Mensch tracht, un Gott lacht

Tuesday, December 29, 2015

Why The Debate on "Office" and "Officers" Matters

Constitutions, statutes, and regulations create public offices, and frequently such legal instruments also create qualifications for those offices. When positive law creates qualifications for elected positions, these restrictions limit the scope of democratic choice. Nevertheless, such restrictions on democratic choice have a long pedigree in a variety of jurisdictions. Adjudications relating to qualifications to public office are not uncommon. Likewise, in the United States, the Constitution sets out qualifications for elected federal officials: i.e., Representatives, Senators, President and Vice President. Such qualifications include, among others, provisions relating to age, citizenship, and residence. Courts and commentators have long debated whether the qualifications in the Constitution’s text are exclusive (i.e., floors and ceilings) or whether they are merely floors, which can be supplemented by additional qualifications imposed by Congress and/or by the States.

Once again, this issue has become topical. Hillary Clinton, a former Secretary of State and former Senator, is a prominent candidate in the upcoming Democratic Party primary elections. These primaries select delegates to a national convention which will choose the Democratic Party’s candidate for the November 2016 popular presidential election. It has been alleged that, during her term of service as Secretary of State, Clinton violated a provision of the federal statute mandating government record keeping. Section 2071 of Title 18 of the United States Code provides:

Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States.

Section 2071’s language poses two interesting interpretive challenges.

First, what is the scope of the statute? In other words, does Section 2071’s generally worded “office under the United States” language extend to the presidency?

Second, if Section 2071’s general “office under the United States” language fairly encompasses the presidency, is the statute constitutional? In other words, does Congress have the power to create additional qualifications for the presidency beyond those already expressly stated in the Constitution’s text?

. . .

Seth Barrett Tillman, Who Can Be President of the United States?: Candidate Hillary Clinton and the Problem of Statutory Qualifications, 5(1) British Journal of American Legal Studies (forthcoming 2016), available here

My prior post is here: Seth Barrett Tillman, A Critique of Two Left-of-Centre Views of the United States Constitution: Professor Akhil Amar & Professor Lawrence Lessig, The New Reform Club (Dec. 28, 2015, 4:48 AM)

Twitter:  ( @SethBTillman )

Monday, December 28, 2015

A Critique of Two Left-of-Centre Views of the United States Constitution: Professor Akhil Amar & Professor Lawrence Lessig

Henry VII and his Council: Debate on the Use of Private Liveries by the Great Barons, and on Defiance of the Law of the Land through the use of Church Grounds as Sanctuary

Henry Tudor: My Lords, we have called you together today to discuss two matters, one important and one of little moment . . . .
[Council meeting ends.]
Earl of Pembroke: Which was the matter of little importance?
Henry Tudor: Well, you must ask the Earl of Lincoln or [Bishop] Fox.
The Shadow of the Tower (1972)

Professor Akhil Amar (Yale Law School) and Professor Lawrence Lessig (Harvard Law School) have both written on the scope of the Constitution’s office-language. Indeed, their individual views on the scope of the Constitution’s office-language are central to (some of) the leading theories they have each popularized. 

Professor Amar has written repeatedly that the Constitution’s “Office ... under the United States”-language (including its textual variants) does not reach members of Congress (although it does encompass the presidency). Amar’s views on this point are central to his understanding of the Presidential Succession Clause and the several impeachment-related clauses in the Constitution. See, e.g., Akhil Reed Amar & Vikram David Amar, Is the Presidential Succession Law Constitutional?, 48 Stanford Law Review 113, 115 (1995) (“‘Officers’ of or under the United States thus means certain members of the executive and judicial branches, but not legislators—the legacy of an earlier view sharply distinguishing the ‘people’s’ representatives in Parliament from ‘crown’ officers in executive and judicial positions.” (emphasis added)).

By contrast, Professor Lessig has expressed the view that the Constitution’s Foreign Emoluments Clause, which uses Office ... under the United States-language,[1] does reach members of Congress (and, apparently, the presidency). Lessig’s views on this point are central to his anti-corruption centred analysis of the original Constitution, and to his understanding of the First Amendment and of the permissible bounds of the regulation of political speech. See, e.g., Lawrence Lessig, A Reply to Professor Hasen, 126 Harvard Law Review Forum 61, 70 (2012) (“And most relevant to the conception of ‘dependence corruption’ that I have advanced here: the Framers banned members [of Congress] from receiving ‘any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State’ without the consent of Congress.’” (emphasis added)).

Professor Amar and Professor Lessig cannot both be correct. 

At most—only one of the two—Professor Amar and Professor Lessig—can be correct. Either the Constitution’s Office ... under the United States-language in the Foreign Emolument Clause (and elsewhere in the original Constitution) reaches members of Congress or it does not. It follows that (at least) one of these two deep thinkers is wrong, and wrong about an area of scholarship and a set of interpretive positions which have been widely (if not wildly) popularized by them.

It is not my goal here to settle this question: What is the scope of the Constitution’s office-language? Or, to put it another way, which—if either of these two scholars—is correct?

Instead, my purpose here is otherwise.

First, it is to point out that those on the left who have embraced both Professor Lessig’s and Professor Amar’s positions cannot do so in any intellectually coherent manner. Amar has written that the Constitution’s office-language does not reach members of Congress; Lessig has argued that it does.

Second, those embracing and promoting Professor Lessig’s views should explain where and how Amar’s analysis went wrong, and what consequences flow from Amar’s error in regard to his (Amar’s) understanding of the many constitutional provisions using the language of office and officer. Such constitutional provisions include: e.g., Disqualification Clause (“Office of honor, Trust or Profit under the United States” (emphasis added)); Incompatibility Clause (“Office under the United State”); Ineligibility Clause (“civil Office under the Authority of the United States”); Elector Incompatibility Clause (“Office of Trust or Profit under the United States”); Religious Test Clause (“Office or public Trust under the United States”); see also, e.g., Succession Clause (“what officer”); Necessary and Proper Clause (“the Government of the United States, or in any Department or Officer thereof”); Impeachment Clause (“civil Officers of the United States” and “Office” (emphasis added)); Appointments Clause (“all other Officers of the United States” and “such inferior Officers”); Commissions Clause (“all the Officers of the United States”); Oaths and Affirmations Clause (“all executive and judicial Officers, both of the United States and of the several States”). So the result of a reasoned debate over the scope of the Constitution’s office-language will have implications for many constitutional provisions, not just the Foreign Emoluments Clause. The stakes here are reasonably high. 

Third, those embracing and promoting Professor Amar’s views should explain where and how Lessig’s analysis went wrong, and what consequences flow from Lessig’s error in regard to his (Lessig’s) understanding of the Foreign Emoluments Clause and the many other constitutional provisions using the language of office and officer, and in regard to Lessig’s anti-corruption centred analysis of the First Amendment. Here too, the stakes are reasonably high. 

