Orgard on Loyalty Oaths in Liberal Democracies

Liav Orgad, Interdisciplinary Center (IDC) Herzliyah-Radzyner School of Law, has posted Liberalism, Allegiance, and Obedience: The Inappropriateness of Loyalty Oaths in a Liberal Democracy, which is forthcoming in the Canadian Journal of Law and Jurisprudence (2014).  Here is the abstract:

The Article examines the wisdom of loyalty oaths as a legal institution in contemporary liberal democracies. First, using comparative analysis the Article highlights the growing global interest in loyalty oaths. Second, based upon historical evidence the Article explores the functions of loyalty oaths and assesses their role. Third, through using legal analysis the Article challenges the validity of loyalty oaths and identifies three fundamental concerns related to their content and form: the rule of law, freedom of conscience, and equality.

The Article reveals liberal concerns associated with the added value of the duty of "loyalty to the law" (allegiance), as distinct from the duty to "obey the law" (obedience). It presents an ongoing tension between loyalty and liberalism and argues that the more loyalty liberal democracies demand, the less liberal they become. The Article concludes that loyalty oaths yield high costs but have low benefits and suggests that liberal states should abandon them as a legal institution.

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John Marshall Harlan, Con Law Prof

Brian L. Frye, Kentucky Law, Josh Blackman, South Texas Law, and Michael McCloskey, the Harlan Institute for Constitutional Studies, have published two items relating to the first Justice John Marshall Harlan in the George Washington Law Review.  The first is “the complete, annotated lecture notes” of Harlan's constitutional law lectures from 1897-98.  Professor Blackman tells us that “Harlan taught the Constitution by clause, so it is very easy to find his views on a particular topic.”  The trio have also published an analysis as Justice John Marshall Harlan Professor of Law:

Credit: LC

From 1889 to 1910, while serving on the United States Supreme Court, the first Justice John Marshall Harlan taught at the Columbian College of Law, which became the George Washington University School of Law. For two decades, he primarily taught working-class evening students, in classes as diverse as property, torts, conflicts of law, jurisprudence, domestic relations, commercial law, evidence — and most significantly — constitutional law.

Harlan’s lectures on constitutional law would have been lost to history, but for the enterprising initiative — and remarkable note-taking — of one of Harlan’s students, George Johannes. During the 1897-98 academic year, George Johannes and a classmate transcribed verbatim the twenty-seven lectures Justice Harlan delivered on constitutional law. In 1955, Johannes sent the transcripts to the second Justice Harlan. The papers were ultimately deposited in the Library of Congress. Though much attention has been given to the life and jurisprudence of Justice Harlan, his lectures have been largely ignored.

Harlan’s lectures are a treasure trove of insights into his jurisprudence, as well as the state of constitutional law at the turn of the 20th century. They provide the unique opportunity to listen in as one of our greatest Justices lectures on the precipice of a constitutional revolution that he helped create. In this article, we use the lectures to paint a picture of who Justice Harlan was, what he believed, how he sought to impart that knowledge to the future lawyers of America, and how he predicted many of the changes in constitutional law that occurred during the 20th century.

Finally on Professor Blackman's blog you may find Harlan's con law exam from 1899.

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Symposium on Weiner's "Rule of the Clan"

This week Concurring Opinions will be hosting a symposium on the former LHB Guest Blogger Mark Weiner’s book The Rule of the Clan.  As Mark writes, “participants are an intellectually diverse, international group”:

Prof. Mark Fenster, Levin Colleiner's ty of San Andrés School of Law, Argentina

Dr. Arnold Kling, Adjunct Scholar, Cato Institute.

Dr. Jan-Christoph Marschelke, Managing Director, Global Systems and Intercultural Competence Program (GSiK), University of Würzburg, Germany,

Prof. Tim Murphy, Universiti Utara Malaysia (University of North Malaysia).

Prof. Abdullah Saeed, Sultan of Oman Professor of Arab and Islamic Studies, University of Melbourne, Australia

Dr. Doyle R. Quiggle, Jr., author of "Ibn Tufayl's Hayy Ibn Yaqdan in New England: A Spanish-Islamic Tale in Cotton Mather's Christian Philosopher?"

Prof. Jeanne Schroeder, Cardozo School of Law

Prof. Kevin Stack, Associate Dean for Research, Vanderbilt School of Law

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Hulsebosch on "The Origin and Nature of Colonial Grievances"

No version is available on the web, but be on the lookout for The American Revolution (II): The Origin and Nature of Colonial Grievances, an essay by Daniel J. Hulsebosch, NYU School of Law, forthcoming this year in The Oxford History of the British Empire: The American Colonies in the British Empire, 1607-1776, ed. Stephen Foster.  Here is the abstract:    

Colonial grievances were not new in July 1776 but rather were as old as the British Empire and a constant feature of imperial governance. The continuous stream of grievances was not, however, evidence that “the spirit of the colonies demanded freedom from the beginning.” Paradoxically, grievances helped make the Empire work. They facilitated imperial development for two reasons. First, people lodging grievances could rely on a communication network for processing them, a system that helped integrate the many different subjects and places in the empire. Second, from the colonial perspective, the imperial grievance system had a safety valve: war. When the empire was at war, metropolitan policy-makers and local governors were more willing to compromise with provincial interests and acceded to claims that had been or threatened to become the source of grievances. The two together – the imperial grievance system and the leverage enjoyed by colonists during war – generated the sense throughout North America that the imperial constitution was a flexible set of institutions responsive to provincial claims and yet also efficient enough to facilitate common projects, like carrying out transatlantic commerce and waging war. The imperial constitution, with the grievance system at its core, provided the possibility for change that is essential to any workable constitution.

By the middle of the 1770s, however, the grievance network no longer performed effectively. A system that for over a century helped bind the North American colonies to the empire suddenly, after an unusually long and stable period of peace, fragmented and became an instrument of rebellion. Only then, in the Declaration of Independence, were the many and sometimes inconsistent colonial grievances compiled into a “history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.” These grievances were irremediable and flowed outside the imperial constitution. The genre to which they now belonged was the international declaration of war.

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Sunday Book Review Roundup

This week readers can find two reviews of Maury Klein's Call to Arms (Bloomsbury Press), one in the Wall Street Journal and a second in the Washington Post. Here's an excerpt of Johnathan Yardley's take in the Post:

"The story of how America became the “great arsenal of democracy” is the subject of “A Call to Arms,” and I can’t imagine it being told more thoroughly, authoritatively or definitively. "

This week's New York Times reviews Mason B. Williams's City of Ambition (W.W. Norton & Co.) For those looking for audio options, the NYT book review podcast discusses the book here. Edward Glaeser summarizes the book:

"But, as Mason B. Williams’s fascinating new book “City of Ambition: FDR, La Guardia, and the Making of Modern New York” reminds us, La Guardia’s success rested to a large degree on Franklin Roose¬velt’s decision to “channel the resources of the federal government through the agencies of America’s cities and counties.”"

Fiona Rieds reviews Panikos Panayi's Prisoners of Britain (Manchester University Press), a social history of Britain's German prisoners during the First World War. 

And the New Yorker has two slightly different contributions to this week's Sunday roundup: an article discussing Eudora Welty's 1963 New Yorker essay "Where is the Voice Coming From?" (about Medgar Evers' murderer); as well as a few bits of legally related book chat.

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