Wednesday, May 4, 2016

Legal Insurrection Quotes Allan Bloom on America

Just two days ago here. A taste, quoting Bloom:
Contrary to much contemporary wisdom, the United States has one of the longest uninterrupted political traditions of any nation in the world. What is more, that tradition is unambiguous; its meaning is articulated in simple, rational speech that is immediately comprehensible and powerfully persuasive to all normal human beings. America tells one story: the unbroken, ineluctable progress of freedom and equality. From its first settlers and its political foundings on, there has been no dispute that freedom and equality are the essence of justice for us. No one serious or notable has stood outside this consensus…All significant political disputes have been about the meaning of freedom and equality, not about their rightness…
But the unity, grandeur and attendant folklore of the founding heritage was attacked from so many directions in the last half-century that it gradually disappeared from daily life and from textbooks. It all began to seem like Washington and the cherry tree—not the sort of thing to teach children seriously…The leading ideas of the Declaration began to be understood as eighteenth-century myths or ideologies. Historicism, in Carl Becker’s version (The Declaration of Independence: A Study in the History of Political Ideas, 1922) both cast doubt on the truth of the natural rights teaching and optimistically promised that it would provide a substitute. Similarly Dewey’s pragmatism—the method of science as the method of democracy, individual growth without limits, especially natural limits—saw the past as radically imperfect and regarded our history as irrelevant or as a hindrance to rational analysis of our present. Then there was Marxist debunking of the Charles Beard variety, trying to demonstrate that there was no public spirit, only private concern for property, in the Founding Fathers, thus weakening our convictions of the truth or superiority of American principles and our heroes (An Economic Interpretation of the Constitution, 1913). Then the Southern historians and writers avenged the victory of the antislavery Union by providing low motives for the North (incorporating European critiques of commerce and technology) and idealizing the South’s way of life. Finally, in curious harmony with the Southerners, the radicals in the civil rights movement succeeded in promoting a popular conviction that the Founding was, and the American principles are, racist…
Students now arrive at the university ignorant and cynical about our political heritage, lacking the wherewithal to be either inspired by it or seriously critical of it.
The ellipses [...] are from Legal Insurrection, not mine.

Monday, May 2, 2016

Sully is Back

Check it out here. I'm not posting this because of the political points he's trying to score (that's why you won't see them excerpted); rather for Dr. Sullivan's understanding of Plato. A taste:
As this dystopian election campaign has unfolded, my mind keeps being tugged by a passage in Plato’s Republic. It has unsettled — even surprised — me from the moment I first read it in graduate school. The passage is from the part of the dialogue where Socrates and his friends are talking about the nature of different political systems, how they change over time, and how one can slowly evolve into another. And Socrates seemed pretty clear on one sobering point: that “tyranny is probably established out of no other regime than democracy.” What did Plato mean by that? Democracy, for him, I discovered, was a political system of maximal freedom and equality, where every lifestyle is allowed and public offices are filled by a lottery. And the longer a democracy lasted, Plato argued, the more democratic it would become. Its freedoms would multiply; its equality spread. Deference to any sort of authority would wither; tolerance of any kind of inequality would come under intense threat; and multiculturalism and sexual freedom would create a city or a country like “a many-colored cloak decorated in all hues.”

Jefferson: Most Overrated of the Patriarchs?



In a WaPo review of Annette Gordon-Reed and Peter Onuf's game defense of Thomas Jefferson, David O. Stewart reminds us that although Jefferson's ideals and rhetoric were impressive, in the real world he neither lived them personally



“Most Blessed of the Patriarchs” cannot entirely avoid compiling the sort of despairing catalogue of the great man’s hypocrisies that the authors set out to transcend. They note that Jefferson championed those who till the soil as the most virtuous of people, yet he found farming deadly dull, and his fitful agricultural efforts were largely unsuccessful. He denounced political parties as instruments of the small-minded and self-interested, yet he was the most skilled political partisan of his era. He co-founded America’s first political party, which annihilated its opponents and swept to a rarely replicated dominance of the government. Jefferson’s party, considerably evolved, survives today as the Democratic Party.
Most fundamentally, the author of the ringing commitment to equality in the Declaration of Independence built his economic and social life on human slavery. Jefferson bought and sold people. Rebellious slaves at Monticello faced whipping or being sold off. The hypocrisy meter nearly melts at the spectacle of America’s apostle of liberty co-habiting for decades with a woman he owned, Sally Hemings, while owning their children. That the Hemingses received special treatment from the master makes the relationships no less disappointing, even incomprehensible, to modern sensibilities.

nor, more tellingly [and far less known], did Jefferson ever do much to make those grand words and hallowed ideals a reality in his new nation either.

