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Natural Rights and the Limited Government Model of the Constitution: A Response to Patrick Garry

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In response to: The Constitution’s Structural Limitations on Power Should Be the Focus of the Bill of Rights

The nation's founding documents displayed under subdued light at the National Archives, Washington, D.C. Image: Library of Congress Prints and Photographs Division Washington, D.C. LC-DIG-highsm-15688 (digital file from original)

There is much to commend Professor Garry’s essay. He is eminently correct in saying that the Constitution contemplated a limited government. Whether it adhered to a “limited government model” is a different issue. What is more than curious, however, is Professor Garry’s statement that the “the overall scheme of the original Constitution” is primarily concerned with structure and process and not “values.” In other words, the Constitution merely provides a process for making decisions and is wholly indifferent to the results. The Constitution is thus process without purpose. This view that the Constitution is unconcerned with “values”—or ends or purposes—is utterly alien…

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Limited Government and Individual Autonomy

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Patrick Garry’s essay “The Constitution’s Structural Limits on Power Should Be the Focus of the Bill of Rights” contains many valuable insights. In particular, it re-affirms the proposition – lost for many years but perhaps gaining some new currency – that the so-called “structural” provisions of the Constitution are, and were intended to be, not…

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The Constitution Created an Expansive, not a Strictly Limited Federal Government

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The revolution of 1787-1791 overthrew a constitution that strictly limited the federal government in favor of one with general welfare and necessary and proper clauses that allowed the federal government to absorb state powers over time. It also tossed out the dogma of separation of powers in favor of a more sophisticated balance of powers.…

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The Great Debate: Edmund Burke, Thomas Paine, and the Birth of Right and Left

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This edition of Liberty Law Talk is with Yuval Levin, author of The Great Debate: Edmund Burke, Thomas Paine, and the Birth of Right and Left. A 2013 Bradley Prize recipient, Levin connects us with the actual contest between Burke and Paine as they debated the central claims of the French Revolution and much of modern political thought with its focus on rights, individualism, the social contract vs. Burke's more expansive notions of social liberty, the contract among the dead, the living, and those yet to be born, and his belief in prescription or the notion that change should be…

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The Conscience of a Madisonian Conservative

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Snoqualmie Falls, Washington (Image: Richard A. McMillin/Shutterstock.com).

Nathaniel Peters’ review of Robert George’s Conscience and Its Enemies is an insightful introduction to the Princeton scholar the New York Times Magazine resident anthropologist of conservatives, David Kirkpatrick, described as “this country’s most influential conservative Christian thinker.” Aptly titled, “The Dynamic Unity of Conscience,” the essay was almost entirely devoted to George’s understanding of marriage and the philosophic analysis that supported it. In summarizing George, Peters elegantly illustrates how conscience is the first pillar of a decent society, followed by marriage, justice, education, and wealth. Conscience is the central philosophic issue to be sure, but a broader audience might appreciate how George’s understanding of the conscience influences his public policy choices.

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Obama as Originalist Orator

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obama lincolnMuch of President Obama’s speech commemorating the 1963 civil rights March on Washington deserves praise–or at least admiration. Speaking from the Lincoln Memorial, he began by reciting the most famous lines from the Declaration of Independence. He reminded his cynical audience that the cause of civil rights comes from the heart of our national existence. And he reinforced that principle by later quoting Lincoln, in his brief speech on the meaning of the Declaration, that “the weights should be lifted from the shoulders of all men, and that all should have an equal chance.”

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Steven Eagle on Eminent Domain

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Snoqualmie Falls, Washington (Image: Richard A. McMillin/Shutterstock.com).

Steven Eagle, George Mason University law school professor, appeared today on C-SPAN’s morning show (39 mins @ 34:50) discussing the origins of eminent domain and its drastic expansion prior to and following the 2005 Kelo decision.  Eagle gave a superb introduction to the abuse of the eminent domain power and the failure of congress to address it. In fact, governments continue to delegate their eminent domain powers to utilities and railroad companies. The callers were eloquent in relating their own abuses from government. Eagle’s Cato Institute monograph on property rights and eminent domain can be found here; his vita  listing books and links to articles is here.

