David Brooks is in an angry and spiteful mood. Perhaps he’s even getting to be a bit unhinged, as history is putting his vision of American conservatism onto its rubbish heap.
When I read the preface, I thought: What a great story awaits the reader. The authors of The Constitution: An Introduction, Michael Stokes Paulsen and Luke Paulsen, father and son, spent nine summer vacations together discussing the original Constitution and the Amendments. I wish I could have been privy to the conversations. Did the father ever say to the son, “you changed my mind on this point?” Did the son ever say to the father, “you changed my mind on that point?” After all, I think, the key to introducing America is by way of a dynamic conversation within and between the generations. Their aim is both lofty and restrained: to write an introductory book that is “rigorous, accurate, and scholarly” yet at the same time “brief and readable.” But they fall short.
What shall it profit originalism, to gain academic adherents but lose its soul? As Steven Smith tells it, the “new originalism” has made a disastrous Faustian bargain, with Jack Balkin playing Mephistopheles. It may have gained sophistication and intellectual respect, but it’s lost its ability to resist falsehood and manipulation—and lost the firm roots that made “That Old-Time Originalism” great. To Smith, the new originalism lacks any claim to the Framers’ authority. Because it looks to the meanings of the Framers’ words, and not to their substantive expectations, it can be made by skilled sophists to justify things “the enactors wouldn’t…
Introduction It is an honor to participate in this forum with my colleague Steve Smith and with Will Baude and Steven Sachs – all of them friends. Steve Smith’s essay continues his criticism of the new originalism in favor of the old originalism – a position that Steve previously defended in his paper “That Old-Time…
For more than a decade, the “New Originalism” has been identified with a focus on the Constitution’s original meaning (not its original intent) and with the admission that original meaning won’t perfectly constrain judges. Steven Smith challenges that version of originalism. The challenge should be rejected, but in the course of rejecting it we may…
I’m sincerely honored that Mike, Will, and Steve (whose expertise in these matters, both individually and collectively, greatly exceeds my own) would make the effort to comment on my essay. The comments advance powerful objections to “decisional originalism,” as I’ve reluctantly called it. Even so, I’m not persuaded– not yet anyway-- to abandon the idea. …
The Constitution that emerged from the Philadelphia Convention on September 17, 1787 meant nothing. But after a period of mature reflection and calm consideration, the American people, through their state ratifying conventions, deliberately chose to preserve that Constitution from the ash heap of history and establish, for themselves and their posterity, a republican form of government, meaning one that was ultimately responsible to the people in accord with their highest judgment and reason. In an effort to encourage ratification among the people, Alexander Hamilton wrote in Federalist 1 that it was “reserved to the people of this country, by their conduct…
Aristotle’s Politics has undergone at least nine English translations in the last few decades.[1] Over the centuries, its advocates have included those who enslaved American Indians and those who overthrew monarchies in 1848. More recently, amazing work on Aristotle’s political philosophy has been published by Mary P. Nichols, Harvey Mansfield, Ronna Burger, Aristide Tessitore, Clifford Bates, Harry Jaffa, and the team of Susan Collins and Robert Bartlett, among others. Evidence of the benefit of Aristotle for America is in the work of the Founders, not least of them Thomas Jefferson. In an 1825 letter written near the end of his life,…
Lamentably, I find myself in general agreement with the thoughtful commentaries on my essay by the three respondents, C. Bradley Thompson, Steven Grosby, and William Dennis. This is not to say that underneath this broad consensus there aren’t serious and enjoyable differences of philosophy that warrant sustained engagement. Taken as a whole, the body of non-Progressives advocates of liberty collectively display a colorful plumage of beliefs. While this is generally for the good, we ought to attend closely to matters of emphasis. Indeed, an objective of my original essay was to stress one concern, shared with varying degrees of intensity, that…
Ted McAllister and the Liberty Law Forum at Liberty Fund are to be thanked for resurrecting a vitally important but seemingly forgotten, or, at least, neglected topic. The subject of McAllister’s essay is the American tradition of liberty, which he contrasts with perfect or abstract liberty. He asks two important questions: What is distinctive about…
“The Institutions of American Liberty” is a nicely written and, for the most part, compelling encomium to the tradition of American liberty and the institutions upon which it rests. The author of this piece, as so many following Tocqueville have observed, rightly notes that American history displays “a fervor of institution building by people who…
The Rev. Timothy Dwight (President of Yale, 1795-1817, leading Congregational and Federalist thinker, enemy of Thomas Jefferson), wrote about the three great good works: piety, benevolence, and self-government. Self-government meant the well ordering of one’s life so he could live as a free and responsible human being. If a person was well self-governed, he would…
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)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. When the states proposed to put that dogma back in the Constitution by Amendment and James Madison convinced the House of Representatives to include it in its Amendment package, the Senate, with its extensive executive powers, disagreed to it.1 Almost all Federalists claimed the Constitution was…
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…
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…
