New Univ. of Texas Law Class on "Understanding Conservative Legal Thought"

I thought this item from Prof. John Greil at Texas was much worth passing along; he is still developing the syllabus, and comments and suggestions are welcome at john [dot] greil [at] law [dot] utexas [dot] edu:

Next fall semester, I'll be teaching a new course at Texas Law—Understanding Conservative Legal Thought. It's modeled largely off what Steve Sachs and Ernie Young did at Duke, as well as what Judge Katsas and Alida Kass are doing at George Washington. I want to give students a chance to grapple with the big legal debates happening right-of-center today, as well as teach students the skills to effectively advocate in front of today's judges.

The course will likely be seven 2-hour sessions, with (I'm hoping) some excellent guests joining us. In addition to the content, I'm really excited about the structure, where I aim to bring some of the seminar experience I had in Notre Dame's Great Books program (the Program of Liberal Studies) to the classroom. To that end, I plan to have students lead discussions and grade (partially) based on an oral exam.

I'd love to get feedback on the list, and I think your readership is the best place to get that feedback. [The readings largely include excerpts from the cited sources, not the entire works. -EV] I'm especially interested in pieces that work well with newcomers to the debates. The biggest problem (which is a good one to have!) is too much great stuff, and not enough time. I'm doing a one-credit course to get a feel of it, and hope to expand it the year after.

Session 1: What is a seminar?

• Vincent Lloyd, A Black Professor Trapped in Anti-Racist Hell, Compact Magazine (Feb. 10, 2023)
• Paula Marantz Cohen, The Lost Art of Academic Conversation, The Chronicle of Higher Education (Mar. 14, 2023)
• Stephen E. Sachs, Institutions and Platforms, The Volokh Conspiracy (Oct. 26, 2020), https://reason.com/volokh/2020/10/26/institutions-and-platforms/

What is a Conservative?

• F. A. Hayek, Why I am Not a Conservative, in The Constitution of Liberty (Ronald Hamowy ed., 2011) (1960).
• William Baude, FedSoc is a They, not an It, Summary, Judgment (Nov. 21, 2019), https://www.summarycommajudgment.com/blog/fedsoc-is-a-they-not-an-it.

• Milton Friedman, The Social Responsibility of Business Is to Increase Its Profits, N.Y. Times (Sept. 13, 1970), https://www.nytimes.com/1970/09/13/archives/a-friedman-doctrine-the-social-responsibility-of-business-is-to.html.
• Barry Goldwater, Republican Convention Speech, 1964, Nat'l Ctr. for Pub. Pol'y Rsch. (Nov. 4, 2001) (1964), https://nationalcenter.org/ncppr/2001/11/04/barry-goldwaters-republican-convention-speech-1964/.
• Russell Kirk, Order, the First Need of All, in The Roots of American Order (2003).
• Ayn Rand, Conservatism – An Obituary, in Capitalism: The Unknown Ideal (1966).
• L. Brent Bozell Jr., Letter to Yourselves, Incudi Reddere (May 8, 2018) (1969), https://incudireddere.wordpress.com/2018/05/08/letter-to-yourselves/.
• Wendell Berry, Jayber Crow (2001).
• Edmund Burke, Reflections on the French Revolution (W. Alison Phillips & Catherine Beatrice Phillips eds., Cambridge Univ. Press 1912) (1790).
• Leo Strauss, The Crisis of Modern Natural Right: Burke, in Natural Right and History  (1953).
• Richard M. Weaver, The Last Metaphysical Right, in Ideas have Consequences (2013).
• Charles A. Reich, The Greening of America in The New Yorker (1970).

Session 2: Individual Rights

• Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (1991).
• Texas v. Johnson, 491 U.S. 397 (1989).
• Alisdair MacIntyre, After Virtue (3d ed. 2007).
• In re Abbott, 954 f.3d 772 (5th Cir. 2020), vacated, 141 S. Ct. 1261 (2021).
• Adrian Vermeule, Common Good Constitutionalism: Recovering the Classical Legal Tradition (2022).
• William H. Pryor, Jr., Against Living Common Goodism, 23 Federalist Soc'y Rev. 25 (2022).
• Note, Blasphemy and the Original Meaning of the First Amendment, 135 Harv. L. Rev. 689 (2021).
• Jud Campbell, Natural Rights and the First Amendment, 127 Yale L.J. 246 (2017).

Session 3: Federalism

• John C. Calhoun, A Disquisition on Government, in Union and Liberty: The Political Philosophy of John C. Calhoun 3, 3–78 (Ross M. Lence ed., 1992) (1851).
• The Lincoln–Douglas Debates of 1858, Nat'l Park Serv., https://www.nps.gov/liho/learn/historyculture/debates.htm (click links for each debate).
• A. Raymond Randolph, Before Roe v. Wade: Judge Friendly's Draft Abortion Opinion, 29 Harv. J. L. & Pub. Pol'y 1035 (2015).
• Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228, 2304–10 (2022) (Kavanaugh, J., concurring).
• Joshua J. Craddock, Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?, 40 Harv. J.L. & Pub. Pol'y 539 (2018).
• Brief for Professors Mary Ann Glendon and O. Carter Snead As Amici Curiae in Support of Petitioners, Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228 (2022) (No. 19-1392).

Session 4: Originalism - Why?

