UNIVERSAL LAWS DRAFTED IN PARTICIPATORY FASHION:

A Principled Revolution: a review of Public Philosophy and Patriotism by Paul Seaton (Richard M. Reinsch, Law & Liberty)

Seaton also looks to identity politics’ binary of oppressed vs. oppressor and its replacement of individual rights with group rights. How does the Declaration’s articulation of individual rights, and its inherent appeal to the rule of law, deliberation, limited government, representation, and a people united under God for its support of liberty against oppression stand against the binary of identity politics, with its insistence that limitless government is needed to serve diversity, equity, and inclusion (DEI) or what is the same: racial and gender socialism? Identity politics brings tremendous passion in the service of justice but does so in the complete dismissal of every institution in American life that it confronts, promising the transvaluation of every cardinal and civic virtue to achieve group justice for the oppressed. It promises to unleash tremendous injustice on individuals in the service of its future promises.

Who does identity politics speak for, Seaton asks? While identity politics claims to rectify past injustices it revels in present injustice by subsuming the human person into racial and gender characteristics, removing man from his highest feature: reason. Those drafting and approving the Declaration were sent by rebellious public authorities to promulgate a verdict of separation on behalf of the colonies, a judgment accepted by the people. They spoke comprehensively on behalf of the persons in the colonies who were being denied the protections of the law, preventing them from flourishing as individuals in community with others. It was precisely because individuals as moral creatures, made to pursue happiness freely, were being denied this right by arbitrary government, that the colonists rebelled. Contrast this with the understanding of power and speech displayed by identity politics leaders, who state that only the designated victim groups should speak on behalf of their justice. Thus, they are permitted to cast impossible demands for justice on those whose word is officially devalued because of their group trait as historical oppressors. Nothing could be further from the deliberation and argumentation in the Declaration.

Where equality of opportunity requires removing interference with liberty, equality of outcome requires imposing interference.

WALLS ARE ANTI-TEXTUAL:

Church and State Unseparated: Why Protestants should take their foundational role in American society seriously again. (David Hein, October 8, 2024, Modern Age)

“What this volume proposes,” Smith writes, “is that the United States Constitution’s disestablishment did not secularize society, nor did it remove institutional Christianity” from the realms of education, law, and politics. That displacement “occurred nearly a century later.”

Informed by both the English Whig and late-eighteenth-century American republican traditions, this voluntarist order, which recognized that religious belief and membership must be the products of the individual’s untrammeled will, was, therefore, liberal in respect of the establishment of religion but conservative in its grasp of the role of Christianity in American society. Smith ably demonstrates how Americans by and large accepted this continuing role for Christian institutions, “perpetuating . . . Christianity through federal and state courts, state colleges and institutions, state legislatures, and executive proclamations from governors and presidents,” as well as “through state cooperation with religious institutions.”

Both church and state, he says, were united in working to achieve a common goal: fostering a moral realm that embraced “historically Christian conceptions of virtue.” The cultural weight of these institutions, which incorporated conservative understandings of ethics and social order, countered irreligious tendencies to moral radicalism. Christians believed that religious faith had a beneficial impact on law, politics, and education. Thus, it warranted the support of civil magistrates. At the same time, Christians believed in religious liberty. In Democracy in America, Alexis de Tocqueville memorably depicts the benefits of the entanglement of religion and liberty. Unforgettably, too, Samuel Francis Smith highlights these themes in his patriotic hymn “My Country ’tis of Thee.”

Particularly valuable is this volume’s chapter on Thomas Jefferson, who aimed to do more than merely end the privileges of state churches; he also wanted to see Christianity removed from the civil sphere. The author makes it clear that Protestants in the early republic embraced freedom of religion but generally rejected the Sage of Monticello’s wish to remove institutional Christianity’s influence from civic life; they declined to join what Smith calls his “personal war against churchly authority.”

