A Conservative’s View of the American Concept of Law
Our legal system is explicitly founded on natural law through our Creator’s endowment—the origin and source of our fundamental principles.
Though government should not legislate morality beyond a very narrow arena (vis., a measure of specificity regarding types of homicide and theft; strictly limited controls on bearing false witness, etc.), with natural law as the foundation of our legal system, morality inescapably informs it. This is so because morality flows from the Creator-endowed and individually-imbued nature of our inalienable rights to life, liberty, and the pursuit of happiness. Our social compact was founded explicitly to protect these. From that, our statutes are at their best when limited to attempts to implement and protect those foundational principles and nothing more. Any further legislation should be limited to improvements on those strictly circumscribed efforts. In particular, legislation should not be used to generate new morals.
The nature of our American judiciary and the proper role of judges in our jurisprudence has been argued throughout our history, but the argument has been especially virulent over the last dozen or so years. The current dispute (I don’t call it a debate) centers on whether our Constitution means what it says and neither more nor less, or whether it’s a living document that should grow and adjust to meet a judge’s understanding of changing times and mores.
In this pamphlet, I lay out three key propositions. The first is that only Congress may make law. The second is that judges may strike a law before them as unconstitutional, but if they do not, they must apply the law as written. The third is that the Constitution must be applied as it is written. Alterations or updates to it are political decisions, and thus only We the People may make them.
Understand: I’m not writing about the origins of the idea of law or of systems of law. A plethora of legal philosophers (HLA Hart, Jeremy Bentham, John Austin, and Gustav Radbruch to mention a few Western ones) treat these subjects should the reader wish to explore them. I begin later, with the principles underlying our American legal system.
Keep in mind, too, that government, per se, does not make law; the men who populate the government do.
Finally, Justice Antonin Scalia made this claim in his A Matter of Interpretation,
Surely this is a sad commentary: we American judges have no intelligible theory of what we do most.
Even sadder, however, is the fact that the American bar and American legal education, by and large, are unconcerned with the fact that we have no intelligible theory.
I agree, and in my hubris, I offer the beginnings of such a theory here.
A Conservative’s View of the American Concept of Law can be found on amazon.com at https://amzn.to/2L4iVXx .
A Conservative’s View of the Conduct of Just Wars
it’s available in Kindle format here. It presents this Conservative’s view of the proper conduct of a just war: when it’s appropriate to join one, how it should be fought once joined (regardless of how or why it was joined), and importantly, what should be done with the nation that unjustly attacked.
Since St Augustine of Hippo’s exegeses of the early 5th century, Western thinkers have attempted to define Just War in their recognition that war is a part of the human condition. Through this, they hoped to limit the onset and scope of war and its damage to those innocently caught in it.
Many Just War theories center on the idea that human lives are God’s to take. Thus, war as a human endeavor begins inherently immoral and unjust, and it’s the war fighters’ responsibility to make the case that their war—this war, this time—is just and then to fight it justly. My argument proceeds from that point.
Unfortunately, Just War arguments generally stop short of war’s true completion. The war is entered, it’s fought, it’s won or lost. But then…what? Just War theories until very recently haven’t asked that question, much less essayed an answer.
Is that all there is, though? Is a conflict over just because the enemy has been utterly defeated or a peace treaty signed? No, the conflict simply slides into a post-war recovery effort by the victor which may or may not include the loser.
In truth, peace by itself cannot be a just end of war; mere restoration of quietude is not a proper goal of victory. Nor can mere victory be the goal of war. True victory, victory in a just war must entail the restoration or creation of justice and freedom—of both, since neither can exist without the other.
Given justice in entering the war, the defender then must fight to a conclusion that not only redresses the wrong inflicted by the war’s attacker but also maximizes the probability that the aggressor will not—cannot—aggress again for a reasonably foreseeable future. Notice the implication: this requires the defender to fight to total, unconditioned victory.
A Conservative’s View of the Conduct of Just Wars is available in Kindle format from amazon.com at http://amzn.to/2vzaYBm .
A Conservative’s View of American National Policy
This is the companion piece to A Conservative’s View of American Domestic Policy. Whereas Domestic Policy discussed internal affairs, National Policy is about our actions on the global stage.
