THE TEXT IS A STUBBORN TASKMASTER:

How Gorsuch made the case for banning Trump from the ballot (LISA NEEDHAM, DEC 21, 2023, Public Notice)
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The Colorado Republican State Central Committee (CRSCC) intervened in the lawsuit, arguing that any determination about Trump’s qualifications to be on the ballot interfered with the party’s First Amendment right of association to choose its candidates. However, putting aside the whole insurrection issue, the United States Constitution sets out several conditions that have to be met for a person to be qualified to run for president. You must be a “natural born citizen,” at least 35, and have lived in the United States for at least 14 years. The CRSCC’s position, the Colorado Supreme Court pointed out, would allow them to place anyone on the ballot even if they didn’t meet these constitutional qualifications.

Trump also tried to argue that he is not barred from running for office because he’s an insurrectionist but only from holding office as an insurrectionist. This is absurd on its face, and the Colorado Supreme Court was able to dispose of that argument thanks to Justice Neil Gorsuch.

Really.

Back in 2012, Gorsuch was a judge on the United States Court of Appeals for the Tenth Circuit. In that capacity, he wrote the panel opinion in Hassan v. Colorado. Hassan, a naturalized citizen, sued Colorado, arguing it was required to put him on the presidential ballot even though he was not a natural-born citizen and was therefore not constitutionally qualified to run for president. The Tenth Circuit ruled against him, with Gorsuch writing that states have “a legitimate interest in protecting the integrity and practical functioning of the political process” and that because of that, they can “exclude from the ballot candidates who are constitutionally prohibited from assuming office.” It’s that quote that makes its way into the Colorado Supreme Court opinion.

THE ANGLOSPHERE IS A BIT POORER:

J G A Pocock: the Antipodean’s view of Europe: John Pocock defended Britain in its broadest sense (Yuan Yi Zhu, 19 December, 2023, The Critic)

[H]e fell under the influence of Sir Herbert Butterfield, who steered him toward the history of historiography, or in other words the history of the history of history. Abstruse though it may seem to laymen, it is, as Pocock put it, nothing less than “the history of all the ways in which men have felt committed to their past”. The result was a brilliant dissertation, published as The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century (1957), which examined late Elizabethan and early Stuart lawyers’ belief that there existed an “ancient” constitution of England, dating from time immemorial and therefore immune from interference by the king’s prerogative, not unlike how modern academic lawyers insist that judicial review can never be ousted by Parliament. […]

But it was not long before Pocock made his mark on America. In The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (1975), he deftly chartered the influence of early modern republican thought of Florence, typified by Machiavelli, and of its preoccupation with how to maintain civic virtue against the inevitability of decay, on English republicans and American revolutionaries. The American Revolution and the framing of the republican constitution were, to Pollock, “the last act of the civic Renaissance”.

THE ESENTIALS OF REPUBLICAN LIBERTY:

‘No Taxation Without Representation’ (JUSTIN STAPLEY, DEC 16, 2023, Freemen News-Letter)

When we think of tyranny, we think of the systems of absolute despotism concocted by the likes of Hitler, Stalin, Un, and Mao. But the definition of tyranny held by the early patriots was any arbitrary government act. The power to tax, in their view, was the power to destroy, and thus taxation must derive from a representative body. Were it to derive from any other place, it would demonstrate a threat to their fundamental rights to life, liberty, and property. The question of tyranny, for them, extended beyond specific acts of tyranny and encompassed a consideration of the legitimacy of government power and how it could be used if the people were subjected to arbitrary authority.

WE ARE OF THE TOGA PARTY:

Philip Pettit on What It Means to Be Free: Yascha Mounk and Philip Pettit discuss small-r “republicanism” and how to make sure people don’t suffer from domination. (Persuasion, DEC 9, 2023)

Yascha Mounk: One thing that I talk a lot about on this podcast is the idea of liberalism and philosophical liberalism. Persuasion understands itself in many ways as a defender of liberal values. Now, you come from a tradition that is related, but subtly distinct, that of republicanism.

