Mensch tracht, un Gott lacht

Tuesday, October 27, 2015

Sir Thomas More as conservative reformer

What kind of reformer was Sir Thomas More? Often portrayed as a heroic martyr for the liberty of conscience, More had a long career in public service before his disagreement over the King's Great Matter led to his alienation from & eventual martyrdom by Henry VIII.  Here's an interesting reflection on Thomas More's work as part of the Northern Renaissance prior to the Reformation:  Thomas More, Christian Humanism and Utopia.  (Hat tip to the old Western Confucian blog.)  As the reflection points out, at the core of More's work as a lawyer, judge & statesman were some simple Christian principles:
He believed that through the wisdom and examples of the Holy Scriptures, specifically by serving one another in the active Christian love found in the Gospels, and the guidance by the universal Church and its doctrines, society could better itself until the time that Christ returned to earth.
That brief summary of More's key convictions explains how the Man for All Seasons pivoted from being a Church reformer in the period prior to the outbreak of the Reformation to such a staunch defender of Catholic orthodoxy & papal primacy during the Reformation -- a transformation that ultimately led to his martyrdom at the hands of Henry VIII.  Both before the Reformation & in that movement's early stages, More sought to defend the purity of the Catholic faith, first from the abuses present within the pre-Reformation Church & then from the destruction of the Catholic faith at the hands of a government seeking to impose Protestantism in England.

In that work, More is an almost perfect example of a conservative reformer. He was no radical; rather he sought to retain essential truths of the faith while working to correct abuses in the Church's way of life. Unlike his opponents, he was not a doctrinal innovator; he sought reform for the Church instead of its replacement. Once this is understood, More's actions during the early Reformation can be understood to be a continuation of his efforts to improve the Church prior to the Reformation. As such, More's basic approach to the question of reform stands well within the conservative approach to societal change set out by men such as Edmund Burke (himself a practicing Anglican who was married to a Catholic & sympathetic to Catholic freedom in England & Ireland).   Far from being a reactionary, a fundamentalist or religious fanatic (as he has been portrayed recently by the historical fiction Wolf Hall), More stands as a conservative voice for both reform of and fidelity to the Catholic Church, of necessary change within the constraints of substantive continuity.

What, then, of charges made against More that he tortured Protestants during his time in government, denying to his opponents the very right of conscience that he himself claimed when subject to coercive action by Henry's henchmen? The Supremacy and Survival blog has a good discussion of the actual historical record regarding Thomas More's actions in the suppression of heresy prior to Henry's break with Rome:
As summarized by John Guy in The Public Career of Sir Thomas More (Yale, 1980), "Serious analysis precludes the repetition of protestant stories that Sir Thomas flogged heretics against a tree in his garden at Chelsea. It must exclude, too, the accusations of illegal imprisonment made against More by John Field and Thomas Phillips. Much vaunted by J.A. Froude, such charges are unsupported by independent proof. More indeed answered them in his Apology with emphatic denial. None has ever been substantiated, and we may hope that they were all untrue" (165-66). See also G.R. Elton, Studies in Tudor and Stuart Politics and Government, Papers and Reviews 1946-1972, Volume 1, 158 ("It is necessary to be very clear about More's reaction to the changes in religion which he saw all around him. No doubt, the more scurrilous stories of his personal ill-treatment of accused heretics have been properly buried, but that is not to make him into a tolerant liberal.")
Paralleling this understanding of More, Cambridge historian and Reformation scholar Eamon Duffy has noted, "More was neither blood-soaked nor a hypocrite, but he was a man of his times, not of ours." And in that, More reflects one of the key characteristics of a conservative reformer: he was a man of his day, living not by abstraction but by the customs and the mores of hist time, tempered by prudential application of principle.

Monday, October 26, 2015

John Adams on Judaism's influence on human history

From one of our most important founding fathers and the second president of the United States:
I will insist the Hebrews have [contributed] more to civilize men than any other nation. If I was an atheist and believed in blind eternal fate, I should still believe that fate had ordained the Jews to be the most essential instrument for civilizing the nations ... They are the most glorious nation that ever inhabited this Earth. The Romans and their empire were but a bubble in comparison to the Jews. They have given religion to three-quarters of the globe and have influenced the affairs of mankind more and more happily than any other nation, ancient or modern.
- John Adams, Letter to F.A. Van der Kemp, dated Feb. 16, 1808.

Of the three pillars supporting western civilization -- Greco-Roman culture, the legacy of Judaism, and the prudential insights of the Enlightenment -- the most important is the legacy of Judaism.

Saturday, October 24, 2015

The wisdom of St. George Tucker on judicial review

Introduction. The issue of judicial review was an active one in the early American Republic, with the leader of the first Republican Party, Thomas Jefferson. One of the structural constitutional problems in the early Republic revolved around the problem of enforcing the Constitution on the federal government itself. If the president or Congress decided to violate the Constitution's protections and requirements, how would their actions be restrained or reversed? The Constitution itself is silent on that direct question, although insisting via the Supremacy Clause that the federal Constitution was the "supreme law of the land." (US Const., art. VI, cl. 2.)

The Federalist solution: judicial review. Federalist constitutional theory posited that the Supreme Court had the power to judicially review legislation enacted by Congress and signed by the president in order to determine its constitutionality. 

In a nutshell, if the Court found that the legislation in question was not constitutional, the legislation would be regarded as null and void. This approach to judicial review was advocated by Alexander Hamilton in The Federalist Papers, specifically No. 78. It also is the theory that was embraced by Federalist Supreme Court Chief Justice John Marshall in the landmark Supreme Court case of Marbury v. Madison, 5 US 137 (1803). That case has long been considered the key Supreme Court case in the development of the doctrine of judicial review, although it built off earlier case law acknowledging the principle. One of those cases is the 1789 case of Ware v. Hylton. In that case, the Supreme Court struck down a state law under the Supremacy Clause because the state law violated the requirements of a treaty to which the United States was a party.