I am not under any delusion that my post here will have any practical effect on either Professor Amar or Professor Lessig.

Although in the not too distant past, I once had harboured the hope that Professor Amar might respond, I do not now expect that Professor Amar will write a response to this blog post or to my full-length academic publications touching on these interpretive issues. Nor do I, at this juncture, expect anything like a public response from Professor Lessig. And that is as it should be: this post is not directed to them; instead, it is directed to their academic and other supporters.

Both Professor Amar and Professor Lessig have a substantial number of academic supporters, not to mention a great many current and former colleagues and students, educated followers, acolytes, and fans. A good many on the left have espoused or embraced both the positions put forward by Amar and Lessig.

Not one of the Amar true believers has been willing to make the argument that Amar is correct, and that Lessig is wrong in regard to his (Lessig’s) interpretation of the Constitution’s office-language, and—from which it follows—that Lessig is also wrong about his anti-corruption centred analysis of the First Amendment.

Likewise, not one of the Lessig true believers has been willing to make the argument that Lessig is correct, and that Amar is wrong in regard to his (Amar’s) interpretation of the Constitution’s office-language, and—from which it follows—that Amar is also wrong about the Succession Clause, intratextualism, etc. 

Amar and Lessig cannot both be correct. At most—only one can be correct. We, the public, deserve a full, meaningful debate: not a cult—or, even, two well-placed elite academic cults—whose chief sacraments are omerta and humbug.

Will anyone—particularly those on the Left—step forward? Or will the many who have supported both Professor Amar’s and Professor Lessig’s views in this matter continue to support both, notwithstanding that these two views contradict one another?


PS: Here is my prior post: Seth Barrett Tillman, Miscellaneous Americana for the New Year, The New Reform Club (Dec. 20, 2015, 4:02 PM)

Twitter:  ( @SethBTillman )

[1] U.S. Const. art. 1, § 9, cl. 8 (“No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”). 

Friday, December 25, 2015

Can a Liberal Kill? or: Dukakis got hosed

But they are different questions.

1988: Dukakis [for whom I voted anyway] simply blew the answer. In his defense, it was a preposterous question he could not have been prepared for.

The nature of the question was about retribution, not self-defense or defense of one’s family.
[CNN’s Bernard Shaw] would ask Dukakis a crime question, a capital punishment question, but also a personal question. One that nobody in the world would dare to ask:What if some criminal raped and murdered Dukakis’ wife, Kitty. Would Dukakis still oppose capital punishment?
There. He had it. By Shaw’s standards, it was perfect. And now he could get to sleep.
Sophistic swine. It would take at least 20 minutes to answer the question of forgoing retributive justice in a principled fashion. The proper question–esp re this discussion–is whether Dukakis would kill anyone attempting such a thing.

I trust he would have.

Mind you--Gov. Dukakis, alleged author of the Massachusetts Miracle, did deserve to lose the 1988 election for not foreseeing the bizarre optics of looking like the biggest smacked ass since, well, Walter Mondale in 1984.  But as a matter of national security, I can picture "Duke" pointing at Muslim or Christian terrorists or his wife's prospective rapist just like this and going, "Don't do that or I will have this tank shoot at you, or at least in your general direction!"

Mike, we hardly knew ye.  If only you'd have run again in 2008, tough guy, we wouldn't be in this mess today. You go, dude.

A merry Christmas from The New Reform Club

Christus natus est! Christ is born!

But you, Bethlehem in Ephrathah, 
as small as you are to be among Judah's clans,
out of you shall come for a governor for Israel, 
one whose roots are far back in the past, in days gone by.
Therefore only so long as a woman is in labour shall he give up Israel; 
and then those that survive of his race shall rejoin their brethren. 
He shall appear and be their shepherd in the strength of the Lord, 
in the majesty of the name of the Lord his God. 
And they shall continue, for now his greatness shall reach the ends of the earth; 
and he shall be a man of peace. 
--Micah 5:2-5a (New English Bible). 

Thursday, December 24, 2015

Merry Christmas From the Moon

(This was our blog's message for the past few years. Another year has passed, but do the important things ever change?

Remembering the important things, as these men did, seems longer ago and even farther away with each passing year, and to some, even more silly. But Merry Christmas and Happy Hanukkah to all those here gathered anyway, and may we smile today, give thanks, and be inspired in the coming year to perpetuate their silliness...)

It was on Christmas Eve 1968 that the astronauts of Apollo 8, Frank Borman, Jim Lovell, and Bill Anders, became the first of mankind to see an earthrise from the orbit of the moon, and looking back on us, they spoke these words:

Anders: "We are now approaching lunar sunrise. And, for all the people back on earth, the crew of Apollo 8 have a message that we would like to send to you...

"In the beginning, God created the Heaven and the Earth. And the Earth was without form, and void; and darkness was upon the face of the deep. And the Spirit of God moved upon the face of the waters. And God said, Let there be light; and there was light. And God saw the light, that it was good; and God divided the light from the darkness."

Lovell: "And God called the light Day, and the darkness He called Night. And the evening and the morning were the first day. And God said, Let there be a firmament in the midst of the waters, and let it divide the waters from the waters. And God made the firmament, and divided the waters which were under the firmament from the waters which were above the firmament; and it was so. And God called the firmament Heaven. And the evening and the morning were the second day."

Borman: "And God said, Let the waters under the Heaven be gathered together unto one place, and let the dry land appear; and it was so. And God called the dry land Earth; and the gathering together of the waters He called Seas: and God saw that it was good."

And from the crew of Apollo 8, we close with good night, good luck, a Merry Christmas, and God bless all of you, all of you on the good earth."

It is good. God bless us, every one.

Wednesday, December 23, 2015

Just how much did early Americans party during the Christmas holiday?

Quite a bit, as historian extraordinaire Thomas Kidd gives some of the background on the festive nature of Christmas back in the day: Was Christmas in Revolutionary America a Drunken Bash? As Kidd writes:
In the 1700s, Christmas was notorious for drunken bashes more reminiscent of Mardi Gras than our family-friendly holiday. An account from New York published during the "twelve days" of Christmas in early 1787 (the same year Americans would frame the new Constitution) paints a picture of a deeply conflicted holiday. As one might expect, some people focused on the religious meaning of the season, setting aside the time "for a most sacred purpose." Others, however, spent the twelve days "reveling in profusion, and paying their sincere devotions to merry Bacchus," the Greek god of wine and festivity. 

The overt partying that was part of the Christmas celebration back in the day certainly adds context to George Washington's eggnog recipe! Folks back in the founding era liked their 'nog strong, as did the Father of Our Country:
One quart cream, one quart milk, one dozen tablespoons sugar, one pint brandy, ½ pint rye whiskey, ½ pint Jamaica rum, ¼ pint sherry—mix liquor first, then separate yolks and whites of eggs, add sugar to beaten yolks, mix well. Add milk and cream, slowly beating. Beat whites of eggs until stiff and fold slowly into mixture. Let set in cool place for several days. Taste frequently.
Love that last sentence.  Washington unfortunately left out the number of eggs to add to the receipt, so feel free to experiment a bit and still claim complete authenticity to Washington's concoction. Merry Christmas!

