Published in The Founding

At the AEI annual dinner Dr. Leon Kass explains life--work, love, service, and truth. He concludes with the need for hope:

In this most fundamental sense, hope is not a hope for change, but an affirmation of permanence, of the permanent possibility of a meaningful life in a hospitable world. Hope in this sense is not only a Judeo-Christian virtue. It is not only the most essential--and abundant--American virtue. It is the condition of the possibility of all human endeavor and all human fulfillment. Yes, there is still much spiritual poverty in America. But we go forward with confidence that our spiritual hungers can yet be nurtured in this almost promised land, provided that we have the courage to insist that the well-being of the spirit is central to our notion of national success and personal flourishing. This war on poverty--on our spiritual poverty--will not add a cent to the deficit. It can enrich our lives beyond measure.

Today, poverty, like pollution, needs a deeper understanding.

Bob Reilly takes on neo-conservative Middle East expert Reuel Marc Gerecht in today's Wall Street Journal. Reilly points out that a presupposition of democracy is solution of the religious issue--that is, freedom of conscience. That is, the American model remains the most reasonable means of establishing democratic self-government.

UPDATE: The Reilly letter in op-ed form.

Many contemporary friends of limited government adopt erroneous theories ("states' rights," secession) that actually increase the possibility of tyrannical government, as American history bears out.

Often the case for secession as a device of limited government resorts to the Kentucky and Virginia Resolutions. But Villanova University professor (and MAHG instructor) Colleen Sheehan argues that James Madison, author of the Virginia Resolutions, had a much profounder view of not only federalism but the nature of popular government than his friend Thomas Jefferson, who authored the Kentucky Resolutions.

Whereas Jefferson sought to implement modes outside of the ordinary processes of law, in the form of constitutional conventions or negations of contractual/compact agreements, Madison sought to establish a political practice in which, whenever possible, the settled decisions of the people would control and direct government. Madison's cure was not to pit the extraordinary authority of the people against the ordinary deliberative processes of majority decision-making, but to hold the government dependent on and answerable to the deliberate, sovereign public.

Her essay appears in a series on the provocative Library of Law and Liberty website of the Liberty Fund.

A hero to many contemporary conservatives and libertarians, William Graham Sumner (who penned the phrase "the forgotten man," which was then misappropriated by FDR), takes a beating from Steve Hayward. Sumner joined the attack on Progressive Darwinists who, along with this Social Darwinist, renounced the Declaration of Independence.

The Heritage Foundation has put on-line its Guide to the Constitution, co-edited by David Forte and Matthew Spalding. This is a line-by-line commentary with major essays by significant legal scholars. Heritage does terrific work with its instant digests on contemporary policy issues, but this is something different, yet relevant to policy debates.

Take this analysis of the first line of Article II of the Constitution, on the nature and scope of executive power, "the vesting clause." There's even a teacher's companion guide, besides the essay by UVA law professor Sai Prakash and a brief (and diverse) bibliography of legal scholarship.

Or consider co-editor Forte's thoughts on the commerce clause, now at the heart of the Obamacare case, to be decided by the Court this term. Are you clear on the meaning of "to ... regulate commerce ... among the several states"? And so it goes, line by line, through the whole Constitution.

The achievement deserves favorable comparison with the best encyclopaedias of legal thought, such as the grand project of the late Leonard Levy. And besides Heritage's is on-line, will be constantly updated (not a living Constitution, but a lively commentary) and free.

Yesterday marked the 153rd anniversary of the death of Alexis de Tocqueville, the extraordinary biographer of America, in all its splendor and its deficiencies. His principal virtue was his insight that liberty-smothering bureaucracy--what he termed "centralized administration"--was at the core of contemporary ills, and it would worsen, as this scandal  (more serious than the GSA) reminds us.

This Tocqueville anniversary coincides with the 100th anniversary of Woodrow Wilson's bold attack on the American founders and his celebration of the administrative state, "What is Progress?" The presidential campaign address also proclaimed the need for Darwinian science to form the basis of our political science. The contrast between Wilson--who equated democracy and socialism--and Tocqueville, who denied such equivalence is most instructive.

