Comments on: Richard Reinsch’s Version of Our Postmodern Yet Conservative Founding

By: paul seaton

paul seaton — Fri, 22 Feb 2013 17:00:01 +0000

Of course, Tom West’s book corrects Ralph on his opening assertion, as well on Jefferson (as did Lincoln).

By: jason taylor

jason taylor — Fri, 22 Feb 2013 16:11:23 +0000

It is true that women were not granted the franchise at first. As were non-landholders. At the same time it is also true that society was not overfederalized then, and the rights of private groups to make their own rules were respected. Being one three hundred millionth of an Emperor or Empress once every four years and being nothing the rest of the time doesn’t seem like much of a trade even for those who would have been disenfranchized, which I would certainly be owning no land. I would gladly trade that for a system where subsidiary governments and private groups get their dignity back.

By: CJ Wolfe

CJ Wolfe — Fri, 22 Feb 2013 06:17:41 +0000

By the way Peter, I think I may have discovered another subscriber to the “built it better than they knew” approach to the Founders: the late Ralph McInerny. I read this interesting passage in his article “Some Reflections on Aristotle and Elitism,” Review of Metaphysics 61 (March 2008), p490:

“Many of the founders approved of slavery, and women were not initially accorded the franchise and thus full admission to the body politic. If we reject these views, this is not because we wish to impose latter day opinions on earlier opinions, but rather because we think that the founders WROTE BETTER THAN THEY KNEW. When, over time. former slaves and women were admitted to full citizenship, it was not necessary to amend the statements of the founders so much as to set aside contingent and mistaken restrictions that attached to their recognition of the truths they set down. When Jefferson wrote that all men are created equal and are endowed by their creator with certain inalienable rights, among them life, liberty and the pursuit of happiness, it is doubtless historically true that he was not thinking of all men tout court. Nonetheless, what he said is true of all persons and it was only the range of his remark that had to be corrected.”

It’s actually a variant I suppose, since Ralph’s view is that the Founders “wrote better than they knew” doesn’t say anything about the actual institutions built but just the documents. Of course Lincoln would argue against Ralph that Jefferson and those who influenced the writing of the Declaration wrote just as well as they knew, and really did mean “all men” in an inclusive sense, and that the natural rights referred to differ from the rights of citizenship

By: paul seaton

paul seaton — Fri, 22 Feb 2013 00:47:11 +0000

Thanks, CJ, very helpful.

By: Peter Lawler

Peter Lawler — Fri, 22 Feb 2013 00:41:25 +0000

Ordered liberty in my mind is a kind of an outreach to the Russell Kirk kind of conservatives. Or liberal conservatism as opposed to conservative liberalism.

By: CJ Wolfe

CJ Wolfe — Fri, 22 Feb 2013 00:35:44 +0000

Yes Paul, I think you’re right about that. The “ordered liberty” approach to due process is what a majority of members of the court held to when Cardozo was around; Frankfurter was in the minority in holding onto it during the Stone and Vinson courts. So I think it’s fair to say that the strange Con law connotations to “ordered liberty” are probably more due to Cardozo than Frankfurter.

I was thinking of Frankfurter, probably, because the majority of the court assumed that the “ordered liberty” approach to due process that Cardozo spoke of was sufficiently replaced by the 3 part “test” approach to due process that Stone snuck in with the Carolene Products case. Black and Frankfurter didn’t accept that change, with Black siding with a textualist model tying due process to specific amendments and Frankfurter sticking with the old (perhaps slightly modified?) ordered liberty approach

By: paul seaton

paul seaton — Thu, 21 Feb 2013 22:25:36 +0000

Isn’t Cardoza’s use of the phrase more influential in Con Law? (I could be wrong, just asking.)

By: CJ Wolfe

CJ Wolfe — Thu, 21 Feb 2013 21:49:19 +0000

I’m always cautious about using the phrase “ordered liberty” (probably needlessly), because of the strange connotations it has in Con Law thanks to Justice Frankfurter. In my mind Frankfurter was on the right side of several cases against Justice Black, but his reasoning often involved a way of applying the 14th Amendment in terms of his “ordered liberty” concept that was a bit strange, and definitely one that gave alot of leeway to the judgment of the Court (see the first school flag salute case, Minersville School District v. Gobitis). The issue of whether the burden of proof is on the gvt. or the individual, is also connected to this since ordered liberty has to do with the GVT’s actions and not the individual’s, the opposite of what Hugo Black argued.

That tangle of controversy is why I’m tentative about using the phrase, even though I know it probably was used by many great statesmen and maybe even the Founders. I wish there were some article or something explanation that showed how to think about ordered liberty apart from all the Con Law mess (and perhaps even showing how it SHOULD be understood in Con Law)