Jefferson's radicalism and nullification under Calhoun. Jefferson was highly skeptical of the idea of judicial review, and Madison, while originally supporting the idea at the Constitutional Convention, eventually grew skeptical of judicial review as well. During the controversy over the Alien and Sedition Acts, both Jefferson and Madison proposed a different mechanism by which the Constitution's protections could be vindicated in the face of possible abuse by the general government: the doctrine of nullification. Under that theory, a state could nullify constitutionally problematic federal legislation within that state's boundaries, effectively shielding its own state citizens from federal overreach. Sometimes referred to as interposition (from the idea that the state would position itself between its own citizens and the federal government), the Jeffersonian-Madisonian view lived on in American polity well into the 19th century.

As the Jeffersonian Republicans morphed into the Jacksonian Democrats, the new Democratic Party's southern wing's leader, John C. Calhoun, was an ardent proponent of the idea, and much of Southern constitutional theory, both prior to the Civil War and during the Confederate period, was dominated by the idea. Interestingly enough, prior to the emergence of the Jacksonian Democrats there was a strong view within the Jeffersonian Republican Party in support of the idea of judicial review, despite Jefferson and Madison's misgivings about the doctrine.

St. George Tucker's approach. One Republican proponent of judicial review was Virginia jurist St. George Tucker. Tucker, a federal judge, noted Republican and early proponent of the abolition of slavery, was a major legal theorist in the early Republic, and the author of the first major American edition of Blackstone to be published since Independence. Tucker published his edition of Blackstone in 1803, the same year the Supreme Court decided Marbury v. Madison. In Note D of the first volume of his edition of Blackstone, Tucker makes a strong appeal to the idea of judicial review as a bulwark of constitutional liberty:
The obligation which the constitution imposes upon the judiciary department to support the constitution of the United States, would be nugatory, if it were dependent upon either of the other branches of the government, or in any manner subject to their control, since such control might operate to the destruction, instead of the support, of the constitution. Nor can it escape observation, that to require such an oath on the part of the judges, on the one hand, and yet suppose them bound by acts of the legislature, which may violate the constitution which they have sworn to support, carries with it such a degree of impiety, as well as absurdity, as no man who pays any regard to the obligations of an oath can be supposed either to contend for, or to defend. 
Specifically taking aim at the constitutionality of the Alien and Sedition Acts, the very acts that led his Republican brethren Jefferson and Madison to propose the radical idea of nullification, St. George Tucker writes a robust defense of the principle of judicial review:
If we consider the nature of the judicial authority, and the manner in which it operates, we shall discover that it cannot, of itself, oppress any individual; for the executive authority must lend it's aid in every instance where oppression can ensue from it's decisions: whilst on the contrary, it's decisions in favour of the citizen are carried into instantaneous effect, by delivering him from the custody and restraint of the executive officer, the moment that an acquittal is pronounced. And herein consists one of the great excellencies of our constitution: that no individual can be oppressed whilst this branch of the government remains independent, and uncorrupted; it being a necessary check upon the encroachments, or usurpations of power, by either of the other. Thus, if the legislature should pass a law dangerous to the liberties of the people, the judiciary are bound to pronounce, not only whether the party accused hath been guilty of any violation of it, but whether such a law be permitted by the constitution. If, for example, a law be passed by congress, prohibiting the free exercise of religion, according to the dictates, or persuasions of a man's own conscience or abridging the freedom of speech, or of the press; or the right of the people to assemble peaceably, or to keep and bear arms; it would, in any of these cases, be the province of the judiciary to pronounce whether any such act were constitutional, or not; and if not, to acquit the accused from any penalty which might be annexed to the breach of such unconstitutional act. If an individual be persecuted by the executive authority, (as if any alien, the subject of a nation with whom the United States were at that time at peace, had been imprisoned by order of the president under the authority of the alien act, 5 Cong. c. 75) it is then the province of the judiciary to decide whether there be any law that authorises the proceedings against him, and if there be none, to acquit him, not only of the present, but of all future prosecutions for the same cause: or if there be, then to examine it's validity under the constitution, as before-mentioned. 
Liberty & Union. Why is this important historically? Tucker's work demonstrates the strong appeal during the early Republic of the idea of an independent federal judiciary as a block to constitutional abuses by the federal branches. As the premier defender of Southern Jeffersonianism Clyde Wilson has written of Tucker's views:
One of Tucker’s principal concerns as a legal and political thinker is to affirm the standing of the judiciary as an independent and coequal power with the legislature and executive. This is an American accomplishment to be supported in state and federal governments both. For him the judiciary is the realm where individuals may seek relief from the oppressions of the government. Its power and independence are thus essential. 
While some of the top-tier Founders within the Republican fold argued for a constitutional theory that would ultimately tear the Union apart, Tucker defended the idea of liberty under, rather than in opposition to, the Union of the States and the federalist system of government established by the Constitution.  While Tucker did support the right of States to secede from the Union, that power did not justify nullification or efforts to abandon the role of the federal judiciary as defender of constitutional order.

For Tucker, the Union was grounded in the supremacy of the Constitution and protected by the glory of Anglo-American government: a truly independent judiciary. Tucker's constitutional vision was thus broadly consonant with the Federalist vision enunciated by Marshall. Unlike Jefferson and Madison's proposed solution, which set the stage for a Southern jurisprudence that would eventually justify an illegal attempt at succession, St. George Tucker sought to preserve both liberty and the Union. And did so through the principle of constitutional government & the mechanism of judicial review.

Friday, October 23, 2015

The Decline of American Martial Culture—Flies of a Summer (Part III) (with correction in red)

Recently, I wrote a paper on Ex parte Merryman (1861) (Taney, C.J.).[1] Merryman was not a Supreme Court decision; rather, it was a Taney decision “in chambers,” or, possibly, a single-judge decision of the Circuit Court for the District of Maryland (where Taney, a native Marylander, had circuit-riding duty). Merryman dealt with, among other things, the validity of Lincoln’s suspension of habeas corpus at the outbreak of Civil War hostilities.