Tuesday, December 22, 2015

Helpful clarity about the Declaration of Independence

One of the things that amazes me, as a lawyer and as an educator, is how much confusion there is about what the Declaration of Independence is and what it isn't, and not just among regular citizens but among historians and legal scholars.  In my day job, I've published on the non-binding legal character of the Declaration, and over at the Law & Liberty blog Greg Weiner has published a helpful post reinforcing that point by pointing out the nature of the document: What the Declaration Doesn't Say.  In words that echo the fundamental insights of men like Russell Kirk and M.E. Bradford, Weiner writes:
[T]he Declaration must be properly contextualized. It is a founding document but not a framing document, which is to say it does not have legal standing in the same way the Constitution does. When Justice Brennan, for example, grounded his activist jurisprudence partly in the ideals of the Declaration, he imported a document into constitutional law that simply has no place there. But this is not a liberal trope alone. As Ralph Rossum has shown, the Declaration plays a prominent role in Justice Thomas’ jurisprudence as well: the Constitution, in his understanding, was meant to fulfill the aspirations of the Declaration. 
While there is no question that the Declaration is a key document in American history and expresses in a unique and almost sacred way the key principles of the American Revolution, it is not a constitutional document. It is a pre-constitutional one, establishing the conditions upon which the American Republic could frame its fundamental legal charters -- first the Articles of Confederation and then the Constitution of 1789. While the Constitution builds upon many of its insights (particularly the protection of natural rights through the due process clauses of the 5th and the 14th Amendments), the Declaration is not a legally authoritative document.

Sunday, December 20, 2015

Miscellaneous Americana for the New Year

John Wilkes [1727-1797]. You may have heard of “that devil [John] Wilkes.” His publication—The North Briton—made him a hero in the eyes of American patriots and Whigs everywhere, and a thorn in the side of the British ministers who opposed American petitions in support of traditional English rights. He was the primary defendant in English litigation which established the illegality of general warrants.

He was expelled from the Commons in 1764, and also expelled 3 times in 1769. After the last expulsion in 1769, he ran for election yet again, and although he had more votes than his opponent, the Commons seated his opponent. He was elected again in 1774 and took his seat. Arguably, Wilkes’ taking his seat in 1774 established the principle that each member of the House of Commons is chosen by the voters, and that the voters’ choice cannot be second-guessed, rejected, or overturned merely because a majority of the House finds a particular member’s political principles and morals objectionable.

Charles Wilkes [1798-1877]. This Wilkes was an American, an explorer, and a naval officer. On November 8, 1861, after the Civil War had begun, Wilkes was captain of the USS San Jacinto. It was Wilkes who stopped the RMS Trent, a British mail packet, and it was Wilkes who searched for and seized Mason and Slidell, the two Confederate commissioners on their way to Europe in search of diplomatic recognition for the Confederacy. Wilkes’ actions were probably a violation of international law in regard to the shipping rights of neutrals during war time. Wilkes actions were disavowed by (One war at a time) Lincoln, who subsequently released the Confederate commissioners if only to avoid a permanent break in relations between the US and UK. Indeed, Wilkes’ actions might have led to war between the US and UK. Still, these events made Charles Wilkes a hero in the eyes of loyal Americans.

The two Wilkes were related. John Wilkes’ elder brother—Israel Wilkes—had immigrated to the United States, and Charles Wilkes was the elder Wilkes’ grandson. That’s a different way to think about the Anglosphere.

General George Cadwalader (also spelled Cadwallader) [1806-1879] served in the US Army during the Mexican War and during the (American) Civil War. He was in overall command of Fort McHenry, in Baltimore, in 1861. As a result, Cadwalader was the named defendant in Ex parte Merryman (1861), which tested the legality of Lincoln’s order to suspend habeas corpus. See generally Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, Military Law Review (forthcoming circa Summer 2016) []Cadwalader, like Adams and Powell, is an ancient Welsh name. In myth, Cadwalader (spelled Cadwaladr) was the last pre-Saxon King of Britain.  

It is all too easy to speak of the American colonies as settled by Englishmen. But not all who came to the New World, of those who owed allegiance to the Crown, came from England. Some were Manx. A few came from the Channel Islands, where the Queen is still styled Duke (not Duchess) of Normandy! A good many were Welsh, Scottish, and Irish, particularly from Ulster. It is even more difficult to remember that settlers from these different places brought with them different parliamentary and legal traditions, and also different usage in regard to spoken and written English. See, e.g., Nora Rotter Tillman; Seth Barrett Tillman, A Fragment on Shall and May, 50 American Journal of Legal History 453 (2010); see also, e.g., James E. Pfander & Daniel D. Birk, Article III and the Scottish Enlightenment, 124 Harvard Law Review 1613 (2011) [].


PS: Here is my prior post: Seth Barrett Tillman, The Guardian and San Bernardino, The New Reform Club (Dec. 3, 2015, 4:53 PM), 

PPS: Welcome Instapundit and Chicago Boyz readers. We have a lot here at The New Reform Club. So please take a look.

Twitter:  ( @SethBTillman )

Tuesday, December 15, 2015

Where do our rights come from?

  • "We, the people of the state of Idaho, grateful to Almighty God for our freedom, to secure its blessings and promote our common welfare do establish this Constitution." -- Preamble to the Idaho State Constitution.
  • "We, the people of the Commonwealth of Pennsylvania, grateful to Almighty God for the blessings of civil and religious liberty, and humbly invoking His guidance, do ordain and establish this Constitution." -- Preamble to the Pennsylvania State Constitution.
  • "We, therefore, the people of Massachusetts, acknowledging, with grateful hearts, the goodness of the great Legislator of the universe, in affording us, in the course of His providence, an opportunity, deliberately and peaceably, without fraud, violence or surprise, of entering into an original, explicit, and solemn compact with each other; and of forming a new constitution of civil government, for ourselves and posterity; and devoutly imploring His direction in so interesting a design, do agree upon, ordain and establish the following Declaration of Rights, and Frame of Government, as the Constitution of the Commonwealth of Massachusetts." -- Preamble to the Constitution of the State of Massachusetts.

Monday, December 07, 2015

Thoughts on liberty & electoral integrity

We should be unfaithful to ourselves if we should ever lose sight of the danger to our liberties if anything partial or extraneous should infect the purity of our free, fair, virtuous, and independent elections.
If an election is to be determined by a majority of a single vote, and that can be procured by a party through artifice or corruption, the Government may be the choice of a party for its own ends, not of the nation for the national good. If that solitary suffrage can be obtained by foreign nations by flattery or menaces, by fraud or violence, by terror, intrigue, or venality, the Government may not be the choice of the American people, but of foreign nations. It may be foreign nations who govern us, and not we, the people, who govern ourselves; and candid men will acknowledge that in such cases choice would have little advantage to boast of over lot or chance.
- John Adams (1735-1826), second president of the United States, Inaugural Address (1797).

