The Law & Liberty Podcast

Latest Episodes:

The Crisis of Modern Liberalism: A Conversation with Charles Kesler Jan 12, 2020

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The next edition of Liberty Law Talk is a conversation with Charles Kesler on his new book, I am the Change: Barack Obama and the Crisis of Liberalism. Professor Kesler’s book argues that the intellectual world of modern liberalism is built on philosophical contradictions about the nature of liberty and the requirements of law and government to protect it. A more basic flaw is its continuing inability to limit itself when it comes to state power and welfare entitlements. This “never enough” mentality translates into the overwhelming and barely governable size of the modern democratic state. Our current President, Barack Obama, embodies these contradictions and tendencies and, as such, richly illustrates modern liberalism’s contemporary understanding of law and power.

Additional Law and Liberty links:

Understanding the Best Book Ever Written About American Democracy Jan 12, 2020

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This new edition of Liberty Law Talk is a conversation with Daniel J. Mahoney of Assumption College regarding Alexis de Tocqueville’s counsel in Democracy in America on how Americans can best combat an unbound egalitarianism and the prospect of soft-despotism. Tocqueville’s writings have been significantly featured over the past few years given his warnings and sense of the dangers of overly centralized government, so this conversation with a noted Tocqueville scholar will add greater depth to our understanding of what the author of the best book ever written about democracy can teach us regarding the challenges and opportunities that America now faces.

Related links:

Daniel Mahoney’s Welfare Rights as Socialist Manqu é.

Aurelian Craiutu’s Redeeming Liberty: Tocqueville on the Omnipresent Threat of Democratic Pantheism.

Searching for the City on a Hill: Tracing the Roots of America's Metaphor Jan 12, 2020

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The next Liberty Law Talk podcast is a conversation with historian Richard Gamble of Hillsdale College on his challenging new book, In Search of the City on a Hill: The Making and Unmaking of an American Myth. Gamble provides a definitive intellectual history of this metaphor, now etched, albeit in symbolic new form, in America’s national self-definition by Presidents John F. Kennedy and Ronald Reagan. Gamble observes that before the imperatives of the Cold War and the need for powerfully stated arguments for American political purpose, the metaphor “City on a Hill” existed in the Gospel of Matthew’s Sermon on a Mount and as a sermon written by the Puritan leader, John Winthrop, in 1630 while on-board the ship Arbella that was bound for the Massachusetts colony. The key question posed by Gamble is what succeeding generations of Puritans and, in turn, Americans did with both the content of Winthrop’s sermon “A Model of Christian Charity,” and its metaphor.

The Profoundly anti-Keynesian Political Economy of Wilhelm Röpke Jan 12, 2020

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This edition of Liberty Law Talk is a conversation with Samuel Gregg, Research Director of the Acton Institute, on his latest book, Wilhelm Röpke’s Political Economy. Röpke’s name is not frequently mentioned in the parade of great free market economists of the twentieth century. This is unfortunate, for those who know Friedrich Hayek and Ludwig von Mises may not be aware of this German economist who was as fluent in history, philosophy, and classical languages as he was in economics. One of the leading postwar German thinkers whose ideas guided Germany’s free market economic revival, Röpke approached business cycle theory, international trade, fiscal policy, monetary policy, and other issues from a Scottish Enlightenment perspective of emerging orders within the touchstones provided by classical-Christian European civilization. This podcast is certain to challenge many preconceptions of the German economist and generate your interest in his life’s work.

Hadley Arkes on Right Reason and Constitutional Law Jan 12, 2020

Show notes

In this podcast, I discuss with Hadley Arkes the fundamental touchstones of our written Constitution that he contends are discovered through reason and logic in a process that goes beyond the text. In his most recent book, Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law, Arkes argues “the task of judgment, in our constitutional law, persistently moves us away from the text, or from a gross description of the act, and it moves us to the commonsense understanding of the principles that guide these judgments: the principles that help us in making those distinctions between the things that are justified or unjustified.” My discussion with Arkes unpacks this provocative argument.

Other Related Links at Law and Liberty:

Michael Ramsey reviews Constitutional Illusions and Anchoring Truths.

Arkes’ response.

An older lecture from Hadley Arkes on the Justices who resisted the New Deal’s jurisprudence.

The Rule of Law and the Auto Bailouts: A Conversation with Todd Zywicki Jan 12, 2020

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This episode of Liberty Law Talk is a conversation with George Mason School of Law Professor Todd Zywicki about the blatant violations of the federal bankruptcy code and the breach of the rule of law by the Chrysler bailout. Professor Zywicki stresses that the Chrysler bailout abandoned the bankruptcy code’s clear and known rules regarding creditor interests that derive from the code’s 19th century origins. This allowed for the sinister use of the public trough by special interests that benefited from the bailouts. Moreover, Professor Zywicki highlights the fallout in corporate bond markets from the subversion of the legitimated process for corporate bankruptcy worked by the Obama administration. In short, borrowing costs and bond yields for companies similarly situated to Chrysler or General Motors have increased as investors fear being given short shrift to special interests that might receive favorable treatment by the federal government if such a company experiences distress or potential bankruptcy.