One of the interesting things about Merryman is that many commentators (including judges and academics in law, history, etc.) misstate the case’s facts, reasoning, and final disposition. For example, several academics have written that “martial law” was an issue in Merryman. See, e.g., Richard H. Fallon, Jr., Executive Power and the Political Constitution, 2007 Utah Law Review 1, 2 (“At stake in Merryman was the constitutional authority of the President to declare martial law . . . .”). Some even suggest that Merryman involved both martial law and the suspension of habeas corpus: a position which, although wrong, at least has the merit of distinguishing these two legal concepts. See, e.g., Geoffrey R. Stone, Civil Liberties in Wartime, 28(3) Journal of Supreme Court History 215, 220 (Nov. 2003) (“On April 27, to restore order in Baltimore and to enable Union forces to protect Washington, Lincoln suspended the writ of habeas corpus and declared martial law in Maryland.”) (peer reviewed). All of this is quite puzzling: neither Taney’s opinion, nor the party’s (extant) filings, nor Lincoln’s suspension order from April 27, 1861 mention martial law at all. Merryman’s facts—as far as I know—relate only to suspension issues, not to martial law.

I suspect that there may be a reason why this has happened. A large swathe of our modern academic elite is now so removed from the martial aspect of American history and American law that understanding the past (in its own terms) poses real challenges for them (and, perhaps, for us too and the Nation as a whole). Query: What percentage of our academic class is composed of veterans, and how does that compare to our population as a whole?

Pre-World War II, this division between American civil and military society was less (perhaps, much less) of a problem. Then, the largest part of our (white male) population (of a certain age) was enrolled in our various state militias (or, their successors—the U.S. and state National Guards). Conscription, if not universal conscription, naturally flowed from actual congressionally declared wars. Likewise, a large swathe of Americans, across all social classes, could expect to see military service in war, including, unfortunately, Indian wars. (Lincoln and Davis both served in the Black Hawk War.) 

To understand the historically broad scope and egalitarian reach of American military service one need only consider: Alexander Hamilton (born abroad); Ulysses S. Grant (West Point educated, but not in the active military at the outbreak of the Civil War); Ely S. Parker (a Native American who rose to the rank of general during the Civil War and drafted the surrender terms at Gettysburg Appomattox Court House); and Walter Bedell Smith (who started his military service as a private in Indiana’s National Guard, but rose quickly through the officer ranks of the regular Army in World War I and World War II). All four had significant careers after their military service. This world—their world—has been replaced by an elite permanent full-time careerist officers corps, and a body of enlisted persons who (it appears) have not been drawn from the children of the aspiring upper middle and professional classes.[2] My primary concern here is that if those with military careers are not drawn from all walks of American life, and, concomitantly, if the largest part of the officers corps serve for life, which was not the case in the 18th and 19th centuries, then it is likely that wider civil society will lack needful knowledge about the realities of war and military life.

If this disconnect between wider American society and an ever more specialized military exists as I describe it, then it is not really surprising that academics (outside the military) do not know the difference between martial law and the suspension of habeas corpus. (Query: Do you?) But if that is where American high culture is today, then that might mean that (what should be) the useful past cannot (easily) serve to educate our people when confronted by today’s problems. If the past has truly become a foreign country, it can throw little light on today’s world and today’s problems, and perhaps it supplies only misinformation, thereby adding noise, confusion, and delay.

Seth Barrett Tillman

PS: My prior post is: Seth Barrett Tillman, The European Parliament’s Sakharov Prize for Freedom of Thought 2015, The New Reform Club (Oct. 18, 2015, 3:33 PM), 

PPS: See Seth Barrett Tillman, Teaching the History of the American Civil War: Flies of a Summer (Part II), The New Reform Club (Oct. 9, 2015)


Seth Barrett Tillman, American Culture: The Flies of a Summer (Part I), The New Reform Club (Sept. 29, 2015

Thank you Instapundit readers! See Glenn Reynolds, SETH BARRETT TILLMAN on the decline of American martial culture, Instapundit (Oct. 26, 2015, 1:00 PM),

Twitter:  ( @SethBTillman )

[1] See generally Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, Military Law Review (forthcoming circa Summer 2016) (peer reviewed), available at, also available at

[2] Is it a substantial problem that our military is now composed of an elite permanent full-time careerist officers corps, and a body of enlisted persons who (it appears) have not been drawn from the children of the aspiring upper middle and professional classes? In terms of actual military competence, my claim here—assuming it is correct—might be a feature, and not a bug. 

Thursday, October 22, 2015

Ben Franklin's creed

Franklin is generally acknowledged to one of the least religious of the top-tier Founding Fathers. Early in his public career, he expressed in private correspondence to family members his own aversion to orthodoxy in religion and its professions of faith, particularly if such orthodoxy detracted from an emphasis on doing good:
I think vital Religion has always suffer'd, when Orthodoxy is more regarded than Virtue. And the Scripture assures me, that at the last Day, we shall not be examined [on] what we thought, but what we did; and our Recommendation will not be that we said Lord, Lord, but that we did good to our Fellow Creatures. See Matth. 26.
Letter to Josiah and Abiah Franklin, April 13, 1738, quoted in The Founders on Religion: A Book of Quotations, edited by James H. button (Princeton: 2005), pg. 80. Interestingly enough, Franklin doesn't evidence a hostility for orthodoxy per se, simply orthodoxy that detracts from the cultivation of right conduct. Works were at the center of true religion for Franklin -- not to the exclusion of belief in God, but as the foundation for how to determine if that belief was authentic.  And he cited to the Christian New Testament in support of his approach.  This balanced approach to belief & works appears in Franklin's most well-developed articulation of his religious convictions, found in his Autobiography.  This articulation he referred to as "an intended Creed, continuing as I thought the Essentials of every known Religion, and being free of every thing that might shock the Professors of any Religion":
That there is one God who made all things. That he governs the World by his Providence. That he ought to be worshipped by Adoration, Prayer and Thanksgiving. But that the most acceptable Service of God is doing good to Man. That the Soul is immortal. And that God will certainly reward Virtue and punish Vice either here or hereafter.
Franklin's views on religious belief & the necessity of works are thus remarkably consistent over time, and far from evidencing a hostility or apathy towards religious life, manifests a concern that religion -- belief in a God who is an active creator & governor of the world -- must manifest itself in the life of the individual. While Franklin's creed is not expressly Christian (and was not intended to be), it certainly is not incompatible with orthodox Christianity. Franklin's creed could be affirmed, with perhaps only a minor quibble, by a Roman Catholic, for example, who steadfastly held to the decrees of the Council of Trent.  And it would be completely consonant with the faith of Christian unitarians like John & Abigail Adams.