Why don’t you explain to readers who may not know what republicanism is, what the core claims of the republican tradition are, and how they, to ask a very undergraduate question, compare and contrast with the tradition of liberalism?

Philip Pettit: The main thing to be said is that they both prioritize the ideal of freedom. The language of freedom is very much to the fore in each way of talking. The first contrast, I think, to make really is historical: what most people will identify now is a continuing republican tradition that goes back to classical Rome, to the Roman Republic. And whereas the liberal tradition, so-called, only identifies itself and appears in a distinctive form from the late 1700s. The contrast, though, in conceptual terms, is mainly a contrast in their way of understanding freedom.

The way that the Romans understood it was that, in order to be free, you basically had to be free of a “boss,” so to speak. It was having a boss, having a master, or having a dominus, in the Latin phrase, that made you unfree. And they made this split visible or salient by a particular image, which was the slave whose master is very kindly, gentle, gives the slave more or less carte blanche, and is very gullible so that the slave can run rings around the master, and for the Romans, that person, though they could act as they wish, almost across a whole range of choices, was not free, because they suffered towards the Romans called dominatio, which meant simply the existence of a master. Of course, the master didn’t actually interfere with them, but he still made them unfree. Because whatever they were free to do, whatever they had a choice of doing, they were free to do only because the master allowed them. It was ultimately the master’s will that remained in charge. And that’s a very important idea in this long Republican tradition, which begins in Rome, as I say, but it continues through, for example, the northern Italian cities of the High Middle Ages, the Renaissance cities, into the Dutch Republic, Polish Republic, the English Republic in the 17th century, and of course, the American republic—in particular, in the American Revolution and the War of Independence of the 18th century, as well as in the French. […]

Pettit: First of all, the American Constitution, written in 1787 or so, does reflect, I think, a very long tradition of republican thinking, as all of the Founders were well aware. When they campaigned, in many cases, they actually wore a toga. They were that aware of the Roman connection, and that that’s where they were coming from.

REPUBLICANS:

The Jewish Experience in the American Revolution (Andrew Porwancher, October 14, 2023, Real Clear Politics)

The fractious debate about Jewish rights playing out in numerous states formed the backdrop of the Constitutional Convention. Notably, the only American who appealed to the Convention to protect religious liberty was a Jew – Jonas Phillips – who had served in the Revolution. He lamented to the delegates that Jewish-Americans “have bravely fought and bled for liberty which they cannot enjoy.” What Phillips did not yet know was that the delegates had already taken an extraordinary step that most states would not: they included a constitutional clause banning religious tests for federal office. A Jew may not have been free to serve in the Pennsylvania state assembly, but that self-same Jew could be president of the United States. It was an extraordinary triumph punctuating the tragic history of the Jewish people.

The question of Jewish belonging in America has periodically resurfaced throughout the nation’s history. In each of those moments, voices have arisen to erroneously claim that Jews are newcomers who somehow threaten the original character of the country. Those today who would doubt that Jews have a rightful stake in this republic would do well to remember that the trees rooted in the Revolution’s battlefields draw their nutrients from soil tinged with Jewish blood.

THE rIGHT HATES A FICTION:

Up from the Liberal Founding: a review of The Classical and Christian Origins of American Politics: Political Theology, Natural Law, and the American Founding By Kody W. Cooper and Justin Buckley Dyer (JAMES M. PATTERSON • DECEMBER 04, 2023, Religion & Liberty)

In recent decades, however, scholars have reconsidered this view of the American founding. The ground was first laid by the 1984 landmark content analysis of Donald S. Lutz in his American Political Science Review article “The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought.” Here Lutz compiled revolutionary and founding literature—while intentionally excluding sermons for obvious reasons—from 1760 until 1805, and searched for references to authorities ancient and modern. He discovered that the so-called Lockean liberal founding was nothing of the sort. Rather, revolutionary literature contained more references to the Bible than to all other thinkers combined, and the most popular book was that of Deuteronomy. Locke appears somewhat often in the earliest years Lutz examined but rapidly tapers off in favor of appeals to Montesquieu, Blackstone, Hume, Pufendorf, Coke, and Cicero. Far from a Lockean liberal founding, Lutz concluded that “the debate surrounding the adoption of the U.S. Constitution reflected different patterns of influence than the debates surrounding the writing and adoption of the state constitutions, or the Revolutionary writing surrounding the Declaration of Independence.” In short, Lutz had proved that reducing the founding to liberalism badly oversimplified a complicated series of events with a wide array of influences and statesmen at work.

