Canonical authors, it seems, are always on trial. Not only do they face a jury of contemporary readers disinclined to recognize their greatness, but they must re-argue their case with every succeeding generation that charges them with irrelevance. As the arbiters in this tribunal are biased and the prosecutors zealous and unprincipled, a skilled and tenacious advocate can be an extraordinary asset. It is convenient, then, that Nelson Lund, who has published a new defense of Jean-Jacques Rousseau, Rousseau’s Rejuvenation of Political Philosophy, is a lawyer. Or perhaps it is more accurate to say that, because the author is a…
I am strong advocate of liberty in society. Nevertheless, I don’t think of myself as a libertarian. First, many libertarians tend to engage in more reasoning from first principles and less reasoning from experience than I think wise. While in general individual freedom in a great social good, it is hard to define a priori the exact boundaries for freedom of a given society.
Moreover, while people do have rights, they also exist at a particular historical time and are to a degree constituted by social traditions. It is not, of course, that all these traditions are excellent and should be retained, but their too rapid elimination on the basis of abstract principles can disorient citizens as well as invite backlash against freedom.
As a result, I have been more attracted over time to “fusionism,” a combination of classical liberalism and traditional conservatism popularized in the modern era by Frank Meyer, which I see as giving a priority to liberty but offering respect for tradition. And tradition and liberty can be complementary as well as in dialectical tension. Under political structures conducive to liberty tradition offers some rough empirical guidance on the appropriate contours of freedom and constraints on imprudent changes during periods of political passion. And it provides a bulwark against destabilizing social change.
And nothing better expresses the essence of fusionism than sound federalism.
Time asked 16 law professors what they thought were the worst Supreme Court decisions since the 1960s. It is an illuminating enterprise, not because the answers are particularly interesting but because it perfectly illustrates the mindset of the traditional media and the legal academy today.
Begin with Time. While the academy leans about eleven to two to the left, Time managed to exacerbate that disparity, picking only one conservative to participate and what appear to be 15 professors on the left side of the American political spectrum. Then it gave the professors an absurdly small amount of space to explain their reasons—so small that it would be almost impossible to give a reasoned legal critique of any decision. Thus, Time encourages the view that what is important about a decision is whether the result accords with one’s preferences rather than if it is correctly reasoned.
But even given the poor structure for the assignment, the answers are often thoughtless and sometimes wrong even on their own terms.
Rick Hasen has called for making Supreme Court appointments an important part of 2016 political campaign. What is distinctive about his argument is that he drops all pretense of appointing justices based on their jurisprudence or methods of legal analysis. He just wants a series of left-liberal results that he characterizes as civil right decisions, although some of these results, like overruling Citizens United, actually take away civil rights exercised against the majority. He wants to further politicize the Court. He is kind enough to quote me as arguing for depoliticization: The Court should act apolitically by applying the same formal methods in highly contested constitutional cases that it does in garden variety cases, such as the bankruptcy code.
Hasen dismisses this possibility and in particular the most important tool for doing so– originalism. But his arguments are very weak. He observes that at times Scalia and Thomas—both originalists—disagree. But of course no methodology eliminates all disagreement, even if it depoliticizes that disagreement by forcing justices to look at the empirical facts rather than to their preferences. And in any event Scalia and Thomas have some of the highest rates of agreement of any two justices on the Court.
Hasen also argues that terms like equal protection are sufficiently vague to permit alternative legitimate methods of giving effect to the Constitution. But he makes no effort to legitimate or even describe these methods other than to argue that they can help achieve what he views as good political results.
The interesting Paulsen–Levinson–Lund three-way reminds me of a recommendation made by Vanderbilt
law professor Suzanna Sherry a few years ago (at an AEI seminar—I don’t know if Suzanna has written it up some place): whatever you may want to teach in ConLaw, you certainly don’t want to teach it in the first year of law school. It tends to bring out the worst in students. They read Supreme Court opinions and quickly “conclude” that no sensible person can be a legal formalist and/or textualist. This supposed insight then often prompts the conviction, usually expressed with an air of self-conscious sophistication, that law is nothing but politics.