Franklin's statement of belief should put to rest any talk of him not being a theist. His God is no absentee landlord, but is an active presence in the world, who not only creates but "governs the World" via divine Providence. This God is worthy of worship -- including prayer and thanksgiving, indicating that Franklin believed that God acted in the lives of individual people -- hence the benefit of asking God for help (through prayer) and thanking Him for His blessings. Most touchingly to me, Franklin insists on the importance of good works in human life.  The best way to serve this God is through good works, and that the judgment of each person's immortal soul will be based on what he or she has done in this life.

While not a regular churchgoer like Washington, or a Hebrew scholar like Madison, Franklin -- who attended no church regularly nor could read any biblical languages -- left a far clearer statement of faith than virtually any of the other major founders, Jefferson included.  And it was a statement of faith that affirmed an active, providential Creator deity, a deity who would sit in judgment upon all human beings, rewarding and punishing them according to the deeds they did in this life.

Wednesday, October 21, 2015

Gordon Wood on Freemasonry and the American founding

When it first hit print, I slowly worked my way through Gordon Wood's massive book on the post-revolutionary period in American history, Empire of Liberty (Oxford Univ. Press, 2009). The book demands slow reading -- each page is packed with detail and interpretation, and it is simply a joy to mull over Wood's insights. The book is a tome -- 738 pages excluding the biblographic essay -- but almost every page is a winner. Wood has put together a landmark book here, one that builds off of and massively expands upon his earlier work in Radicalism of the American Revolution. There was been quite a bit of some back and forth within the historical profession on the role that Freemasonry played in the American Founding. Wood addresses the question in the first part of his book, proposing that Masonry played a dual role as a source of unity in America and as a new religion designed to replace Christianity for those skeptical of Christianity's claims. His take on Masonry is set out on page 51 of the book:
Freemasonry was a surrogate religion for enlightened men suspicious of traditional Christianity. It offered ritual, mystery, and communality without the enthusiasm and sectarian bigotry of organized religion. But Masonry was not only an enlightened institution; with the Revolution, it became a republican one as well. As George Washington said, it was "a lodge for the virtues." As Masonic lodges had always been places where men who differed in everyday affairs -- politically, socially, even religiously -- could "all meet amicably, and converse sociably together." There in the lodges, the Masons told themselves, "we discover no estrangement of behavior, nor alienation of affection." Masonry had alway sought unity and harmony in a society increasingly diverse and fragmented. It traditionally had prided itself on being, as one Mason put it, "the Center of Union and the means of conciliating friendship among men that might otherwise have remained at perpetual distance."
As Wood makes clear, Masonry served a religious as well as a civic function. Its importance in the Founding Period was not simply social or political. It stood alongside Christianity as a source of religious values and perspective for many of the Founders.

Monday, October 19, 2015

Against a strict construction of constitutional powers

When reading Hamilton on the Constitution, it is a good idea to recall the wise observation of Russell Kirk that original intent does not always = strict construction. On this point, most modern conservatives part ways with both Kirk & Hamilton when it comes to reading our nation's fundamental charter.
[T]he powers contained in a constitution of government, especially those which concern the general administration of the affairs of a country, its finances, trade, defense, etc., ought to be construed liberally in advancement of the public good. This rule does not depend on the particular form of a government, or on the particular demarcation of the boundaries of its powers, but on the nature and object of government itself. The means by which national exigencies are to be provided for, national inconveniences obviated, national prosperity promoted, are of such infinite variety, extent, and complexity, that there must of necessity be great latitude of discretion in the selection and application of those means. Hence, consequently, the necessity and propriety of exercising the authorities intrusted [sic] to a government on principles of liberal construction. 
- Alexander Hamilton (1755-1804), Opinion as to the Constitutionality of the Bank of the United States, 1791.

Sunday, October 18, 2015

The European Parliament’s Sakharov Prize for Freedom of Thought 2015

A new year. “A new age: of hope, and peace, and spiritual growth, et cetera. And I am still here for my sins.” See Prime Minister Francis Urquhart, To Play the King [YouTube, (at 1:47ff)]. And another year for the European Parliament to award the Sakharov Prize for Freedom of Thought.

This year’s nominees include: Raif Badawi (Saudi Arabia); Democratic opposition in Venezuela embodied by the Mesa de la Unidad Democratica and political prisoners; and Boris Nemtsov (Russian Federation). I do not have much to say about the absolute or relative merits of the three nominees for this great European prize.

Instead, I will comment on the prize’s namesake: Andrei Sakharov. The prize’s website explains:

The Russian physicist Andrei Dmitrievich Sakharov (1921-1989), who won the Nobel Peace Prize in 1975, first came to prominence as the father of the Soviet hydrogen bomb.

Concerned at the implications his work had for the future of humankind, he sought to raise awareness of the dangers of the nuclear arms race. His efforts proved partially successful with the signing of the 1963 nuclear test ban treaty.

This is pretty thin gruel. Let me add a few details: Andrei Sakharov devoted the major part of his professional life towards developing thermonuclear weapons for the Soviet Union. He did this work under Stalin and under his successors. Sakharov’s work made it more difficult for the United States and the world’s other democracies to press for human rights reforms in the Soviet Union and the countries in its orbit—just as his work made it easier for the Soviet Union to threaten its neighbours and the countries of the world.

It is true, by the late 1950s, Sakharov had some second thoughts. He stood for human rights and arms control. And, I do not doubt that in doing so, he put his career, and indeed, his very life, at some real risk.

I guess the prize is associated with his deeds during the second phase of his life, not the first. General Longstreet killed a lot of Union troops, but after the Civil War, he broke with his former Confederate colleagues, led an integrated militia in battle in the 1870s, and even became a Republican! Is there a James Longstreet Prize somewhere? I suspect there is not. Rommel was part of the conspiracy to kill Hitler, and he was killed for his (failed) efforts. Is there a Rommel Prize somewhere? I doubt it.

I do not suggest that Sakharov, Longstreet, or Rommel were evil men, but they did serve bad causes. I do not say that the good they did (or attempted to do) during their lives is made void by the bad. But I do say it is wrong to suggest that the bad is outweighed by the good. Cf. Edmund Burke, Reflections on the Revolution in France (1790) (“I do not say [God forbid], I do not say that the virtues of such men were to be taken as a balance to their crimes; but they were some corrective to their effects.” (language in brackets is Burke's)). Such a moral quantification of right and wrong is not possible by mere mortals, and those who attempt such a calculus only callous our consciences.