After writing the opening manifesto of independence, Jefferson was not a major force in winning it; he played no role in writing the Constitution or gaining its ratification; he did not secure enactment of cherished proposals to protect religious liberty (James Madison did) or create a legal structure for frontier lands (the Northwest Ordinance did) or for the new constitutional government (George Washington, Alexander Hamilton and Madison did); he neither drafted nor assisted in the adoption of the Bill of Rights; he did not chart America’s foreign policy while secretary of state (Washington did); as president, he failed to defend U.S. ships and sailors when Britain and France savaged them during the Napoleonic Wars (Madison did through the War of 1812); and he never performed a public act that limited or challenged slavery.

“Never did a man achieve more fame for what he did not do.”--abolitionist Moncure Conway

[crossposted at newreformclub.com

Sunday, May 1, 2016

Crooked Timber Symposium on Danielle Allen's Book

I am remiss to say that I missed this last year when it was done. But we can all enjoy it now. At American Creation look for more excerpts from the individual contributors' posts.
The seminar on Danielle Allen’s recent book, Our Declaration: A Reading of the Declaration of Independence in Defense of Equality, which is available from Powells, Amazon and Barnes and Noble is now concluded. The entire seminar can be found at this link. ...

Thursday, April 28, 2016

Harvard Magazine: The Egalitarian

About Danielle Allen's newest book. A taste:
At the moment, no book is more visible or abundant at the gift shop of the National Archives in Washington, D.C., where more than a million visitors a year come to view the earliest copies of America’s founding documents, than Our Declaration—the most recent work by Danielle Allen, Ph.D. ’01. The title, appealing boldly to a spirit of national wholeness, is so prominent that it’s easy to overlook the argumentative note in its smaller subtitle: A Reading of the Declaration of Independence in Defense of Equality.

Allen, a recently appointed professor of government and director of Harvard’s Edmond J. Safra Center for Ethics, writes that in the past century, equality has been pushed to the side—by philosophers, politicians, and laypeople—in favor of its sibling, liberty: “I routinely hear from students that the ideals of freedom and equality contradict each other.” She rejects this notion that liberty and equality are on a seesaw, that one can rise only at the expense of the other. Instead, she contends, “Equality is the bedrock of freedom.” Her evidence? The Declaration of Independence, read line by line as a masterpiece of plain-language philosophy. The Declaration’s authors, she contends, were far from being libertarians in the modern sense. To the contrary: they were proud and eloquent egalitarians.

Sunday, April 24, 2016

Prince, RIP

The late great genius was a devout and devoted Jehovah's Witness. At American Creation, we've dealt with the issue of how "Christianity" defines. One understanding says if you don't believe in orthodox doctrines like the Trinity, then you aren't a Christian. Well Jehovah's Witnesses don't believe in that. But below is what they do believe:
'He was a spiritual man from what I know of him and he talked to individuals and he very strongly believed in the message of the bible that Jehovah Witness’s proclaim.
‘He believed that the true God is Jehovah and he knew for example that when we die, we’re dead, we’re sleeping and the hope is the resurrection, that’s why Jesus died.’
Brother Cook said Prince regularly ‘witnessed’ alone in the community, as well as in groups.
And he admitted that people might have been shocked to see the superstar turn up on their doorstep to talk to them and offer a free bible course, but added: ‘We try to downplay the person, it’s all about the message.
‘We try not to eulogize any individual from a personal standpoint, one person is equal in the eyes of God as another person.
‘So our main goal is to proclaim the message of God’s kingdom as equals and Prince did what he could from what I understand.
‘He did what he could to help people to get into the Bible and appreciate the benefits of family life and the hope of God’s kingdom.’

Thursday, April 21, 2016

Balkin on Barnett's New Book

See it here. Even though I sympathize more with Randy Barnett's vision, I think Balkin's critique, which, is more linguistic, is strong. A taste:
On SSRN, I've published a draft of Which Republican Constitution?, a review of Randy Barnett's new book, Our Republican Constitution. The article is part of a conference on the book held in March at the University of Illinois, and will be published in Constitutional Commentary. Here is the abstract:
Randy Barnett argues that the American political tradition, understood in its best light, features a "Republican Constitution." But Barnett's version of "republicanism" has relatively little to do with the historical tradition of republicanism, a tradition that celebrates the common good; seeks to inculcate civic virtue; opposes aristocracy, oligarchy, and corruption; understands liberty not as mere negative freedom but as non-domination; connects civil rights to civic duties; and demands a government which derives its powers from and is ultimately responsive to the great body of the people.
Instead, Barnett's "Republican Constitution" is far closer to what most historians of the Founding would regard as the opposite or complement of the republican tradition. This is the tradition of natural rights liberalism, which begins with John Locke and evolves into classical liberalism in the nineteenth century. ...

