The Law & Liberty Podcast

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The Ascent of Originalism: A Conversation with Michael Rappaport Jan 12, 2020

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The many schools of originalism all face the same questions: does it merely perpetuate the dead hand of the past? What about the exclusion of women and blacks at the Founding? What does one do with the mountains of non-originalist precedent? This next podcast with our own Mike Rappaport, prompted by his new book that he co-authored with co-blogger John McGinnis entitled Originalism and the Good Constitution, focuses on the rise of originalism as an intrepretative methodology for Constitutional Law and attempts to answer these and other questions with a new framework called original methods originalism.

Our discussion thus focuses on the central claim of original methods which is that the enactment of the Constitution and the approval of its subsequent amendments were achieved under supermajority requirements. So we have an enduring Constitution because it has been built to satisfy more than mere majorities. As such, we discuss this important rationale for why its original meaning should be preserved.

Herbert Hoover's Righteous Crusade Against the New Deal: A Conversation with George Nash Jan 12, 2020

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Herbert Hoover’s legacy is perhaps forever linked with the failure of the American economy under his presidency after the stock market crash of 1929 and his ensuing defeat by Franklin Delano Roosevelt in the election of 1932. Further adding to his difficulties is the charge that he was progressive-lite in his policies before and after the Great Depression. The proper foundation, it follows, for advocates of a renewed conservative focus is Calvin Coolidge, a President who cut budgets and taxes. This discussion with Hoover scholar George Nash begs to differ.

Nash, who previously appeared on Liberty Law Talk to discuss the lost Hoover memoir he edited entitled Freedom Betrayed—a brilliant criticism of American foreign policy from the late the 1930s through the early postwar period—has now edited another memoir of Hoover’s. This discussion with Nash on The Crusade Years 1933-1955: Herbert Hoover’s Lost Memoir of the New Deal Era and Its Aftermath considers the thoughts, writings, and speeches of Hoover across three decades as he attempted to rally leaders and citizens against the New Deal. Hoover charged that the New Deal would produce a regimented America, one that was no longer free under the rule of law and limited government. In short, Hoover became to the New Deal what Edmund Burke was to the French Revolution, a tireless enemy. So what is the final legacy of Herbert Hoover? This discussion of Hoover’s memoir on domestic policy might cause you to rethink your former assessment.

Getting Right with the Fourteenth Amendment: A Conversation with Kurt Lash Jan 12, 2020

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Kurt Lash comes to Liberty Law Talk to discuss his newest book, The Fourteenth Amendment: The Privileges and Immunities of American Citizenship. If you think the Slaughter-House Cases of 1873 gutted the Privileges or Immunities Clause of constitutional meaning and set us on our present course of strangely incorporating the Bill of Rights through the Due Process Clause, then you need to listen to this conversation. Lash argues that the original public meaning of the Fourteenth Amendment’s Privileges or Immunities Clause is definite once you understand the context of the debate in the 39th Congress.

Rather than emerging from the Comity Clause of Article IV, Section II, Clause 1, Lash argues that John Bingham and Jacob Howard, the two representatives who led congressional approval of the 14th Amendment, adjusted to criticism and pinned the Privileges or Immunities Clause on embodying the first 8 amendments and other enumerated rights of the Constitution. Nothing more was intended. In this way, these amendments were now barriers to state action. Rather than being a somewhat mysterious clause containing a seemingly limitless number of fundamental rights, Lash argues that the meaning of Privileges or Immunities is clear. As a result, incorporation of the first 8 amendments of the Bill of Rights, for the sake of political morality, correct history, and constitutional meaning, should happen through the Privileges or Immunities Clause of the 14th Amendment.

Critiquing Leo Strauss from the Right Jan 12, 2020

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This next episode of Liberty Law Talk is a discussion with author and professor Grant Havers on his conservative critique of Leo Strauss. Many conservatives hold Strauss in high regard as a thinker who shaped their intellectual commitments. Havers discusses the question: what’s so conservative about Strauss’ philosophy?

