Pylon/Eastman Debate

Yesterday morning Professor Roger Pylon visited Chapman to debate Prof. Eastman on the source of unenumerated rights. These two giants are among the brightest to defend the Supreme Court's "worst decision" of Lochner v. New York, in which the Court recognized and defended the liberty to contract. Prof. Pylon gave a dazzling review of an entire year's worth of constitutional law in about 12 minutes. He described how we have come from a natural law tradition of first principles to a positivist nation. He described the Classical Liberals' distinction between rights and values, between skepticism and dogmatism. And we discussed how the Progressives mucked everything up beginning in the New Deal era, and how modern liberals have applied the idea of unenumerated rights against a hopelessly unprincipled scheme, basically pulling rights out of anywhere they could find them.

An interesting point of discussion was how Scalia and Rehnquist, darlings of the Federalist Society, as textualists are opposed to substantive due process. Scalia is reported as responding to questions about the Ninth Amendment by simply scoffing, just short of denying that there is such a thing as unenumerated rights.

Where Pylon and Eastman differ was a very limited, but very deep, point of discussion. Eastman argues that our founders’ religious tradition informs our values and the rights we have in the social compact. The states need to regulate more than just nuisances; they are also concerned with licentious behavior. The framers recognized points made by Montesquieu that religion made good citizens, and we can’t expect our society to function without this. Pylon argues that the Civil War amendments triggered a “rational reconstruction,” a sort of shift in constitutional power in which the states lost power to pass moral “value” legislation to restrict “rights.” Jefferson perhaps was only paying lip service to religion when he wrote “nature and nature’s God” in the Declaration of Independence. He posits that our constitution appeals to only to reason—not revelation.

Eastman seems to have the better of the originalism argument, but Pylon will attract more appeal from skeptics of religion.

Thanks to all that attended. We look forward to seeing you at the next event.