Saturday, April 16, 2016

Brother Ben on Indolence and the Welfare State

Franklin the “socialist” and his last bit there goes double for me, Messrs. the Public:

The day you passed that act, you took away from before their eyes the greatest of all inducements to industry, frugality, and sobriety, by giving them a dependance on somewhat else than a careful accumulation during youth and health, for support in age or sickness. In short, you offered a premium for the encouragement of idleness, and you should not now wonder that it has had its effect in the increase of poverty.
Repeal that law, and you will soon see a change in their manners. St. Monday, and St. Tuesday, will cease to be holidays. SIX days shalt thou labour, though one of the old commandments long treated as out of date, will again be looked upon as a respectable precept; industry will increase, and with it plenty among the lower people; their circumstances will mend, and more will be done for their happiness by inuring them to provide for themselves, than could be done by dividing all your estates among them.

Excuse me, Messrs. the Public, if upon this interesting subject, I put you to the trouble of reading a little of my nonsense. I am sure I have lately read a great deal of yours; and therefore from you (at least from those of you who are writers) I deserve a little indulgence. I am, your’s, &c. ARATOR.
The London Chronicle, November 29, 1766


Wednesday, April 13, 2016

The Founders and the Poor






From the preface:


On the poor: Far from being indifferent to the poor, the Founders regarded the protection of private property rights as a necessary means for the poor to escape the kind of subjugation by the wealthy that they had experienced in Old Europe. And far from throwing the needy into the streets, the Founders maintained government-funded "safety-net" programs for them. Their property rights and welfare policies, which are often scorned today for their supposed indifference to the poor, were arguably more just and compassionate than ours.

On the supposedly undemocratic electorate: Far from excluding the poor, the electorate in the founding era was the most democratic of any large nation in history. It included about 85 to 90 percent of free males. Those Founders who defended a property requirement for voting did so, not in opposition to, but on the basis of, the equality principle of the Declaration of Independence. They feared—as we will see, not without reason—that the propertyless poor might become the tools of influential and wealthy demagogues, distorting election results and endangering the survival of liberty. They changed their minds on this point as it became increasingly clear that the poor were not opponents but friends of the rights of mankind, including the right to acquire and possess property.


Larger preview available here at GoogleBooks.
[HT: Our Founding Truth]

Tuesday, April 12, 2016

Drs. Noam Chomsky, Eric Nelson, and ...

Me Trying Better to Understand the "Economic Egalitarianism" of the European Hebraic republicans and tensions within the synthesis of American originalism. 

We live in a world where we must define terms to understand reality. All terms are socially constructed. But where I differ from the followers of Michel Foucault (et al.) is, I believe in ultimate underlying objective reality. They would argue there is no such thing, that everything is a social construct imposed by power. I, conversely, believe such socially constructed terms are useful and better when they more accurately “get at” the objective reality that lies underneath.

Dr. Noam Chomsky, brilliant, who has done groundbreaking work in the field of (appropriately enough for the introduction to this post) linguistics, is, as far as I can tell, a "democratic-socialist." He believes in democracy and civil rights, but not capitalism and markets. But, interestingly enough, he doesn’t call himself a “democratic-socialist.” I call him that because that’s what he appears to me to be. Rather, he calls himself an “anarcho-syndicalist.” Alas, such term has not stuck.

I don't agree with Chomsky's ideal vision of "geopolitics." When he engages the issue, though not a lawyer, he notoriously uses his brilliant mind to selectively focus on certain details supporting his narrative while ignoring everything else. That is, he's great at making law office arguments.

But I do read his work, because I learn much from him. For instance, while exploring Dr. Eric Nelson's groundbreaking work on the European Hebraic republicans and pondering how they "fit" in Dr. Bernard Bailyn's paradigm of originalism (that certain key influential ideological forces were in tension with one another, but ultimately presented as harmonized by American Whigs) I concluded that Chomsky had already anticipated my understanding of Dr. Nelson's thesis.

I remember reading something from Chomsky where he applauded the economic ideals of among others, Thomas Jefferson, while harshly criticizing those of James Madison.

Like notable scholars of the Anglo-European tradition of "republicanism" have concluded, such tradition argued for what might be termed "economic egalitarianism." They were economic wealth limiters and redistributors. This relates chiefly to the republicans' support for agrarian laws. Jefferson among many others supported such. So too did the Ancient Greeks. But not the Ancient Romans.

This is what Dr. Nelson argues. As he wrote:
It is a measure of [James] Harrington’s remarkable influence that, from 1660 onwards, agrarian laws would remain permanently at the center of republican political thought. Writers from Montesquieu to Rousseau, and from Jefferson to Tocqueville, would regard it as axiomatic that republics ought to legislate limits on private ownership in order to realize a particular vision of civic life.
Harrington, author of Oceana, a key figure of the British Whig opposition "republicans," argued the Ancient Hebrews 1. had a "republic," 2. with wealth leveling economic principles that constituted the earliest agrarian laws. Therefore, all republics ought to adopt agrarian laws where "the state should coercively maintain an egalitarian distribution of property[.]"  Harrington relied on the scholarship of earlier European contemporaries from among other places the Netherlands and Italy who initiated this understanding. This is why I refer to these figures as "European Hebraic republicans" as opposed to strictly identifying Great Britain.

