in the excerpt above, it is a mistake to assume that the natural law is about the handing down of “absolute moral precepts.”  The natural law is about deriving, through moral and logical reasoning, those truths about man and the world that must be accepted as true because they are antecedent to the ability to make cogent claims to knowledge about the world.  Thus, the natural law cannot be rejected without casting oneself into arbitrariness and absurdity. 

Much of the natural law project in American constitutional law is the giving of justifications.  Even when it comes to fundamental liberties, the Constitution enjoins Congress from making any law abridging the freedom of speech, as distinguished from falsely announcing a fire in a crowded theater, for example. There is no right to do a wrong—a natural law Lincoln spent much blood, including his own, codifying into our second constitution. Not all speech is justified, and what is not may be properly enjoined (some of the Supreme Court’s confused jurisprudence to the contrary notwithstanding).

Individual rights and laws respecting them have everything to do with presumptions and the giving of justifications. In the American model, the individual is presumed to be free unless and until the government provides a justification, in terms of moral logic, that would abridge his freedom.  Does this make for a “predictable system”?  That depends on whether a people remain concerned about the giving of justifications, a proposition that is the source of much consternation.  The past half century in constitutional jurisprudence has seen a right to “privacy” spring out of the Constitution, as if the moral quality of conduct is contingent upon architectural design.  Progressive taxation, whose moral justification has never been properly vetted, is a given in modern politics and untouchable by a Court whose most stalwart conservative won’t even touch the natural law, and its insistence on the giving of moral justifications, with a ten foot pole. 

When it comes to economic liberties, Constitutional Conservatives can, without any danger of contradicting their principles or appearing arbitrary, fully recognize that a number of moral justifications might be given as against the presumed freedom of the individual to do whatever he likes in the modern marketplace.  The requirement, now as always, is the giving of reasons amounting to a moral justification.  This, of course, will preclude such things as passing laws to find out what is in them.  But that’s a problem for the other guys. 

Republican Convention ’12: De-elect Obama

Tom Van Dyke 5 Comments

Yo, I’m a Republican. I don’t mind.

His Mittness is a sturdy Chevy. Oldsmobile? Make that a Ford, which took no government bailout. But wait, Mitt’s father George Romney ran the late great American Motors, and GM is now owned by Barack Obama. OK, you know what I mean. Obama ’08 was a rocket to the moon. No rockets in ’12 here, even to low earth orbit. And GM don’t make Oldsmobiles no more. [Not Obama’s fault.]

—-Romney’s acceptance speech was prose, not poetry. The difference in worldview with President Obama is simple:

President Obama promised to begin to slow the rise of the oceans and heal the planet. MY promise…is to help you and your family.

That’s it. Although I dig dolphins as much as the next guy, I’ve always rooted for the fisherman and his family. And StarKist really blows since they made it 100% dolphin free, dunno what’s up with that. It tasted a lot better with the dolphin in it.

—I’ve caught a lot of the GOP convention on the way home from work. On NPR. Absolutely stellar job.

Journalism should be transparent—and NPR made explicit note of the fact that CNN was skipping all the boring speeches from people who know and admire Mitt Romney. The people who’ve seen him in real life and have been helped by and been inspired by him. The part, the heart the polls say he’s missing.

And when it came to injecting some op-ed [“balanced” by the very good righty Matthew Continetti] the estimable EJ Dionne properly pissed on the flames of Romney enthusiasm, dampening the rally campfire a bit.

Which was cool, and fair. NPR did the best job of reporting a live event I’ve seen/heard for years. Makes me almost not want to cut their funding.

—For Fox News haters, what can I say but that they played it straight again, with Bret Baier and the awesome-in-all-female-and-human-respects Megyn Kelly doing the anchoring. But the best part was that Fox handed the postgame show over not to GOP sycophants but to Greta Van Susteren, who is scrupulously fair if not tough. Her first question to first guest Gov. Bob McDonnell [R-VA] was about Romney’s claim to have a “plan” for 13 million jobs.

I wrote Greta a fan letter once on her fairness and preparedness. She wrote back crediting her staff. Yes, she can’t scorch the GOP earth over at Fox News. But she does A-OK.

—Did Mitt Romney know the words to the second verse of “America the Beautiful?” Or were they on the teleprompter? Frankly I don’t care—he was mouthing them and I appreciate the effort.

—Cuban American Sen. Marco Rubio of Florida echoed Antonin Scalia, that our ancestors didn’t leave Europe just make America European. Rubio one-upped it:

“These are the ideas that people come to America to get away from.”

That’s just a fact, Jack.

Also:

“Hope and Change has become Divide and Conquer.”

This is my biggest brief against Barack Obama. Like many GOPers who lost in 1996 and in 2008, it just didn’t seem like a threat to the republic or the end of the world. Bill Clinton was a competent president, Barack Obama no demonstrably worse than the cranky and mercurial McCain. No Big Deal.

But the greatest promise of an Obama presidency was to heal us; its biggest failure is that it has done anything and everything but heal us.

This experiment has failed. Beyond the failures of the economy and the strong-arming of social issues, this president has pushed us apart, not pulled us together. No two-term president in recent history has won re-election by a smaller margin than his first time around. If re-elected atall, President Obama will surely win by a smaller margin than ’08 and with little in the way of congressional coattails, further splitting us along majoritarian lines, 51% of us against the other 49.

On the rest, I had a bunch of uncontentious tidbits to offer, that

—Ann Romney will make a good First Lady if she doesn’t try to shtup Sloppy Joes made of cabbage upon our children.

Cabbage. That’s a violation.

—Paul Ryan adds to the ticket a younger-generation sharpness and sinew that Marco Rubio does not. Rubio still seems like a kid. A good kid. But don’t muck with Paul Mucking Ryan.

Son of Satan.

—Gov. Susana Martinez [R-NM]. A prosecutor who ran afoul of her boss, the DA. Ran against him and “beat him in a landslide.” Don’t muck with Martinez either.

—If any American besides Joe Biden is allowed to dodder and stumble his way through a ramble, it’s Clint Eastwood. It was bizarre, but cool because he still scored his points.

And it sounded even more bizarre over the radio, oh yeah it did.

—Condi Rice. It’s all been said already, but if I had to make a choice between you and me for any job in this world, I’d hire her.

—On Greta’s postgame show, ABC News’ Rick Klein got it, that the theme that must be sounded as Romney asks for America’s vote to de-elect Barack Obama: Not anger, but sadness and regret.

It would have been good for America if it had worked out, but it hasn’t.

“Whether you are a Democrat or Republican or whether
you’re libertarian or whatever, you are the best. And we should
not ever forget that. And when somebody does not do the job, we
got to let them go.”

This part, even the doddering Clint Eastwood easily got right. It’s with great regret, not joy, that we must fire Barack Obama.