Liberty Law Talk

During the 2008 Democratic primary campaign, Secretary of State Hillary Clinton was asked to define the particular political philosophy that best captured her political ideals. She answered by asserting that she was not a liberal but a progressive. The hope of the progressive is best understood, Clinton observed, by looking back to its roots in the early twentieth century. While the term “liberal” is typically associated with a belief in larger government and more programs to assuage inequalities, Clinton argued that progressivism best contains and expresses the philosophical premises of the belief in government’s firm, superintending role in modern civil society. Given this interesting statement and the current debates over federalism and the powers of the commerce clause, Liberty Law Talk thought it would be profitable to explore the intellectual roots of progressivism in a conversation with noted expert, Ronald Pestritto.

This discussion with Professor Ralph Rossum of Claremont McKenna College explores the jurisprudence of Supreme Court Justice Clarence Thomas.  Rossum posits that Justice Thomas practices an “original general meaning” approach that seeks concord among the three major strands of originalist theory. Justice Thomas incorporates both the framers’ original intent and that of the states’ constitutional ratifying conventions, as well as Justice Antonin Scalia’s public meaning methodology. Thus Justice Thomas, rather than standing underneath the stature of Justice Scalia, among others, may have a far richer constitutional hermeneutic than many of his originalist brethren. Rossum also discusses Justice Thomas’ appeals to the natural right teaching of the Declaration of Independence in certain decisions.

In this edition of Liberty Law Talk, we discuss with Russell Hittinger, the William K. Warren Chair of Catholic Studies at the University of Tulsa, Jacques Maritain’s Scholasticism and Politics, recently republished by Liberty Fund. The text is  a collection of nine lectures Maritain delivered at the University of Chicago in 1938. While the lectures address a variety of diverse topics, they explore three broad topics: 1) the nature of modern culture, its relationship to Christianity, and the origins of the crisis which has engulfed it; 2) the true nature and authentic foundations of human freedom and dignity and the threats posed to them by the various materialist and naturalistic philosophies that dominate the modern cultural scene; and 3) the principles that provide the authentic foundation of a social order in accord with human dignity.  (more…)

In this podcast, John Yoo discusses his new book, co-authored with Julian Ku, Taming Globalization: International Law, the U.S. Constitution, and the New World Order. Yoo focuses attention on the proliferating sources of international law in treaties, conventions, agreements, and customary international law that transnationalists believe should be more easily incorporated into America’s constitutional and domestic law. Yoo’s arguments, however, are not reactionary. After highlighting the constitutional and philosophical arguments made by transnationalists on behalf of this posture, Yoo discusses how the Constitution’s structure of separation of powers and federalism can be utilized in aiding America in the growing international legal environment by ensuring that the fundamental doctrines of the Constitution guide the process.

Richard Epstein, Professor of Law, discusses his book 'Design for Liberty' on the rule of law, private property, and public administration. He critiques the abuse of power by the administrative state and judiciary, analyzes the flaws of the Patient Protection and Affordable Care Act and Dodd-Frank financial reform, explores the connection between the rule of law and classical liberal conceptions, examines the challenges in administering welfare entitlements, and emphasizes the importance of market institutions and commercial enterprises in successful trade.

Gordon Lloyd, a scholar of the American founding, discusses the compromises made to accommodate slavery in the Constitution. Topics include the three-fifths clause, fugitive slave clause, and structural provisions. Lloyd challenges historical arguments and explores the connection between the Constitution and slavery, examining economic factors and political philosophy. The chapter descriptions cover the rise of scholarship on the topic, the influence of concurrent majority, and the Three-Fifths Clause's implications on slavery and representation.

In this new installment of Liberty Law Talk, I discuss with renowned legal historian John Witte the recent reissuing of his classic work, From Sacrament to Contract: Marriage, Religion, and Law in the Western Tradition. I discuss with Professor Witte the evolution of marriage law since the late Roman Empire and the pivotal aspects of the religious, public, and legal duties that were attendant upon marriage in the Roman law and Canon law traditions. The conversation then turns to the increasing role for the state in regulating marriage that emerged with the Protestant Reformation and its own dismissal of marriage as being legitimated and governed only by the church. Witte also explores the various aspects of Enlightenment thought on marriage and contemporary autonomistic thinking about marriage  and considers the consequences these have had for political and social order in the modern West.

In this edition of Liberty Law Talk, I talk with Clint Bolick, Director of the Center for Constitutional Litigation at the Goldwater Institute, about his new book Death Grip: Loosening the Law’s Stranglehold over Economic Liberty. Bolick, of course, is no stranger to litigating constitutional claims for economic liberties and property rights, among other achievements. Death Grip argues that the infamous Slaughterhouse Cases of 1873 emptied the privileges or immunities clause of the Fourteenth Amendment of one its primary purposes: the protection of economic liberties against encroachment by state governments. This conversation explores the history and intent behind the ratification of the Fourteenth Amendment and its privileges or immunities clause, and then looks to current efforts to breathe life back into the protection of economic liberties.

In the next Liberty Law Talk I discuss with David Bernstein of the George Mason University School of Law his excellent work of constitutional history Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform. The Lochner decision, of course, is a progressive teaching moment in the American legal academy. Virtually any constitutional law course will teach the case as an exercise in laissez-faire fundamentalism that refused to permit sensible labor regulations on behalf of industrial laborers. Fortunately, students are told, it is a constitutional moment that has been superceded by New Deal jurisprudence that upholds virtually any regulation of economic activity. Professor Bernstein provides in this book a layered analysis of the legal, political, and labor history behind the Lochner decision, rendering it vastly more complicated than the regnant progressive narrative of the case. Of course, as Bernstein states in his conclusion, “alert readers will have noticed that I have titled this book Rehabilitating Lochner—as in improving Lochner’s reputation—not Defending Lochner or Restoring Lochner.” Indeed, and in the course of the podcast Bernstein and I discuss the right of contractual liberty that the majority in the Lochner decision located in the Due Process clause of the Fourteenth Amendment, the lineage of this right, and how it has factored heavily, if not imperceptibly, in subsequent decisions ranging from Pierce v. Society of Sisters to Griswold v. Connecticut. Law and Liberty has previously taken stock of Bernstein’s book with reviews and analysis from  Keith Whittington, George Thomas, and Ted McAllister.

Held within the vault of the Hoover Institution for decades, Freedom Betrayed: Herbert Hoover’s Secret History of the Second World War, presents the former president’s thoughts on America’s involvement in World War II and his reasons for believing that American leadership failed miserably in postwar diplomacy. George Nash, author of a previous biography of Herbert Hoover, is the editor of Freedom Betrayed, and joins Liberty Law Talk for a discussion on the ideas and observations that Hoover made in the book.