DON’T SQUANDER OUR INHERITANCE:

Order for a Disordered Time: a review of The Roots of American Order by Russell Kirk (Daniel Pitt, University Bookman)

When one thinks of order one might think of the phrase law and order. Kirk explains, however, that order is wider and larger than law. Law is, of course, an important element of sustaining order but they are not indistinguishable. My own way of thinking about the difference between law and order is that law is a puzzle piece in the overall puzzle of order. The other puzzle pieces are traditions, norms, customs, and beliefs. Together they form the whole picture of order. Dr. Kirk provides us with two types of order: (1) order in one’s soul; and (2) order within the civil society at large. Kirk ensures that the reader is not led to believe that this categorization of order means that they are discrete and distinct, but quite the contrary is true, these roots of order are deeply “intertwined.” […]

What do we derive from these cities? From Jerusalem, the concept of “a purposeful moral existence under God,” who cares about His nations and human persons and who is the source of all morality. From Athens, we learn that human beings are social beings, and they need to live in a community and that order in the soul and order in civil society are linked together. From Rome, we learn the importance of venerating our ancestors. Of course, these roots were intertwined “with the Christian understanding of human duties and human hopes.” From London, we get Magna Carta, equality before the law, common law, representative government, the English language, America’s social patterns and the foundations of its economy. On personal freedom in America, Kirk states that “in its origins, American personal liberty perhaps owes more to the common law than any other single source.” Indeed, according to Kirk, “the law, which is no respecter of persons, stands supreme: that is the essence of British legal theory and legal practice, and it passed into America from the first colonial settlements onwards.” From Philadelphia, the roots are America’s founding documents. In other words, the importance of art, law, ordered-liberty, community and tradition derive from these five cities, and they are essential to human prosperity, flourishing, and order.

THE FIRST RULE OF TEXTUAL CONSTRUCTION:

Direct Taxes and the Founders’ Originalism (Robert G. Natelson, 8/29/24, Law & Liberty)

The Founding-era interpretive rule most relevant to the Constitution is this: When construing a document, the primary goal is to discern the intent of the makers. This rule applied to nearly all documents—real estate conveyances largely excepted. Of course, the identity of the “makers” varied according to the nature of the document. Of a will, the maker was the testator; of a contract, the contracting parties; of a statute, the legislators; and of a constitution, the ratifiers. As James Madison wrote, the sense of the legitimate Constitution is “the sense in which the Constitution was accepted and ratified by the nation.” One whose only role is as a drafter—whether the scrivener of a will, a lawyer in the legislative counsel’s office, or a constitutional framer—did not qualify as a maker.

Construing a document by discerning the intent of the makers is a very old practice. This antiquity may come as a surprise to those who think originalism has just “been around for several decades” or that it is merely a white supremacist scam. But it is incontrovertible.

it’s why the amendments can not be absolute: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

RESTORING STARE DECISIS IS ACTIVIST:

Emancipating the Constitution From Non-Originalist Precedent: In the wake of the Supreme Court overturning Chevron, originalists must address the problem of bad precedent. (John O. Mcginnis & Mike Rappaport, 7/11/24, Law & Liberty)

The biggest challenge to the rise of originalism is precedent. Although originalism is enjoying more support in the judiciary and in the academy than it has in a century, hundreds of non-originalist Supreme Court precedents still shape our legal world. That means originalists face a clear dilemma: If they allow these precedents to dominate, constitutional doctrine will remain non-originalist […] Conversely, if originalists systematically overturn non-originalist precedent, they risk disrupting established rules and causing legal instability.

It is not surprising that the justices are just beginning to grapple with this fundamental issue.

Maintaining the violence that was done to the Constitution is the worst alternative.

HISTORY VS IDEOLOGIES:

Christian Institutionalism in Miles Smith IV’s “Religion and Republic” (Jeffrey Cimmino on July 8, 2024, Providence)

Smith’s critical contribution is to eschew the rhetorical extremes of the left and right that recast late 18th century America as either embodying rigid church-state separation or as a purer, more sacral time in our erstwhile Christian republic. Smith characterizes the early United States as “a republic of Christians committed to what I have termed ‘Christian institutionalism.’” Christians “wanted to maintain Christian precepts in their nation’s various social and political institutions without sacralizing those principles or subordinating the American republic to a church.”