I suspect there is no General James Longstreet Prize, and if someone asked me if such a prize should be created, I would say “no”.

There is no Rommel Prize, and if someone asked if such a prize should be created, I would say “no”. (And—just to be clear—I am not comparing Longstreet and the Confederacy to Rommel and Nazi Germany.)

There is a Sakharov Prize, and if someone had asked me prior to its creation whether it should be created, I hope I would have had the moral clarity to say “no”. There were and there are other people in Europe and elsewhere who this prize could have been named for: persons who were not quite so morally ambiguous. E.g., Average people—people who were not heroic or even particularly bright. Perhaps it could have been called the Ivan Denisovich Prize. It speaks volumes about the modern European zeitgeist that a major prize is named for Sakharov, but the founders of NATO—which protected Europe from Sakharov’s warheads—remain largely unknown. It goes without saying that the American taxpayer who paid for Europe’s defence (and who continues to do so) is entirely lost from sight. Europe’s cosmopolitan transnational elites much prefer believing that the years of peace and plenty were their creation, as opposed to their being the beneficiary of American good will beyond their control.  

Now here is the hard part: i.e., hard for Burkean conservatives. This prize has existed since circa 1988. What may have been a mistake in its conception is now a public tradition, which—in fact—may do some good in the world. Jacobin perfectionism demands old things be torn down or renamed. But Jacobinism does not perfect the world, it just destroys remnants of our historical past. So, although no one is asking me, I am for letting the Sakharov Prize continue, even under its current name, but in doing so, we ought not heap undeserved praise on Andrei Sakharov. 

Seth Barrett Tillman

Seth Barrett Tillman, The European Parliament’s Sakharov Prize for Freedom of Thought 2015New Reform Club (Oct. 18, 2015), <>; 

Seth Barrett Tillman, The European Parliament’s 2016 Sakharov Prize for Freedom of ThoughtNew Reform Club (Sept. 18, 2016), <>; 

PS: My prior post is: Seth Barrett Tillman, Constitutional Interpretation and the Standard Originalist Narrative, The New Reform Club (Oct. 12, 2015, 9:58 AM),
PPS: Thank you Instapundit. See Glenn Reynolds, A NEW YEAR, A NEW AGE: The European Parliament’s Sakharov Prize for Freedom of Thought 2015, Instapundit (Oct. 18, 2015, 9:56 PM),

Twitter:  ( @SethBTillman )

Saturday, October 17, 2015

Brazil needed a man like Alexander Hamilton

That's one of the conclusions to be drawn from this blog post by Walter Russell Mead on Brazil's rise as an economic power: Brazil:  What Could Go Wrong?  As Mead notes, in the 19th century the United States and Brazil had strikingly similar economies. The reason why the United States surged ahead and Brazil stagnated at the time is to be found in the divergent economic policies the two countries pursued. Brazil clung to an obsolete agrarianism while the United States followed a more realistic economic policy, crafted first by Federalist Founding Father Alexander Hamilton and then by Whig leaders like Daniel Webster and Henry Clay:
In the 19th century Brazil, like the United States, was a commodity producer tied to the British market.  Britain was the leading investor in both the US and Brazil, and Britain ate up the lion’s share of their exports.  But there was a difference: the United States did some things that Brazil did not.  We established manufacturing and financial sectors in our economy that could ultimately rival Great Britain in those fields, and we became a producer of new technologies and world-class companies.  
19th century Brazil never managed to build those additional dimensions of a strong market economy.  In a sense, all of Brazil continued to develop like the American South: a commodity exporting economy based on slavery (not abolished until the 1880s) and peonage.  And like the Confederacy, Brazilians long favored a decentralized form of government in which states largely ignored the central government in Rio.    
Decentralization spared Brazil some of the bitter social conflicts that shook countries like Mexico and Argentina in the first century of independence, but there was nobody like Alexander Hamilton, Henry Clay and Daniel Webster with the power and the will to turn Brazil into a cutting edge economic power. 
Read it all. It cannot be emphasized enought that the prosperity of the United States is built not on an agrarian Jeffersonian vision -- the kind of economic policy that lead Brazil into over a century of economic malaise -- but on the vision of men like Alexander Hamilton.

Friday, October 16, 2015

Wisdom from Richard Weaver on community & society

A great observation by one of the great conservative thinkers of the middle part of the 20th century:
However paradoxical it may appear at first sight, we find when we examine actual cases that communities create a shared sentiment, a oneness, and a loyalty through selective differentiation of the persons who make them up.  A society is a structure with many levels, offices, and roles, and the reason we feel grateful to the idea of society is that one man's filling his role makes it possible for another to fill his role, and so on.  Because the policeman is doing his policeman's job, the owner of the bakery can sleep well at night.  Because plumbers and electricians are performing their functions, doctors and lawyers are free to perform theirs, and the reverse.  This is a truistic observation, no doubt, but too little attention is given to the fact that society exists in and through it variegation and multiplicity, and when we speak of a society's "breaking down," we mean exactly a confusing of these roles, a loss of differentiation, and a consequent waning of the feeling of loyalty.  Society makes possible the idea of vocation, which is the primary source of distinctions.
- Richard M. Weaver (1910-1963), Life without Prejudice, reprinted in In Defense of Tradition:  Collected Shorter Writings of Richard M. Weaver, 1929-1963, ed. by Ted. J. Smith III (Liberty Fund:  2000), pg. 89.

Weaver was one of the authors who helped me to understand that we come to know who we are, and we find our path in life, through community. Any philosophy or political movement that seeks to undermine community and substitute it with either a totalist collectivism or atomized individualism can never serve as a vehicle for authentic humanism.  To be human is to live in community with others.

Thursday, October 15, 2015

Why do human beings have laws?

