In this edition of Liberty Matters, Adam MacLeod, Professor of Law at Faulkner University, Jones School of Law, considers the English constitution of Walter Bagehot. Bagehot’s constitutionalism is not just a theory of institutions. It is far more radical. It concerns what it means to be human. At stake is the question whether a people can govern themselves or instead must be ruled by their intellectual superiors. Bagehot’s constitutional anthropology matters because Bagehot’s constitutionalism is now our constitutionalism. The ascendance of the administrative state, rule-making and adjudication predicated on expert insights, legal positivism and judicial supremacy, and many other features of American constitutionalism that are now taken for granted in our law schools, policy schools, and bar associations are rooted ultimately in the concept of human nature that Bagehot articulated.

In this edition of Liberty Matters, Sarah Morgan Smith, an Ashbrook Center Fellow, General Editor of Ashbrook’s Core Documents Collections, and co-director of the Center’s Religion in American History and Politics project, helps the Online Library of Liberty to mark the 400th anniversary of the Mayflower Compact by considering its significance —and that of related documents from the same year— in the history of republican self-government and American religious tolerance. Morgan Smith argues that the Mayflower Compact was not just a natural outgrowth of the Separatists’ religious beliefs. Instead it contains the seeds of some of America’s most important political principles.

In this edition of Liberty Matters, Daniel Klein, Professor of Economics at George Mason University, sketches the liberalism of Smith, Hume, and Burke, and argues that it was a worldly liberalism, sensitive to the coarse clay of humankind and to liberty’s dependence on stable, functional polity. Klein distinguishes polity issues and policy issues (“policy” in a sense tailored to that distinction). Smith, Hume, and Burke leaned toward policy liberalization. But the liberal outlook accepts and engages, even enjoys, the sticky moral and cultural circumstances that give the polity its color and character—making for stability and functionality. The troika were policy liberals and polity conservatives, and their conservative liberalism, Klein suggests, is the best understanding of classical liberalism—which, he also suggests, is the wisest and most virtuous political outlook for the modern world.

In this month’s Liberty Matters online discussion we discuss the Leveller pamphlets and the emergent political ideas found there. In the Lead Essay, Stephen Davies of the Institute of Economic Affairs argues that were both contributions to and commentaries upon specific political moments and disputes, and also speech acts that saw the creation of a political vocabulary and argument or theory. It is this dual quality that explains both the importance of the Levellers at the time and subsequently, and the persistent interest in them. The commentators are Iain Hampsher-Monk, professor of political theory at the University of Exeter; David Wootton, Anniversary Professor of History at the University of York; Dr. Rachel Foxley, associate professor of early modern history at the University of Reading.

The place that Grotius holds in the history of international law and the laws which regulate war and peace is one that has been recognized at least since the 18th century, but more especially in the treaties and international agreements which emerged out of the major conflicts of the 20th century. In this discussion we want to explore what Grotius thought about the proper relationship between the laws of nature and the laws of nations, what limits (if any) can be legitimately and rightly placed on the conduct of states engaged in war, and to ask ourselves whether his insights have any relevance today. Another issue which will be debated is where does Grotius sit in the history of the classical liberal tradition? Do his ideas reinforce the power of the monarch (or modern state) to do practically anything they wish, or do they place real and binding restraints on what is permissible when one enters a state of war? Is he merely a transitional figure, or does his theory of the Rights of Peace have a more radical libertarian interpretation? See the Archive of "Liberty Matters".