Read the results of this search engine to see Chomsky's various writings on the matter. 

Why was Madison, according to Chomsky, the chief villain? He rejected agrarian laws as policy for America and his vision prevailed over the many others, part of America's Founding ideological stew, who hoped for such. This was a victory of (classical) "liberalism" over "republicanism."

But, as alluded to, both liberalism and republicanism were part of the ideological stew. In addition to Jefferson, Chomsky enlists Adam Smith and Aristotle -- both certainly important to America's Founding vision -- as economic egalitarians (contra Madison).

I don't know enough detail on Smith's writings to see why Chomsky would place him with the republican levelers. Likewise, Nelson notes that whereas Cicero argued for "property rights" along the lines of what present day supporters of laissez faire might endorse, the Ancient Greeks supported agrarian laws, and consequently, economic egalitarianism. Though, Nelson turns to among others Plutarch and Plato, not Aristotle to support his thesis.

So, Nelson asserts Harrington argued a thesis that was both biblical and Platoic in order to support agrarian economic egalitarianism. (Later economic egalitarians like Rousseau may have focused more on the philosophical, i.e., Platonic elements, than the biblical ones, though Rousseau still claimed to be a "Christian.") 

Next, let's explore what "economic egalitarianism" means. In previous posts, I used the terms "proto-Marxist" and "proto-Rawlsian" attempting to describe such. Presently, hyperbole dominates contemporary political discourse. For free market purists, there is a tendency to categorize someone to one's economic left as a "socialist." For instance, Ludwig von Mises purportedly termed among others Milton Friedman (the eyewitness to this account) and Frederic Hayek "socialists" because they were willing to put up with slightly more statism than he was.

Likewise, if "Marxism" is understood necessarily to include the abolition of private property, the European Hebraic republicans cannot properly be termed "proto-Marxist." Others, however, have a "looser" understanding for "Marxism." But I named Rawls in my attempt to understand this era's "economic egalitarianism" as an alternative. 

Nelson briefly mentions Rawls but doesn't explore deeper because, though an "economic egalitarian," Rawls' ideal of justice accepts, in principle, the possible existence of a degree of economic inequality the European Hebraic republicans would not. As Nelson notes:
Even John Rawls, however strongly he might reject the perspective of his more libertarian critics, nonetheless insists that inequality per se is not inconsistent with the principles of justice. On his view, as long as the position of the least well-off social group is improved under a particular economic arrangement, it does not matter that the arrangement in question might improve the situation of the most fortunate to a greater degree. The only relevant question is whether some rival scheme might be envisioned that would make the least advantaged even better off; if so, the latter would be preferred even if it would result in greater inequality.
Below I focus on what I see as Nelson's clearest attempt to describe the economic vision of his Hebraic republicans:
European political theory had been dominated by the unequal contest between two views of property: one which saw the protection of private property as the central obligation of the state, and another which saw the abolition of private property as the ultimate salvation of mankind. Cunaeus’s innocuous semantic move in 1617 had opened up a “third way”—one which remains central to modern political thought and practice. Republican political theory would now embrace neither the protection nor the abolition of private property, but rather its redistribution. The coercive power of the state would be used to impose limits on private wealth, and to generate a roughly egalitarian diffusion of property throughout the commonwealth.
The bold is mine. So this isn't "pure" Marxism which would seek to abolish private property. Neither is it laissez faire capitalism which sees state protection of private property as central. The "third way" is a term and policy Tony Blair and Bill Clinton established and supported, the kind of capitalism that dominates geopolitics post 11/09/89. The kind of capitalism that "Ended History" according to Francis Fukuyama.

Indeed, as the Amazon page to Nelson's book describes:
Nelson demonstrates that central features of modern political thought emerged from an attempt to emulate a constitution designed by God.
Again the bold is mine.

What I conclude from this study is that whereas the "liberal" view of economics, something closer to laissez faire capitalism, prevailed during the American Founding (i.e., Madison's vision) today's modified form of capitalism that engages in more economic redistribution arguably can be traced to the vision of these European Hebraic republicans like James Harrington and figures from or related to the American Founding who supported agrarian laws. 

Richard on Tensions in the Synthesis of Originalism

A commenter at my personal blog left this observation:
Fascinating commentary, Jon. Thank you! As you write, Bernard Bailyn identifies several strands contributing to the ideology of the Founders. Bailyn offers us a whimsical mnemonic based on 4 names, Locke, Abraham, Brutus and Cook. These names represent four 'disparate' strands, (i.e., Abraham represents the covenant theology of the New England Puritans).

According to Bailyn, the 4 are harmonized somehow by the philosophy of the Commonwealthmen/Real Whigs/country party radicals. But I find the harmonizing process suggested by Bailyn difficult to understand. For example, it's not clear how the Commonwealthmen are able to harmonize Abraham and Locke.