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The Real America

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Thanks to Greg Weiner (and the commenters) for taking on my original piece, which has gathered far more attention than I had anticipated.  Greg argues that, “It has become commonplace to see the Declaration as a radical break with this tradition—and, in some circles, the Constitution as a radical break again—but a continuum of this symbol is clearly traceable.” Yet, though there is some “traceable” continuity, the Declaration is of a different order.

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The Right against America

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Snoqualmie Falls, Washington (Image: Richard A. McMillin/Shutterstock.com).

Robert Nisbet was certainly a conservative theorist of some prominence, as Mike Rappaport indicates. Mike was picking up on Steve Hayward’s post, which called to task today’s “quantum conservatism” for its uncertainty principle. For good reason, Mike holds Nisbet as an exemplar of the differences between conservatives and libertarians. But like Tocqueville, whose insights his best work elaborated on, sociologist Nisbet overlooks the core of American politics, which is the Declaration of Independence. Unless conservatives are selective about what it is they are conserving, they are no better, theoretically, than the radicals they claim to be combating. And libertarians cannot claim to defend…

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Natural Law, Natural Rights, and the Law of Freedom

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In response to: The Conservative Mind at 60: Russell Kirk’s Unwritten Constitutionalism

It is a great honor to be asked to comment on Gerald Russello’s excellent piece.  A man whose scholarship and wisdom is as high as his integrity is deep, Russello has pioneered much in his own writing and editing and in his profound grasp of the law.  Almost every topic I’ve explored academically has proudly followed the trails he has already cut and blazed. The Conservative Mind Sixty years ago, Russell Kirk (1918-1994) published his stunning and culturally and politically shattering work, his barely revised dissertation, The Conservative Mind.  Knopf had accepted it but the prestigious publishing firm wanted the relatively young…

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Reason and the Unfounded Constitution

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In Gerald Russello’s account of Russell Kirk’s Constitutional theory, he conscisely outlines Kirk’s thought on that central concern for conservatives and indeed for all Americans.  As Kirk understood, the Constitution is a great Fact of American experience, whose importance cannot be overlooked; and yet, as any historian could tell us, the trouble with facts is…

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Russell Kirk’s Founders and the Unwritten Constitution

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2013 is the 60th year since Regnery Publishing brought Russell Kirk's The Conservative Mind to the reading public.  The book helped transform modern American politics and inform many emerging conservative minds. When I was interning in Washington, DC more than twenty years ago, I remember answering a question by saying that I had a skeletal…

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The Propriety and Necessity of Natural Law to Originalism

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It is frequently alleged or assumed that a tension exists between natural-law theory and constitutional originalism. The tension is undeniable if originalism is a naked form of democratic positivism—that, e.g., law is simply the expressed will of the sovereign, and the sovereign people have expressed their supreme will through the written Constitution.  In such a case, the tension may even represent a contradiction.   Originalism, thus understood, would indicate simple obedience to the Constitution’s text, as understood by its authors, while natural “law” would encourage judicial entrepreneurship: to go beyond, outside, or even against that text, in the name of some law that is allegedly prior or higher.

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The Journey of Indefinite Government

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Snoqualmie Falls, Washington (Image: Richard A. McMillin/Shutterstock.com).

So what is “liberalism” today?  Is it a mere grab-bag of miscellaneous policy preferences, or some coherent thing, with an intelligible cause and purpose?

In an ambitious project, historians Donald T. Critchlow and W.J. Rorabaugh aim to answer these questions.  In their book, Takeover: How the Left’s Quest for Social Justice Corrupted Liberalism, the authors argue that contemporary liberalism represents an coherent political project that was launched in the 1960s by the “New Progressives.”  These reformers rejected the modest aims of the old liberals, who, according to the Critchlow and Rorabaugh, had sought merely to mitigate the evils of industrial capitalism.  Instead, the New Progressives aimed for a comprehensive transformation of the American economy and even the whole society, by means of a massive expansion in the size and scope of the government.  Consequently, today’s liberal agenda “is much more radical and encompassing.”

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