• Jorge Luis Borges, Pierre Menard, Author of the Quixote, in Ficciones (1962, Anthony Kerrigan ed.).
• Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971).
• Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cinn. L. Rev. 849 (1989).
• Lawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453 (2013).
• Christopher R. Green, This Constitution: Constitutional Indexicals As a Basis for Textualist Semi-Originalism, 84 Notre Dame L. Rev. 1607 (2009).
• William Baude, Is Originalism Our Law?, 115 Col. L. Rev. 2349 (2015).
• Kelo v. City of New London, 545 U.S. 469, 505–23 (2005) (Thomas, J., dissenting).
• N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).
• Neomi Rao, Textualism's Political Morality, 73 Case W. Reserve L. Rev. 191 (2022).
• Conor Casey & Adrian Vermeule, Judge Rao's Unintentional Surrender: On the Augustan Settlement of Our Law, New Dig. (Aug. 23, 2023), https://thenewdigest.substack.com/p/judge-raos-unintentional-surrender.

Session 5: Textualism - How?

• Dwight MacDonald, The String Untuned: A Review of the Third Edition of Webster's New International Dictionary, New Yorker (1964).
• David Foster Wallace, Tense Present: Democracy, English, and the Wars on Usage, Harper's Mag., Apr. 2001, at 39, https://harpers.org/wp-content/uploads/HarpersMagazine-2001-04-0070913.pdf.
• Antonin Scalia, A Matter of Interpretation (Amy Gutmann ed., 2018).
• Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012).
• Harvard Law School, The 2015 Scalia Lecture Series: A Dialogue with Justice Elena Kagan on the Reading of Statutes, YouTube, at 08:29 (Nov. 25, 2015), https://youtu.be/dpEtszFT0TgKagan.
• John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387 (2003).
• John F. Manning, The Means of Constitutional Power, 128 Harv. L. Rev. 1 (2014).
• Thomas v. Reeves, 961 F.3d 800, 801 (5th Cir. 2020) (Costa, J., concurring & Willet, J., concurring in the judgment)
• Biden v. Nebraska, 143 S. Ct. 2355, 2376–84 (2023) (Barrett, J., concurring).
• Wooden v. United States, 595 U.S. 360 (2022) (Kavanaugh, J., concurring and Gorsuch, J., concurring in the judgment).
• Jennings v. Rodriguez, 138 S. Ct. 830 (2018).
• NLRB v. Cath. Bishop of Chi., 440 U.S. 490 (1979).
• Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020).
• William Baude, The 2023 Scalia Lecture: Beyond Textualism?, 46 Harv. J.L. & Pub. Pol'y (forthcoming 2023), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4464561#.

Session 6: Role of the Judiciary

• Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1986).
• Antonin Scalia, The Rule of Law As a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989).
• Jonathan F. Mitchell, The Writ-of­-Erasure Fallacy, 104 Va. L. Rev. 933 (2018).
• Whole Women's Health v. Jackson, 595 U.S. 30 (2021).
• Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417 (2017).
• Arizona v. Biden, 40 F.4th 375, 395 (6th Cir. 2022) (Sutton, J., concurring).
• Gamble v. United States, 139 S. Ct. 1960, 1980–89 (2019) (Thomas, J., concurring).
• Massachusetts v. EPA, 549 U.S. 497, 535–49 (2007) (Roberts, C.J., dissenting).

Session 7: Final Thoughts

• Revisit and synthesize

UPDATE: Since this topic has come up, I thought I'd also pass along a syllabus for another Conservative Legal Thought class, taught by Prof. Paul Horwitz (Alabama) in Spring 2020:

1          INTRODUCTION: CONSERVATISM AND LIBERALISM
1) Edmund Fawcett, Liberalism: The Life of an Idea, 2nd edition, excerpts
2) Edmund Fawcett, Conservatism: The Fight for a Tradition, excerpts
3) Michael Freeden, Liberalism: A Very Short Introduction, pp. 58-64, 93-104
4) Russell Kirk, Conservatism Defined, in Bacevich, ed., American Conservatism: Reclaiming an Intellectual Tradition
5) Frank S. Meyer, The Recrudescent American Conservatism, in Bacevich, ed., American Conservatism: Reclaiming an Intellectual Tradition
OPTIONAL READINGS
1) Michael Oakeshott, On Being Conservative, parts 1, 3, 4 (superb discussion of conservatism as a "disposition" and its relationship to politics)
2) Edmund Burke, Excerpts from Reflections on the Revolution in France; Letter to William Elliot, May 26, 1795 (canonical discussions of conservatism)
3) Francis Fukuyama, Liberalism and its Discontents (discussion of modern challenges to and criticisms of liberalism, which will serve as a sort of preview, for those who are interested, of the discussion in the last couple of weeks)

2          CONSERVATIVE LEGAL THOUGHT
1) Michael W. McConnell, Four Faces of Conservative Legal Thought (1988)
2) Mary Becker, Four Faces of Liberal Legal Thought (1988)
3) Laura Kalman, The Strange Career of Legal Liberalism, excerpts
4) Johnathan O'Neill, Constitutional Conservatism and American Conservatism
5) Bruce P. Frohnen, Law's Culture: Conservatism and the American Constitutional Order

3          CONSERVATIVE LEGAL THOUGHT: "ACTIVISM" VS. "RESTRAINT"
1) Richard A. Posner, Reflections on Judging, excerpt
2) Randy E. Barnett, The Judicial Duty to Scrutinize Legislation
3) Clark Neily, Judicial Engagement Means No More Make-Believe Judging
4) Ernest Young, Judicial Activism and Conservative Politics
5) J. Harvie Wilkinson III, The Lost Arts of Judicial Restraint
6) Lillian R. BeVier, Judicial Restraint: An Argument From Institutional Design
OPTIONAL READINGS
1) Jack M. Balkin, Why Liberals and Conservatives Flipped on Judicial Restraint: Judicial Review in the Cycles of Constitutional Time
2) Suzanna Sherry, Why We Need More Judicial Activism