Rehabilitating Lochner: A Conversation with David Bernstein Jan 12, 2020

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In the next Liberty Law Talk I discuss with David Bernstein of the George Mason University School of Law his excellent work of constitutional history Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform. The Lochner decision, of course, is a progressive teaching moment in the American legal academy. Virtually any constitutional law course will teach the case as an exercise in laissez-faire fundamentalism that refused to permit sensible labor regulations on behalf of industrial laborers. Fortunately, students are told, it is a constitutional moment that has been superceded by New Deal jurisprudence that upholds virtually any regulation of economic activity.

Professor Bernstein provides in this book a layered analysis of the legal, political, and labor history behind the Lochner decision, rendering it vastly more complicated than the regnant progressive narrative of the case. Of course, as Bernstein states in his conclusion, “alert readers will have noticed that I have titled this book Rehabilitating Lochner—as in improving Lochner’s reputation—not Defending Lochner or Restoring Lochner.” Indeed, and in the course of the podcast Bernstein and I discuss the right of contractual liberty that the majority in the Lochner decision located in the Due Process clause of the Fourteenth Amendment, the lineage of this right, and how it has factored heavily, if not imperceptibly, in subsequent decisions ranging from Pierce v. Society of Sisters to Griswold v. Connecticut.

Law and Liberty has previously taken stock of Bernstein’s book with reviews and analysis from Keith Whittington, George Thomas, and Ted McAllister.

Reviving Economic Liberties: A Conversation with Clint Bolick Jan 12, 2020

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In this edition of Liberty Law Talk, I talk with Clint Bolick, Director of the Center for Constitutional Litigation at the Goldwater Institute, about his new book Death Grip: Loosening the Law’s Stranglehold over Economic Liberty. Bolick, of course, is no stranger to litigating constitutional claims for economic liberties and property rights, among other achievements. Death Grip argues that the infamous Slaughterhouse Cases of 1873 emptied the privileges or immunities clause of the Fourteenth Amendment of one its primary purposes: the protection of economic liberties against encroachment by state governments. This conversation explores the history and intent behind the ratification of the Fourteenth Amendment and its privileges or immunities clause, and then looks to current efforts to breathe life back into the protection of economic liberties.

From Sacrament to Contract: Marriage, Religion, and Law in the Western Tradition Jan 12, 2020

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In this new installment of Liberty Law Talk, I discuss with renowned legal historian John Witte the recent reissuing of his classic work, From Sacrament to Contract: Marriage, Religion, and Law in the Western Tradition. I discuss with Professor Witte the evolution of marriage law since the late Roman Empire and the pivotal aspects of the religious, public, and legal duties that were attendant upon marriage in the Roman law and Canon law traditions. The conversation then turns to the increasing role for the state in regulating marriage that emerged with the Protestant Reformation and its own dismissal of marriage as being legitimated and governed only by the church. Witte also explores the various aspects of Enlightenment thought on marriage and contemporary autonomistic thinking about marriage and considers the consequences these have had for political and social order in the modern West.

Understanding Slavery and the American Founding: A Conversation with Gordon Lloyd Jan 12, 2020

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This new conversation in Liberty Law Talk is with Gordon Lloyd, a scholar of the American founding. Lloyd focuses on the debates in the Constitutional Convention of 1787 and the state constitutional ratifying conventions of 1788 in order to better understand the compromises leading framers made to accommodate the institution of slavery in the early republic. Many, however, would dispute the term “compromises” and argue that it is an inaccurate understanding of the Constitution’s relationship to slavery. Numerous historical arguments center on the protections the Constitution provided to slaveholders through the three-fifths clause, the fugitive slave clause, and the twenty-year restriction that prevented Congress from prohibiting the importation of slaves. Indeed, more recent scholarship goes beyond even these explicit clauses and seeks to indict the Constitution’s structural provisions of equal state representation in the Senate and the use of the electoral college to elect the president, among other arguments, as core features of our “Slaveholder’s Union.”

Of course, prior to twentieth century historical scholarship William Lloyd Garrison had famously asserted that the Constitution was “a pact with the devil.” The Supreme Court’s decision in Dred Scott seemingly affirmed Garrison’s judgment if one assumes that Chief Justice Taney’s opinion was an accurate rendition of the Constitution’s relationship with slavery. In the course of the conversation, Lloyd challenges many of these arguments.

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