As in most things, there is wisdom to be found in the works of the Angelic Doctor:
Man has a natural aptitude for virtue; but the perfection of virtue must be acquired by man by means of some kind of training. Thus we observe that man is helped by industry in his necessities, for instance, in food and clothing. Certain beginnings of these he has from nature, viz. his reason and his hands; but he has not the full complement, as other animals have, to whom nature has given sufficiency of clothing and food. Now it is difficult to see how man could suffice for himself in the matter of this training: since the perfection of virtue consists chiefly in withdrawing man from undue pleasures, to which above all man is inclined, and especially the young, who are more capable of being trained.
Consequently a man needs to receive this training from another, whereby to arrive at the perfection of virtue. And as to those young people who are inclined to acts of virtue, by their good natural disposition, or by custom, or rather by the gift of God, paternal training suffices, which is by admonitions. But since some are found to be depraved, and prone to vice, and not easily amenable to words, it was necessary for such to be restrained from evil by force and fear, in order that, at least, they might desist from evil-doing, and leave others in peace, and that they themselves, by being habituated in this way, might be brought to do willingly what hitherto they did from fear, and thus become virtuous. Now this kind of training, which compels through fear of punishment, is the discipline of laws. Therefore in order that man might have peace and virtue, it was necessary for laws to be framed: for, as the Philosopher [Aristotle] says (Politics. i, 2), "as man is the most noble of animals if he be perfect in virtue, so is he the lowest of all, if he be severed from law and righteousness"; because man can use his reason to devise means of satisfying his lusts and evil passions, which other animals are unable to do.
St. Thomas Aquinas (1225-1274), Summa Theologica/Treatise on Law, I, II, Q. 95, Art. 1, translated by the Fathers of the English Dominican Province (Benzinger Bros., 1947).

Wednesday, October 14, 2015

The basis of the Union: judicial doctrine or common agreement of the States?

The wise lawyer from frontier Illinois had a sophisticated and compelling argument, grounded both in history and in legal theory, regarding the nature of the Union. It is often salutary to return to first principles from time to time, and Lincoln's theory of the Union, expressed in his First Inaugural Address, is one that bears close reading. For Lincoln, the embodiment of the nation's character was not a judicially-created reading of the Constitution, but the fundamental agreement of the States themselves, an agreement reflected by the Constitution but one that also pre-existed the current Constitution and the Articles of Confederation that preceded it.
I hold that, in contemplation of universal law and of the Constitution, the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination. Continue to execute all the express provisions of our National Constitution, and the Union will endure forever—it being impossible to destroy it except by some action not provided for in the instrument itself. Again, if the United States be not a government proper, but an association of States in the nature of contract merely, can it, as a contract, be peaceably unmade by less than all the parties who made it? One party to a contract may violate it—break it, so to speak; but does it not require all to lawfully rescind it? Descending from these general principles, we find the proposition that, in legal contemplation the Union is perpetual confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured, and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And, finally, in 1787 one of the declared objects for ordaining and establishing the Constitution was "to form a more perfect Union." But if the destruction of the Union by one or by a part only of the States be lawfully possible, the Union is less perfect than before the Constitution, having lost the vital element of perpetuity.
It follows from these views that no State upon its own mere motion can lawfully get out of the Union; that resolves and ordinances to that effect are legally void; and that acts of violence, within any State or States, against the authority of the United States, are insurrectionary or revolutionary, according to circumstances.

Norms and progress

Wise thoughts from the Sage of Mecosta:
Real progress consists in the movement of mankind toward the understanding of norms, and toward conformity to norms. Real decadence consists in the movement of mankind away from the understanding of norms, and away from obedience to norms.
- Russell Kirk (1918-1994), American historian and conservative writer, Enemies of the Permanent Things (1969).

Neither Force nor Will, but Merely Judgment

I count this is a salubrious development in our public legal discourse:

Read the statement for the rationale.  Read Robert George and Ryan Anderson for the merits of marriage [but agreement is not a prerequisite to supporting the statement]. 

I only add that the idea is also a long overdue signal that conservatives will no longer acquiesce in Cooper v. Aaron, the offensive decision in which the Supreme Court purported to install itself as supreme ruling authority:  “the federal judiciary is supreme in the exposition of the law of the Constitution.”

The peculiar power of the Court – “hav[ing] neither FORCE nor WILL, but merely judgment” (Federalist #78) – must support itself, if at all, by haunting the mind of the governed: we have nothing for judgment but judgment itself. Well that we might finally exercise good judgment, so that we might exorcise the bad.

Well that we might return to the example of our greatest of judges, from a time when judgment and prudence occasionally inhabited the same mind. Abraham Lincoln, in his first inaugural address, defended his rejection of that wicked Dred Scott – not because it was wicked only, but because court decisions ride on the back of the executive only so far as to bind the parties before them; if they might travel further, they must pay their own freight in the currency of decency and soundness of judgment, paid to the judicious mind of the public.  To settle for less converts the Court’s peculiar power from merely judgment to FORCE, and WILL:  
If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.
Lincoln was true to his word.  As Ed Whelan reminds, “In defiance of the dual holdings of Dred Scott, he signed into law a bill that outlawed slavery in the federal territories, and he instructed the State Department to issue passports to free blacks (thus recognizing them as citizens). Lincoln also refused to obey Chief Justice Taney’s order, in Ex parte Merryman, to release a prisoner from military custody.”

[But see [NRC's own] Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, Mil. L. Rev. (forthcoming circa Summer 2016), available at A must-read, really: Lincoln could not "disobey" Taney's "order," because Taney never issued one. To my mind, it suggests the possibility that Taney himself respected the separation of powers [risen to power under Andrew Jackson, after all], at least more than Cooper does.]

As Matthew Franck adds:  Lincoln also "instructed the Department of State to issue passports on request to free black Americans, ignoring the holding of the Taney Court that blacks were not considered citizens of the United States by the language of the Constitution. For another, he encouraged and signed legislation in 1862 banning slavery in all western territories, in direct contradiction of the Dred Scott holding that such legislation was unconstitutional."

The doctrine of judicial review – the power of the courts to review the acts of its coordinate branches of government – was unharmed by Lincoln. The " say what the law is,” the mantra devolved from that hoary old Marbury v. Madison, is not, as the incautious modern reader is wont to assume, an assertion of any exclusive authority to dictate the substance of Constitutional meaning.  It simply makes the point that one branch may not dictate hermeneutics to another.  Writing from a more familiar century, Adkins v. Children's Hospital in 1927 explained the power as simply to “declare and enforce the rule of the supreme law and reject that of an inferior act of legislation . . . . This is not the exercise of a substantive power to review and nullify acts of Congress, for no such substantive power exists."

