Liberty Law Talk

This edition of Liberty Law Talk is with Yuval Levin, author of The Great Debate: Edmund Burke, Thomas Paine, and the Birth of Right and Left. A 2013 Bradley Prize recipient, Levin connects us with the actual contest between Burke and Paine as they debated the central claims of the French Revolution and much of modern political thought with its focus on rights, individualism, the social contract vs. Burke’s more expansive notions of social liberty, the contract among the dead, the living, and those yet to be born, and his belief in prescription or the notion that change should be guided within the broad lived experience of the nation. Levin and I discuss the terms of the Burke-Paine debate while considering how it continues to shape the contours of current political conversation.

This Liberty Law Talk is with political scientist Justin Dyer on his latest book, Slavery, Abortion, and the Politics of Constitutional Meaning (Cambridge University Press, 2013). In debates over the legality of abortion common opinion has focused on the connections between the legal treatment of slavery in the nineteenth century and the contemporary status of abortion as a fundamental right. Dyer takes this debate as his starting point but goes much deeper by showing the layers of constitutional, political, and philosophical meaning linking slavery and abortion in the American experience. This conversation covers the ground of the Dred Scott opinion, the 14th Amendment and its privileges or immunities and due process clauses, abortion and the common law, the historical legal record the Roe Court relied on, and Rawlsian public reason as a legitimating authority for political debate.

This Liberty Law Talk is with philosopher Eric Mack on Friedrich Hayek’s 1973 magnum opus, Law, Legislation and Liberty. Hayek’s significant trilogy distinguishes between law and legislation, considers the appropriate rule of judges within a spontaneous order, observes the difficulties of even defining social justice, and attempts to set forth the principles of a new constitutional order for a free people. This conversation considers at length the major ideas that Hayek advances in his incredible work on the principles of law and just order.

This next Liberty Law Talk is with Marc DeGirolami on his new book, The Tragedy of Religious Freedom (Harvard University Press, 2013). Central to DeGirolami’s argument is the failure of monistic accounts that seek to resolve religious liberty disputes by cosmic appeals to neutrality, equality, or other universal rationales. These fail because they do not consider the range of conflicts, practices, traditions, and meanings that are at stake in these highly controverted cases. Similarly, DeGirolami takes issue with those who deny even the possibility of the concept of religious freedom. Instead, he looks in a Burkean manner to how the practices and traditions of religious liberty have inherent meaning and worth to their participants. The existence of various forms of outward religious expression testifies to their goodness in virtue of having become living projects of individuals and citizens. It follows that disputes between litigants advancing secular arguments against religious expression should be weighed and judged not by “abstracted, absolute values” but by social history and a pluralistic perspective. In doing so, courts would recognize that these are “irreducible conflicts” that should be judged with balance and a common law methodology that would move slowly and refrain from issuing sweeping decisions one way or the other.

This next Liberty Law Talk is a conversation with Justin Litke on his new book, Twilight of the Republic. Our conversation focuses on the book’s attempt to situate twentieth century claims of American Exceptionalism within the context of the political symbols and public meanings that are revealed in significant political documents stretching back to the Mayflower Compact and forward to Albert Beveridge’s 1900 Senate speech “In Support of American Empire.” Along the way, we discuss the Declaration of Independence, Federalist Papers, the Constitution, and the presidency of Abraham Lincoln in order to better understand Litke’s powerfully argued claim that the constitutional consensus of our Founding has broken into competing meanings. We are no longer even aware of the prior political tradition of our Founding, Litke contends. As a result, America now authorizes its political actions under various ideologies in both the domestic and international spheres with such policies frequently resulting in deleterious consequences.

This next conversation is with Richard Samuelson on the constitutional principles that have guided our nation’s approach to immigration, that is, until recently. In an essay in the Summer 2013 Claremont Review of Books, (link no longer available) adapted from an academic version published in Citizens and Statesman, Samuelson argues that Our political institutions strive to treat individuals as individuals, who relate to the government on that basis, rather than as parts of groups, castes, or classes. A regime dedicated to protecting the rule of law and the rights of men–including the right of each individual to make his way in the world, and to keep the rewards he gains for his work and talent–was the key to making America a beacon for wandering peoples, and for immigrants in general. Things changed, Samuelson observes, with the tremendous growth in government power and its centralized administrative capabilities. This fact alone threatens to fundamentally change our exceptional approach to welcoming new entrants to the country. In short, the federal government relates to Americans not as individuals but as members of divers groups, rent-seeking, special interest, race, gender, the list is long. Consequently, the federal government no longer understands the individual citizen as deserving of equal treatment apart from group membership. If this is true, and much evidence suggests it is, our approach to immigration will be the management of hyphenated groups and not persons “as equal citizens, creating together the government by which we secure those public goods that cannot be secured any other way.”