My exposition centers on two things, the first of which is this: foreign and defense policy are more than closely related. They are not even mirror-images of each other; rather, they aren’t even tightly intertwined; they’re the same thing viewed from different perspectives. There are few, if any, aspects of foreign policy that do not inform defense policy, and there are even fewer aspects of defense policy that don’t affect foreign policy. We discuss these general policies and we have separate departmental heads representing them in the Executive Branch Cabinet only to facilitate our general understanding and the Cabinet Secretaries’ more efficient execution.
Accordingly, we need to understand the unity of foreign and defense policy as a single concept, not two related ones, then develop a unitary national policy that recognizes that necessary unity and that coordinates and maximizes the strengths of each, using each to compensate for the weaknesses of the other.
The other thing is this: after having made my case regarding the essential unity of foreign and defense policy, the rest of this effort will be concerned with what we should do with that unity, how we can put a national policy to use in a practical manner for our own betterment as a nation in a globally entangled world.
I propose an active policy of political engagement and military power projection. When and where we must act overtly militarily (rather than merely project our power to act), our objective must be victory. We should never engage in a fight with the purpose of a draw, as we did, for example, in the Korean and Vietnam Wars.
Political engagement (and economic engagement as a tool of national policy) must be based on active policies designed to expand the geographic and popular reach of liberal democracy and individual freedom and contract the sphere of tyranny and oppression. In a world of global competition for hearts and minds, the contest between free men and subjects is most definitely a zero-sum game. We win and they lose, else it’ll be the other way around.
National Policy is available in Kindle format from amazon.com at http://amzn.to/1qqAndn
A Conservative’s View of American Domestic Policy: Some Thoughts
This is the first of a pair of publications on American policy; the other is concerned with National Policy, which consists of foreign and defense policy.
Domestic Policy both is necessary in its own right and must come before National Policy since a sound policy domestically is absolutely required both for the health of the nation within our borders and to facilitate—indeed, to enable—any form of outward-facing policy at the national level.
Domestic Policy is a combination of social and economic policies. Social Policy consists of these things: the concept of the American nation; American citizenship; the role of faith in our society; the role of immigration and its importance to our society; the importance of consensus; and the role of education.
Economic Policy consists of these things: the nature of a free market and its condition as the most moral system and the one most conducive to generating prosperity for all (even though there always will be some more or less prosperous than others), the role of the Federal government in protecting and enhancing our economy, and the role of Federal regulation in facilitating our economy.
Of course, these two major divisions of Domestic Policy are not truly separate from each other any more than biology, chemistry, and physics are separate from each other within science. Just as we divide scientific disciplines from each other to facilitate inquiry and discussion, I’m separating domestic policy into these divisions to facilitate a similar inquiry and discussion—while remaining fully aware and making occasional use of their very large areas of overlap.
A 21st Century American Crisis
This newly released pamphlet is a call to arms for all American citizens to get active and to rescue our Republic from its dangerous drift away from our founding principles of small, limited government; individual liberties; personal responsibilities.
From the pamphlet:
“In the era of our War of Independence, governments, said the Conservatives of the time—those monarchists, forerunners of today’s Big Government Progressive disciples—exist first and above the people, and the rights of the people are those granted by these governments.
“The time’s Liberals, though—the men and women of our War, of our Founding, and of our earlier history—had a different view. A man, they held, has rights that are indivisible from him because they are inherent in his humanity, in his very existence, as endowments from his Creator. Government, they held, exists to protect these rights and for no other purpose.”
“The blows we struck in 2010 were a worthy start, but they were only a start. The progress we added in 2012 has been inadequate to our cause. But we are not finished. Wisdom is not the purchase of a day.”
My pamphlet, A Conservative’s Thoughts on Rights and Duties, their Duality, and some Implications, is out; a link to the Kindle version of it (it’s also available in Nook-compatible form from Barnes & Noble) has been added below and to the sidebar on the Home page.