Sunday, December 06, 2015

Russell Kirk's conservative principle no. 2: society is organic

The Sage of Mecosta's second conservative principle involves the nature of society and the necessity of continuity in social order:
Second, the conservative adheres to custom, convention, and continuity. It is old custom that enables people to live together peaceably; the destroyers of custom demolish more than they know or desire. It is through convention—a word much abused in our time—that we contrive to avoid perpetual disputes about rights and duties: law at base is a body of conventions. Continuity is the means of linking generation to generation; it matters as much for society as it does for the individual; without it, life is meaningless. When successful revolutionaries have effaced old customs, derided old conventions, and broken the continuity of social institutions—why, presently they discover the necessity of establishing fresh customs, conventions, and continuity; but that process is painful and slow; and the new social order that eventually emerges may be much inferior to the old order that radicals overthrew in their zeal for the Earthly Paradise.
Conservatives are champions of custom, convention, and continuity because they prefer the devil they know to the devil they don’t know. Order and justice and freedom, they believe, are the artificial products of a long social experience, the result of centuries of trial and reflection and sacrifice. Thus the body social is a kind of spiritual corporation, comparable to the church; it may even be called a community of souls. Human society is no machine, to be treated mechanically. The continuity, the life-blood, of a society must not be interrupted. Burke’s reminder of the necessity for prudent change is in the mind of the conservative. But necessary change, conservatives argue, ought to be gradual and discriminatory, never unfixing old interests at once.

Saturday, December 05, 2015

Russell Kirk's Ten Conservative Principles: moral order is no. 1

During this election cycle, for those of us who consider ourselves to be conservative, it might be helpful to go back and think again about the basic principles of a conservative approach to political, economic & social issues. Conservativism, as Russell Kirk often reminded his readers, is not an ideology. Rather, it is an approach to thinking about questions of social, political, legal, spiritual & moral order. This approach, according to Kirk, is typified by several different characteristics, or as Kirk called them, "sentiments." For the next two weeks or so, I would like to spend some time reprinting Kirk's understanding of these different conservative sentiments, posting a different principle by Kirk. Kirk's essay, Ten Conservative Principles, is available in its entirety here. Here's the first principle:
First, the conservative believes that there exists an enduring moral order. That order is made for man, and man is made for it: human nature is a constant, and moral truths are permanent. This word order signifies harmony. There are two aspects or types of order: the inner order of the soul, and the outer order of the commonwealth. Twenty-five centuries ago, Plato taught this doctrine, but even the educated nowadays find it difficult to understand. The problem of order has been a principal concern of conservatives ever since conservative became a term of politics.
Our twentieth-century world has experienced the hideous consequences of the collapse of belief in a moral order. Like the atrocities and disasters of Greece in the fifth century before Christ, the ruin of great nations in our century shows us the pit into which fall societies that mistake clever self-interest, or ingenious social controls, for pleasing alternatives to an oldfangled moral order. It has been said by liberal intellectuals that the conservative believes all social questions, at heart, to be questions of private morality. Properly understood, this statement is quite true. A society in which men and women are governed by belief in an enduring moral order, by a strong sense of right and wrong, by personal convictions about justice and honor, will be a good society—whatever political machinery it may utilize; while a society in which men and women are morally adrift, ignorant of norms, and intent chiefly upon gratification of appetites, will be a bad society—no matter how many people vote and no matter how liberal its formal constitution may be.

Friday, December 04, 2015

What's a hundred years between friends?

Blogger/explainer Ezra Klein once said the Constitution was confusing because it was written "more than a hundred years ago." That was back in 2010, which itself seems like a hundred years ago. But it was no mere young-man's error. Seventh Circuit judge Richard Posner, the most-cited jurist of all time, raises Klein, saying "[t]he notion that the twenty-first century can be ruled by documents authored in the eighteenth and mid-nineteenth centuries is nonsense."

Most Americans, I think, will not follow Posner or Klein in their rejection of American continuity. Gone With the Wind is still Americans' all-time favorite film, for example, despite being made a 'hundred years' ago in 1939 about the Civil War a 'hundred years' before that. The themes of community, honor, culture, love, war, and loss of the 19th century still connect through a story told in the 20th century to us now in the 21st. It's a great service movie-making does to put the history of each preceding generation on screen, to give a sense of our continuity and proximity.

For that matter, a hundred years—even two-and-a-half—is not so long. Consider this amazing fact from G. Edward White's biography of Supreme Court justice Oliver Wendell Holmes:
Holmes himself, born in 1841, still wearing high collars and swallowtail coats in his nineties, seems anything but a modern judge, even though one of his law clerks, Alger Hiss, died only in 1996. In some respects it seems easier to believe that Holmes knew John Quincy Adams, the sixth president dent of the United States, than that he worked with a man who lived into the 1990s.
Incredible. I might have traveled to New York during college to try to meet Hiss before he passed, which, by just three more introductions, would have connected me to a founding father. They might as well be in the phone book.

Thursday, December 03, 2015

The Guardian and San Bernardino

Rory Carroll et al., San Bernardino shooting suspects raised few red flags before ‘horrendous’ crime, The Guardian, Dec. 3, 2015, 20:08 GMT

"The motives of anyone who plans a mass shooting are necessarily murky and complex. But the actions of Syed Rizwan Farook and Tashfeen Malik seem more incomprehensible still."

"In one of the most jarring details to emerge in the aftermath of the shooting, it is now known that the couple, who died in a gunfight with police, began their day by leaving their six-month-old daughter with Farook’s mother."

Id. (emphasis added).

Why would anyone believe that the motives of those who “plan ... mass shootings are necessarily murky and complex? Are not such persons’ motives all too frequently simple and plain?

In what way are Farook and Malik’s actions “incomprehensible”? Precisely what is it that the writers are unable to comprehend?

How is it “jarring” that the killers sought to look after the welfare of their child before killing other peoples’ children?

Don’t you just love The Guardian.


PS: Here is my prior post: Seth Barrett Tillman, The Tale of the Swedish Prosecutor, the Citizen, and the Human Being, The New Reform Club (Dec. 3, 2015, 8:52 AM), 

Twitter:  ( @SethBTillman )

The Tale of the Swedish Prosecutor, the Citizen, and the Human Being

It may not be unnecessary to inform the Reader, that the following Reflections had their origin in a correspondence between the Author and a very young person at Paris, who did him the honour of desiring his opinion upon the important transactions, which then, and ever since, have so much occupied the attention of all men.
—E.B. (1790)

I suggested in my last missive that modernity has created:

a disconnected transnational ... elite ... which sees tradition, loyalty, and patriotism as primitive, and whose promoters teach that nations, citizenship, borders, and law defined by elected parliaments are irksome problems to be overcome.