4          FIRST-GENERATION ORIGINALISM
1) Edwin Meese II, Toward a Jurisprudence of Original Intent
2) William J. Brennan Jr., Construing the Constitution
3) Paul Brest, The Misconceived Quest for the Original Understanding
4) Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses
OPTIONAL READINGS:
1) Henry P. Monaghan, Our Perfect Constitution
2) Antonin Scalia, Originalism: The Lesser Evil
3) Randy E. Barnett, Scalia's Infidelity: A Critique of Faint-Hearted Originalism

5          MODERN ORIGINALISM
1) Keith Whittington, Originalism: A Critical Introduction
2) Lee J. Strang, Originalism's Promise, excerpt
3) William Baude, Originalism as a Constraint on Judges
4) Mark Tushnet, Heller and the New Originalism
5) Thomas Colby, The Sacrifice of the New Originalism

6          NATURAL LAW
1) American Conservatism: An Encyclopedia, "Natural law"
2) Lee J. Strang, Originalism's Promise, excerpt
3) Robert P. George, Natural Law, God and Human Dignity
4) Hadley Arkes, A Natural Law Manifesto or an Appeal From the Old Jurisprudence to the New
5) John Hart Ely, Democracy and Distrust
6) Alex Kozinski, Natural Law Jurisprudence: A Skeptical Perspective
OPTIONAL READING:
1) Gerard V. Bradley, Natural Law Theory and Constitutionalism
2) Lino A. Graglia, Jaffa's Quarrel With Bork: Religious Belief Masquerading as Constitutional Argument

7          PRECEDENT
1) William Baude, Precedent and Discretion
2) Thomas W. Merrill, The Conservative Case for Precedent
3) Steven G. Calabresi, Text vs. Precedent in Constitutional Law
4) Michael Stokes Paulsen, The Intrinsically Corrupting Influence of Precedent
5) David A. Strauss, Foreword: Does the Constitution Mean What it Says?
6) Randy J. Kozel, Settled Versus Right: A Theory of Precedent, excerpts
OPTIONAL READING
1) Justin Driver, The Significance of the Frontier in American Constitutional Law

8          LIBERTARIANISM
1) American Conservatism: An Encyclopedia, "Libertarianism"
2) Antonin Scalia, Economic Affairs vs. Human Affairs
3) Richard A. Epstein, Judicial Review: Reckoning on Two Kinds of Error
4) Randy E. Barnett, Is the Constitution Libertarian?
5) Trevor W. Morrison, Lamenting Lochner's Loss: Randy Barnett's Case for a Libertarian Constitution
OPTIONAL READING:
1) Roger Pilon, The Origins of the Libertarian Legal Movement

9          SOCIAL CONSERVATISM
1) Excerpts from Bowers, Romer, and Lawrence
2) Robert H. Bork, Neutral Principles and Some First Amendment Problems
3) Robert H. Bork, Slouching Toward Gomorrah, excerpts
4) Steven G. Gey, Is Moral Relativism a Constitutional Command?
5) Gerald Dworkin, Devlin Was Right: Law and the Enforcement of Morality

10        TRADITIONALISM
1) Rebecca L. Brown, Tradition and Insight
2) David Luban, Legal Traditionalism
3) Marc O. DeGirolami, The Traditions of American Constitutional Law
4) Steven D. Smith, In Search of Conservatism
5) Michael H. v. Gerald D., Obergefell v. Hodges, excerpts
OPTIONAL READINGS
1) Michael W. McConnell, The Right to Die and the Jurisprudence of Tradition

11        INTEGRALISM AND "COMMON-GOOD CONSTITUTIONALISM"
1) Adrian Vermeule, Beyond Originalism
2) Common-Good Constitutionalism: A Model Opinion
3) Adrian Vermeule, Integration From Within
4) Edmund Waldstein, What is Integralism Today?
5) Micah Schwartzman & Jocelyn Wilson, The Unreasonableness of Catholic Integralism
6) Randy E. Barnett, Common-Good Constitutionalism Reveals the Dangers of Any Non
-originalist Approach to the Constitution
7) Jack Balkin, Common Good versus Public Good
8) Rick Hills, Picking the Best Fight with Adrian Vermeule

12        LEFT MEETS RIGHT: ANTI-LIBERALISM, ILLIBERALISM, AND CRITICAL STUDIES
1) Park MacDougald, A Catholic Debate Over Liberalism
2) Patrick Deneen, Why Liberalism Failed, excerpts
3) Richard Schragger and Micah Schwartzman, Religious Antiliberalism and the First Amendment
4) Stephen Holmes, The Anatomy of Antiliberalism, excerpts
5) Zack Beauchamp, The anti-liberal moment
6) James R. Rogers, The Return of Utopian Romanticism
7) Samuel Moyn, Neoliberalism, Not Liberalism, Has Failed
8) Steven D. Smith, The Disenchantment of Secular Discourse, excerpts

13        CONCLUSIONS
1) Frank S. Meyer, The Recrudescent American Conservatism, in Bacevich, ed., American Conservatism: Reclaiming an Intellectual Tradition
2) Sen. Josh Hawley, Was it All for This? The Failure of the Conservative Legal Movement
3) Brad Littlejohn, Individual and National Freedom: Toward a New Conservative Fusion
4) Julius Krein, The Three Fusions

Comments

[AmosArch]

He should include a section on how Conservatism is ultimately doomed to failure if doesn't stop insisting as it has done historically since the French Revolution, on simply being a completely reactive handbrake slightly slowing down Leftism rather than offering a compelling vision of the future of its own. In other words, the problem’s in the name.