Obama's ill-informed attribution of "Darwinism" to Paul Ryan, et al. flies in the face of his own Progressive, Darwinian assumptions, which repudiate constitutional government and justify tyranny.

A few years ago Diana Schaub penned a typically elegant essay on the anniversary of Tocqueville's death.

Instapundit point us to this incident, in which a citizen was denied the right to travel because he damaged the chip in his passport: "The claim has been made that breaking the chip in the passport shows that you disrespect the privilege of owning a passport, and that the airport was justified in denying this child from using the passport."

But is holding a passport a "privilege" or a "right"?  Interestingly the dissenters in U.S. v. Wong Kim Ark (Fuller, joined by Harlan) noted that "birthright" or the notion that soil determines citizenship, was associated with subjecthood--under common law, anyone born on soil belonging to the king could only leave the country with his explicit consent.  That's why that argued that in 1776 the U.S. broke from not just allegiance to the crown, but also from the idea of birthright.  They argued that American citizenship was based upon the principles of 1776--mutual consent between current citizens and any new would-be citizen.  It seems some of our bureaucrats are following the logic of "birthright citizenship" all too well.

This WaPo account of how various Republicans (why only them, one might ask) use/ransack the founding fathers pits the politicians against historians who criticize this alleged naievete.

Massachusetts Institute of Technology history professor Pauline Maier, author of several books about the period from the 1760s to the writing of the Constitution, says: "It is interesting why so many politicians and even judges today want to show that their ideas had firm foundations among the founders. In some ways, I suppose that defines a new phase in the culture wars over 'who is most American.' "

But, she adds, "that can also be very regressive: No founder ever embraced abortion or endorsed affirmative action. Eight­eenth-century Americans did take rights seriously, but their rank list of rights was probably different than those of rights-conscious people today. They lived, after all, over two centuries ago and on the rights front can seem pretty dated."

Like another fine historian of the Declaration, Carl Becker, Maier falls prey to historicism, the notion that one's historical circumstances poses an absolute barrier to finding transcendent truth. Evidently, to judge just from the professors cited in this article (Jack Rakove, among others), it's the scholars versus divisive Republican politicians.

But the contrast shows how much the defense of the Constitution resides in ordinary citizens and the politicians who reflect their concern. As the Progressives predicted and urged they would, intellectuals take the side of progress and history against the people's pride in their country as founded. Of course, not all thinkers agree with those consumed by Progressivism. Here's a shorter piece.

At AEI earlier today. Not only Steve Hayward but also Harvey Mansfield, Diana Schaub, and Rick Brookhiser, with Leon Kass presiding. I thought Steve and Harvey might duel later over what Americans should want in an executive. Diana could have given the eulogy, and Dr. Kass, MD, could be the attending physician. The panel featured elegant brief presentations by Diana and Rick on Washington's Farewell Address and his Presidency.

Another commentary on Washington can be found here, along with the text of the Farewell Address.

Hayward struck the day before with this observation on think-tanks and partisanship a few blocks away at the Hudson Institute. The crucial point: 'A slight paraphrase, but Churchill once wrote that "The distinction between politics and policy diminishes as the point of view is raised; true politics and policy are one." This distinction between politics and policy is one that I think is unsustainable.' Steve reminds us of Plato's wisdom--thinking and acting must somehow be one. 

Don't forget or underestimate the appeal of the Declaration of Independence.  Romney wins over Ms. Poe, an evangelical minister fearful of his Mormonism.  See the last two paragraphs:

"This is an election not just about replacing President Obama, it's an election about the soul of America," Romney said, as Poe gingerly climbed a chair to get a better view. As Romney cited the Declaration of Independence, Poe nodded in agreement. "They said that we had been endowed by our creator with certain unalienable rights. And as you know, those rights came not from the state, not from the government, but from our creator."

"He did great," Poe said as Romney walked around the room shaking hands. "If he were the chosen candidate, I could support him, yes."

Gingrich went overboard on his attacks on overboard judges. Here's a far more sober account of what can be (and ought to be) done, by Ralph Rossum. Curt Levey and Carrie Severino add some thoughts on reining in a wacky judiciary without undermining judicial independence--both are essential for the rule of law.  Judicial independence is not a license for judiciary supremacy. 