Havers’ recent book Leo Strauss and Anglo-American Democracy: A Conservative Critique contends that Strauss was a liberal Cold War warrior who most wanted to defend the foundational principles of British and American democracy. Going to the heart of Strauss’ philosophical principles and his grounding of modern constitutional liberty in classical Greek political thought, Havers argues that these ideas fail to uphold the political tradition Strauss was loyal to. Moreover, does Strauss’ approach unduly ignore other contributions that are more historically connected with Anglo-American liberty? Here, Havers emphasizes religion and modern sources that, he contends, have guided its political practices and its leading statesmen. In this regard, Havers’ book is also an important Protestant assessment of Strauss’ ideas. Enjoy!

Robin Harris Discusses the Rise, Fall, and Legacy of Margaret Thatcher Jan 12, 2020

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Margaret Thatcher’s death one year ago sparked much commentary either critical or adulatory. You were certainly hard-pressed to find balanced commentary on her legacy unless you were reading Theodore Dalrymple’s thoughtful assessment on this site (his latest on Thatcher is here). Now contributing to this site’s ongoing appraisal of Thatcher is Robin Harris, her speechwriter and policy advisor. He comes to Liberty Law Talk to discuss his highly-acclaimed 2013 biography of the Iron Lady entitled Not for Turning: The Life of Margaret Thatcher. Harris worked closely with Prime Minister Thatcher from 1985 until her departure from Number Ten. He left with her and subsequently drafted the two volumes of her autobiography.

Harris includes in the book a letter he received in 2005 from Thatcher. She states the following:

Over the years, both during my time as Prime Minister and since, you played an important role in shaping not only my own thinking but that of the Conservative Party. As a key figure in Central Office during the 1980s you knew the struggles we endured in turning our beliefs into policy, often in the face of severe opposition. And because we have spoken about it so often, you also know, better than anyone else, what I wanted our reforms to achieve for the people of Britain.

This discussion recounts both Thatcher’s rise in the Conservative Party as she waged a rebellion against its uninspired leadership and her intellectual development into an adherent to free-market, small government, and low tax policies. Talking with Harris, we begin to understand just why she was the Lady who was ‘not for turning’.

Presidential Power Rising: A Conversation with Frank Buckley Jan 12, 2020

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This next Liberty Law Talk is with Frank Buckley about his new book The Once and Future King: The Rise of Crown Government in America. Buckley’s book is a profound challenge to the script of presidential power that many conservatives have read from over the past decades. Our conversation focuses on Buckley’s argument that the American constitutional system has become dangerously unmoored from the congressional system of government that its ratifiers intended for it.

This conversation explores a close reading of the Constitutional Convention of 1787 to understand Buckley’s claim of how indisposed the members of that convention were to an executive power that would dominate the federal government. All of this matters profoundly, Buckley contends, because presidential forms of government are not, generallly speaking, well disposed to freedom. Parliamentary systems are in fact freer than their presidential rivals. Among presidential systems, America has been the exception in the high level of freedoms it has preserved.

There is, however, great reason to be worried, Buckley observes, that such a trend will continue for much longer. Power continues to accrue in the American presidency, and congress shows little willingness to reassume the full constitutional powers granted it to run the government.

America's Way Back Jan 12, 2020

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Friedrich Hayek once noted that “A successful free society will always in large measure be a tradition-bound society.” In pursuit of Hayek’s wisdom, this podcast with Donald Devine, author of America’s Way Back: Reclaiming Freedom, Tradition, and the Constitutionfocuses on his attempt to revive fusionism by harmonizing freedom and tradition in the manner once proposed by Frank Meyer.