To elevate itself as supreme lawgiver, then, Cooper v. Aaron had to “concoct a venerable history,” explains Whelan.  “It falsely contended that Marbury v. Madison — the landmark 1803 ruling that expounded the power of judicial review — ‘declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution.’  Even more brazenly, without any mention of Lincoln’s compelling refutation (or of Thomas Jefferson’s and Andrew Jackson’s similar contestations), the Court asserted that the concept of judicial supremacy had ‘ever since [Marbury] been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.’”

Well that these scholars are standing against the myth of judicial supremacy.

Tuesday, October 13, 2015

Among the Clockmakers

"Like the fella says, in Italy for thirty years under the Borgias they had warfare, terror, murder, and bloodshed, but they produced Michelangelo, Leonardo da Vinci, and the Renaissance. In Switzerland they had brotherly love—they had 500 years of democracy and peace, and what did that produce? The cuckoo clock."—Harry Lime, The Third Man  [1949]

Originalism and precedent at the trial court level

That's the topic addressed by Orin Kerr in this older post over at the Volokh Conspiracy. Kerr makes, I think, a very interesting point in analyzing an early decision by a federal district court judge finding ObamaCare unconstitutional:
The core problem, I think, is that Supreme Court doctrine has strayed far from the original meaning of the scope of federal power granted by the Constitution. Today’s constitutional doctrine permits a scope of federal power that is much broader than the original meaning of the Commerce Clause and Necessary and Proper clause would allow. When interpreting the scope of federal power, then, you need to decide what you will follow: The original meaning or case precedents. As I read Judge Vinson’s opinion, he mixes the two. Judge Vinson jumps back and forth between purporting to apply Supreme Court precedents and purporting to interpret the Commerce Clause and Necessary and Proper clause in light of its original meaning. Judge Vinson spends about half of the legal analysis on original meaning and about half of the legal analysis on precedent, and he seems to treat both as important.
Essentially, the judge balanced precedent alongside with the original intent behind the Constitution to reach the holding in the case, that the health care reform act exceeded the scope of Congress' powers under the Commerce Clause. And while that evaluation may be substantively correct, Kerr notes that there is a problem with a trial court judge making that kind of determination:
[T]here’s a technical problem here that I want to draw out: Judge Vinson is only a District Court judge. Under the principle of vertical stare decisis, he is bound by Supreme Court precedent. See, e.g, Winslow v. F.E.R.C., 587 F.3d 1133. 1135 (D.C. Cir. 2009) (Kavanaugh, J.) (“Vertical stare decisis — both in letter and in spirit — is a critical aspect of our hierarchical Judiciary headed by ‘one supreme Court.’”) (citing U.S. Const. art. III, § 1). And when Supreme Court precedent conflicts with original meaning, Judge Vinson is bound to follow the former. Of course, that doesn’t mean a District Court can’t discuss the original meaning of a constitutional provision in his opinion. But where the original meaning and case precedents conflict, the judge is stuck: Because he is bound by Supreme Court doctrine, the judge has to apply the doctrine established by the Supreme Court and has to ignore the original meaning.
I think Kerr is on to something here, as far as the practicalities of how trial courts are supposed to rule in light of precedent from appellate courts within the trial court's jurisdiction (and the Supreme Court's jurisdiction covers the entire country). The trial court judge is bound by those precedents and cannot disregard them, even if he or she thinks that the precedents are wrongly decided. So long as the precedents are on point to the relevant issues in the case, the judge is, as Kerr puts it, "stuck."  He or she has to follow those precedents. The judge is certainly at liberty to point out where he or she thinks the Supreme Court has gotten it wrong and why, but the trial court judge isn't free to decline to apply Supreme Court precedent. As long as that precedent stands, the trial court is bound to follow it.

Related item:  Clinical law professor William Jacobson over at Legal Insurrection provides an overview of Judge Vinson's ruling here. Well worth a read. A strong case can be made that the judge was substantively correct in his originalist analysis. The question is, was that the kind of analysis he should have been making in light of the relevant Supreme Court case law?

Monday, October 12, 2015

Constitutional Interpretation and the Standard Originalist Narrative

One of the most frustrating things about participating in debate about the meaning of the Constitution is dealing with the standard originalist narrative (“SON”). The SON is powerful. A good part of its power lies in the fact that those who are under its spell have never considered its correctness. Alternatively, if they continue to adhere to the SON after having considered its correctness, there are many who nevertheless fail to let their readers know that the narrative is contested. Debate takes place infrequently if at all. Only one voice is regularly heard. The counter-position is a voice confined to the margins of academia and to the margins of high culture (including high judicial culture).

Image result for no religious testLet me give you my favourite example. You will find repeated statements in judicial opinions and academic articles (in law and other fields) to the effect that oaths (or affirmations) were central to the Framers’ constitutional vision. So central, in fact, that all government officials, federal and state, are required by the text of the Constitution to take an oath (or affirmation) to support the Constitution. See, e.g., Eakin v. Raub, 12 Serg. & Rawle 330, 353 (Pa. 1825) (Gibson, J., dissenting) (“The oath to support the constitution is not peculiar to the judges, but is taken indiscriminately by every officer of the government, and is designed rather as a test of the political principles of the man, than to bind the officer in the discharge of his duty . . . .”); Michael Stokes Paulsen, The Constitution of Necessity, 79 Notre Dame L. Rev. 1257, 1261 (2004) (describing the Article VI oath as “universal” and applying to “all federal and state officers”); Diana Schaub, Dysfunction Is No Excuse for Misreading the Constitution, Library of Law & Liberty (Oct. 9, 2015),  (“A non-member Speaker would be the only office-holder in our system not bound by [the Article VI] oath.” (emphasis added)); see also, e.g., Paul Horwitz, Honor’s Constitutional Moment: The Oath and Presidential Transitions, 103 Nw. U. L. Rev. 1067, 1069 (2009) (“Under Article VI of the Constitution, every federal and state officer takes an oath or affirmation to ‘support this Constitution.’” (citing Article VI, Clause 3) (emphasis in the original)); Michael Stokes Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation?, 103 Nw. U. L. Rev. 857, 920 (2009) (“It is ‘this Constitution’—a specific written text—that all officers of government swear to support and to be bound by, according to its written terms.” (emphasis added)); Judge William H. Pryor, Jr., The Religious Faith and Judicial Duty of an American Catholic Judge, 24 Yale L. & Pol’y Rev. 347, 350 (2006) (“The Framers required in Article VI of the Constitution that all the officers of our government, including judges, ‘be bound by oath or affirmation, to support th[e] Constitution.’” (emphasis added)).