An even better lesson can be found in early American political documents that list the independence of the judiciary and the separation of powers among the fundamental rights of a free people.  Consider for example the Massachusetts Constitution and the Essex Result,

Following Justin's entry below, recall Vaclav  Havel's message to Congress: 

"Consciousness precedes being, and not the other way around, as the Marxists claim....

 "[Y]ou Americans should understand this way of thinking.  Wasn't it the best minds of your country, ... who wrote your famous Declaration of Independence...and who, above all, took upon themselves practical responsibility for putting them into practice?" 

A text of the speech can be found here; the links are unhelpful, though.

David Brooks tries to make the case against Gingrich and winds up moderating him in many ways.   Moreover, he raises salient issues in the contest between him and Romney:  Gingrich probably does see a continuity between himself, TR, and Hamilton.  But is there a constitutionalist in the house?  If not, is a right-wing Progressive better than a competent manager?  Which would bring us back to founding principles?

TR rejected natural rights in favor of a new, collective nationalism, while Hamilton was clear in basing the emerging new republic on natural rights.  I haven't seen this concern in Gingrich but rather more a kind of Newt nationalism.  How that bears on the Declaration and the Constitution is the issue conservatives face.

E.J. Dionne plays his role exquisitely, showing the link between TR and Obama, though he gets FDR wrong in the process:  FDR had laid out his revolutionary strategy in his 1932 campaign, in his speech on Progressive Liberalism. 

That appears to be George Washington's prayer in his Thanksgiving Proclamation "for the peaceable and rational manner in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national one now lately instituted; for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge...."  That "rational manner" was led by the Federalist Papers.

We remember C.S. Lewis, who died 48 years ago today, November 22, 1963.  Not to be confused with a children's story writer of the same name.

The Department of Agriculture is instituting a $.15 tax on Christmas trees--which are actually called that and not some PC holiday shrub or greenery. 

In the Federal Register of November 8, 2011, Acting Administrator of Agricultural Marketing David R. Shipman announced that the Secretary of Agriculture will appoint a Christmas Tree Promotion Board....And the program of "information" is to include efforts to "enhance the image of Christmas trees and the Christmas tree industry in the United States" (7 CFR 1214.10).

To pay for the new Federal Christmas tree image improvement and marketing program, the Department of Agriculture imposed a 15-cent fee on all sales of fresh Christmas trees by sellers of more than 500 trees per year (7 CFR 1214.52).  

May a government board promote Christmas?  Are we on our way to a state religion?  Or does the taxing of Christmas trees foretell the taxing of churches?  For a look at the founders' view of such matters (here noting the civil piety of Thanksgiving), see this additional commentary by Jefferson and this one by Washington.

UPDATE:  Rush reports that the board's fee (not a tax) has been withdrawn.  The fee is gathered from sellers so the board can come up with ways to help sellers market their product.

Almost everything Dilbert creator Scott Adams says here is wrong--it's supersized Progressivism--but he makes a host of wise and witty comments along the way.  Examples of what I mean: 

If James Madison came back, he'd be peeved that he was the primary author of the Constitution and we honor his memory by not caring when his birthday is. When he stopped whining about that, and noticed that the system he designed has turned into a congealed ball of lard that eats money and excretes red tape, he'd probably be more humble about his contribution.

I'm fairly certain Ben Franklin wouldn't be impressed by our pace of innovation. He invented the post office and showed us electricity, and it still took us 200 years to come up with email. We're not good at connecting the dots.

RTWT.  For a closer look at Madison principles see these newly published brief essays, especially this long one by Tony Peacock and this short one

From Robert Middlekauff's The Glorious Cause, vol. II of the Oxford History of the United States:  Facing a "cruel test," Washington was sustained through the Revolution by

at least two profound convictions.  The first was that he was the instrument of Providence in the struggle....  The other belief approached passion--a love of what Washington called the "glorious cause," the defense of the liberties of Americans.  (p. 296)

Of course not everyone who claims divine inspiration may be discerning or even truthful, but convictions about God's will have been honorable motives for public service from our origins as a nation.  Should such a self-examination be less essential today?  Or must sociological circumstances or mere personal self-aggrandizement determine our political leadership? 