Nevertheless, however it happened, it is pretty clear that Abraham and Locke did get harmonized by the time of the American Revolution. Tocqueville writes admiringly about it: "In France, I had almost always seen the spirit of religion and the spirit of freedom marching in opposite directions. But in America I found they were intimately united and that they reined in common over the same country."

Saturday, April 9, 2016

Hamilton: On Obama vs. The Senate



Somewhere Alexander Hamilton is smiling. For the battle that’s beginning over President Obama’s nomination of Judge Merrick Garland to the Supreme Court vindicates the famous Founder’s assurances on judicial appointments.
Hamilton knew that Americans would find their protection from would-be kings in the wisdom of the Senate. He marked this point in Federalist 69, one of the columns he wrote back in 1788 under the pen name Publius.
The topic of Federalist 69 is the “real character of the executive.” It makes it clear that in filling the seat once held by Justice Antonin Scalia, President Obama is at the complete mercy of the Senate — and should be. 

The President is to nominate, and, with the advice and consent of the Senate, to appoint ambassadors and other public ministers, judges of the Supreme Court, and in general all officers of the United States established by law...

The king of Great Britain is emphatically and truly styled the fountain of honor. He not only appoints to all offices, but can create offices. He can confer titles of nobility at pleasure; and has the disposal of an immense number of church preferments. There is evidently a great inferiority in the power of the President, in this particular, to that of the British king...

In the national government, if the Senate should be divided, no appointment could be made...


It is divided, and for the moment, no appointment will be made.

[HT: Our Founding Truth]

Thursday, April 7, 2016

Tensions Within the Synthesis of Originalism II: "For the Land is Mine"

"For the Land is Mine" is the title to Chapter 2 of Eric Nelson's book. I found it in a Word document from Brown University. There Dr. Nelson notes other scholars -- Philip Pettit of Princeton and Michael Sandel of Harvard -- who have also stressed the egalitarian nature of "republican" ideology (as contrasted with the individualistic nature of "liberalism").

I was recently reminded that “few American Whigs in the 1770s saw any conflict between what they read in Locke and Montesquieu and what they read in the Bible." In fact it's a feature of Whig thought that it served as a "unifying" ideology. As Thomas Jefferson noted to Richard Henry Lee, "All American whigs thought alike on these subjects." He did this while sourcing Aristotle, Cicero, Locke and Sidney along with "harmonizing sentiments of the day." Yes harmonizing was needed. The four named sources didn't always agree with one another on all important matters of "public right."

Those of us who study Leo Strauss often hear about the break between Aristotle (Ancient) and Locke (Modern). Nelson focuses on the (arguable) break between Cicero and Algernon Sidney. Cicero was one of the ancient Roman republicans. These republicans, according to Dr. Nelson, "had accorded enormous respect to private property rights, and had exhibited a particular horror of coercive attempts to redistribute wealth."

One thing I stress is that the Ancient Hebrews didn't have a republic. They had some kind of idealized theocracy, where, if you believe the tale, God was directly in charge by virtue of direct interaction with man. They eventually got a King which God warned against. The concept of "republicanism" is entirely a creation of the ancient Greco-Roman tradition.

Yet Nelson's figures CLAIMED that the Hebrews had a "republic." (This claim would resonate with Thomas Paine and the American Founders). And in the process of "revising" or at least "re-understanding" the biblical record, they also broke with the ancient Roman position of Cicero which looks more like something the promoters of laissez faire economics would endorse (Milton Friedman, et al.). 

Rather, the British republicans, notably James Harrington, but also others, endorsed an equality of wealth holding that was if not proto-Marxist (which would demand equality of holdings) but proto-Rawlsian (which accepts in principle inequality of wealth, but sees a role for government in redistributing wealth to provide for a more "just distribution"). 

Indeed, Marx didn't invent radical economic egalitarianism. Neither did Jean Jacques Rousseau. Thomas More, whom Dr. Nelson specifically names, anticipated both of them (I won't discuss possible ancient sources for the concept). On "Utopia" both wealth and poverty were abolished. Though it's difficult to tell whether that book's claims are meant to be taken seriously or as satire.

One big difference between Marx and Rawls on the one hand and the earlier economic levelers on the other is that the former attempted to make either atheistic or secular arguments for their theories, the latter rest their principles on religious claims. 

Thus, those whose politics, at least on economic matters, are left of center -- especially those of the "Religious Left" -- might find something of interest and inspiration in the works of Dr. Nelson's British republicans who greatly influenced America's Founders.

Wednesday, April 6, 2016

Tensions Within the Synthesis of Originalism

At The New Reform Club, the estimable Seth Barrett Tillman makes an observation about double speak coming from the mouths of left leaning law professoriate on "originalism."  
Perhaps Chemerinsky believes the Framers’ intent is discoverable in regard to Senate advice and consent, although not in regard to the First Amendment. That’s a possibility—a way to reconcile his two positions.

