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E-Pluribus | May 30, 2023
Where law comes from; maybe we shouldn't throw out the classics; and a close look at the New Right.
A round-up of the latest and best writing and musings on the rise of illiberalism in the public discourse:
Anthony Sanders: Where Does the Law Come From?
It’s generally clear where laws come from, but where does law itself come from? Concepts such as natural law and unenumerated rights (among others) sometimes produce ambiguity in judicial proceedings seeking just outcomes. Anthony Sanders at ArcDigital examines the influences on America’s legal and political system that have led to what we have today.
There’s a still-unresolved ambiguity at the heart of the American legal and constitutional system: the question of where “law” comes from. In reality, there’s more than one source, each of which is great for what it is but needs to be kept in its place. Unfortunately, they’re frequently confused.
One source is simply the past. We call this the common law. One of America’s greatest inheritances from England, this is the “uncodified” set of legally enforceable rules of conduct. Rip a hole in your neighbor’s garage while riding your lawn mower? The rules for whether you’re liable are likely not found in a statute but in judicial opinions which, in turn, cite older judicial opinions. And even those opinions are not “the law.” They are evidence of “the law.”
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Common law rules certainly change over the years, but they change gradually (or at least this is how it is supposed to be) and not because judges purposely “make” the law. Instead, law changes because judges apply legal rules to specific facts before them. Rules then evolve, especially as technology, practices, and mores change in society. To steal from Adam Ferguson’s famous quip about social phenomena, the common law is “the result of human action, but not the execution of any human design.”
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Another source of law in modern America comes from the other side of the nation’s legal and constitutional heritage: Parliament.
The common law was one form of English law, Parliament’s dictates another. Parliament could override and augment the common law. When coupled with the Crown (a complicated relationship we won’t explore here), “the King in Parliament” was the sovereign.
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Before, during, and after the American Revolution, the Founders took the common law and other features of the English legal system and seeded them into American institutions. They obviously didn’t seed “the King in Parliament.” They did, however, adopt the idea of the legislature as a lawmaker. But ultimate, sovereign, lawmaking power lay in a new place: “the people.” And this “people” was not the same as the legislature. The people’s power is expressed when they adopt a constitution, a “higher law” to the mere statutes of legislatures.
Much of this looked the same, but the people’s “higher law” was a new twist with major ramifications. Decoupling sovereignty from the legislature plus adding a higher law above the legislature inextricably led to judicial review, the power of courts to declare the legislature’s law unconstitutional.
Read it all here.
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Maureen Dowd: Don’t Kill ‘Frankenstein’ With Real Frankensteins at Large
The classics of literature have been under assault lately and while Maureen Dowd’s reasons for defending them may differ from those of conservatives (for example, Dowd uses this quote: “are we going to trust the engineers and the capitalists to tell us what is right and wrong?”), both liberals and conservatives can agree on the ends.
Trustees at Marymount University in Virginia voted unanimously in February to phase out majors such as English, history, art, philosophy and sociology.
How can students focus on slowly unspooling novels when they have disappeared inside the kinetic world of their phones, lured by wacky videos and filtered FOMO photos? Why should they delve into hermeneutics and epistemology when they can simply exchange flippant, shorthand tweets and texts?
In a world where brevity is the soul of social media, what practical use can come from all that voluminous, ponderous reading? Would braving “Ulysses” help you pay the rent the way coding could?
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[I] find the deterioration of our language and reading skills too depressing. It is a loss that will affect the level of intelligence in all American activities.
Political eloquence is scarce. Newt Gingrich told Laura Ingraham that the secret to Donald Trump’s success is that “he talks at a level where third-, fourth- and fifth-grade educations can say, ‘Oh yeah, I get that.’”
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[W]ho is a better guide to covering presidential politics than Shakespeare? Reading his history plays should be mandatory for anybody with a dream of power.
Strangely enough, the humanities are faltering just at the moment when we’ve never needed them more.
Read the whole thing.
John Lloyd: The New Right’s Political Insurgency
The United States is not the only country experiencing change and upheaval on the right. At Quillette, John Lloyd writes of the trend worldwide and the similarities and differences between our own experiences here at home.
Within democratic states, a battle is being fought over the meaning of conservatism. A populist attack on the prevailing liberal consensus is being led by insurgent nationalist parties with a counter-liberal ideology hostile to—or at least deeply suspicious of—free trade, mass immigration and multiculturalism, foreign intervention, and supranational organisations and bodies, including the EU. Although their nationalist rhetoric, and their emphasis on family values and the importance of tradition, place these parties on the cultural Right, their rhetoric on economics and class draws on the legacy of the Old Left. As a result, they have been drawing support from working- and lower-middle-class constituents, some of whom have voted for social-democratic, socialist, and even communist parties for generations.
For the time being, the insurgents are—for the most part—winning. This is a potentially consequential shift at a time when established political commitments everywhere are facing disruption. In the Swedish and Italian elections last September, the New Right won significant victories. In Italy, they became the government, and Giorgia Meloni, founder and leader of the Fratelli d’Italia, was installed as prime minister. The Sweden Democrats, meanwhile, until then shunned by all other parties in a state usually governed by social democrats, became the largest party on the Right. By agreement, they took no ministries, but they were put in effective charge of immigration and law and order policies, which had been critical to their electoral success.
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Rising poverty in Africa and the Middle East, civil strife in Latin America, and resentment of the rich by the poor are all likely to throw Western governments back on enhanced strategies for blocking immigration. Many states are already putting these into place or planning to do so. The New Right parties argue that the competition for health, social services, and education has already become appreciably sharper and that pressure on all three will only increase as migration figures continue to rise. They have refocussed attention on the plight of towns and regions that have endured forced de-industrialisation, where high-paid and skilled jobs have been replaced (if they have been replaced at all) by lower-paid service jobs. Many liberal commentators and politicians have been slow to understand these frustrations, and have sought to stigmatise New Right parties as “fascist” instead, blaming populist politicians for the growing revulsion against conventional centre-left and -right administrations.
Read it all.
Wesley Yang points out how Planned Parenthood uses an intersectionality technique to broaden support for transgender issues:
And finally, if you had “Bono and Oliver Stone tout nuclear power” on your 2023 predictions list, please stop by the ticket window to collect your prize!