The objective test of course is whether a candidate's views comport with those of the Declaration of Independence.  Private revelations are quite subordinate to that overriding consideration.  Might candidates who court the Tea Party actually use the wisdom of our founding period in contemporary debates?

In 1984 George Orwell's O'Brien declared, "If you want a vision of the future, imagine a boot stomping on a human face--forever."  That's the way I felt when I heard the participants in the Anita Hill lovefest, "Sex, Power, and Speaking Truth."    His narrow confirmation to the Court allowed him to revive American constitutionalism.  We must ever keep in mind this victory in our cultural wars.

Meanwhile, further south in Manhattan, the OWS mobs continue to flourish.  Comparing them to the Tea Party misses the heart of these true descendants of the American Founding:  They stand for the restraints, protections, and procedures of constitutional government. 

Two Claremonsters, Bill Voegeli and Tom West, reflect on the meaning of 9/11.  Our NLT colleague Bill recalls the evacuations he and his fellow New Yorkers stoically endured.  Tom West always fights for the wisdom of the founders: 

My first reaction to the attack was anger -- certainly against the terrorists, but also against our government. The FAA disarmed pilots in 1987. Passengers and crew were ordered to submit quietly to hijackers' demands. In the name of safety, government banned the very thing that could have prevented the murder of thousands: the Founders' agenda of self-help, self-defense, and gun rights.

Their brief observations can be found at the end of this link on NRO.

A new book, out today, questions the now conventional wisdom that Thomas Jefferson fathered illegitimate children through his slave Sally Hemings.  The board responsible for its publication includes such notables as Harvey Mansfield, Charles Kesler, James Ceaser, Paul Rahe, and Forrest McDonald and is chaired by UVA law professor Robert Turner.  Here's the amazon link.  The accusation should not have moderated devotion to Jefferson for his extraordinary achievements, though it could not have had any but that effect.  This book should help us readjust our vision of the man.  Jefferson celebrated enlightenment; let us follow in his footsteps on this accusation as well.

The greatest good we can do our country is to heal it's party divisions & make them one people. I do not speak of their leaders who are incurable, but of the honest and well-intentioned body of the people. I consider the pure federalist as a republican who would prefer a somewhat stronger executive; and the republican as one more willing to trust the legislature as a broader representation of the people, and a safer deposit of power for many reasons. But both sects are republican, entitled to the confidence of their fellow citizens. Not so their quondam leaders, covering under the mask of federalism hearts devoted to monarchy. The Hamiltonians, the Essex-men, the revolutionary tories &c. They have a right to tolerance, but neither to confidence nor power. It is very important that the pure federalist and republican should see in the opinion of each other but a shade of his own, which by a union of action will be lessened by one-half: that they should see & fear the monarchist as their common enemy, on whom they should keep their eyes, but keep off their hands. (emphasis added) 

In the Washington Post, Alexander Heffner suggests that John Adams should be honored with a monument on the Mall.

What's the case for Adams? Before the revolution, he was the nation's first attendant to the American legal tradition of due process, defending British soldiers who fired on colonists during the Boston Massacre. One of Massachusetts's representatives to the First and Second Continental Congresses, Adams was a champion of separation from England and the fiercest advocate of Jefferson's declaration. Without his persuasive speeches in the Philadelphia chamber, the document wouldn't have been signed. While Jefferson was silent during what he considered the convention's editorial debasement of his work, Adams defended every clause, including an excised call for the abolition of slavery. Jefferson called Adams "a colossus on the floor" of the Congress. . . .

Heffner goes on to note Adams' services in the American diplomatic corps during the revolution and his Presidency (noting the lamentable Sedition Act as a rare mistake).  I'm not sure I'd put it quite that way.  I would, however, stress Adams' constitutionalism.

As the principal author of the Massachusetts Constitution, and in other writings, Adams, more than any other single figure, is responsibe for the U.S. having a constitution featuring an executive with a qualified veto, a bicameral legislature, and separations among the legsilative, executive, and judicial branches (separations which were not full and complete, so that each branch had to defend its turf against the others).  By paying tribuite to the author of the Massachusetts Constitution, we also, by implication, pay tribute to the people of Massachustts who are responsible for the idea that constitutions should be created by special conventions and ratified by the people.  Not coincidentally, the Massachusetts Constitution has the best concise explanation of the reasoning behind that process of any document of the era:

The end of the institution, maintenance and administration of government, is to secure the existence of the body-politic; to protect it; and to furnish the individuals who compose it, with the power of enjoying, in safety and tranquility, their natural rights, and the blessings of life: And whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happiness.

The body-politic is formed by a voluntary association of individuals: It is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a Constitution of Government, to provide for an equitable mode of making laws, as well as for an impartial interpretation, and a faithful execution of them; that every man may, at all times, find his security in them. 

I am not sure, however, that a neo-pagan temple in Washington would be the bests tribute to Adams.  John Adams is more than a founder of the American republic, he is also the patriarch of one of the most extraordinary families in American politics and letters. Adams also dwelled upon the importance of education.  He put a strange clause in the Massachusetts constitution on the subject:

Wisdom, and knowledge, as well as virtue, diffused generally among the body of the people, being necessary for the preservation of their rights and liberties; and as these depend on spreading the opportunities and advantages of education in the various parts of the country, and among the different orders of the people, it shall be the duty of legislators and magistrates, in all future periods of this Commonwealth, to cherish the interests of literature and the sciences, and all seminaries of them; especially the university at Cambridge, public schools, and grammar schools in the towns; to encourage private societies and public institutions, rewards and immunities, for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and a natural history of the country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and frugality, honesty and punctuality in their dealings; sincerity, good humour, and all social affections, and generous sentiments among the people.

That being Adams' view, I would say that the most fitting tribute to Adams would be to create an Adams library of American letters, dedicated to the study of American politics, with politics and literature both understood in the classic fashion.  Such an institution, which I am not the first to recommend, would be a proper legacy for John Adams and his extraordinary family. What better tribute, and what better form of civic worship, than study.  As Adams put it in the Massachusetts Constitution:

A frequent recurrence to the fundamental principles of the constitution, and a constant adherence to those of piety, justice, moderation, temperance, industry, and frugality, are absolutely necessary to preserve the advantages of liberty, and to maintain a free government: The people ought, consequently, to have a particular attention to all those principles, in the choice of their officers and representatives: And they have a right to require of their law-givers and magistrates, an exact and constant observance of them, in the formation and execution of the laws necessary for the good administration of the Commonwealth.

A library, dedicated to the study of those principles, and their continuing relevance to our politics, would be the best way to honor this founding father.

The descendants of the litigants in the great civil rights case of 1896 form a foundation.  Sweet idea, and I'm wondering whether serious tea party-style activists might follow suit by forming similar foundations devoted to ending irrational discrimination.  They might find inspiration in Jennifer Roback Morse's libertarian scholarship, which notes the City of New Orleans overriding the railway's preference for integrated seating.  (Clint Bolick has also performed great service along these lines.)  Here is another way to put natural rights-thinking to practical use.  Reading Charles Lofgren's classic work on Plessy is essential background.  The Claremont historian shows the direct ties between Plessy's arguments and the Declaration of Independence.

The Tea Party's most appealing argument is for the restoration of the principles of the Declaration of Independence in everyday life.  The fight for color-blind justice is an essential part of that argument.  Thanks to Mike in the comments.

Treppenwitz:  Here is one version of Edward Erler's argument on Plessy's persistence in our jurisprudence.

It looks like Senate Republicans are going to filibuster Goodwin Liu to keep him off the Bench.  Turnabout is fair play, certainly.  And precedents matter.  But I wonder whether the filibuster is proper for nominees.

The key question is when the Senate is doing its "avise and consent" role, rather than working with the other branche(s) of the Legislature to make law, is it acting in Article I or Article II.  If giving its advice and consent is not a legislative task, and if the filibuster is a legislative action, then the answer is no.