Phrased in negative terms, Smith proposes “that the United States Constitution’s disestablishment did not secularize society, nor did it remove institutional Christianity from the civic, state educational, or political spheres.” It also “did not create a unitary social or semi-sacralized Christian nation as some conservative evangelicals and neo-theocrats argue.” The “religious order” enacted by the Constitution “was liberal in its views on establishmentarianism and at the same time conservative on its conceptualization of Christianity’s place in the civil and social orders and in its intellectual influences.”

There was a widespread view in the early republic among Christians (and the few non-Christians) that church and state, even with disestablishment, retained “their mutual purpose of creating and upholding a moral order committed to historically Christian conceptions of virtue.” The notion of a strict wall of separation between church and state, moreover, finds little currency in the views of the authors of the Constitution. Congress, for example, used public funds to pay for Congressional chaplains and reauthorized the Northwest Ordinance, which went so far as to declare religion “necessary to good government and the happiness of mankind.”

Transcending notions of state churches and establishment, Smith writes that “Christians remained committed to upholding Christian institutions in the civil, political, and social structures of the American republic,” in order to sustain America as a Christian nation. This institutionalism can be seen across numerous spheres of the early republic.

A HIGH BAR:

From Judges to Justices: Keeping Executive Power in Check Is an Ancient Problem (HARVEST PRUDE, JULY 2, 2024, Christianity Today)

Daniel Darling, who is director of the Southwestern Baptist Theological Seminary’s Land Center for Cultural Engagement and has been critical of Trump, said reactions to the decision were perhaps overblown.

“Despite the screaming, the Court has strengthened democracy,” he wrote on X. “Trump has to prove his election-meddling was part of official acts. The government has to prove they weren’t. The court seems to lean in the direction that they weren’t.” […]

While the case on the surface deals with weighty legal matters of contemporary politics, one legal expert said the questions around the rule of law at the heart of the case are the same controversies that biblical figures wrestled with in the Old Testament.

“Much of the Old Testament are stories of kings abusing their power,” Robert Cochran, professor emeritus at Pepperdine’s Caruso School of Law and coeditor of a 2013 InterVarsity Press book, Law and the Bible, told CT.

He pointed to the story of King Ahab, who coveted a vineyard owned by a man named Naboth. Naboth refused to sell. So Queen Jezebel had him killed, and Ahab took the vineyard.

Prior to Israel installing a king, the nation suffered from the opposite problem of general lawlessness. The Book of Judges explored the need for someone to be in charge, due to chaos caused by human sin, and the concern that human-held power is liable to corruption.

Cochran pointed to the last five chapters of Judges, where people unrestrained by the rule of law committed rapes, mass murders, kidnappings, and forced marriages (Judges 17–21).

“At the end of each story appears the refrain ‘In those days Israel had no king; all the people did whatever seemed right in their own eyes,’” Cochran said, citing Judges 21:25 (NLT). “The implication is clear: Israel needs a strong executive to enforce the law.”

But establishing a king did not fix ancient Israel’s problems either.

Imagine that Republican attorney generals could charge Joe criminally for all the bogus stuff they whinge about?

NEVER NOT EVIL:

Frederick Douglass our “Glorious Liberty Document” (David Livingstone, 2/20/24, Voegelin View)

Also ignored is the assertion by Alexander Stephens in 1861 when he became the Vice President of the Confederate States that the consensus among the American founders was that slavery was a moral wrong. Indeed, the reason the Confederacy was formed, Stephens makes clear, was to get out from under what he regarded as the Declaration’s moral error and to assert what he believed to be the contrary truth: that all men are not created equal. “Our new government is founded upon exactly the opposite idea; its foundations are laid, its corner-stone rests, upon the great truth that the negro is not equal to the white man;” This can mean only one thing. That the plain meaning of the Declaration of Independence’s equality clause is the opposite principle to the one upon which Stephens wishes to base the Confederate States upon—and so the Declaration positively affirms the equality of all men “yes white men as well as black men,” as Martin Luther King Jr. famously said in 1964. The pro-slavery position that Hannah-Jones attributes to the framers is what Stephens openly rejects. He opposes the framers’ sincere intentions as expressed in the Declaration:

The prevailing ideas entertained by him [Jefferson] and most of the leading statesmen at the time of the formation of the old constitution, were that the enslavement of the African was in violation of the laws of nature; that it was wrong in principle, socially, morally, and politically. It was an evil they knew not well how to deal with, but the general opinion of the men of that day was that, somehow or other in the order of Providence, the institution would be evanescent and pass away. (Stephens)

As far as Stephens was concerned—and he was willing to lay his life on the line to defend his view—the founders were sincere when they said all men were created equal. This was precisely the problem as far as he was concerned; had they been insincere there would have been little reason to separate from the Union and launch a civil war.

