The Founders’ Thoughts on Habeas Corpus
Paper presented at the Midwest Political Science Association, April 2013
Abstract: The writ of habeas corpus can be viewed as either a purely procedural matter or as a source of substantive rights; further disagreement is possible over which substantive rights might be guaranteed by the Constitution’s prohibition on the suspension of habeas corpus, barring rebellion or invasion. An analysis of colonial and Founding-era writings reveals disagreement over what habeas corpus and/or the right of personal liberty entailed. This disagreement is best conceptualized as existing upon a continuum, not between procedural and substantive conceptions of the writ, but between two competing strategies for preventing the government from abusing disfavored segments of the populace while permitting it to respond vigorously to threats to that populace. [PDF]
The Philosophic Context of the Development of Natural Law
Paper presented at the Midwest Political Science Association, April 2012
Abstract: The modern critique of natural law theory is unpersuasive, focusing on peripheral issues on which natural law theorists can yield. This results from a lack of awareness of the philosophic context in which Thomas Aquinas reworked natural law theology. Turning to the ancient and medieval precursors to natural law opens us to a more thoroughgoing engagement with it, one that begins with political philosophy rather than with physical or metaphysical doctrines. [PDF]
Statesmanship and Precedent
Paper presented at the Statesmanship Center Symposium at Morehead State University, April 2011
Abstract: This paper explores a tension within liberal democratic statesmanship, one that is most visible regarding crises but which operates even in times of relative tranquility. One of the hallmarks of constitutionalism is that those in power have various constraints placed upon the exercise of that power. Dutiful service to the public good can suggest to public officials that they must evade some of these constraints and appropriate the powers they need. Crucially, statesman can be correct in this judgment. This problem led Locke to proclaim that good princes have been the greatest threat to their people’s liberties, for they set an example for unworthy successors. It has been suggested, therefore, that statesmen ought to avoid setting such an example of lawlessness in the first place, even if it was justified. This course of action requires that statesmen deny themselves the glory that goes with being at the head of an “extraordinary execution,” like a Machiavellian prince or captain. A desire to preserve constitutionalism, aware that one cannot choose one’s successors too far into the future, suggests tempering the ambition that leads statesmen to desire to serve the public good (and hence to preserve constitutionalism) in the first place. This is to say that statesmanship has not been perfectly reconciled to constitutionalism. [Word]
Locke’s Biblical Critique
Paper presented at the Midwest Political Science Association, Chicago, April 2011
Abstract: This paper seeks to clarify the relationship between Locke’s political and religious thought. To the extent that Locke’s political thought is an outgrowth of a particular strand of Christianity, its claims to universality would be significantly diminished. This would be the case, however, only if Locke were genuinely religious. Plausible accounts of his religiosity have been offered by Dunn, Waldron, et al., but such accounts become implausible given the presence of a biblical critique within the Two Treatises. The evidence for a critique of the Bible on moral grounds pointed to by Strauss, Pangle, et al. is ambiguous, however, and so fails to refute the pious-Locke hypothesis. This paper argues that close attention to Locke’s analysis of the Hebrew text of Gen. 1:28 unambiguously points to a critique of the Bible on textual grounds. This serves to set the moral critique upon firmer foundations, to imply that the moral critique really is present in the text, and to reestablish the universalist claims of Locke’s political thought. [PDF]
Aristotelian Kingship and Lockean Prerogative
Paper presented at the American Political Science Association, Washington, D.C., September 2010
Abstract: [The paper delivered is in Recovering Reason (Lexington, 2010). For copyright reasons I will not make it available online. This is a link to my presentation.] [Word]
For the Good of the People
Paper presented at the American Political Science Association, Toronto, September 2009
Abstract: This paper addresses some difficulties arising from how liberal democracies address crises. It presents and compares two alternative methods for controlling executive discretion while permitting enough flexibility to preserve the public good. The first tightly constrains the executive with laws while acknowledging that some necessary actions will have to be performed extralegally. The second permits almost anything to be done within the ordinary powers of government, so long as it is done with the concurrence of an independent office. This paper argues that the second is preferable to the first but that there is no unobjectionable institutional solution to the problem of crisis government. It leaves for another place the application of its conclusions to the American constitution and the war on terrorism. [Word]