In this discussion, Carlo Lottieri, Professor of Philosophy of Law at the University of Verona, argues that the main intellectual contribution of the Italian jurist Bruno Leoni (1913-1967) is usually connected to his analysis of the opposition between legislation and law, between the order built by lawmakers on one side and the set of norms defined by jurists (as in Roman jus civile) or courts (as in ancient English common law) on the other. But at the core of his analysis is what he wrote about individual claims: the idea that the legal order is the outcome of specific individual activity when people demand something from the other members of society. However, he argues, that two aspects of Leoni’s theory are quite problematic. First, a philosophy identifying law with the most common claims cancels the tension between legality and legitimacy, between what is and what should be. Second, from the perspective of a general theory of law, it seems reasonable that human coexistence can be better explained if we introduce something more demanding than simple exchange and at the same time something less demanding but no less important, namely the permanent presence of violent behavior. Carlo is joined in the discussion by Boudewijn Bouckaert, professor emeritus of the Ghent University Law School in Belgium; Peter T. Leeson, the Duncan Black Professor of Economics and Law at George Mason University; and Edward Peter Stringham, the Davis Professor of Economic Organizations and Innovation at Trinity College.

The American political journalist William Leggett (1801-1839) had a short but productive period of activity between 1834-39 when he became famous, even notorious, for his opposition to slavery, tariffs, a state privileged National Bank, and government intervention in the economy to benefit special interests (like bankers, industrialists, and slave owners). Leggett's position of consistent opposition to the state interfering in the economic affairs of individuals is one that does not sit well with the new school of economic historians of "capitalism" who argue that slavery and capitalism were joined at the hip and were "symbiotic". In this discussion Phil Magness, senior research fellow at the American Institute for Economic Research, argues that it is Leggett who is the consistent one and the advocates of the "New History of Capitalism" are the ones who are confused and do not seem to know about this "broader liberal political tradition" of which Leggett was a member. He is joined in the discussion by Anthony Comegna, from the Institute for Humane Studies, Brian Schoen, associate professor of history at Ohio University, and Lawrence H. White, professor of economics at George Mason University. See the Archive of "Liberty Matters".

John Trenchard (1662-1723) was a radical Whig and Commonwealthman who, along with his collaborator Thomas Gordon (1692-1750), were important voices defending constitutionalism and individual liberty in the 1720s in England. Trenchard came from a prominent family, went to Trinity College, Dublin, and briefly served in the House of Commons. He worked as a journalist in the 1690s writing works criticising the idea of standing armies and the political power of the established church. Trenchard co-wrote The Independent Whig (1720-21) and Cato’s Letters (1720-23) with Gordon. He was a defender of the idea of liberty against political corruption, imperialism and militarism in the early 18th century. Their writings, especially Cato’s Letters, were also much read in the American colonies. In this Liberty Matters discussion David Womersley, the Thomas Warton Professor of English Literature at the University of Oxford, revisits Trenchard’s criticisms of standing armies in the light of the continuing relevance of the question of where to locate, in whose hands to place, and how to exercise the state’s powers of deadly military force. He is joined in the discussion by Stephen P. Halbrook, an attorney in Fairfax, Virginia, the independent historian Joseph R. Stromberg, and David Wootton, the Anniversary Professor of History at the University of York. See the archive of Liberty Matters.

Robert Bellarmine, On Temporal and Spiritual Authority: On Laymen or Secular People On the Temporal Power of the Pope. Against William Barclay On the Primary Duty of the Supreme Pontiff. Edited, Translated, and with an Introduction by Stefania Tutino (Indianapolis: Liberty Fund, 2012).

Robert Bellarmine was one of the most original and influential political theorists of his time. He participated in several of the political debates that agitated early modern Europe, such as the controversy over the Oath of Allegiance in England. Bellarmine presents one of the clearest and most coherent definitions of the nature and aim of temporal authority and its relationship to spiritual authority. The king has jurisdiction over the body, the pope over the conscience. This distinction was crucial for the history of early modern monarchies: the conflict between state and church ceased to be concerned with physical persons and was no longer a contest for the consciences of subjects. The political thought of Bellarmine was at the center of post-Reformation debates on the relationship between state and church; on the nature, aim, and limits of temporal government; and on the relation between religion and natural law. He posed in a novel, controversial manner the relationship between public and private spheres, thus opening up questions central to what we consider “modernity.” This accessible edition of some of Bellarmine’s most important works in fresh translations will be interesting for a wide readership of both scholars of political thought and the educated general public.