Lutz’s view remained something of a minority one; Michael Zuckert published The Natural Rights Republic in 1997 and Matthew Stewart Nature’s God: The Heretical Origins of the American Republic in 2015. By that year, however, the thesis of a “liberal founding” was already on shaky ground. A new generation of specialists in the field, like Daniel Dreisbach and Mark David Hall, had already labored to illustrate the significance of both Christian ideas and Christian interpretations of modern ideas during the founding era. Eric Nelson, David Bederman, Francis Oakley, Paul DeHart, and others have illustrated the significance of classical thought, medieval natural law theory, and “political Hebraism” as major intellectual contributions on the founding. Historians of Protestant political thought, such as Glenn Moots, have charted its significance as well. Joining political Hebraism and Protestant political thought, as I have shown, was a now mostly forgotten tradition of the “American Nehemiad,” or interpreting pious but tough patriotism in terms of the Jewish governor of Palestine under the Persian Empire, the biblical Nehemiah. None of this is to say that Locke did not play a role in the American founding but rather that he did not play a central role. The Founders simply were not captured by the Lockean imaginary.

Indeed, they rejected his political theorizing precisely because it was imaginary and their republicanism was practical and historical.

WHEN YOUR dEEP sTATE IS PERONIST…:

Argentina’s Disordered Liberty (marcos falcone, 12/03/23, Law & Liberty)

To explain the evolution of Argentine law, it is useful to examine constitutional changes, and particularly those that were made to the 1853 Constitution, which is still active today. Juan B. Alberdi, who had the most influence at the time of writing, purposefully followed the model set by the American Founding Fathers so as to establish the kind of rule of law that a classically liberal society would need. Argentina declared, in the 19th century, that everyone in the world who wished to do business in the country could do so; that internal, bureaucratic barriers to free trade were to disappear; that no privileges would be extended by the government to anyone; and that private property was an inviolable right. As Isaiah Berlin might say, the document considered liberty in a negative way. The state’s role was simply to set rules for individuals to act and flourish.

Ever since its inception, though, the Argentine Constitution has suffered from several changes that have modified its spirit. In many instances throughout the 20th century, new articles incorporated into the Argentine Constitution have recognized social and collective ‘rights,’ the enforcement of which depends on increased government intervention. The 1949 reform, for example, instituted a ‘social use’ of property that directly paved the way for the state to violate property rights. That change, though later overturned, would serve as the basis for Article 14 bis of the Constitution, which was added in 1957 and is still active. This section, among other things, guarantees the existence of a minimum wage, mandates ‘fair’ salaries for workers, demands that they get a share of whatever capital gains exist, and effectively bans the state from dismissing public employees. 

Further reforms solidified the increasingly interventionist spirit of the Constitution. The 1994 Convention, for example, added the concept of ‘environmental rights’ in a way that implies proactive government intervention. This and other third and fourth-generation ‘rights,’ particularly those that demand affirmative action for various groups to ensure the ‘true’ enforcement of other constitutional rights, show that the concept of liberty embedded in the document is no longer negative, but has become positive: The state is to actively intervene in order to bring about specific results.