Given the precedents that exist already, it's probably too late to do anything, but I thought the question worth raising, perhaps as a matter of historical interest.

One could argue that way back at the start of Washington's first term, when the Senate kicked the President and Secretary of War out of their chamber, rather than discussing instructions for negotiations with the Creeks that set the precedent for most of what followed in that area.

As a very important source of strength and security, cherish public credit. One method of preserving it is to use it as sparingly as possible: avoiding occasions of expence by cultivating peace, but remembering also that timely disbursements to prepare for danger frequently prevent much greater disbursements to repel it; avoiding likewise the accumulation of debt, not only by shunning occasions of expence, but by vigorous exertions in time of Peace to discharge the Debts which unavoidable wars may have occasioned, not ungenerously throwing upon posterity the burthen which we ourselves ought to bear. The execution of these maxims belongs to your Representatives; but it is necessary that public opinion should cooperate. To facilitate to them the performance of their duty it is essential that you should practically bear in mind, that towards the payment of debts there must be Revenue; that to have Revenue there must be taxes; that no taxes can be devised which are not more or less inconvenient and unpleasant; that the intrinsic embarrassment inseperable from the selection of the proper objects (which is always a choice of difficulties) ought to be a decisive motive for a candid construction of the Conduct of the Government in making it, and for a spirit of acquiescence in the measures for obtaining Revenue which the public exigencies may at any time dictate.

A reinforcement of the existing provisions for discharging our public Debt, was mentioned in my Address at the opening of the last Session. Some preliminary steps were taken towards it, the maturing of which will, no doubt, engage your zealous attention during the present. I will only add, that it will afford me, heart felt satisfaction, to concur in such further measures, as will ascertain to our Country the prospect of a speedy extinguishment of the Debt. Posterity may have cause to regret, if, from any motive, intervals of tranquillity are left unimproved for accelerating this valuable end.

The situation in which I now stand, for the last time, in the midst of the Representatives of the People of the United States, naturally recalls the period when the Administration of the present form of Government commenced; and I cannot omit the occasion, to congratulate you and my Country, on the success of the experiment; nor to repeat my fervent supplications to the Supreme Ruler of the Universe, and Sovereign Arbiter of Nations, that his Providential care may still be extended to the United States; that the virtue and happiness of the People, may be preserved; and that the Government, which they have instituted, for the protection of their liberties, maybe perpetual.

"This was the object of the Declaration of Independence. Not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent, and to justify ourselves in the independent stand we are compelled to take. Neither aiming at originality of principle or sentiment, nor yet copied from any particular or previous writing, it was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion." (Jefferson to Henry Lee, 1825)

James Madison's 260th!  Short people power!

A selection from my favorite Federalist paper, #14:

Hearken not to the unnatural voice which tells you that the people of America, knit together as they are by so many cords of affection, can no longer live together as members of the same family; can no longer continue the mutual guardians of their mutual happiness; can no longer be fellow-citizens of one great, respectable, and flourishing empire.

Cass Sunstein's After the Rights Revolution:  Reconceiving the Regulatory State is one of the most horrifying books I've ever read.  Now Administrator of the White House Office of Information and Regulatory Affairs (OMB), Sunstein has a hand in Obama's expansion and affirmation of the Administrative or Regulatory State.  He gives off the appearance of even-handedness but clearly stacks the deck in favor of willful bureaucracy and against "private rights" (that is, natural rights), for FDR and the Second Bill of Rights against the Founders' Constitution.  He advises how the bureaucracy can collude with the courts to block off protests of pesky congressmen.  Laws after all are not that specific, so the bureaucracy needs to be able to reinterpret such laws to keep up legislative intent with the times.The 1990 book is one of the greatest assaults on the rule of law in our time.

For some examples of such bureaucratic abuses, including abolition of legal rights by bureaucratic fiat, note Columbia law prof Philip Hamburger's essays on Obamacare waivers. His most recent essay is here.

See also Eric Claeys' congressional testimony (subtly pointed at Sunstein) on how regulators might be reined in, in Steve Hayward's post below.

And finally this, also from Steve, on the crony politics of the Administrative State.