[Krychek_2]

At this point, I'm not sure I know what conservatism even is, since it bears no resemblance to the conservatism of my youth. I'm not sure there's even a family resemblance any more.

I see liberalism as a starry eyed version of we can make the world a better place, and conservatism as a rejoinder of no we can't. And that, I think, is what fundamentally separates the two camps. Liberalism can't solve every problem, but it has solved some, and the world is better off for having social security, free public education, and access to health care. We can quibble about the details, and I would agree that some of those things could have been done better, but what's the argument that children were better off working in factories?

And every bit of progress has been opposed by conservatives at every point. Conservatives opposed ending child labor because it was a socialist attack on free enterprise. Ditto clean air, water and unadulterated food standards. Ditto cholera-ending mandatory sewage systems. This country is a far better place for all the times the liberals have successfully beaten back conservative hostility to progress.

So Amos, I'd like to hear a little more about what you would consider a compelling vision of a conservative future.

[AmosArch]

Imo a good start would be an emphasis on liberty particularly negative freedoms with as much political power as reasonable given to the individual and only then the next step is taken and as much power as reasonable is given to the smallest organization and so forth. Basically what libertarians claim to be. Unlike some orthodox libertarians in practice, there is a recognition that Progs are encroaching on individual liberty in the social sphere as well as the economic.

While libertarianism and freedom to live your own system takes precedence when possible at the same time the hypothetical formerly named conservatives being formerly named conservatives are not sociopolitical agnostics. They recognize, advocate, and prefer to follow a better way. Broadly this can be called ‘social naturalism’ vs the social engineering modern progs are so fond of. Lower level battletested organic institutions like religion and family are favored over higher level more recent institutions. Social arrangements and dynamics that arise organically, sex roles, freemarket, and meritocracy for instance are generally seen as superior to historically technocratic top down ideals such as equalism which have outgrown their purpose and are now simply enforced for their own sake.

The second portion will likely emerge on its own if you enforce the first. Its not called naturalism for nothing. A lot of the right already follows these ideals though they do it through the flawed conception of ‘Conservatism’ ie simply holding on to the Left and digging their heels in.

[Rev. Arthur L. Kirkland]

Where does vestigial conservative bigotry -- superstitious gay-bashing, Republican racism, Islamophobia, chanting "Unite the Right" antisemitism, hatred of immigrants, transphobia, old-timey misogyny, special privileges denied to agnostics and atheists, etc. -- fit in your analysis?

And where does it appear in the Clinger Law course outline?

[AmosArch]

Also one thing I should add that I couldn't due to the broken commenting system is the misnamed conservatives role in the testing of potentially disruptive social innovations. You wouldn't just jam random objects into your body or your car engine in the same way skepticism and testing of social innovations is an important part of maintaining a functioning society. The tester and skeptic is complementary to and just as important as the innovator in societal engineering as they are in regular engineering.

Its one of the great tragedies that only one side of the equation is celebrated and the other just as critical role has been demonized even in the minds of many conservatives.

[SimonP]

You apparently believe that human civilization began 100 years ago. What a bunch of claptrap this is.

Organized religion has never been organic, and has frequently throughout human history just been another tool of the state/sovereign to control the people. Religious practices organically seem to tend towards general spiritualism and syncretism, but the process by which a large number of "Christians" all of a sudden decide that Jesus decreed that men and women use separate bathrooms is not in any sense "organic."

And these concepts of individual liberty, the free market, and meritocracy - all well and good, but these are relatively modern inventions and are part of the exact same school of thought that gives us what you deride as "equalism." They also take a lot of work t make work, in practice. Common currency, commodification, contract enforceability, and so on - it took human civilization centuries to figure this stuff out and implement it. Just because you have no living memory of it ever having been different doesn't mean that it's part of the "natural" world.

We are the living beneficiaries of the kind of "social engineering" you reject, and your rejection of its current implications is driven by emotional grievance. The Enlightenment thinkers whose ideas you claim to value would reject your retrograde thinking.

[AmosArch]

Organized religion has never been organic, and has frequently throughout human history just been another tool of the state/sovereign to control the people. Religious practices organically seem to tend towards general spiritualism and syncretism, but the process by which a large number of “Christians” all of a sudden decide that Jesus decreed that men and women use separate bathrooms is not in any sense “organic.”
>>>>>>>>>>>>>>>>>>>

What do you mean by organized? The tendency toward widespread relatively standardized religion and separation of the sexes is a lot older and more universal throughout history than the modern West's current conception of gender. As a boy in a random hunter gatherer tribe go and tell them you now identify as nonbinary and that they must also identify you as such otherwise they will be fined and see how far that gets you.

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
And these concepts of individual liberty, the free market, and meritocracy – all well and good, but these are relatively modern inventions and are part of the exact same school of thought that gives us what you deride as “equalism.” They also take a lot of work t make work, in practice. Common currency, commodification, contract enforceability, and so on – it took human civilization centuries to figure this stuff out and implement it. Just because you have no living memory of it ever having been different doesn’t mean that it’s part of the “natural” world.
>>>>>>>>>>>>>>>>>>>>>>>>>>

Are you saying noone before 1700s had any concept of doing what you wanted, trading for the right price, and the best man for the job? All these things existed and the impulse for them existed on some level for time immemorial . Sure corruption and crime interfered with it then as it does now. Setbacks exist for everything, even natural things. But its a negative freedom and definitely more of a universal impulse than gender pronoun enforcement.

>>>>>>>>>>>>>>>>>>>>>>>>
We are the living beneficiaries of the kind of “social engineering” you reject, and your rejection of its current implications is driven by emotional grievance.
>>>>>>>>>>>>>>>>>>>>>>

We are also the living beneficiaries of the skeptics of social engineering. For every so called advancement, and many times they steal credit from technology, theres tons of thankfully discarded ideas and iterations.