I touched on rights and duties and their duality in my book A Conservative’s Manifesto, but only tangentially to a larger discussion of Conservative principles. However, an understanding of individual rights and individual duties, especially their nature as individual endowments rather than as attributes of groups of men or as grants from some men acting in a “government’s” name, forms a critical part of Conservative thought. Now, with us Americans broadly divided on what our rights and duties really are, or even whether the government should have them instead of us, is the time to expand on that peripheral discussion and to address the matter directly.
My central thesis is this: our inalienable rights and our inalienable duties, as endowments from and by our Creator, and as duals of each other, are a part of the fabric of our existence—both as individual rights and duties and in the capacity of those duals. Further, just as importantly, our inalienable rights and our inalienable duties are in each of us as individuals; they are not in groups of us, they are not in the whole of us as a nation. Each one of us is possessed of them entirely in ourselves.
This, of course, has implications for the role our government, and especially for the roles of “civil law” and “civil rights,” in our lives.
My book, A Conservative’s Treatise on American Government, now is available. This book picks up where Conservative’s Manifesto left off. It opens with a discussion of the two documents that comprise the American social compact, our Declaration of Independence and our Constitution, and then it moves on to a description of the drift our nation has undergone away from the original meaning of those documents. The book closes with specific recommendations of corrections that we, the American People, must apply to each of the three branches of our Federal government, and it offers two amendments to our Constitution to strengthen it against future drifts. It reviews very favorably:
[Hines] opens with a well-argued, word-parsing history of the origins and nature of an American social compact in which free citizens have voluntarily but grudgingly assigned a short list of duties to the three branches of the federal government, reserving everything else to the states and, most importantly, to themselves. After thoroughly setting down this baseline, Hines describes a drift away from the constitutional bedrock that gathered force under President Franklin D. Roosevelt in the 1930s…. He reserves his most peevish rebuke for a ruling class composed of what he calls “progressive patricians” who, thinking they know what’s best for everyone, willingly ride roughshod over the Constitution to carry out their welfare-state agendas. Among the course-correcting remedies he offers:…scrapping the current mendacious, unintelligible tax code in favor of a flat tax; and privatizing Social Security and Medicare….
An informed, articulate conservative manifesto that will shed light even for those who disagree.
Another “course-correcting remedy” concerns the power of incumbency and the ability of an elected official, too long in office, to represent his own interests and to cease to represent those of his constituents. To address that, I proposed a constitutional amendment, but not for term limits. I am adamantly opposed to term limits; we must be able to choose our representatives in government without that same government dictating to us who that representative may not be. Drawing from the Articles of Confederation, then, I proposed this amendment:
No person shall be capable of being a member of either House of the Congress for more than two terms in any period of four terms….
Each of the intervening two terms, which must pass before capability to be a member of a House of Congress shall be restored, shall be as long as the term of the last House in which the Member shall have served.
During each of the intervening two terms before a person shall again become capable of being a member of Congress, that person cannot work for, or in, the Federal government in any capacity….
Finally, here’s a brief excerpt:
Chapter 5 –Return to Our Fundamental Principles
In free States the people are to be considered as the fountain of power. And the social Tie as founded in Compact.
—Statement of the Berkshire County, Massachusetts, Representatives, November 1778
When the people form a government, via a voluntarily agreed and entered into social compact, the relationship between those people and their government is solely one of employer and employee. The concept of democracy applies only to the relationship of the people with each other as they deliberate among themselves on what they will have their government do and who they will elect to that government to carry out those instructions. The government has no authority, democratic or otherwise, to demur from those instructions; the government has no opinion of its own to express on the matters; the government has only to carry out the instructions given it by its employers, the sovereign citizens of that social compact.
Despite this, as we become comfortable in the success of our compact, we become complacent, and we lose the vigilance that we had shortly after our hard-fought, bloody victory against the repression of a distant tyranny. Further, complacency and lost vigilance let us lose sight of the things that created that success and which must be maintained if we are to maintain that success. Indeed, that very success leads to a desire to protect the success itself, to protect the results of our liberties, rather than the liberties themselves. We lose sight of what it is truly important to protect: the freedoms and associated obligations that gave us the wherewithal to achieve our success. And with that distraction and the excessive caution of success, we lose our competitive edge, our drive for bettering our lives yet further. We have so much that we have trouble imagining that we could do yet better. Our focus, turned to maintaining rather than growing, turned us away from our normal concern for our children’s future –away from continuing to create a still better environment for our children’s own growth.
