The Nature of a Free Society
Notre Dame Law School Legal Studies Research Paper No. 1709
19 Pages Posted: 11 Jan 2017 Last revised: 26 Jan 2017
Date Written: January 9, 2017
This address, on the occasion of an award (16 May 2015) in Princeton related to the institutions of a free society, considers the idea of a free constitution in Gibbon, its antecedents in Aquinas, and its deployment in Madisonian separation of powers. The implications of such a separation in relation to widespread assumptions about judicial supremacy are illustrated by the debate between Jefferson and Story (and today’s conventional wisdom), revisited in the debate between Eisgruber and Paulsen. The place of “living instrument” doctrines of judicial interpretation is considered against the background of a wider societal revolt against broadly Christian social-moral principles, and the threat (considered by Gibbon, earlier by Augustine and latterly by De Jaeghere) of the threat to the first of a free society’s preconditions – that there be sufficient people willing to live together – that is created by migratory colonization, aided if not abetted by decisions such as those of the European Court of Human Rights in Hirsi Jamaa (2012), outlawing all group-pushback from the frontiers.
Keywords: political freedom, constitutional government, judicial power, migration
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