[SimonP]

What do you mean by organized?...

The question is not whether organized religion predates current "woke" ideology, but whether it emerges naturally, as you implied. As I've noted, organized religion is a tool of the state (or previous versions of the "state") for controlling the people. Some 18th-century preacher in Appalachia preaching to an illiterate congregation from a Bible he inherited from his father doesn't give a shit whether his teachings are doctrinally coherent or consistent with what some other pastor in Ireland is telling his flock, and there's nothing in these religious texts that compel standardization across congregations. Jewish law, canon law, modern Republican/Christo-fascist ideology, etc., all of it - it's about control.

As for the "modern West's current conception of gender" - again, your ignorance is shining through. While most human civilizations have acknowledged the basic biological distinction between males and females - as does the "modern West" - gender roles have shifted and evolved over time, and have never been anywhere near as fixed as the Christo-fascists now assert. Indeed, the equality of the sexes that stampeded through western civilization and is still working its way through some parts of the globe was a far more radical departure from centuries past, than anything people are talking about now. Yet nowadays most people treat that as just ordinary.

Are you saying noone before 1700s had any concept of doing what you wanted, trading for the right price, and the best man for the job?

No, I am talking about the specific concepts you invoked, not the primitive concepts or traditions from which they grew.

In any event, are you saying that, prior to the 1700s, people were free? Are you saying that markets were free? Are you saying that people succeeded and advanced primarily based on their skill and hard work, and not (say) their lineage, their class, their access to people in power, etc.?

When you talk about "meritocracy," you are not talking about "the best man for the job gets it." You are talking about the idea that every person should have an equal shot; that they deserve the fruits of their efforts and the rewards of success; and that we should celebrate, not denigrate, their advancement. If only we lived in such a society!

[AmosArch]

As I’ve noted, organized religion is a tool of the state (or previous versions of the “state”) for controlling the people. it’s about control.
>>>>>>>>>>>>>>>>

Okay, your opinion on what organized religion is all about doesn't relate to what I'm arguing.

>>>>>>>>>>>>>>>>>>>>
gender roles have shifted and evolved over time
>>>>>>>>>>>>>>>>>>>>>

I think most people would agree that an average woman in 2000 BC and 1900 AD are a lot closer together than some bearded 'woman' blowing out a women's weight lifting contest by benching 700lb in 2024.

>>>>>>>>>>>>>>>>>>>>>>>>>>>>
e equality of the sexes that stampeded through western civilization and is still working its way through some parts of the globe was a far more radical departure from centuries past, than anything people are talking about now.
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

One possibly big mistake in the past does not justify a smaller one in the future. But then again, see above.

>>>>>>>>>>>>>>>>>>>>>>>
In any event, are you saying that, prior to the 1700s, people were free? Are you saying that markets were free?
>>>>>>>>>>>>>>>>>>>>>>>>

In certain ways in certain contexts certain people were as free or freer than they are today, economically and socially. And the impulse to form free markets, and individual liberty and meritocracy appear and were acted on in countless ways at different levels throughout history across different societies. Moreso than some of the other things progs tell us are important.

>>>>>>>>>>>>>>>>>>>>>>>
When you talk about “meritocracy,” you are not talking about “the best man for the job gets it.” You are talking about the idea that every person should have an equal shot
>>>>>>>>>>>>>>>>>>>>>>>>

No, thats equality of opportunity which I also support. As opposed to equality of outcome which you guys favor. Meritocracy is best man for the job. Hence the word 'merit'.

[SimonP]

Okay, your opinion on what organized religion is all about doesn’t relate to what I’m arguing.

You’re not really “arguing” for anything, here. You’re more just responding contrarily to my comments, without some further point or general argument to make.

Upthread, you asserted that we’d be better off if our society and government returned somehow to something you called “social naturalism,” where society and government would serve and promote more “natural” ways of organizing our society and our lives. My point was just to say that the things you purport to be “natural” are really anything but; they are things that were developed within the modern era and have involved a great deal of “social engineering” to get them to where they are today.

It is really no response to this to say that primitive cultures observed the gender binary or that some peasant living in a remote corner of a minor European kingdom probably never had to worry about official censorship of any complaints about taxes. My point is that the concept of individualized liberty, as a core feature of a governmental system, is a modern invention. The same goes for free market economies and meritocracy (which does not mean just whatever you decree it means).

I take no issue with pointing to those things as good, as essential to modern society. My only point is to say that they emerged from Enlightenment philosophies (which broke, incidentally speaking, from the schools of thought tied to organized religion) that have continued to develop and evolve to include other principles, like the fundamental belief that “all men are created equal” and that “men” for such purposes happens to include women.

You are the traitor to liberty. You are the one who is fine with Enlightenment philosophy and advancement, until it comes to the point where you feel it conflicts with your own provincial concerns, at which point you seek to cut it off. You want to preserve what serves you – by calling it “natural” – while dispensing with the rest.

Enlightenment thinkers have been fighting ideological opponents like you throughout the centuries. You’re the ignorant, the irrational, the confused.

[Sarcastr0]

The facile invocation of liberty to mean whatever a conservative wants it to mean that day is one of the issues with conservative rhetoric since I've been politically conscious.

I've seen it be used to be anti and pro-free trade, anti-and pro-Federalism, anti and pro-immigration, anti and pro-social safety net, anti and pro-big business.

There is a lot to like in the conservative intellectual project. But it deeply buried these days given the strain of anti-intellectualism that's been growing on the right since academia became more liberal at the turn of the last century.