EMBRACE THE HOBGOBLIN:

Wrestling With the Founding in the Culture Wars (Thomas W. Merrill, 1/11/24, Law & Liberty)

Thomas Jefferson was weirder and more complex than our political discourse today can easily acknowledge. Consider these two facts. On the one hand, Jefferson was, as we might say today, French Revolution adjacent. He was sympathetic to the revolution for a long time, perhaps longer than we today feel comfortable with. In a well-known letter to William Short in 1793, Jefferson praised, or at least accepted, the violence of the revolution as necessary for the cause of human freedom. On the other hand, at the end of his life, Jefferson was Southern secessionist adjacent. The whole point of the famous letter to John Holmes of 1820, sometimes called the “wolf by the ear” letter, is that if Congress tried to regulate slavery in the territories, the Southern states would break the Union. Contrary to Abraham Lincoln’s later appeals to a “founding consensus” on slavery in the territories, carefully crafted for his political audiences, Jefferson thought and argued that slavery should in fact spread throughout the territories.

This Jefferson makes us feel uncomfortable. How can you describe a figure who wrote the Declaration of Independence, sympathized with the radical parts of the French Revolution, and yet still ended up in a place close to what the proslavery South became? We don’t have a name for this. Jefferson continues to frustrate our desire for clear political categories.

What are we to make of this? Perhaps this observation might help. For most of us, the first word that comes to mind when we hear the name Jefferson is “hypocrite.” And of course, it is hard to argue with that, for all the reasons that we already know. The man wrote the Declaration, but owned slaves; he orchestrated the Louisiana Purchase against his narrow interpretation of executive power; the list goes on. At the same time, the word hypocrite doesn’t really do justice to the Jefferson phenomenon. For one thing, hypocrite leads us to think about the situation largely in terms of personal moral behavior, as though it were simply a matter of someone preaching one thing in public but acting differently in private. Now, there is a dimension of Jefferson’s actions that fits this—think of Sally Hemings.

But there’s another word that fits Jefferson better. That word is tragedy or grand self-contradiction. In tragedy, precisely at the moment when he becomes himself most fully, the hero also undermines everything he holds highest.

THE SOURCES OF THE lONG wAR:

The Great Debate: Edmund Burke vs. Thomas Paine : a review of The Great Debate: Edmund Burke, Thomas Paine, and the Birth of Left and Right by Yuval Levin (Shaun Rieley, July 2014, Imaginative Conservative)

Paine was, of course, a great champion of the American Revolution – his tract Common Sense was seminal in igniting popular opinion in favor of the Revolution – and went on to be an important supporter of the French Revolution as well. Burke, on the other hand, was a supporter of the American Revolution, but when the French Revolution began in 1789, Burke became one of its most vocal critics, penning Reflections on the Revolution in France in 1790. What caused this divergence, and how did that philosophical divergence lead to the divisions in our modern political debates? That is the question that Mr. Levin explores in the book. […]

Paine’s case, Mr. Levin argues, rests on several assumptions regarding the possibility of human freedom – understood in a particular way – and the nature of knowledge. Paine follows social contract theorists Thomas Hobbes, John Locke, and Jean-Jacques Rousseau, arguing that it is possible to know through reason what man in the state of nature was like, and thereby, the rights which he possesses in that state, and this knowledge becomes the baseline for any judgment regarding the justice of any law, and the legitimacy of any political arrangement. Thus, the individual – applying judgment through reason – becomes the basis for all social relationships. Choice becomes paramount, and obligations are only binding in so far as the individual chooses to be bound – presumably, through a rational judgment. The heart of Paine’s political philosophy, says Mr. Levin, is his understanding of rights and choice.