Carl Schmitt and the Myopic Treatment of Prerogative
Paper presented at the Midwest Political Science Association, Chicago, April 2009
Abstract: The war on terrorism has revived discussion of how liberal democracies ought to approach dangers which defy or at least seem to defy lawful treatment. Debate is split into those who conclude that the executive must be given a relatively free hand in such cases and those seeking to balance flexibility with accountability. The assumption of all involved is that someone must be authoritative, each side differing only on who should have that authority. There is a proper way to handle emergencies, it is assumed, so it falls to political theorists to identify it. This is mistaken. It relies upon the possibility of giving rules to prudence, the impossibility of which is precisely what emergencies and challenges to the capacity of law to address them demonstrate. Even answering that all should be trusted to the chief executive is to say that there is a single, right answer. This paper traces this tendency to the intellectual atmosphere created by those who have absorbed the conceptual categories of Carl Schmitt. [Word]
Aristotle and Natural Law
Paper presented at the Midwest Political Science Association, Chicago, April 2008
Abstract: Aristotle continues to be cited as the father of natural law theory. Aristotle’s discussions of natural justice and absolute kingship are better read as a denial that there could be a natural law. [Word]
Flux, Fortuna, and the Role of Philosophy
Paper presented at the New England Political Science Association, Boston, April 2007
Abstract: One of the easier targets for criticism is political legalism, or the conviction that government action is justifiable only as the application of pre-existing general laws to particular cases. This conviction is open to two objections: 1) circumstances can arise which require immediate redress and for which the existing law is poorly suited, and 2) justice cannot be expressed without distortion as a set of rules of the sort desired by political legalism. Different philosophers focus on different objections, yet a generalization can be made: the first is the special concern of modernity, the latter of the Ancient natural right tradition. Locke justifies extralegal public action on the basis of flux, which is in turn a reflection of Machiavelli’s fortuna. Aristotle, on the other hand, devotes his discussion of extralegality to the second problem. It is clear, however, that Aristotle’s objection to political legalism cannot have (nor was it meant to) the same immediately salient implications for actual political practice as the Lockean/Machiavellian objection does. The difference in focus is explained by differing conceptions of the role of philosophy in political thought. The moderns saw the philosopher as properly giving immediate direction to political life, thereby calling into question any account of justice that did not give this direction. The moderns fail by their own standard, however, for in refusing to comprehensively address Aristotle’s question they fail to give meaningful philosophic direction to statesmen faced with the necessity to transcend the laws. In this way, Machiavelli’s amoralism is more philosophically at home with his political philosophy, whereas Locke must either assert a moral fiat or have recourse to ancient natural right. [PDF]
Locke and Aristotle on the Limits of Law
Paper presented at the American Political Science Association, Philadelphia, September 2006
Abstract: Both Locke and Aristotle suggest that deviations from the rule of law may be necessary, but their primary reasons differ: the former attributes these failures to the constant flux of things, while the latter emphasizes the irreducibility of virtue to law. Yet a careful reading of each shows that they recognize the other’s point. Aristotle acts as a guide to why this difference in emphasis concerning extralegal action reveals their deep disagreement regarding the relationship of philosophy and politics. [PDF]
The Missing Judiciary in Locke’s Separation of Powers
Paper presented at the Southwest Political Science Association, San Antonio, April 2006, and the Midwest Political Science Association, Chicago, April 2006
Abstract: This paper examines the place of the judiciary in the Lockean commonwealth. For reasons which shall become clear, it is more an exploration of this issue than its resolution. Part I lays out why the Lockean judiciary ought to present more of a problem than it often does. Part II is an analysis of Blackstone’s method of legal interpretation. There I argue that this method — and, consequently, the common law tradition — has much in common with a natural law-style jurisprudence. Part III draws the conclusion that Locke’s political society, as he presents it, must forbid to judges the discretion which Blackstone would grant and which they traditionally exercised in England. Part IV addresses an insurmountable barrier to the interpretation I advance in part III, but one that does not permit us to revise the conclusion of that part. We are, therefore, left with a contradiction — one that we cannot so easily dismiss as another of Locke’s famous inconsistencies. I conclude with a possible explanation of this contradiction. [Word]