Unsurprisingly, Argentine law has become more and more interventionist. Congress has, at various times in the past, nationalized private businesses and pension funds, and it has established and increased dozens of different taxes with the result that effective total tax rates are over 100%. But bureaucracy has also increased so dramatically that complying with legislation costs small and medium businesses 500% more time than their counterparts in neighboring countries such as Brazil. And even though the evolution of bureaucratic stringency is difficult to measure over time, available evidence for the past decades suggests the situation has gotten worse: According to the Fraser Institute’s Economic Freedom Ranking, Argentina ranked 36th in 1970 but ranks 151st out of 165 countries today in terms of regulation, which means it has become more and more bureaucratic. It is no wonder, then, that informal employment now accounts for as much as 45% of the total workforce. The ‘tendency towards illegality’ that Nino identified in the Argentine society seems to be caused by the state itself.

We too much take republican liberty for granted.

WITCH HUNTS ARE A FUNCTION OF WITCHES:

Bans work, actually: On the myth of authoritarian ineffectiveness (Ellen Pasternack, 14 September, 2023, The Critic)

Opponents of a ban — which, perhaps surprisingly given the number of pet deaths attributable to American bullies in recent months, include the RSPCA and the Dogs Trust — make a number of arguments. Firstly, there’s denial that any one breed is more predisposed to violence than any other: either pointing out that “all dogs can bite”, or arguing that “it’s the owner, not the breed”. Next, there’s the suggestion that “breed-specific legislation” won’t work anyway, because people will ignore it, or because various technicalities will supposedly make it difficult to enforce.

This is nonsense: breed-specific legislation has been very effective at minimising risks to the public from dogs over the three decades it has been in place. Pit bulls are one of the prohibited breeds in the UK; in the USA, where they are generally not subject to restriction, fatal dog attacks per capita are twice as high, with attacks by pit bulls more than making up the difference.

Republican citizens are rather law-abiding.

IDEAS RIGHT, SOURCES WRONG:

A philosophical defence of democracy: Our shared humanity is the grounding principle—and one we would do well to remember (Sasha Mudd, November 1, 2023, Prospect)

At the heart of the liberal political tradition—classically associated with Immanuel Kant and John Stuart Mill—is the radical claim that all human beings, just by virtue of being human, are of equal moral worth, no matter the circumstances of their birth or where they are situated in society.

The liberal tradition takes this basic moral equality to ground equal social and political rights, including the right to vote. It therefore opposes any political system—from autocracy to hereditary monarchy—that fails to show equal respect for persons by turning morally arbitrary social differences into sources of political hierarchy and oppression. People must not be dominated or treated as mere means to others’ ends, and by the same token people have a right to participate in shaping their own destiny, rather than having one imposed upon them. Importantly, this task of democratic self-rule is a collective one. It seeks to secure everyone’s equal rights and freedoms, by means of collective decision-making.

Except, of course, that the equality is derived from the Gospels and the republican liberty from Rome.

FREEDOM IS UNWORTHY OF MEN:

Gentlemen and Chivalry in the Age of Steel (SCOTT HOWARD, NOV 18, 2023, Freemen News-Letter)

Of all the great works of the Western literary canon, one that too often goes unknown or undiscussed is the Enseignements of Louis IX, a letter to his son. The letter modeled for his son what it meant to be a good Christian king in his time. The letter speaks of virtue and sacrifice. It implores the next king to be just to all his subjects and to remember that they are all brothers of his in the eyes of Christ. In short, the letter preaches the virtues of a good Christian statesman.

Though we live in an era where Christian monarchs are few and far between, the lessons of Saint Louis’ letter remain relevant. It is not merely a portrait of a good statesman. The letter describes, in part at least, what it means to be a good gentleman in the Western tradition. The virtues of the gentleman—to be just and kind to those around you and to strive to be a good man in the face of all challenges—are principles present throughout the Western canon. […]

I will leave off with another quote to ponder, this time from James Russell Lowell, related to the crisis of modern man:

“It is man who is sacred: it is his duties and opportunities, not his rights, that nowadays need reinforcing. It is honor, justice, culture that make liberty invaluable, else worse worthless if it means freedom to be base and brutal.”

-James Russell Lowell, Letter to Joel Benton, 1876

Reminding men of their duties and opportunities—reminding them that their liberty requires tempering—is the first step towards resurrecting the gentleman.

Liberty is a social virtue; freedom an anti-social vice.