Burke, on the other hand, builds his moral and political philosophy around “obligations not chosen but nevertheless binding” (p. 102). “An enormous portion of Burke’s (and the conservative) worldview,” says Mr. Levin, “becomes clearer in light of the importance he places on the basic facts and character of human procreation, and an enormous portion of Paine’s (and the progressive) worldview becomes clearer in light of the desire he evinces to be liberated from the implications of those facts. Almost all of what we loosely call “the social issues” have to do with the dispute about whether such liberation is possible and desirable…” (p. 103).

The Anglosphere was able to avoid the Continent’s utopian disasters precisely because we never succumbed to Reason and the denial of human nature.

A REPUBLIC, IF YOU CAN KEEP IT:

Federal Regulations: The “Administrative State” in Context (Federalism Index Project)

Federal agencies are tasked by Congress to create rules (“administrative laws”), which have the effect of law. Each year, regulatory agencies produce a significantly higher number of rules than laws passed by Congress. According to regulations scholar and historian Clyde Wayne Crews, agencies, rather than elected Congressional officials now do the vast majority of lawmaking today – raising questions not only about the economic cost of regulation, but the constitutionality of the regulatory process as it has evolved over time. Crews has monitored the number of rules passed in relation to laws, and produced a measure which he terms – somewhat playfully – “the Unconstitutionality Index.”

The Unconstitutionality Index measures the ratio of rules issued by agencies relative to laws passed by Congress and signed by the president. The following chart is based on Crews’ original research, and provides a summary view of public laws as a ratio of final rules. While Crews acknowledges that his formula is “somewhat lighthearted” and that there are “unavoidable complexities” in trying to measure the Unconstitutionality of rules, his work does provide empirical validation of the claim that there has been a significant shift in lawmaking from Congress to agencies.

In the last decade, there have been – on average – 22 final rules for every law passed by Congress and signed by the President:

How many regulations?

Measuring and tracking the real size or growth of regulatory activity over time has proved to be difficult. In part, this is because researchers lack consistent measures across time and across jurisdictions. In 2014, researchers at George Mason University published a database that attempted to quantify federal regulation, using the best available data going back to 1970. Using a novel method they termed “restrictions analysis”, the authors created a tool that helps to give a sense of the volume of regulatory restrictions. As the following chart shows, the total number of restrictions in the Code of Federal Regulations more than doubled from 1970 to 2022:

DEFERENCE IS AN ASSAULT ON THE CONSTITUTION:

Reconsidering Chevron Deference: Implications for Tech Policy (Daniel Lyons, February 01, 2024, AEIdeas)

As AEI Senior Fellow Adam White recently explained, one byproduct of a strong Chevron Doctrine is regulatory uncertainty. Every four to eight years, the White House changes hands, bringing new agency officials that often use Chevron to undo the work of their predecessors. The whipsaw effect of such changes can be economically disruptive and at some point erodes fundamental rule of law values.

Broadband regulation could be Exhibit A in support of White’s point. In 2005, the Supreme Court upheld a Federal Communications Commission (FCC) decision that broadband is an “information service” subject to light-touch regulation under the Telecommunications Act, rather than a “telecommunications service” subject to Title II common carrier regulation. But a decade later, the FCC changed its mind, reclassifying broadband under Title II to justify its net neutrality rules—only to reverse itself again in 2018 by a new FCC determined to repeal those rules. In each case, Chevron mandated that courts defer to the agency’s decision, even though this means endorsing the idea that the same statutory language meant the opposite of what it meant a few years ago. Unsurprisingly, after a change in administration the new FCC is poised to change its mind yet again later this year.

One might think it a perk that agencies have the flexibility to shape doctrine in response to political feedback. But presidential elections are noisy signals. Is a vote for Joe Biden expressing a specific desire for strong net neutrality rules, as opposed to immigration reform, worker rights, or simply a distaste for Donald Trump? It’s hard to draw definitive conclusions about voters’ views on specific policy questions.

And the resulting instability imposes significant costs on society. Regulatory uncertainty chills investment: Shareholders are less willing to invest capital in new networks if a changing legal environment casts doubts on their expected rate of return. Wireless companies may be reluctant to explore cutting-edge innovation like network slicing if regulators could limit its usefulness going forward. And consumer protection waxes and wanes, sometimes inadvertently, as when the FCC’s Title II classification stripped the Federal Trade Commission of authority to apply privacy rules to broadband providers as it does the rest of the economy.