A course like this is pretty neat, actually, though I'd love to see it more broadly than legal.

[The Alabama course has a whole class on just reactionary anti-liberalism?! Accurate, but unnecessary.]

[Brett Bellmore]

"The facile invocation of liberty to mean whatever a conservative wants it to mean that day"

That's a pretty ironic complaint coming from somebody on the 'liberal' end of things. Continually manufacturing new "rights", while casually denying that things actually enumerated in the Bill of Rights are rights, pretty nervy actually making that complaint.

[Sarcastr0]

Sure, the left can blindly invoke liberty as well, and it's just as dumb. But we don't do that as much.

As to the rest of you post, yes I'm bad and you're good and the Constitution says so awesomely reasoned.

[Brett Bellmore]

You don't think you do it as much.

When you invoke liberty, or dismiss it, you do so for your own reasons, which you are not going to casually dismiss. Ergo, from your own perspective it's never "blindly".

I don't suppose it occurs to you that, just as you assess both liberalism and conservatism from a 'liberal' viewpoint, conservatives do the inverse? And so see little that's 'blind' about their own choices?

So, let's address this on a less subjective level.

What I dismissed was the notion that conservatives just casually change their views of liberty to match whatever they want at the moment. Which is indeed a silly accusation for a 'liberal' to level.

The left celebrates change, (Which it confuses with "progress"), changing your views of liberty is baked into the brand. You're perpetually coming up with NEW rights, like a right not to be 'misgendered'.

And because you're into positive 'rights', which can only be effectuated by imposing obligations to do, rather than refrain, on others, your every expansion of these new 'rights' is inextricably linked to a contraction of previous negative rights. If I can't 'misgender' you, I've lost some of my freedom of speech!

The conservatives' whole gig is stability. NOT innovating is equally baked into the conservative brand. You might sensibly complain that they're not keeping up with the times, but making things up as they go along is a bizarre accusation.

[Sarcastr0]

It is laughable to pretend the left invokes liberty half as much as the right. Someone posts with a handle like 'libertylover' and I know their politics off the break.
By blindly, I don't mean people have no thoughts about what liberty is, I mean they have no thoughts others might have a different definition. Including other conservatives.

As to your characterization of the left, a lot of issues (you've never understood people who you disagree with even as you speculate confidently about their motives)
1. You conflate liberalism and the left. Liberals like rights (not all like positive rights actually). The left doesn't even generally use the rights paradigm.
2. You claim the left celebrates change. Just change. And they call it progress. That is ridiculous - not all change is created equal, how could you even claim that?
3. We know you define rights one way, and then you attack other people as defining rights in a way that does not agree. That is begging the question.
4. Conservatives whole gig is not stability. Look at Trump. Look at the commenters here, many who whom are quite radical in their conservativism. Look at you, and how much of our modernity horrifies you (due to every institution being secretly liberal).

The conservative gig, nowadays, is owning the libs. It has become a purely reactionary party; that's why leadership fights are so hard - because there is no principles upon which y'all disagree, it's pure power.

Conservativism in America never had a coherent set of values, but then neither did liberalism. Both in their modern incarnations grew out of the New Deal, which was itself a hodge-podge of policies not any kind of coherent logic.
That does not mean that conservativism didn't not too long ago have philosophical threads that go back longer, and those are worth studying.
But taken as a whole it's a brand holding together a shaky coalition that has changed throughout the modern era (the moral majority, the kicking out of the chamber of commerce folks from leadership [but keeping anti union], etc.)

[MeanGene]

The Left, lately anyway, has been publicly invoking "democracy" while at the same time vesting more and more power in un-elected and largely unaccountable bureaucratic functionaries. The Left likes centralization for reasons of "efficiency", at least when centralization benefits their agenda....

[Randal]

The left celebrates change, (Which it confuses with “progress”), changing your views of liberty is baked into the brand. You’re perpetually coming up with NEW rights, like a right not to be ‘misgendered’.

False. You totally misunderstand what's going on.

The left isn't interested in new rights. We're interested in equal rights.

As a straight white man, you've always had all the rights. You have, in the past, had a right not to be a slave, a right to vote, a right to sex, a right to marry, a right "not to be misgendered," etc.

What makes you so evil is that every time the left tries to give those rights to people who haven't had them before, you experience it as a taking. You think it's a positive right because it's taking away some of your power over marginalized groups. But to the marginalized groups, it's just the same negative right it's always been.

When the right to freedom was given to Black slaves, white straight conservative guys like you thought it was an infringement on their negative property rights.

When the right to vote was given to women, white straight conservative guys like you thought it was a dilution of their negative right to vote.

When the right to sex was given to gays, white straight conservative guys like you thought it was a positive right to piss you off or spread disease or something.

When the right to marry was given to gays, white straight conservative guys like you thought it was a positive right to mess with your freedom of religion.

The right to not be misgendered -- which isn't even a right, really just a social norm -- is a courtesy you've enjoyed your whole life but are unwilling to extend to other people basically out of petty meanness.

Conservatism isn't liberty, it's a sick attempt to hoard power.

[Stephen Lathrop]

Well put, Randal.

[Alpheus W Drinkwater]

Fantastic comment!

[Stephen Lathrop]

No, Bellmore. There was in Burkean conservatism a notion to value stability over change. So it is telling that modern movement conservatives became knee-jerk fulminators against Burkeans.

The history of movement conservatism is entirely a history of making thing up as they go along—with the malevolent twist that they invented a method of cross-mutual citation to fabricate superficial resemblance to historical provenance. That began with the John Birch Society, by the way.

