...the ruins of Rome presented the sad image of depopulation and decay: her slavery was a habit, her liberty an accident; the effect of superstition, and the object of her own amazement and terror. The last vestige of the substance, or even the forms, of the constitution, was obliterated from the practice and memory of the Romans; and they were devoid of knowledge, or virtue, again to build the fabric of a commonwealth. Their scanty remnant, the offspring of slaves and strangers, was despicable in the eyes of the victorious barbarians. As often as the Franks or Lombards expressed their most bitter contempt of a foe, they called him a Roman; "and in this name," says the bishop Liutprand, "we include whatever is base, whatever is cowardly, whatever is perfidious, the extremes of avarice and luxury, and every vice that can prostitute the dignity of human nature." By the necessity of their situation, the inhabitants of Rome were cast into the rough model of a republican government: they were compelled to elect some judges in peace and some leaders in war: the nobles assembled to deliberate, and their resolves could not be executed without the union and consent of the multitude. The style of the Roman senate and people was revived, but the spirit was fled; and their new independence was disgraced by the tumultuous conflict of licentiousness and oppression. The want of laws could only be supplied by the influence of religion....
Edward Gibbon, Decline And Fall of The Roman Empire vol. 5
It's darkly amusing that, seventy years after the New Deal, it's the "liberals" who are the conservatives, trying desperately to resist changes in the law that would recognize the rights of individual liberty; making the weakest arguments for retaining old, worn-out legal theories like "rational basis"; cynically defending a creaking and rusting bureaucratic machine from the overwhelming legal, economic, and philosophical arguments for freedom. If there's one thing the left does not believe in, it's "change"!
We saw that irony again in McDonald yesterday. Justice Stevens in dissent fretted like the most hidebound conservative that "It is no secret that the desire to 'displace' major 'portions of our equal protection and substantive due process jurisprudence' animates some of the passion that attends this [case]." (Eek!) But some of us believe that, to coin a phrase, it is revolting to have no better reason for a rule of law than that so it was laid down in the time of Franklin Roosevelt, or for that matter, Melville Fuller.
As Randy Barnett notes at SCOTUSBlog, McDonald was an important step forward for the freedom movement--the movement of the real "liberals," who believe in individual freedom and diversity over the monotonous unity and arthritic pedantry of the bureaucratic state. Change begins slowly, and we have many interesting conversations to look forward to on the journey.
I spent the weekend obsessing on Shakespeare, having received Richard III from Netflix. The version set in 1930s England—which is fantastic. Ian McKellen is astonishingly evil as Richard, and I loved it so much I bought a copy. I’d never read or seen Richard III before, and I enjoyed it so much I also listened to the audio version (also marvelous) and watched the Laurence Olivier version. I tend to get really into things, sometimes.
Anyway, I was astonished by Shakespeare’s brilliant meditation on tyranny. This is, I’m sure, old hat to people who are familiar with the play, but it was new to me. Richard III is about how the tyrant’s effort to put himself above the law is, at bottom, an effort to put himself above reality—to escape from the moral law which cannot be escaped. Richard believes morality is a game he’s risen above; like Hobbes or Holmes or Nietzsche, morality is to him simply an arbitrary product of force or convention: