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U.S. Constitution Title: Fusionism and Federalism www.libertylawsite.org Fusionism and Federalism Classical Liberalism, Federalism, Frank Meyer, traditional conservatism I spent the weekend at an excellent conference on the work of Frank S. Meyer, a leading post-war thinker of the right. His major effort has generally been called fusionism –an attempt to marry classical liberalism and traditional conservatism. But he himself did not claim the term “fusionism”: that was a label others affixed. He saw himself as revealing the complementary nature of liberty and tradition rather than creating a new alloy out of disparate materials. For Meyer, liberty was the end of politics, and that fact could be apprehended by reason. But because of the constraints of human knowledge, traditions were important as a guide for the appropriate realization of liberty. And traditions help men choose virtue when political freedom appropriately gives them that choice. Besides its importance in reconciling liberty with tradition analytically, fusionism had and continues to have important political implications. The right in the United States and in most other nations in the West is made up of an alliance of classical liberals and traditional conservatives. But liberty is forward looking, dynamic and results in no fixed patterns. Traditional conservatism, in contrast, is all about preserving the established inheritance of the past. Meyer’s work was an important landmark in post-war politics in helping to keep the right together. Another of Meyer’s ideas, developed also by Friederich Hayek and W. B. Allen, was that the United States faced less tension between classical liberalism and tradition than other societies because the preservation of its Constitution, an essentially classical liberal charter, became itself its greatest tradition. I would add that one specific feature of the U.S. Constitution—federalism—has also proved important to fusionism. The original Constitution provides the states with almost plenary powers and, even today, if the Constitution were correctly interpreted, states have very substantial powers. Because of these powers, citizens of a particular state are able if they choose to pursue many traditional values within politics. In classical liberal terms, this pursuit can be understood as assessing the appropriate extension of the harm principle that delimits liberalism. It is difficult to determine a priori when the actions of one person harm the actions of the other. For instance, it is not clear that prostitution and gambling are victimless crimes, if one believes that a family can suffer harm. But while states are free to formulate a particular balance between liberty and license, informed by their particular traditions, the federal government has no such powers over morality. But the federal Constitution does sustain free movement, free trade, and free speech among citizens of the United States. And these freedoms permit citizens both the information and capacity to exit their state if its traditions strike the wrong balance for them. Thus, the structure of the United States Constitution is itself fusionist. It permits a plurality of communities of the kind dear to traditional conservatives within an essentially liberal order. As one of the participants in the conference remarked, federalism embodies a practical form of Robert Nozick’s notion that individuals might be best off if they could choose among different utopias which were themselves empowered to realize different ideals. Polycentric forms of social ordering with free choice among the centers offers the best political structure to combine classical liberalism and traditional conservatism. John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His recent book, Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the co-author with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.
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#1. To: tpaine (#0)
I notice you are posting a series of these libertarian con law articles. It is a little esoteric but it is necessary to build up principles of a libertarian constitutional jurisprudence if libertarians ever hope to make serious political inroads on the two-party monopoly. Even if you elected a Rand Paul president in 2016, who is he going to appoint to the Court? The entertaining Judge Napolitano? Maybe pick Lew Rockwell for secretary of state too? It's a topic that libertarians and Libertarians have never grappled with adequately. A libertarian president would still have to appoint members of the cabinet and judicial nominees.
Rand Paul is a Constitutionalist, first and foremost, as are most American libertarians and conservatives, imo... -- I don't think he would have any problem at all finding libertarian leaning individuals qualified to fill cabinet level and judicial positions. The authors and subjects of the articles I've posted in the last few years are fine examples of those more than capable of holding such offices..
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