Our very success, then, has sown the seeds of our current malaise. As we turned to preservation, we have allowed our government to grow, and in the process we have surrendered to our government ever more of our responsibility for our own and our children’s and grandchildren’s welfare.
Today we have a government that has grown from those original 4 Executive Departments to 15, plus an additional 6 positions of Cabinet rank, and nearly 70 “independent” agencies. Our judiciary has grown from 28 District Courts in 1791 to 89 today, with 677 Federal judges presiding in them and a plethora of magistrate judges working under a district judge’s supervision. To be sure, much of the growth in the Judicial Branch has been driven by population growth and geographic expansion. But much of it has been driven by the explosion in those Federal laws that are intended to “guide” us and to “protect” us from our own poor decisions. And we have a Congress that sits in session, formally if not functionally, nearly year-round, if only to prevent recess appointments.
In the end, we have today a government whose sole purpose has been expanded into all sorts of extra roles, including specializations intended to protect that government from its own laws and regulations. The original purpose, government’s only legitimate purpose –protecting the Sovereign people’s individual, inalienable rights –has become lost in the maze.
In the end, we must all keep in mind the warning of Nebraska Congressman Howard Buffett (the father of today’s Warren) from 55 years ago (The Freeman, December 1956):
Will this legislation fulfill its promises? If you think so, consider this rarely mentioned fine print clause. If the government is to guarantee you what the consequences of your actions will be in this case, security, then the government must take control of your activities. For with responsibility –even self-arrogated responsibility –must go authority.
This means that if politicians are to supply your security, they must control your work, your spending, and your saving.
These changes must occur in all three branches of our government. The Congress needs legislation that will reduce government intrusions, generally, and it needs legislation that will strengthen its ability to represent us, and limit its ability to represent itself. The Executive Branch must be reduced in size, budget, and manpower. This is necessary to support constraining our government and restoring the full breadth of our individual liberties and responsibilities. However, this reduction is also necessary so that a single man can be restored to a capability of running the Branch, rather than merely sitting atop a pyramid of independent, unaccountable divisions. The Judicial Branch must be held accountable, and judges must pass confirmation only after they have shown their understanding of the Constitution and of the limits to government which the Constitution as it was written imposes, and not as they might wish it to have been written. Finally, the Constitution itself wants adjustment, so that it can better handle today’s version of the age-old problem of governmental drift away from protecting our individual liberties. In the following chapters, I will identify specific actions that need to be taken. As before, much of the activity will involve more than one branch of the Federal government; however, I have grouped the actions under the branch that should have primary responsibility.
My book A Conservative’s Manifesto is finally available; it offers a description of the principles of modern conservatism. The present political climate is one of a big and growing government that increasingly asserts its right, its obligation, to control in increasing detail the decisions of ordinary Americans. I think it’s necessary to discuss these conservative principles in an effort to focus our thoughts as we struggle to regain control over our lives and to rein in that overbearing government. The book lays out, in so many words, a set of (modern) Conservative principles that are tied back to the 18th Century Liberal principles of our nation’s Founders.
I also apply those principles to a number of critical aspects of American life: faith, citizenship, the nation, our economy, and our government. Then I close by contrasting modern Liberal/Progressive concepts with these modern Conservative concepts and offering a path back to those modern Conservative tenets that made our country so exceptional and so great.
Two recurring themes are the premise that government works for the people and the premise that governmental deviations from the conservative principles described here have implications for the freedoms, as well as the nature of the citizenship, of individual Americans. As I wrote, “[O]ur social contract hews close to the heart of the social contract described by Locke in that it
- Maintains the freedom of a citizen to do as he will and to own, and dispose of his own private property according to his own wishes, so long as these do not interfere with the freedom of another to do the same, and
- It maintains the sovereignty of American citizens over our nation and over the government we’ve hired to run it in our name.”
The book can be obtained, from among others sources, in paperback, hardcover, and in eBook format, from