There is a second possibility. The alternative view is that Chemerinsky signed the letter because he agrees with the result argued for, and because he understands that non-originalist discourse is not favored by the American public he is hoping to convince. In other words, Chemerinsky and his colleagues are unwilling to make the effort to explain to the public that a better mode of constitutional discourse is possible; indeed, the 350+ signatories hope to convince the American public via a mode of discourse that they themselves reject, without even putting the public on notice that they reject that discourse. No one is stunned by this situation precisely because it is the norm.  

.... If Chemerinsky, a dean at a publicly funded law school, and 349 other academics take this second approach, reserving one mode of discourse for the elect, and another for the public, then the public, particularly tax-paying public, will take the hint.

Is it any wonder that millions vote for Trump? 
I don't defend the ethics of such practice. But I can't find myself outraged by it either. I neither like nor trust leaders and that includes Donald Trump. Likewise, I've read too much Leo Strauss to be surprised that philosophers and politicians would engage in communication that offers one message to one set of people, and a different one to another set.

And certainly figures who support left leaning politics don't hold a monopoly on this practice either.

If I may, I will offer a slightly different explanation for why law professors who have an interest in politics in particular behave this way. Law is arguably a subspecies of philosophy, but with its own special set of rules. That is, arguments that are fallacious in philosophy "work" in law. Appeal to authority is the classic argument that is valid in law, but fallacious in philosophy.

In democratic politics, one needs a voting majority to validate certain outcomes. That commits another fallacy in philosophy, the argumentum ad populum.

Likewise, an argument that seems to "work" in the politics of law (alluded to by Prof. Tillman) is "originalism," that is, arguments that appeal to the original American Founding. 

Still Professor Tillman lists 10 challenges made of originalism (see the original post to save space here) that I think are serious. Some harder to answer than others. Furthermore, there is a difference between the "letter" of the original Constitution as amended (what is "justiciable" by Article III Courts), and the "spirit" of the American Founding (something the argument from originalism wants us to remain faithful to, even if the political order, sans a constitutional amendment, is permitted to deviate from, however unwise).

I am more interested in exploring the issue of the "ideology" of the American Founding (that would be "spirit" more than "letter" issues) and tensions found there. Harvard historian Bernard Bailyn notes 5 key ideological sources of the American Founding: 1. "Biblical" (we could call this everything from "Judeo-Christian," to "Christian," to "Protestant Christian"); 2. Greco-Roman; 3. British common law; 4. Whig opposition; and 5. Enlightenment philosophy.

I used to say that #5 -- Enlightenment -- was the most important and lens through which all others were viewed. But that's not what Bailyn argues. Rather, he points to #4, Whiggery as the lens. Or at least the result of the stewing the pot.

Now this is just a construct of five. One could further divide or consolidate the categories to go above or below the numerical five. Moreover, certain key figures like for instance John Locke could be claimed by more than one of the categories. And the different categories often times contradicted one another.

It's true that most of the "cutting edge" thinkers in today's academy are not interested in exploring the history of the American Founding for any reason other than to deconstruct it in favor of some post-modern theory. But I think that an honest exploration of the American Founding offers something to those whose politics are left of center, even as other sources in the synthesis hold contradictory positions.

Harvard's Eric Nelson offers cutting edge research that encompasses at the very least categories #1 and #4. The Amazon page for Dr. Nelson's book asserts his thesis demonstrates:
It was the Christian encounter with Hebrew sources that provoked this radical transformation.

During the sixteenth and seventeenth centuries, Christian scholars began to regard the Hebrew Bible as a political constitution designed by God for the children of Israel. Newly available rabbinic materials became authoritative guides to the institutions and practices of the perfect republic. This thinking resulted in a sweeping reorientation of political commitments. In the book’s central chapters, Nelson identifies three transformative claims introduced into European political theory by the Hebrew revival: the argument that republics are the only legitimate regimes; the idea that the state should coercively maintain an egalitarian distribution of property; and the belief that a godly republic would tolerate religious diversity. One major consequence of Nelson’s work is that the revolutionary politics of John Milton, James Harrington, and Thomas Hobbes appear in a brand-new light.

Nelson demonstrates that central features of modern political thought emerged from an attempt to emulate a constitution designed by God. This paradox, a reminder that while we may live in a secular age, we owe our politics to an age of religious fervor, in turn illuminates fault lines in contemporary political discourse.
The figures Dr. Nelson invokes were not American; rather they were British. But they come from a particular period in Great Britain that greatly influenced America's Founding: Ideological source #4.

In addition, there was a marked difference between "liberal" sources (perhaps more properly belonging to #5) on the one hand, and "republican" sources on the other. The liberal sources were more "free market" oriented in their positions. The "republican" sources were more collectivistic and egalitarian on economic matters. 