Among the most important spokesmen for religious institutions and their continuing influence were New England Federalists, intellectuals in colleges and universities, and religious and judicial elites: they generally upheld the fundamental role of Protestantism in American culture. Smith points out that they and their like-minded Protestant brethren would have agreed with most of the Framers, who did not endorse a wall of separation between church and state. Many Protestants in the early republic believed that American society needed the efforts of practicing Christians in order to prosper; good Christian men and women fortified the Republic.

At the same time, disestablishment had a positive impact on religion, strengthening Christianity in the public sphere. It prevented an Erastian subordination of the Church to the state. It reduced political interference with religion and avoided the negative reputation that came with state control.

IF IT WERE EASY EVERYONE WOULD DO IT:

Solving Our Political Disarray: The Constitution is more than a legal code. It is also a framework for union and solidarity. (Yuval Levin, Fall 2024, American Heritage)

The problem is that we have forgotten that creating common ground is a key purpose of the Constitution and that it should be a key purpose of our own political and civic action.

We too often lose sight of how the Constitution creates common ground by compelling Americans with different views and priorities to deal with one another – to compete, negotiate, and build coalitions in ways that drag us into common action even (indeed, especially) when we disagree.

This points to an even deeper problem underlying our contemporary frustrations with our system of government: we have not only lost sight of the importance of pursuing greater unity, but we have also tended to forget what unity in our free and dynamic society really involves. Unity doesn’t quite mean agreement. Americans do have some basic principles in common – especially those laid out in the Declaration of Independence. But although those widely espoused principles impose some moral boundaries on our political life, there is enormous room for disagreement within those boundaries.

This includes some significant disagreement about exactly what the Declaration’s principles actually mean regarding the nature of the human person and the proper organization of society, let alone disagreement about discrete political and policy choices in response to the needs of the day. Our politics is unavoidably organized around these disputes and requires us to take on common problems while continuing to disagree about questions that matter a great deal to us. But that disagreement does not foreclose the possibility of unity.

A more unified society would not always disagree less, but it would disagree better – that is, more constructively and with an eye to how different priorities and goals can be accommodated. That we have lost some of our knack for unity in America does not mean that we have forgotten how to agree but that we have forgotten how to disagree.

The parties to our various disputes now tend to talk about one another more than they talk to one another, and, so, even very active citizens actually spend relatively little time in active disagreement with others, let alone in efforts to overcome such disagreement for the sake of addressing some common problems in practice. This is the sense in which we have forgotten the practical meaning of unity: in the political life of a free society, unity does not mean thinking alike; unity means acting together.

How can we act together when we do not think alike? The United States Constitution is intended, in part, to be an answer to precisely that question. And it is a powerful and well-honed answer. Alleviating the disunity of contemporary America would, therefore, require not recklessly discarding our Constitution as an antiquated relic but rediscovering its fundamental purposes, grasping just how powerfully it speaks to some of our most serious contemporary problems, and finding ways to better put it into practice to address those problems.

That approach involves pushing, plying, and pressuring Americans to engage with one another and so also to understand themselves as engaged in a common enterprise. The Constitution forces insular factions to forge coalitions with others and, thereby, to expand their sense of their own interests and priorities. It forces powerful officeholders to govern through negotiation and competition rather than through fiat and pronouncement and so to align their ambitions with those of others. It forces Americans to acknowledge the equal rights of fellow citizens, and has (gradually, and thanks to the heroic efforts and sacrifices of many) come to better align the definition of “fellow citizen” with the ideals of the Declaration of Independence.

None of this is easy or simple. All of it happens through politics and so through contention, competition, pressure, and negotiation. It’s a struggle. But the Constitution is rooted in the insight that this very struggle is, itself, a source of solidarity and an engine of cohesion.

THERE’S NO SUCH THING AS INDIVIDUAL LIBERTY:

Individualism: Balancing freedom and social order is a fundamentally American challenge. (Wilfred M. McClay, August 28, 2024, Modern Age)

[A]lthough “individualism” is a relatively new term in Western intellectual and religious history, it has a long and distinguished pedigree, informed by rich antecedents and fertile anticipations. Belief in the dignity and worth of the individual person has always been a distinguishing mark, and a principal mainstay, of what we call Western civilization, the defense of which has become an increasingly central element in what now goes by the name of conservatism.

