Liberal Republicanism

A subversion of a good regime with bad assumptions about society. Yankee personal background? Or just his intellectual background?

Republican Liberty and the Failure of Substantive Due Process by James R. Rogers

Republican liberty means that people are not subjected to the arbitrary will of another, which is slavery. Hence, the repeated identification by the American colonists of the abuses of British rule with an intent to reduce Americans to the status of slaves. The argument wasn’t that Americans asserted the British designed to make chattel slaves of Americans. Rather, the Americans argued that if the principle be granted allowing for arbitrary governance, then they had conceded the critical principle distinguishing freemen from slaves, and there was no logical stopping point between their state and the state of abject slavery.

If citizens are subjected to the will of some who are not accountable to them, how is that republicanism? This is a very poor definition of liberty, if that is all there is to it. Liberty means not being ruled by another, first of all by a foreign power, and second, by a domestic power which has no just claim to authority. As for the will being the principle under consideration, rather than order or reason, I don't know if the author is being sloppy or deliberate in espousing some form of voluntarism. Slaves are subject to the rule of another, it may be just or it may be unjust, and whether it is to be judged arbitrary or not depends on whether the good of the one ruled is considered or not. (I am not going to explain here how the good of the slave is to be taken into account and what protections slaves should have from their masters, except to say that there are standards of justice prohibiting masters from harming their slaves unjustly.)



Liberty entails not only that one is free from the rule of someone without a just claim to authority but that one also rules one's self, even if not fully (i.e. politically). Republican liberty requires virtue and living the natural law.

The argument from republican liberty shares some affinities with arguments based on non-textual natural rights, but the republican liberty rationale for the doctrine derives it on distinct conceptual grounds. The argument is that non-arbitrary legislation is a requirement not of natural justice but as an implication of republican government. The argument is that the constitutional structure of American governments—all republican in form—carries with it implications that statutes that make permissible impositions on liberty must serve legitimate public purposes. Unconstitutional “arbitrary” government uses government power to privilege one class over another simply because of political power rather than public purpose.

Is republican government not a part of natural justice, whether qualified or unqualified? It is debatable that the structure of American governments at all levels is "republican" ; how can one assess that they are truly republican without recourse to the natural law? Claims by those who have power are not enough, nor is the evidence of citizenship or the relative lack of qualifications required for one to become a citizen. Rogers would like to say that the very definition of republican liberty/ government entails "substantive due process," but how can one judge that republican liberty/government are actually present without prior standards?

The failure of substantive due process as a constitutional doctrine did not result from any weakness in its conceptual foundation in republican liberty, but rather from the difficultly judges had applying the doctrine consistently. One judge’s arbitrary legislation was another judge’s legitimate public purpose.
Yet just because a concept fails to be satisfactorily expressed in judicially applicable standards does not mean that it is incapable of legislative application. Thus, for example, the argument in the 1950s and 1960s that Federal civil rights legislation should be based on the guarantee clause rather the interstate commerce clause.

Vermeule will probably agree with the criticism here that the common good, or "public purpose," is not a principle universally observed by judges, and that this is something that needs to be clarified and put into practice.

Interstate Commerce
Civil Rights

Even if Rogers uses the guarantee clause rather than the interstate commerce clause, he is supporting the Federal government to the detriment of the people, using "liberalism" to overrule what is integral to political liberty, determining who is a part of one's political community, regardless of whether we agree with their decisions or not. Is he some sort of activist linked to a school of political theory or just a Yankee "conservative"? I don't know.


Democracy and Necessity: Rightly Dividing Political Power  by James R. Rogers
Using Simple Game Theory to Identify When Policy Decisions Should be Centralized and When Decisions Should be Decentralized

About the author of the essay:
James R. Rogers
Scholars @ TAMU
Texas A&M at Qatar
FEE
The Gospel Coalition

Related:
The Harder Question I Raise for James R. Rogers By David Henderson