Nelson's is saying the "republicans" were proto-John Rawlsians,* as opposed to proto-Milton Friedmanites.

(*In my first best world, I'm more sympathetic to Milton Friedman than to John Rawls. When it comes to government imposed limits on wealth and inequality, one serious question we Friedmanites offer is "who decides what's fair and where the line draws?" Well, John Rawls provided an answer. It may not be satisfactory, but he gave one. Likewise Eric Nelson's "republicans" gave those answers, indeed anticipated them, on similar grounds as well.)

Tuesday, April 5, 2016

Kidd: "The New United States: A 'Christian Nation'?"

Check it out here. A taste:
Politicians and pop history writers squabble endlessly about whether America was founded as a “Christian nation.” Skeptics routinely point to the 1796 Treaty of Tripoli, in which American officials declared that “the government of the United States of America is not in any sense founded on the Christian Religion” and “has in itself no character of enmity against the laws, religion or tranquility of [Muslims].”

[...]

To an outside Muslim observer, it was common sense: America was a “Christian nation.” There were few Muslims living in America (most of them were Muslim-background African slaves). Virtually all public officials and voters were at least nominally Christian. ...

Monday, April 4, 2016

Warren Throckmorton isn't voting for Cruz either

 Here, and a taste:
Cruz surrounds himself with people who have a problem with truth

David Barton and Glenn Beck immediately leap to mind. Barton was one of those who anointed Cruz in 2013 and Glenn Beck has been Cruz’s surrogate in the media and on the campaign trail since Beck endorsed Cruz during the Iowa primaries. Space doesn’t permit an examination of Barton’s historical and current misadventures but you can read about them here.

At Cruz’s rallies in Iowa, South Carolina and Nevada, Beck floated several fraudulent stories about George Washington (see here, here, and here). Beck issued a statement admitting the deception to Huffington Post, but he blamed HuffPo for his mistakes on his own website and never apologized or admitted the truth to Cruz’s supporters.

Barton and Beck aren’t peripheral figures in the Cruz universe. Barton heads one of Cruz’s Super PACs and Beck has become a spokesman for Cruz. Along with foreign policy advisor and conspiracy theorist Frank Gaffney, Beck and Barton as close advisors call into question Cruz’s judgment. An administration full of these appointments is unthinkable.

Despite Cruz’s religious tones, I don’t trust him – In part because of his advisors, I don’t trust Cruz. Their claim that Cruz is God’s candidate is icing on the distrust cake. His father, his wifeDavid Barton and Glenn Beck have all expressed in one way or another that Cruz is divinely anointed to be president. In Israel’s history, God intervened and chose kings. However, America is not Israel and those who claim to know God’s will on this matter immediately arouse my suspicion.

I became more keenly aware of how little I trust Cruz when he recently said in a town hall meeting that one should be skeptical of a candidate who claims God’s favor. He was essentially holding himself up for scrutiny since he is the only candidate with that platform in this campaign.

Cruz has not spoken much about how his belief in special knowledge would inform his policy decisions. There is no religious test to become president but since Cruz has previously gotten direction through interpreting “words” given to his wife, I want to know if he will continue getting directions on big decisions in this manner as president.

To me, how he makes decisions is important because Cruz’s willingness to compromise (something he hasn’t shown much willingness to do) might be hindered by a believe that his position is God’s position. One of his advisors, David Barton, believes man’s law cannot contradict God’s law. He also believes the Bible speaks authoritatively on public policy. It is a fair question to ask: Will Cruz run the country as a pastor or politician? Given his rhetoric and advisors, I can’t support a candidate who thinks his positions are gospel rather than the offerings of a fallible man who is open to give and take.

Saturday, April 2, 2016

Is It Safe To Say John Fea Will Not Be Voting for Ted Cruz?

In a column for Christianity Today, our friend John Fea of Messiah College takes aim at Ted Cruz's religiosity:

He wants to “restore,” “return to,” or “reclaim” the “Judeo-Christian values” that he believes are “the foundation of this nation.”

How times have changed. A half-century ago, even a Democrat could say such things unmolested.

"I don't think we put enough stress on the necessity of implanting in the child's mind the moral code under which we live.
The fundamental basis of this Nation's law was given to Moses on the Mount. The fundamental basis of our Bill of Rights comes from the teachings which we get from Exodus and St. Matthew, from Isaiah and St. Paul. I don't think we emphasize that enough these days.
If we don't have the proper fundamental moral background, we will finally wind up with a totalitarian government which does not believe in rights for anybody except the state."
Harry S Truman
  February 15, 1950
Address Before the Attorney General's Conference on Law Enforcement Problems

Now, I don't necessarily agree with all this, um, chapter and verse, as it were, but judging by the approving reaction in some quarters to John's column, I do expect that such flagrant religious patriotism would sit uneasily with a sizable swath of today's Democrat electorate.