You came along just a little too late to see initial movement conservatism innovations in progress, so you readily fell for the notion that you were looking at something with deep historical–ideological roots. Instead, you bought into what modern movement conservatism really is—a movement with deep historical–opportunistic roots; basically, rape, ruin, and run is a public virtue. That goes way back.

[bernard11]

Social arrangements and dynamics that arise organically, sex roles, freemarket, and meritocracy for instance are generally seen as superior to historically technocratic top down ideals such as equalism which have outgrown their purpose and are now simply enforced for their own sake.

I don't think meritocracy arose organically, and I think conservatives were not supporters of the idea, but rather opponents. I think the current conservative admiration of meritocracy is a matter of convenience rather than conviction - "the enemy of my enemy is my friend."

Did sex roles evolve organically? Maybe, but that proves little, if true. Suppose they developed as they did because of the disparity in size and strength of men and women. How does that make men better doctors or lawyers or scientists?

Religion? No need to rehash billions of arguments about its value. Let's just say that, despite the hysterics in some circles, it is not modern "progressive" societies that prevent individuals from following their religious beliefs, but rather backwards ones.

Conservatism is ultimately doomed to failure if doesn’t stop insisting as it has done historically since the French Revolution, on simply being a completely reactive handbrake slightly slowing down Leftism rather than offering a compelling vision of the future of its own. In other words, the problem’s in the name.

I don't think it's in the name, and I think your description is exactly what much of conservatism is. It is a brake on ideas that threaten the established power of those who call themselves conservatives. That is what they want to conserve.

[Sarcastr0]

And if you read Amos' posts, being reactionary against liberalism is basically his whole deal.

[AmosArch]

I don’t think meritocracy arose organically >>>>>>>>>>>>>>>>>>>>>

I don’t know what your definition of meritocracy is but my definition is best man in a group gets the job. Which has been practiced since caveman times and even arguably among animals.

>>>>>>>>>>>>>>>>>>>>>>> Did sex roles evolve organically? Maybe, but that proves little, if true. Suppose they developed as they did because of the disparity in size and strength of men and women >>>>>>>>>>>>>>>>>>>>>>>

The different bodies of the sexes are obviously specialized for different roles. Denying this puts you with and even below the creationists you claim to despise. .

>>>>>>>>>>>>>>>>>>>>>>> How does that make men better doctors or lawyers or scientists? >>>>>>>>>>>>>>>>>>>>>>>>

Maybe not in those very broad roles but men and women do excel in different roles. Or specialties of different roles and thats because the same natural selection which affected physical traits due to the advantages of division of labor also affected mental traits. And theres absolutely nothing wrong with this. The popular leftoid hypothesis that mental faculties are somehow magically immune to the processes that affect physical bodies seems pretty incoherent unless you want to get into spirituality.

>>>>>>>>>>>>>>>>>>>>>>>>> it is not modern “progressive” societies that prevent individuals from following their religious beliefs, but rather backwards ones. >>>>>>>>>>>>>>>>>>>>>>>>>>

Just because we try to destroy a person who refuses to bake a ssm cake financially rather than kill them like some middle east country doesn’t mean thats an example to be emulated and admired.

[bernard11]

I don’t know what your definition of meritocracy is but my definition is best man in a group gets the job. Which has been practiced since caveman times and even arguably among animals.

This is just foolish, Amos. Human society has almost always been stratified in various ways that have nothing to do with merit. In the US it's been a matter of race, mostly, and sometimes ethnicity. Those in the higher strata have "gotten the job." Do you think no Blacks (and few Jews) had sufficient merit to attend prestigious universities until the 1950's or 60's? Do you think no Blacks were good enough athletes to play major league baseball until 1948? Do you think wealthy people in the US today do not enjoy considerable advantages?

The different bodies of the sexes are obviously specialized for different roles. Denying this puts you with and even below the creationists you claim to despise.

I'll give you childbirth, and that men generally have an advantage in tasks requiring strength. But in what sense are women's bodies specialized for cooking and housework?

The popular leftoid hypothesis that mental faculties are somehow magically immune to the processes that affect physical bodies seems pretty incoherent unless you want to get into spirituality.

So you think women are stupid. Is that it? Or is it that your love of meritocracy doesn't extend to giving women the same opportunities to prove themselves that men have? Because of "tradition."

Just because we try to destroy a person who refuses to bake a ssm cake financially rather than kill them like some middle east country doesn’t mean thats an example to be emulated and admired.

Pretty weak comparison, Amos.

[SimonP]

The popular leftoid hypothesis that mental faculties are somehow magically immune to the processes that affect physical bodies seems pretty incoherent unless you want to get into spirituality.

It's not beyond possibility that women's and men's brains differ, on average, in a way that might suit one or the other to different types of intellectual tasks.

What's interesting about this is that you seem to presume you know in which way those differences can be expected to cut. What if it's the case that women are actually better at being doctors and lawyers than men; they just tend to drop out of the workforce more often due to pregnancy and care-providing responsibilities? Responsibilities that (apart from pregnancy and initial breastfeeding) they are not necessarily uniquely well-suited to shoulder?

[Ed Grinberg]

.

the world is better off for having social security, free public education, and access to health care.

In other words, it's good for some people to have nice things paid for by other people. Sorry, but no.

[Rev. Arthur L. Kirkland]

Are you referring to the subsidies New York, California, Massachusetts, and New Jersey taxpayers provide to the hillbillies and hayseeds of West Virginia, Wyoming, Kentucky, Mississippi, and a dozen other conservative states?

[SimonP]

My question-begging defeats yours! Good chat.

[Bob from Ohio]

Too many Whigs and Libertarians on the reading list.

Lets bury Burke for starters.