While conservatives and libertarians have long been fractured, Meyer attempted in a series of essays almost fifty years ago to find the principles that would unite them. He observed that individual freedom emerges from the religious and moral heritage of the West. However, this freedom presupposes virtue that individuals must practice in order to be free. This heritage of freedom and its underlying principles forever remove the state from possessing a comprehensive ordering role in the lives of its citizens. So the state should not and cannot make virtuous individuals, but freedom, Meyer argues, requires virtue and the commitment to excellence in the use of one’s choices. Freedom is high drama and welcomes family, religion, and the arts of association for its support. Believing that we are a nation exhausted by the size of government and the inefficacy of our major parties to defend the American tradition of liberty, Devine discusses why we need to recover Meyer’s fusionism today.

Common Core Nation Jan 12, 2020

Show notes

In this discussion I talk with Professor Sandra Stotsky who has emerged as one of the leading critics of the Common Core State Standards Initiative. Stotsky has testified before numerous state legislatures and has written reports and op-eds documenting its deficiencies. Common Core aims to be a national solution to the problems of performance that have dogged education in America. As such, its scope is comprehensive in its attempt to impose education standards, testing requirements, teacher and student evaluations, among other items, on all 50 states. Currently, 45 states have accepted the standards and are implementing curricula around them. But do the standards actually raise the knowledge bar? Stotsky, who was for a time a member of the validation committee, argues the opposite. Educations standards are lowered by the Common Core in an attempt to get to the next-best result. Its own writers seem to agree.

This process, as noted by Stotsky, has never been driven by the states. Rather, it is the outcome of philanthro-policy making, notably the Gates Foundation and the National Governors Association, and a heaping dose of cartel federalism courtesy of being tied to the Obama administration’s Race to the Top legislation. As Stotsky and I discuss, slighted by the process have been parents, teachers, and local school boards who have somewhat helplessly watched their State Boards of Education adopt the standards, in many cases before they were even finalized, in order to receive largesse. States accepting the Common Core standards and testing apparatus received money and a waiver from No Child Left Behind requirements—the last successful attempt at national education policy.

In almost 4 years, the Common Core standards have swept the country and only now is a real push-back beginning to occur.

Twilight of the American Republic Jan 12, 2020

Show notes

This next Liberty Law Talk is a conversation with Justin Litke on his new book, Twilight of the Republic. Our conversation focuses on the book’s attempt to situate twentieth century claims of American Exceptionalism within the context of the political symbols and public meanings that are revealed in significant political documents stretching back to the Mayflower Compact and forward to Albert Beveridge’s 1900 Senate speech “In Support of American Empire.” Along the way, we discuss the Declaration of Independence, Federalist Papers, the Constitution, and the presidency of Abraham Lincoln in order to better understand Litke’s powerfully argued claim that the constitutional consensus of our Founding has broken into competing meanings. We are no longer even aware of the prior political tradition of our Founding, Litke contends. As a result, America now authorizes its political actions under various ideologies in both the domestic and international spheres with such policies frequently resulting in deleterious consequences.

The Tragedy of Religious Freedom Jan 12, 2020

Show notes

This next Liberty Law Talk is with Marc DeGirolami on his new book, The Tragedy of Religious Freedom (Harvard University Press, 2013). Central to DeGirolami’s argument is the failure of monistic accounts that seek to resolve religious liberty disputes by cosmic appeals to neutrality, equality, or other universal rationales. These fail because they do not consider the range of conflicts, practices, traditions, and meanings that are at stake in these highly controverted cases. Similarly, DeGirolami takes issue with those who deny even the possibility of the concept of religious freedom. Instead, he looks in a Burkean manner to how the practices and traditions of religious liberty have inherent meaning and worth to their participants. The existence of various forms of outward religious expression testifies to their goodness in virtue of having become living projects of individuals and citizens. It follows that disputes between litigants advancing secular arguments against religious expression should be weighed and judged not by “abstracted, absolute values” but by social history and a pluralistic perspective. In doing so, courts would recognize that these are “irreducible conflicts” that should be judged with balance and a common law methodology that would move slowly and refrain from issuing sweeping decisions one way or the other.

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