Elements of that belief can be detected as far back as classical antiquity, particularly in the Greek discovery of philosophy as a distinctive form of free rational inquiry, and in the Greco-Roman stress upon the need for virtuous individual citizens to sustain a healthy republican political order. Other elements appeared later, particularly in the intensely self-directed moral discipline of Epicureanism and Stoicism. Even more importantly, the traditions and institutions arising out of biblical monotheism, whether Jewish or Christian, placed heavy emphasis upon the infinite value, personal agency, and moral accountability of the individual person. That emphasis reached a pinnacle of sorts in Western Christianity, which incorporated the divergent legacies of Athens and Jerusalem into a single universalized faith.

None of these expressions of belief in the individual were quite the same as modern individualism, however, for the freedom the premodern individual enjoyed, particularly since the advent of Christianity, was always constrained. It was constrained by belief in the existence of an objective moral order not to be violated with impunity by antinomian rebels and enthusiasts. And it was constrained by belief in the inherent frailty of human nature, which indicated that virtue cannot be produced in social isolation.

The genius of our system of republican liberty is that the individual is entitled to exactly as much freedom as we afford to each other and no more.

MOJO VS ADMINISTRATIVE LAW:

The Original President (Garry Wills, 8/15/24, Mother Jones)

The originators of our government said that “We the People” are our country’s sovereign power. That is why the legislators, as the representatives of the people, are the only ones authorized to make law or make war. As James Madison said in Federalist 51, “In republican government, the legislative authority necessarily predominates.” The executive power, as the name indicates, just executes the law—or the war, or the policy—given it by the legislators.

Amen, brother.

IT IS THE “ALL MEN” THAT THE rIGHT FINDS INTOLERABLE:

A Constitutional Republic, If You Can Keep It (Michael Liss, 8/13/24, 3Quarks)

The principles of Jefferson are the definition and axioms of free society…. All honor to Jefferson—to the man who, in the concrete pressure of a struggle for national independence by a single people, had the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men and all times, and so embalm it there, that to-day, and in all coming days, it shall be a rebuke and a stumbling-block to the very harbingers of re-appearing tyranny and oppression. —Abraham Lincoln, April 6, 1859 Letter to Henry L. Pierce and others. […]

Just exactly what is the “U.S. Democracy” that may not prevail? Before we go further, we ought to get some nomenclature misunderstandings out of the way. Let’s introduce Democracy’s cousin, the “Constitutional Republic.” Yes, we live in a Constitutional Republic and not a Democracy. No, that’s not a concluding and conclusive argument any time someone wants to make government more representative, more answerable to the voters, or less beholden to privilege. Opponents of change who invoke the phrase “mob rule” just highlight the fact that what’s at stake isn’t high principle, but rather a desire to “supplant[] the principles of free government, and restor[e] those of classification, caste and legitimacy.”

THE PEOPLE OF HUME:

My Liberal Faith: The beginning of wisdom is neither the sum nor the end of it (Bret Stephens, August 12, 2024, Sapir)

What is a liberal faith? There are specifically political ways of addressing that question — that is, faith in a liberal order that puts the protection of individual liberty, conscience, and initiative at the center of its concerns. That’s a faith I share, even if I don’t subscribe to the more common understanding of “liberalism” as a program of big-government responses to economic and social problems.

But what I’m writing about here is something more personal: liberal without the “ism.” This is liberal as an attitude toward life; an openness to new ideas and different ways of being; a readiness to accept doubt, ambiguity, uncertainty, and contradiction; an ability to hold a conviction while occasionally allowing it to be shaken; a right to change your mind and reinvent yourself. It is the belief that, at its best, a liberal faith can be a more honest, interesting, and rewarding approach to life than alternatives based in tradition, dogma, or ideology.