Here I will try to continue that theme.

I cannot verify the facts of this story. So, please, consider this a piece of fiction: a mere story seeking to pose a moral question. In other words, it is a story about you: about what you believe about your government, your public officials, your fellow nationals, and others—foreigners—nationals of countries other than your own.

The story is that a Swedish prosecutor successfully convicted a migrant (hailing from the Third World) for raping a Swedish twelve year old. A sentence of confinement was imposed by the court. The judge asked the prosecutor to make a recommendation in regard to whether the defendant should be deported after the period of confinement ends.

The prosecutor made a recommendation against deportation.

The prosecutor reasoned that the defendant was unlikely to be rehabilitated by confinement, and therefore, the defendant was likely to commit the same crime again. The prosecutor’s position was that whether the defendant goes on to rape a Swede (or a non-Swede in Sweden) or someone in the defendant’s own home country should not be considered because the health, safety, and lives of all potential future victims should be valued equally. And equality is a value upon which we all do or should agree.

Did the prosecutor act rightly or wrongly?

If rightly, would you agree with the prosecutor’s moral framework, or would you articulate a different general principle which would better justify his/her recommendation against deportation? And in what circumstances, if any, should a prosecutor recommend deportation?

If wrongly, what general principle should the prosecutor have acted upon? And why is your moral framework better than the prosecutor’s equality principle? Equality is a generally recognized value. Right?

Finally, in what sense, if any, is this Swedish prosecutor Swedish? Was the prosecutor acting in his capacity as a citizen or human being? Both or neither?


PS: My prior is post: Seth Barrett Tillman, ‘Teaching Children About World Religions and Ethics Could Help Counter Islamophobia’: A Response, The New Reform Club (Nov. 26, 2015, 12:34 AM),

N/B: Welcome ChicagoBoyz and Instapundit readers. Please stop by again, and take a look at our blog. My co-bloggers have a lot to say too!

Twitter:  ( @SethBTillman )

Seth Barrett Tillman, The Tale of the Swedish Prosecutor, the Citizen, and the Human Being,’ New Reform Club (Dec. 3, 2015, 8:52 AM), <>; 

This post now (Sept. 18, 2022) has over 16,000 views.

Wednesday, December 02, 2015

When Puritans banned Christmas

During this festive time of year, it has become normal (sadly) to hear about various attempts to purge things like the Nativity Scene or at least tamp-down the actual word "Christmas" in the public square. From the pc greeting "happy holidays" to the effort by some to emphasize the old pagan winter celebrations to references to the Seinfeld-era faux-holiday Festivus, there seems to always be a level of consternation about using the word Christmas this time of year. You know, because it has that word in it. The new forbidden "C" word. Christ.

Well, there was a time when the ire against Christmas and its celebration here in America had to do with the last syllable of the word, the "mas" -- which is an abbreviated version of the word "Mass," a reference to the Catholic eucharistic liturgy. The Puritans who settled in New England and the Scottish Presbyterians who followed them in settling the American colonial frontier had a particular aversion to the celebration of Christmas, viewing it as a papist festival that had no place in a properly Reformed understanding of the Christian life. And if its Catholic roots weren't bad enough, Christmas was also impermissibly tinged, in the Puritan view, with the earlier pagan holidays that occurred in December, as the Puritan leader Increase Mather noted:
The early Christians who  first observed the Nativity on December 25 did not do so thinking that Christ was born in that Month, but because the Heathens' Saturnalia was at that time kept in Rome, and they were willing to have those Pagan Holidays metamorphosed into Christian ones.
Popery and paganism weren't the only Puritan objections to the Christmas celebration. Christmas also interfered with one of the joys of Puritan life: toil. One Puritan objection to the celebration of Christmas was that it promoted the playing of games and public idleness.  The blog A Puritan's Mind has a short discussion of Puritan efforts to ban the public celebration of Christmas here: When Christmas Was Banned. Horror of horrors, many Christmas observers would actually commemorate the day by ... wassailing!

Monday, November 30, 2015

Remembering Corizon Aquino

[Picture: Corazon Aquino in 1986 during the People Power movement that lead to the downfall of the regime of dictator Ferdinand Marcos.]

I was thinking recently about politicians of faith who stand up to restore ordered liberty to their societies, and former Philippine president Corizon Aquino came to mind. Here's a news story about her passing in 2009: Sad news today on the death of former Philippine president Corazon Aquino. The widow of slain democracy activist Benigno Aquino, Cory (as she was known) led the People Power uprising that ousted dictator Ferdinand Marcos from power in 1986, bringing democracy and the promise of human rights to the people of the Philippines.

A woman of faith, she was motivated by her strong Catholic convictions into standing up for the rights of the people. A woman who loved her family, she worked to carry on her murdered husband's legacy. A proud patriot who believed in a Republic with the rule of law and respect for each human person, she was a symbol of hope for the millions of people who took to the streets during the People Power movement, ushering in the first of many revolutions for freedom in the late 1980's.

Like Lech Walensa in Poland, she was convinced that her mission to stand for human liberty was part of her vocation as a Christian. After she became president, there were constant coup attempts against her -- questioned as to how she could hold on to preserve the rule of law in the country in the face of such relentless lawlessness, she responded simply, "If the country needs me, God will spare me." She was an example not only to the people of the Philippines, but to freedom-loving people the world over. I remember as a high school student here in the States watching the news reports of the People Power revolution in the Philippines, and seeing her pride and dignity and determination to vindicate the legitimate rights of the Filipino people.

Like the other great leaders of the 1980's -- Ronald Reagan, St. John Paul II, Margaret Thatcher -- she understood the call of freedom, and the yearning of the human heart to be free. Aquino was not a perfect president, and her regime had its fair share of problems. The corruption within Philippine politics was more than any single politician could remove. But she served the people as best she could, and she always kept in the forefront the interests of her country. She was an example of all who live in challenging times, to all who face choosing to give in to tyranny or to fight -- peacefully, non-violently and in the power of the Gospel -- for liberty and human rights. Maraming salamat po sa inyo, Corazon Aquino.

Sunday, November 29, 2015

Remembering Catholic liturgical patriotism in the early American Republic

Today is the first Sunday of Advent in the Christian liturgical calendar, a time when Christians begin to prepare for the celebration of Christmas. I thought it might be interesting at the start of this liturgical season to explore a bit the way the Catholic Church in the early American Republic incorporated patriotism for the new American nation into its ritual life.