[Sarcastr0]

Needs more Pinochet, eh?

[Roger S]

Yes, a course on conservatives should read conservatives. There should be essays on Clarence Thomas's legal theories.

[SRG2]

Lets bury Burke for starters.

That's like discussing Christian theology but ignoring the Gospels.

Burke is an embarrassment to many American conservatives because he's pro-monarchy, which naturally and correctly leads critics of conservatism to point out that in times past, today's conservatives would have supported the monarchy (and slavery as well),

What I would bury is the idea that conservatives favour individual liberty and small government. It's self-gratifying bullshit.

[Alpheus W Drinkwater]

They favor it in certain circumstances, when it results in certain desired outcomes.

[John F. Carr]

How popular are these courses? Who signs up?

[SimonP]

People who want to learn how to argue cases before conservative judges from a mid-level associate, apparently.

[LawTalkingGuy]

I mean that’s not the worst pitch for a course. “How to suck up to the federal judges I was recently sucking up to” can have a lot of value for students at a T14.

[Rev. Arthur L. Kirkland]

Who signs up? There's a natural audience.

Fledgling racists and Lost Cause contrarians. Superstition-addled gay-bashers. Homeschooled Christian Dominionists. On-the-spectrum incels and vestigial misogynists. Gun nuts. Bible-thumping anti-abortion absolutists. White nationalists and other Immigrant-haters. Islamophobes. Faux libertarians. White supremacists. Disaffected culture war casualties. Federalist Society misfits. People who want to clerk for 1950s-era judges.

[SimonP]

While I love a good seminar, the reading list strikes me as full of unnecessary fluff, and relies too much on secondary sources. Law students are already given absurd amounts of reading; they don't need to waste time reading Borges or political speeches or pieces about academic seminars. It might be more effective and rewarding to focus each session on one or two academic works on the topic, and then cases demonstrating the approach.

I have a hard time taking "conservative legal thought" seriously as an intellectual exercise - but the interesting story of conservative jurisprudence in modern law, to me, is that it's not a single, cohesive thing. There are different conservatisms, followed to different degrees, in different areas of law, which have come into fashion at various point in our recent history, sometimes responding to one another.

[Stephen Lathrop]

Add to the list 2 essays by conservative Michael Oakeshott:

1. Rationalism in Politics
2. On History

Add this by James Wilson, the founder whose hand set down the canonical penultimate draft of the Constitution:

There necessarily exists, in every government, a power from which there is no appeal, and which, for that reason, may be termed supreme, absolute, and uncontrollable . . . Perhaps some politician, who has not considered with sufficient accuracy our political systems, would answer that, in our governments, the supreme power was vested in the constitutions . . . This opinion approaches a step nearer to the truth, but does not reach it. The truth is, that in our governments, the supreme, absolute, and uncontrollable power remains in the people. As our constitutions are superior to our legislatures, so the people are superior to our constitutions. Indeed the superiority, in this last instance, is much greater; for the people possess over our constitution, control in act, as well as right. The consequence is, the people may change constitutions whenever and however they please. This is a right of which no positive institution can ever deprive them.

Add this by historian Edmund Morgan:

Inventing the People: The Rise of Popular Sovereignty in England and America

Oakeshott, who died in 1990, explains methodological issues with which would-be originalists/textualists must contend if they do not wish to make themselves ridiculous.

Wilson's excerpt may be the single most trenchant expression of American constitutionalism available from the founding era.

Morgan provides an erudite but readable review of historical passages relevant to what in his view might be termed the critical myth of popular sovereignty, which underlies America's theory of governance. In another sense, this book by Morgan examples the kind of research originalism would learn to rely upon, if done right.

[SRG2]

+1 for the recommendation of Oakeshott. Of course, as he was British, many American conservatives will view him with suspicion.

[not guilty]

It seems to me that understanding conservative legal thought can be boiled down to a single acronym: IOKIYAR.

[gVOR08]

I love that explanations of, "What conservatism is." always turn into arguments about, "What is conservatism?"

[Sarcastr0]

I mean, same thing happens with liberals as well.

Now, I do think that with liberals it's more a competition between ideas people want to push (and if you don't agree it's first priority you are Impure), versus on the right it's more a people arguing which is the very worst thing to be reactionary about.

[EscherEnigma]

I assume one of these readings calls out the importance of judge-picking in filing your cases. After all, Blackman once said it would probably be malpractice to *not* do so, and he would know about conservative legal principles, no?

[Randal]

No better admission that your ideology is deprecated than a course trying to remind people of it by way of introduction, in the style of, say, Understanding Sumerian Legal Thought.

[slot1254]

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[Brett Bellmore]

Coming as I did to conservatism from libertarianism, I have to say that your list of libertarian books isn't anything like what I'd select to understand libertarianism. Not even right-wing libertarianism.

How about Nozick's Anarchy, State, and Utopia?

Almost anything by David Friedman? The Machinery of Freedom, or Law's Order?

[Sarcastr0]

It's a legal course, Brett.

[Stephen Lathrop]

Libertarianism as a critique of the practice of governments in their various manifestations is a topic worth considerable exploration.

Libertarianism as a movement to offer insight into governance generally can be dismissed in a single sentence: Until libertarians develop a theory of state sovereignty they regard as acceptable, they have no theory of government to offer.

[SRG2]

More generally, my view is that all political theories/systems either explcitly or – usually – implicitly incorporate models of human behaviour and if those models depart significantly from actual human behaviour, the theory itself will suck. I am unconvinced that the model implicit in libertarianism is accurate, much as I am emotionally drawn to libertarianism. But then, not being a conservative, I don't rely on emotion to make my political decisions 🙂