Federalist Society Live Blog: Classical Liberal Roundtable

November 11th, 2011


Showcase Panel II: Political Philosophy and Classical Liberalism Roundtable
9:00 a.m. – 10:45 a.m.
Grand Ballroom

  • Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law, New York University School of Law
  • Prof. Andrew M. Koppelman, John Paul Stevens Professor of Law, Northwestern University School of Law
  • Hon. Michael W. McConnell, Richard and Frances Mallery Professor of Law, Stanford Constitutional Law Center  Stanford Law School and former Judge, U.S. Court of Appeals for the 10th Circuit
  • Prof. John O. McGinnis, Stanford Clinton Sr. and Zylpha Kilbride Clinton Research Professor, Northwestern University School of Law
  • Prof. Paul A. Rahe, Charles O. Lee and Louise K. Lee Chair in Western Heritage and Professor of History, 2007, Hillsdale College
  • Prof. Douglas B. Rasmussen, Department of Philosophy, St. John’s University
  • Prof. John Tomasi, Department of Political Science, Brown University
  • Moderator: Hon. Sandra Segal Ikuta, U.S. Court of Appeals, Ninth Circuit

Richard Epstein

Talking about his new book, Design for Liberty: Private Property, Public Administration, and the Rule of Law.

I would hope all public administration should appear, not possible, have to figure out how to organize it.

First, how do you deal with relationship between rule of law and system of private property.

Temporal, spatial dimensions, and incidence associated with property and exclusive possession. Create set of universal obligations for all individuals to prevent inteference.

I don’t know if I’m tired–I am–or if Richard is not up to his usual standard, but I’m just not following this talk as well.

John Tomasi

For many years train of liberal theorizing has remain locked in deep freeze. One camp is the classical libertarians and libertarians, hunkered down to defend limited government and economic liberty, and “allergic to social justice.” Political partisans of tea party. On the other side are the high liberals, more luxurious camp–with heaters–their battle cry is social justice, demand for government of expansive power, deeply skeptical of capitalism, philosophical grounding of OWS. Those two camps are angered by deep philosophical idea of nature of the person is for political purposes.

Hayek or Epstein are consequentialists. At the root of their theory, a person is a maximizer or a happiness seeker. On the other side, Rawls, a person is a democratic citizen. Rivals views not reconcilable. There can be no middle ground. Economic liberty or social justice. Hayek or Rawls. Tea party or OWS. Free markets or Fairness. New book, Free Market Fairness aims to disrupt that orthodoxy.

As classical liberal, affirm the idea of democratic citizen with two moral powers, stand with the left. As Hayekian, put my arm on Rawls. Is deliberative democracy only vehicle that can make left turns. Free market fairness combines thick conception of economic liberty with certain conception of social justice.

Andrew Koppelman

I am the token liberal. Tomasi’s book argues there is no gap between classical liberalism and redistributionist state, I agree.  “My commission is to come here and be unpleasant.” At level of policy, the book becomes vaguer and less specific. Elevation of economic freedom to right does not say anything specific about responsibilities of the state. Vagueries–can there be no workplace legislation? This would have to take us back to Lochner for it to pass judicial scrutiny–Harlan, rather than Holmes (David Bernstein smiling in the house).

Economic liberty gets very little judicial protection, but economic liberty gets a lot of protection in this country. Would economic freedom be increased by eliminating police, fire, fraud against advertising, etc. What goes on in private organizations can have negative externalities. Citizens not freer by government keeping hands off the process. No amount of individual initiatives can’t prevent from market failure, such as pollution.

“Occupy Federalist Society.”

“Do not treaty pimply face by amputating the head.”

Liberalism stands for something–create conditions where people are free to shape their own lives. Not trying to maximize wealth and power of oligarchy. Very good talk.

Judge McConnell

Not a philosopher, or token liberal, or able to talk as fast as colleagues, so I am the diversity guy.

Classical liberalism does not just focus on private property and economic liberty.

Different group of people that understand their lives to be governed by religious freedom. Religoius freedom was the bed of political thought that brings us classical liberalism. Locke’s toleration on toleration and family and education. Social contract theory and the idea of limited government and revolution did not originate in 1690 and John Locke and Glorious Revolution, but emerged in thought of Calvin and Protestantism. 1574 Calvin’s successor in Geneva wrote a book entitled Rights of Rulers over their subjects, contains social compact theory (convenant slightly different than Locke–three way between people, ruler, and god), duty of god to resist tyranny, individual rights and liberties, separation of powers, and federalism.

Much of what we understand as classical liberalism and protecting property came from the pulpit and sermons–Americans learned principles of limited government was not from reading Locke, but reading sermons drawing on the Reformer’s principles. Equality of rights comes from Protestant Reformation.

Translation of bible into language people can understand was democratic and subversive–in the past only priests could read the bible. Constitutional rights from 10 Commandments. Honor thy mother–protection fo familial rights. Stealing–private property rights. False witness–procedural rights in court to prevent false confessions. Reformers deduced from duties to gods compendious sets of rights. From social compact theory derived right of revolution–not right of mobs to rise up at any moment, believed God ordains set of magistrates, including lesser magistrates, duty of lesser magistrates to protect the people against oppression from above. This was 100 yrs before Locke. Concocted due process of revolution–prayer and penitence, petition through lesser magistrates for redress, only if not peaceable solution, then lesser magistrate authorize the people in revolution.

Revolutionaries called the King for redress of Stamp Act, boycotted British products, when peaceful means exhausted, their lesser magistrates authorized declaration of independence and war. Classical liberalism follows model set by Protestant Reformers. (Wow! That was quite good)

John McGinnis (who is not Richard Epstein)

Secular enlightenment and classical liberalism. What made classical liberalism attractive? Human are animals, evolved by treating other humans well. Brute facts about world. Market is effective system of information, but hard to evaluate policy. Policies have secondary and tertiary effects. Welfare programs of the 1960s were cause, not solution to problems. Many costs are unseen, such as minimum wage. (Paging Freddie Bastiat). Chance of influencing election at the polls is less than chance of getting struck by lighting. Average citizen doesn’t invest in elections (Paging Ilya Somin).

Our original constitution reflected classical liberalism bc it protected these natural boundaries. Constitution constrains gov in 2 ways–act of enumerated powers, requires supermajority support for action. Gridlock from tricermalism is liberty’s best friend. Restrains faction, limits capture. Tricamerliams requires consensus of information. Constitution prevents free flow of information between states. States exist in market of government. They can provide goods and services, but protected by ability to exit. Voting with one’s feet goes with human nature (Paging Ilya Somin!).

Our original constitution is charter of liberty.

Gov should get rid of gambling laws that limit information markets. People are going to put their money where their mouths are. THis is good. (Here, here, re FantasySCOTUS)

Classical liberal reform should correct government failures by creating more markets. Applause.