One of the important religious developments in the early American Republic involved the rapid emergence of public toleration for Catholics, previously considered for the most part as members of a possibly seditious sect by the majority of American colonists. Anti-Catholicism was and is deeply engrained in American culture, not simply a relic of the colonial past but something powerfully affecting the present. As this older article from the LA Times points out, overt anti-Catholicism was part and parcel of American culture well into the 20th century:  When America feared and reviled Catholics.  (Hat tip to: Spirit Daily.)  And it is important to remember that anti-Catholicism wasn't just about speeches and anti-Catholic rhetoric in newspapers.  It involved violence, particularly in the South:
Religious fear on this scale had fatal consequences. Eighty-nine years ago in Birmingham, Ala., in the midst of this simmering anti-Catholic atmosphere, Father James E. Coyle was brutally slain. Coyle, a native of Ireland, had been sent to the United States to begin his priesthood. When he dared to stand up in defense of his faith, federal agents warned the bishop in Mobile about death threats on Coyle's life and pledges to torch his Birmingham church.
Such threats were not idle. During this same period, the popularity of the Ku Klux Klan exploded after it rebranded itself a "patriotic" fraternal organization dedicated to safeguarding America against the threat of Catholics, Jews and the immigrants flooding the country in unprecedented numbers. This new Klan attracted some of "the best men in town" — doctors, lawyers, judges, law enforcement officers, even clergymen.
On Aug. 11, 1921, one of those men — a Methodist minister, the Rev. Edwin R. Stephenson — brought a loaded gun to the porch of Coyle's home and shot him dead in front of a street full of witnesses. About an hour earlier, the priest had committed the apparently unforgivable act of marrying Stephenson's 18-year-old daughter to a practicing Catholic wallpaper hanger of Puerto Rican descent.
The KKK quickly circled its wagons around its initiate, raising funds for Stephenson's defense and hiring his lead attorney, a young future Supreme Court justice, Hugo Black. Black, it was hoped, might persuade a Southern jury to see Stephenson as the community's champion rather than a bigoted killer. Articles published in the Menace throughout the trial pounded the same theme, pitting one of the most potent worries of the day against justice itself.
You can guess the outcome. Stephenson walked out of the courthouse a free man, and he never so much as apologized. Black joined the Klan himself 18 months later and, with its support, was elected to the U.S. Senate.  Only years later did he calmly state that he did not share the Klan's beliefs and was no longer a member, after a reporter revealed his membership as he prepared to take his seat on the Supreme Court. Black survived the ensuing scandal.
Anti-Catholicism, as the article points out, was ingrained into the American experience during the 1920's, and it was a powerful force well into the 1960's throughout the culture.  Although still found in some corners of the the Left and in academia, anti-Catholicism is considerably weaker than it used to be within our culture -- something that we should all be thankful for.  Still, it is amazing to see how prevalent it was, that a Methodist pastor in the KKK would kill a Catholic priest, and then be acquitted thanks to the services of a lawyer, Hugo Black, who would later join the Klan and go on to become a U.S. Senator and a Supreme Court justice.  

While many of those present at the Founding of our country remained personally hostile to Roman Catholicism -- John Adams and Thomas Jefferson certainly spring to mind -- in the public square the federal government and most state governments observed a tolerant attitude towards the formerly despised religion. Part of this embrace was fueled by French support for the American Cause during the Revolution, part was fueled by the outstanding efforts of Catholic patriots to support the Cause during the war, and part was fueled by the idea of non-establishment that took root after the ratification of the current Constitution and the adoption of the Bill of Rights.

In addition to this embrace of Catholics, there was an embrace by Catholics of the new Republic. Freed from the legal disabilities and overt persecution that many Catholics had experienced in colonial America, the (then) tiny Catholic Church in America quickly adopted a very positive and patriotic attitude towards the new government. Nowhere can this embrace of robust patriotism be seen better than in the life and work of John Carroll (1735-1815), the first Roman Catholic bishop appointed in the United States, and a cousin to two signers of the Declaration of Independence. In 1791 while Carroll was Bishop of Baltimore (effectively the bishop of the entire United States at that time) he composed this prayer, which he ordered recited in all Catholic parishes after each Mass on Sundays:
We pray, Thee O Almighty and Eternal God! Who through Jesus Christ hast revealed Thy glory to all nations, to preserve the works of Thy mercy, that Thy Church, being spread through the whole world, may continue with unchanging faith in the confession of Thy Name. We pray Thee, who alone art good and holy, to endow with heavenly knowledge, sincere zeal, and sanctity of life, our chief bishop, Pope N., the Vicar of Our Lord Jesus Christ, in the government of his Church; our own bishop, N., all other bishops, prelates, and pastors of the Church; and especially those who are appointed to exercise amongst us the functions of the holy ministry, and conduct Thy people into the ways of salvation.
We pray Thee, O God of might, wisdom, and justice! Through whom authority is rightly administered, laws are enacted, and judgment decreed, assist with Thy Holy Spirit of counsel and fortitude the President of these United States, that his administration may be conducted in righteousness, and be eminently useful to Thy people over whom he presides; by encouraging due respect for virtue and religion; by a faithful execution of the laws in justice and mercy; and by restraining vice and immorality. Let the light of Thy divine wisdom direct the deliberations of Congress, and shine forth in all the proceedings and laws framed for our rule and government, so that they may tend to the preservation of peace, the promotion of national happiness, the increase of industry, sobriety, and useful knowledge; and may perpetuate to us the blessing of equal liberty.
We pray for his excellency, the governor of this state, for the members of the assembly, for all judges, magistrates, and other officers who are appointed to guard our political welfare, that they may be enabled, by Thy powerful protection, to discharge the duties of their respective stations with honesty and ability. We recommend likewise, to Thy unbounded mercy, all our brethren and fellow citizens throughout the United States, that they may be blessed in the knowledge and sanctified in the observance of Thy most holy law; that they may be preserved in union, and in that peace which the world cannot give; and after enjoying the blessings of this life, be admitted to those which are eternal.
Finally, we pray to Thee, O Lord of mercy, to remember the souls of Thy servants departed who are gone before us with the sign of faith and repose in the sleep of peace; the souls of our parents, relatives, and friends; of those who, when living, were members of this congregation, and particularly of such as are lately deceased; of all benefactors who, by their donations or legacies to this Church, witnessed their zeal for the decency of divine worship and proved their claim to our grateful and charitable remembrance. To these, O Lord, and to all that rest in Christ, grant, we beseech Thee, a place of refreshment, light, and everlasting peace, through the same Jesus Christ, Our Lord and Savior. Amen.
While not technically a formal part of the Catholic liturgy in the United States, its repetition by each congregation after Sunday Mass resulted in it being a critical part of the Sunday worship experience of Catholics throughout the country. This prayer helped to both express and reinforce the patriotic feelings of Catholics in the new Republic. This in turn helped to cement a commitment to patriotism within the Catholic Church in America, a strong patriotism that helped to countered slanderous allegations of dual loyalty hurled at Catholics by nativists and other anti-Catholics all the way up to the election of JFK to the presidency.