As evidence, the SON's true believers quote Article VI, Clause 3 which states:

The Senators and Representatives . . . and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

There is an interpretive puzzle here. Why does the Religious Test Clause (“RTC”) (in bold) so radically depart from the language of the immediate prior clause, i.e., the Oaths and Affirmations Clause (“OAC”) (in italics)? If both clauses, as the dominant paradigms teach, extend to all federal positions, then why does not the latter clause read:

“No religious test shall ever be required as a qualification to any federal position listed in the immediate prior clause.”


“No religious test shall ever be required as a qualification in relation to the position of Senator and Representative, and all executive and judicial officers of the United States.”

Why the changed language? We do not usually suppose that neighbouring text—in the very same sentence—which varies has identical meaning. Rather, different language implies different meaning. So the two clauses probably do not both extend to all federal positions. It seems to follow that only one of the two clauses may have that meaning (i.e., extending to all federal positions) and that the other clause reaches only a subset of all federal positions. If only one clause could reach all federal positions, is not the better choice the RTC? Can we come up with any likely choice of a federal position which the Framers would have willingly extended a religious test to? In fact, during ratification, was it not pellucidly clear that the RTC reached any and all federal positions?

If the RTC reaches all federal positions, then the OAC does not. What federal positions, if any, were left out and beyond the reach of the OAC?

Again, this is a puzzle, but it is not a difficult one. The OAC’s “judicial officer” language includes the federal judges at every level and their staffs (e.g., the clerks of the courts). The “executive officers” language includes the President’s subordinates (e.g., the cabinet), and the President’s oath is separately provided for in Article II. But when it comes to Congress, the OAC only includes elected officials, e.g., Senators and Representatives. Non-member congressional staff (e.g., Clerk of the House and Secretary of the Senate) are not included. See, e.g., Steven G. Calabresi, Response, The Political Question of Presidential Succession, 48 Stan. L. Rev. 155, 162 (1995) (“No constitutional oath is required of [non-member subordinate] legislative officers, like the Clerk of the House or the Secretary of the Senate . . . .”). We could have a conversation about why these congressional positions were left out. I have some theories on this matter, but we do not need to have that conversation because the text is clear.

But the problem goes deeper. It is not just congressional staff which are beyond the aegis of this OAC.

Consider these elected positions: (1) presidential electors; (2) elected territorial officials (including the members of its legislature); (3) elected national constitutional convention members meeting under the authority of Article V for the purpose of proposing amendments to the federal constitution; (4) elected state constitutional convention members meeting under the authority of Article V for the purpose of ratifying or rejecting proposed amendments to the federal constitution; (5) elected state (or territorial) constitutional convention members meeting under the authority of a state (or territorial) constitution for the purpose of amending the state (or territorial) constitution; and, (6) the Vice President of the United States (albeit, this has been and remains a matter of debate). Why? All elected positions are beyond the scope of Article VI's “officer of the United States” language. See United States v. Mouat, 124 U.S. 303, 307 (1888) (Miller, J.) (“Unless a person in the service of the Government, therefore holds his place by virtue of an appointment by the President, or of one of the courts of justice or heads of Departments authorized by law to make such an appointment, he is not strictly speaking, an officer of the United States.” (emphasis added)).

Consider these appointed positions: (1) all House, Senate, and congressional staff (e.g., Clerk of the House, Secretary of the Senate, sergeants at arms of each house, door keepers of each house, the Architect of the Capitol, and members’ chiefs of staff); (2) advisors to the President—even those situated in the White House—who lack individualized legal discretion or power to affect binding legal relations; (3) territorial officers appointed by elected nonjudicial territorial officials; (4) American nominees or appointees to treaty-created offices; (5) multistate compact officials; (6) holders of letters of marque and reprisal; and, (7) trustees, directors, members, and officers (and, perhaps, employees, and other agents) of federally chartered trusts, corporations, and other private entities with legal personality.

Other positions beyond the scope of the OAC include: (1) voters in federal elections; (2) jurors on federal juries (and federal grand juries); (3) attorneys admitted to practice before the bar of a federal court; (4) enlisted federal (or state) military personnel (including the modern National Guard); (5) permanent or ad hoc federal civil servants; (6) federal contractors (including private jailors); (7) qui tam plaintiffs asserting a federal cause of action in a federal forum; (8) individuals affiliated with private entities created under state (or federal, or even foreign) law in which significant equity (or, possibly, debt) is held by the United States government; (9) individuals serving in an ad hoc common law posse comitatus under a United States marshal or under a United States attorney (or under a state or territorial Executive Branch official where federal law or a federal writ is being enforced); and, (10) individuals serving in private bodies authorized by federal law to create codes of conduct for members, to adjudicate disputes involving members, and/or to enforce such codes in proceedings involving members (albeit the constitutionality of such delegations to private bodies has been and remains contested).[1]

To the extent these functionaries are subject to an oath to uphold the Constitution, it is because of a statute, not because of Article VI. Moreover, where such an oath is imposed, it is imposed wholly at the discretion of Congress—these oaths are not mandatory in the sense that they are constitutionally commanded.

But the standard originalist narrative survives.

Seth Barrett Tillman

PS: My prior post is: Seth Barrett Tillman, Teaching the History of the American Civil War: Flies of a Summer (Part II), The New Reform Club (Oct. 9, 2015, 4:01 AM),

PPS: If you liked this post, you may also want to read: A Non-member Speaker, the Debate, and its Lessons, The Originalism Blog (October 12, 2015, 6:04 AM). 

Twitter:  ( @SethBTillman )

[1] If you think I have missed some category of public or quasi-public functionary which is outside the ambit of Article VI, do write me and let me know what I missed. (sbarrettillman at