Mark Helprin, award-winning novelist, former member of the Israeli Army and Air Force, foreign and military policy strategist, comes to Liberty Law Talk to discuss his latest novel, In Sunlight and In Shadow. Strange, you say, for a site devoted to law and political thought to devote time to a novel, a love story at that. However, Helprin’s book is a story of many things that all seem to connect and hold together. The tapestry created is of love, honor, dignity, and the freedom to act heroically within a democratic political and social order that trims, calculates, and forgets the preconditions of its freedom and prosperity. Helprin’s novel might best be described as an extended meditation on Beatrice’s response in the second Canto of the Inferno, amor mi mosse, che mi fa parlare “love moved me and made me speak.” This, Helprin notes, was Dante’s explanation for why he wrote the Divine Comedy.  Set in New York City in 1946, the novel is also about a confident and united postwar America. Within this setting we are treated to the grand love story of Harry Copeland and Catherine Thomas Hale. Harry, a former paratrooper in the 82nd Airborne during the war, served as a “pathfinder” charged with marking the way, conducting reconnaissance, and creating havoc in advance of the main body of paratroopers. He doesn’t stumble in the aftermath of the war, but Harry isn’t exactly thriving either. Instead, he is somewhat aloof from his father’s fine leather goods business, and otherwise he forgoes choosing the life he should lead. Harry’s indecisiveness soon leaves him when he spies Catherine on the Staten Island Ferry. His love for her, immediately evident, calls him out of himself, and demands the defense of the things he loves. He must win her and prove to himself that he is worthy of her love. His business is set upon by the mafia, so Harry will protect it when the law fails him, refusing, ultimately, to run or pay protection money. His actions of rising above the law to defend the law are not really about upholding the business as a going concern per se, or his need to impress Catherine, daughter of a fantastically wealthy family, but the vindication of his immigrant Jewish father and his family. Their memory will stand, as will the community formed among Harry and the employees that make its goods, many of them being immigrants and newly-minted American citizens. The story is beautiful. As one reviewer noted, his only displeasure with the novel was that it had to end. Agreed.

Can the current model of humanitarian aid generated by networks of large philanthropic foundations, NGOs, and Western governments actually alleviate the poverty of the world’s Bottom Billion, to quote the title of Paul Collier’s book? This podcast with the Acton Institute’s Michael Miller, director of the new Poverty Cure Initiative, puts forward a persuasive case rooted in particular communities in Africa and South America that the conditions for prosperity emerge from our free and relational nature as human beings. Accordingly, authentic help to the world’s poor must not be driven by the notion that the global poor are the objects of wealthy compassion, but that they are the subjects of creative potential. As Miller discusses, the prevalent humanitarian aid model frequently uproots the very beginnings of the circles of exchange that must exist for wealth to be created in these societies. Frequently missing as well in the current approach is understanding how crucial the rule of law, property rights, and markets are in the uplift from poverty, and that frequently, these economic and legal orderings are absent in regions of hardship. Consequently, the conditions for human flourishing don’t exist and cannot be created by large philanthropic interventions, which everywhere substitute parental relationships between the donor and recipient in the place of real human flourishing in these communities.

This next Liberty Law Talk is with Gordon Lloyd of the School of Public Policy at Pepperdine on his new book, co-authored with David Davenport, The New Deal & Modern American Conservatism (Hoover Press, 2013). Much has been made, and rightly so, of the example set by Calvin Coolidge in his confrontation with the forces of taxing and spending and nascent regulatory attempts to cartelize certain markets, among other challenges he faced. However, might it be that Herbert Hoover and his “American System” articulated in the 1932 campaign, along with his subsequent attempts to repeal the New Deal, offers the better teaching moment? After all, as Lloyd stresses in this conversation, Hoover confronted dead-on the revolutionary moment urged by Progressives in the form of the New Deal. He lost, but the principles he articulated remain latent within our Constitution and civil society. As the authors state on the first page, “Go back to come back.” This conversation focuses on Hoover, his defense of the American constitutional order, and what this might mean for our contemporary challenges.

Christopher Lazarski comes to Liberty Law Talk to discuss his deep inquiry into Lord Acton’s attempt to understand the dimensions and nature of liberty as it unfolded in Western history. In this podcast, Lazarski underscores Lord Acton’s historical quest to find the conditions of liberty, as well as his formal understanding of what constituted liberty. The conditions of Acton’s ordered liberty we can describe as “arbitrary law,” national history, and a bottom-up development of positive law. Arbitrary law was Acton’s way of describing divine and natural law, which he believed a pillar in support of political liberty because it was law that transcended human invention. The significance is that man is not the author of truth and authority but discovers and receives them. As a result, Acton stresses that liberty is a “summons to do what one ought,” and not a expansive practice limited only by the rights of others. National history is merely that political tradition that provides weight and context to the collective choices being made by persons in society. Perhaps the key here is the generational inheritance of a regime of ordered liberty that must be preserved and modified by each subsequent generation. Again, liberty under law is profoundly stressed by Acton. Lastly is the growth of rule of law by communities in their traditions and habits as opposed to the geometric projection of individual liberty from the center as in the French Revolution. Lazarski also provides a fertile discussion of Acton’s understanding of liberty of conscience and his differences from John Stuart Mill on the general question of liberty.