Saturday, November 28, 2015

The theological roots of religious liberty

Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the General Authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign.
We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority.
- James Madison (1751-1836), American Founding Father, Memorial and Remonstrance against Religious Assessments (1785).

Thursday, November 26, 2015

'Teaching Children About World Religions and Ethics Could Help Counter Islamophobia': A Response

After Paris, questions for us all
a response to 
Teaching Children About World Religions and Ethics Could Help Counter Islamophobia

Dr. O’Donnell tells us that teaching about world religions and ethics “might counter the risk of Islamophobia in Europe and the increased potential for discrimination that we are witnessing”. Simply put, one cannot “witness” either “risk” or “potential”. At best, such things can be inferred.

If Dr. O’Donnell means that adherents of Islam have experienced increased discrimination in the immediate wake of the Paris murders, then a few well documented examples of concrete significant injuries might be convincing.

But if instead, Dr. O’Donnell means only that, post-Paris, some of Islam’s adherents feel less comfortable with their neighbours, then, although such a regrettable situation has a claim on us as do all of society’s many ills, this is not the crisis which demands the community’s immediate attention. Why? Sometimes a minority subjectively experiences feelings of victimization because it has been actually injured by wider society. But this is not always the situation: sometimes the subjective experience of victimhood comes about, not for objective reasons, but only because the minority stereotypes its neighbours’ thinking. A considered judgment as to which is going on in our shared post-Paris Europe requires solid evidence.

Furthermore, Dr. O’Donnell downplays the potential benefits of the UK’s new counterterrorist legislation and programmes by pointing out that they are based upon a “discourse about radicalisation” supported by “scant empirical evidence”. But in regard to the educational reforms she proposes—i.e., teaching about world religions and ethics—she puts forward no empirical evidence at all. Instead, she only notes that her proposals “might” or “could” lead to benefits, and she asserts in a wholly conclusory fashion that such education is “part of a good education and part of understanding the human story.”

Likewise, Dr. O’Donnell never explains what she believes caused the Paris murders and similar past events or what she believes could counter the formation of the sort of personalities that display all too great a willingness to engage in murder and mayhem on a grand scale against civilian targets.

In fact, we all know that it is this very real possibility—the omnipresent depressing likelihood of future Paris-like attacks—which is the urgent crisis that demands our immediate attention and our best efforts. All our lives and our children’s lives depend on it. All know this, except Dr. O’Donnell. For her, the “urgent [matter is] to ensure that students and professionals do not resort to prejudicial judgments about others”. This is the sort of grand category error that the public has come to expect from a disconnected transnational, elitist, academic class: an academic class which sees tradition, loyalty, and patriotism as primitive, and whose promoters teach that nations, citizenship, borders, and law defined by elected parliaments are irksome problems to be overcome.


PS: My prior is post: Seth Barrett Tillman, My Ben Carson Days, The New Reform Club (Nov. 9, 2015, 9:01 AM),

Seth Barrett Tillman, ‘After Paris, questions for us all Irish Independent (Dublin, 26 November 2015), p.37, accessed 26 November 2015.

responding to 

Dr Aislinn O’Donnell, ‘Teaching Children About World Religions and Ethics Could Help Counter Islamophobia’ Irish Independent (Dublin, 20 November 2015), p.32, accessed 23 November 2015.

Twitter:  ( @SethBTillman )

Tuesday, November 17, 2015

Standing at the Edge of the Crazy Cliff

In this here 21st century, you can't stand athwart anything, and yelling "stop" is what you do just before they plow you under. What you can do is more like this.
"You know that song 'If a body catch a body comin' through the rye'? I'd like – "
"It's 'If a body meet a body coming through the rye'!" old Phoebe said. "It's a poem. By Robert Burns."
"I know it's a poem by Robert Burns."
She was right, though. It is "If a body meet a body coming through the rye." I didn't know it then, though. "I thought it was 'If a body catch a body,'" I said. "Anyway, I keep picturing all these little kids playing some game in this big field of rye and all.
Thousands of little kids, and nobody's around – nobody big, I mean – except me. And I'm standing on the edge of some crazy cliff. What I have to do, I have to catch everybody if they start to go over the cliff – I mean if they're running and they don't look where they're going I have to come out from somewhere and catch them. That's all I'd do all day. I'd just be the catcher in the rye and all. I know it's crazy, but that's the only thing I'd really like to be. I know it's crazy."
It's crazy and thankless and mostly hopeless, but you catch as many as you can, one by one by one. This much you can do. You can be big.

Wednesday, November 11, 2015

The Court of the Friendless

What binds society together? The libertarians reply that the cement of society (so far as they will endure any binding at all) is self-interest, closely joined to the nexus of cash payment. But the conservatives declare that society is a community of souls, joining the dead, the living, and those yet unborn; and that it coheres through what Aristotle called friendship and Christians call love of neighbor. -- Russell Kirk, Libertarians: the Chirping Sectaries (1981).
A lawyer colleague of mine once shared a dispute he had with a neighbor. The specifics are lost to me now, but it was a species of minor conflict typical of sharing a property line. A disagreement over the placement of a fence, perhaps. The dispute arose in the usual way, with the neighbor initiating a dialogue by setting out his considered view of the matter. The lawyer, owing to that fundamental defect in his nature that arrived him at the business of litigation in the first place, joined the cause by declaring his intentions of legal action, thus abruptly ending the round of pleasantries. I have no doubt my colleague, an intelligent and well-trained lawyer, was correct on the merits of his legal case. But I would have suggested, had he asked: don't litigate where you eat. Lawsuits make bad neighbors.

Catholics and fellow travelers will recognize that violated in the story above was the principle of subsidiarity: the most proximate resolution tends to be the best one. The best neighbors, then, are those who share the same views, and in the case of minor differences, work toward a private resolution. When fault lines cannot be avoided, regulations of space and uses become necessary; and only in the extreme case, a judge – a complete stranger to the parties and the neighborhood – will be called upon to intervene. 

To be of any use, subsidiary depends on an affirmative answer to the question: Do we agree? Do we give the same answers, in the main, to the most basic and important questions of human affairs? For if we do, there is scarcely any need for law to answer them. The appearance of fault lines, on the other hand, stimulates the business of justice, producing laws and judges and enforcers to police the emergence of warring platoons. Anti-sodomy norms, for example, were not themselves challenged when enacted into law in colonial America. But when the cultural support crumbled, the laws proved less than worthless: by codifying itself, sexual ethics offered its head into the reformers' noose – and got nothing in return, for such statutes could only serve, if at all, as a supererogatory reminder of a broad cultural consensus now long extinct. A culture cannot be won by law, even if it can be lost by it.