THE HOLLOW, THE HOLLOW:

Propriety without Principle: The Cautionary Tale of Robert E. Lee (John F. Doherty, 8/07/24, Public Discourse)

Many critics of Lee respond that these good qualities would magnify rather than forgive the evil of his decision to turn against the Union. But Guelzo’s critique is more subtle: Lee’s flaw was that his good qualities were only superficial, not real virtues. He called slavery “evil,” but he never said more, nor was he an abolitionist. Although he never owned slaves, he became executor of his father-in-law’s estate after his death, willingly taking charge of its enslaved population. These people were to be freed within five years, according to the dead man’s will. But when the difficulty of the task wore on Lee, and three slaves tried to escape, in frustration he ordered them to be whipped—with exceptional violence—then sold farther south, never to see their families again.

Lee strove to be responsible, but probably more out of shame for his irresponsible father than from devotion to the good. He aimed for “perfection,” as Guelzo says, and fell into perfectionism—achieving the appearance of virtue rather than its substance. This faux nobility of character was reflected in the unapproachable, statuesque coldness of his manner, unintentionally implied in the epithet “the marble man” that contemporary admirers gave him.

Lee was also not especially religious. He was not confirmed in the Episcopal Church until age forty-six, when his young daughters were. He sat on vestries of Episcopalian parishes, but he rarely spoke of God, except amid the exceptionally fearsome dangers of the war. When he became president of Washington (later Washington and Lee) College, he built a chapel for it, but did not appoint a chaplain; he also limited public religious activity to occasional, closely monitored prayer meetings.

All told, it is hard to pinpoint any moral principle that guided Lee’s life.

BREAK THE ADMINISTRATIVE STATE:

How major rules are surging under the Biden administration (Clyde Wayne Crews • 07/15/2024, Competitive Enterprise Institute)

We’ve taken a look at the total numbers of significant regulations issued this year in the Biden administration as well as at the subsets of those rules affecting small business and state/local governments.

We have also pondered implications of the Congressional Review Act and the pressure it placed upon the administration to issue its costliest and most ambitious rules before late summer.

Waiting too late would render rules vulnerable to being overturned by a Congressional Review Act (CRA) resolution of disapproval should there be a change in administrations in 2025. That’s because the CRA stipulates that rules not finalized before the final 60 legislative days of the 118th Congress would be candidates for overturn.

Against this backdrop, on July 5, the day after Independence Day, the White House released the Spring edition of the twice-yearly Unified Agenda of Federal Regulatory and Deregulatory Actions depicting agency rulemaking priorities.

The new Agenda depicts 3,698 rules in the pipeline from more than 60 departments, agencies and commissions. These rules are comprised of those at the pre-rule, active (proposed and final) and long-term stages, as well as rules completed over approximately the past six months (that is, since the Fall 2023 Agenda).

Among the 3,698, there are 287 “Sec. 3(f)(1) Significant” (S3F1) rules in the new Spring Agenda.

DEMOCRACY IS A STUBBORN TASKMASTER:

The end of Chevron deference isn’t the end of regulation (KEVIN R. KOSAR, 07/09/24, The Hill)

Last week, I had coffee with a wonk who works on immigration policy, a political moderate who is trying to get Capitol Hill to have a sane, bipartisan conversation about the topic and enact reforms. It is a challenge, seeing as how legislators frequently behave as if they would prefer to campaign and fundraise on the issue rather than bargain out a deal.

I mentioned to her that I had been writing a lot about Congress and regulation, and that the Supreme Court’s recent rulings have added to my workload. She responded to my mention of Chevron deference by declaring, “I’m glad the ruling happened. That means if there is a Trump administration then Stephen Miller will not have as much authority to make immigration policy.”

I laughed because she is right.

The court’s rulings in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce do mean that Miller would have to be a bit more cautious in issuing regulations to reduce immigration and expel migrants. They could no longer do whatever they can pass off as a reasonable interpretation of the statute and that presume that their policies will receive judicial deference.