                                                                   


Sunday, March 27, 2016

Jonathan Mayhew & Song of Solomon

The Song of Solomon is a bit of a controversial book among religious believers. A friend noted to me -- because of my interest in canon studies -- that the Mormons apparently don't believe it was divinely inspired. It's the one book in the KJV that Mormons don't believe. The erotic nature of the book makes it controversial.

David Kupelian, who is not an orthodox Trinitarian Christian, doesn't think much of the book; but didn't say he thought it should be removed. Rather, contra Mark Driscoll's claim, it's one of the least important as opposed to most important books in the canon.

The Protestant-Enlightenment preacher Jonathan Mayhew was accused of a number of things. He wasn't "orthodox" enough for the forces of religious correctness, so he was labeled a "deist" by them. The Song of Solomon features in one of Mayhew's battles with the orthodox. They accused him of wanting to axe it from the canon (and thus demonstrating disrespect for the canon).

I'll quote him below. But if I understand him right, he's say the book "Wisdom" has as much right to belong in the canon as Song of Solomon. And it's not that Song should be out, but rather perhaps Wisdom should be in (both together).

He notes:
But he goes still further; intimating his suspicions that I am a deist, p. 79.—" The Dr.'s reflection upon the Song of Solomon is sufficient to show how easy it is for him to discard the sacred canon of scripture itself: Or perhaps," &c. But he dared not to cite that refleclion, as he calls it. The most that can be fairly and logically inferred from it, is, that I supposed there was near as much reason for admitting the Wisdom as the Song of Solomon into the canon ;—a very harmless supposition, even tho' it should be a mistake; and which does not imply the latter to be admitted without reason.—
 Roman Catholics (and the Eastern Orthodox) of course, hold "Wisdom" to be in their canon. They call them deuterocanonical.  Protestants call them Apocrypha.

Monday, March 21, 2016

Locke on Theological Error, Heresy, and Orthodoxy

by John Locke
Guest Blogger





That the thing may be made clearer by an example, let us suppose two churches — the one of Arminians, the other of Calvinists — residing in the city of Constantinople.

Will anyone say that either of these churches has right to deprive the members of the other of their estates and liberty (as we see practised elsewhere) because of their differing from it in some doctrines and ceremonies, whilst the Turks, in the meanwhile, silently stand by and laugh to see with what inhuman cruelty Christians thus rage against Christians? But if one of these churches hath this power of treating the other ill, I ask which of them it is to whom that power belongs, and by what right? It will be answered, undoubtedly, that it is the orthodox church which has the right of authority over the erroneous or heretical.

This is, in great and specious words, to say just nothing at all. For every church is orthodox to itself; to others, erroneous or heretical. For whatsoever any church believes, it believes to be true and the contrary unto those things it pronounce; to be error. 

[BF mine--Ed.]

So that the controversy between these churches about the truth of their doctrines and the purity of their worship is on both sides equal; nor is there any judge, either at Constantinople or elsewhere upon earth, by whose sentence it can be determined. The decision of that question belongs only to the Supreme judge of all men, to whom also alone belongs the punishment of the erroneous. In the meanwhile, let those men consider how heinously they sin, who, adding injustice, if not to their error, yet certainly to their pride, do rashly and arrogantly take upon them to misuse the servants of another master, who are not at all accountable to them.

Read the whole thing.

Saturday, March 19, 2016

Kramnick on Locke & the Godless Constitution

Isaac Kramnick is one half of the notorious duo from Cornell who wrote "The Godless Constitution." There is a section in there on the English liberal (aka Lockean) case for the concept.

This article from Dr. Kramnick summarizes such understanding.

A taste:
Meanwhile, the leading colonial critic of the drift to rebellion, the Anglican clergyman Jonathan Boucher, preached to his congregants in Virginia and Maryland that they had an obligation as Christians to accept, indeed to “reverence authority,” since “there is no power, but of God; the powers that be are ordained of God.” There was never, he added, a time when “the whole human race is born equal” when “no man is naturally inferior, or, in any respect, subjected to another.” Governments were not the product of voluntary consent, he insisted, but were given by God to men who were then forever subordinate to those superiors God had set to govern them. He ridiculed notions of a “social compact” and of “a right to resistance.” In a 1774 sermon defending the divine right of kings to govern against colonial claims of self-government Boucher singled out the evil source of the misguided views of the rebellious colonists: “Mr. Locke” was the author “of the system now under consideration.” Americans, he hoped, would choose obedience to monarchs as announced in the New Testament’s “Romans 13” over the “right to resistance, for which Mr. Locke contends.”

Boucher was the leading spokesman in the Revolutionary era for the ideals and values of the Christian commonwealth, the long-dominant paradigm of politics in the West, with its roots in the writings of St. Paul, Augustine, Aquinas, Calvin, and the American Puritans like John Winthrop. ...