* * * * *
I thought of this after listening to Clark Neily's recent presentation to the Orange County Federalist Society, with dispatches from the trenches of his work litigating in favor of economic liberties. Neily's book, Terms of Engagement, forcefully argues for economic liberties, originally abused by legislatures and now unfairly maligned by courts and the legal academy.  'Twas not always so:  the historical and legislative record seem to show the Fourteenth Amendment meant to protect economic liberties, and the cases so holding – now said to represent capitalism's tooth and claw at their very reddest – do not live up to their caricature; for when the historical record was not properly curated, and when legislatures fixed their gaze on the economy, and newspapers theirs on Supreme Court justices (The "Four Horsemen" was a NY Times coinage, as G. Edward's White's scholarship discusses), the precedent was licked. So devastating was the blow that the doctrine (now subsumed under the hopelessly confused moniker "substantive due process") was considered too damaged for later use in the Court's weird science of delivering a new body of sexual rights. The latter were conceived in the Constitution's "penumbra," without a hint of irony that economic liberties had just been cast into those very shadows.

Yet even while rescuing economic liberties is a just cause, I am more reluctant about Neily's broader argument for a more robust "judicial engagement," which essentially amounts to abandoning all presumptions in favor of the constitutionality of duly-enacted laws. Starting from economic liberties, the call for greater suspicion and scrutiny of statutes does wet the appetite. And I confess a temptation toward a judicial doctrine that would put teeth in the challenge to, say, environmental laws, passed not out of public-spiritedness so much as sacrament. Yet I cannot shake the suspicion that this move simply replaces one government tyrant with another.

To this, the libertarian reminds us: for want of what we might fear a robed tyrant, the next offensive statute will meet no opposition in the judiciary.  When it happened in Buck v. Bell, to give a real and terrible example, Justice Oliver Wendell Holmes refused to be a tyrant; he affirmed Virginia's eugenics law, and became a monster. And so a stark choice is offered: submit to the judiciary who might – might – give succor against the laws, or take your chances against your neighbors. 

The late Judge Robert Bork, thought by many, uncharitably, a tyrant and a monster both, also considered this choice. His answer seems wise, in that resigned, no-easy-way-out way that often attends true wisdom:
Once, after I had given a talk on the Constitution at a law school, a student approached and asked whether I thought the Constitution prevented a state from abolishing marriage. I said no, the Constitution assumed that the American people were not about to engage in despotic insanities and did not bother to protect against every imaginable instance of them. He replied that he could not accept a constitutional theory that did not prevent the criminalization of marriage. It would have been proper to respond that in any society that had reached such a degenerate state of totalitarianism, one which the Cambodian Khmer Rouge would find admirable, it would hardly matter what constitutional theory one held; the Constitution would long since have been swept aside and the Justices consigned to reeducation camps, if not worse. The actual Constitution does not forbid every ghastly hypothetical law, and once you begin to invent doctrine that does, you will create an unconfinable judicial power.
And so, one might conclude, Judge Bork would have joined Justice Holmes in affirming a duly-enacted eugenics statute.  And yet, perhaps not. We appoint judicial officers, not judicial philosophies, and while a judge ought to have a philosophy and let it be his guide, there is something else – conscience, maybe, or wisdom, common sense, or the divine spark, &c. – which compels him in the rare case to rise above principle. But when in doubt, judges ought to err on the side of humility and let the more nimble lawmaking process do its work: the states, let alone by the Court, sterilized – tragically, horrifically – about 28,000 following Buck v. Bell; the Court, meanwhile, after its pro-libertarian Roe v. Wade decision, has overseen – tragically, horrifically – the abortion of over 57 million, and counting. Small wonder that, ever since, nominees to the Court have been subjected to intense scrutiny of their positions on abortion specifically and their judicial philosophies generally, signaling the era of gridlock in staffing the federal bench. Even Citizens United drew hackles from the president at a state of the union address, and an unprecedented – if legally pointless – ballot initiative that will let Californians express their up-or-down opinion on the decision. 

Besides, without a roughly uniform concept of liberty, even the most "engaged" court would be left merely to arbitrate a war of all against all, and the judge's decision will be seen as resting on neither reason nor judgment, but merely will. There is a "curious assumption," Russell Kirk noted about libertarians' intellectual godfather, J.S. Mill, "that most human beings, if only they were properly schooled, would think and act precisely like John Stuart Mill." But in fact there appears little effort by libertarians at building civic friendship. And it is too much to expect the Court to impose a friendship from afar. Nor does it enjoy any superior moral record over the political branches: the American public now find sterilizing "imbeciles" repugnant, yet eliminating “populations that we don’t want to have too many of" is still in with an "engaged" Court majority. With an eye again to the scoreboard, the public corrected and apologized for its vile eugenics statute after a mercifully small fraction (about five percent) of the casualties caused by the folly in Roe, which the Court remains satisfied to uphold even as it daily multiplies its victims.

And so, the fear of an "unconfinable judicial power" is felt by all but the libertarian, who cannot imagine any act of the slavering mob he would not happily do without. Fearful of the whim of neighbors he considers stupid or theocratic, the libertarian damns their moralizing and asks judges to fill the void with pure, detached reason, to have the laws "remade after some pattern of 'normality' hatched in a Viennese laboratory to which I have never professed allegiance," in the words of C.S. Lewis. And so surrogacy, suicide, mutilation, cloning – whether these harms be self-inflicted or inflicted upon – all these and more at the center of our quest for meaning as social beings – all are ruled out by the libertarian, falling into the empirically untestable chasm of ethics and morals, the alibi of theocrats, disallowed from bringing any influence to bear on the laws. For reason, pure and detached from a moral sensibility, has nothing to do: without a major premise, all the minor premises in the world cannot complete the syllogism to arrive at a conclusion.  And so, as Elizabeth Anscombe said of David Hume, the libertarian is a mere – brilliant – sophist. For all the libertarian's efforts against moralizing, he succeeds only in casting it into the shadows; theology having been banned, the new theocrat emerges.

Uncertain, then, is democracy's fate under libertarianism, where the moral sense is out of bounds. Once judges can determine, with the aid of skilled litigators and their teams of experts, whether a given law is "rational" and therefore permissible, there is precious little discretion left to the people to order their own neighborhoods and communities. Which, it would seem, is as the libertarian prefers it. While libertarians want to shrink the government, they don't suppose it worth mentioning it means removing you from it.

Not that it could never work. As history shows, when the Court tests the public's patience – as in Dred Scott; and Lochner and Roe the following century; and even Citizens United in our own – some form of reshuffling of the deck tends to occur.  Until quite recently, in fact, justices were selected from a variety of geographies and backgrounds to engender public trust. Even Earl Warren worked hard for a unanimous decision in Brown v. Board, likely to signal that its disruptive but correct outcome was no flight of fancy or product of partisanship. In the Court's nearly two-and-a-half centuries, Americans have never risen against it; but on occasion, they do stir. 

And so even if you could put your friends on the court to hold you harmless from your neighbors, they will, when their patience wears, simply remove the judges from office or the court from jurisdiction. In the end, it will have been better to cultivate friendship with neighbors than favor with judges.