Barry Goldwater long ago ceased to be a hero of mine after the revelation that back in the fifties he had paid for an abortion for one of his daughters and his open embrace of abortion after his retirement. However, he was certainly a hero of mine as I watched the Republican convention in 1964 on television at the age of seven. I do not recall his speech, but I do recall watching every minute of the convention with rapt attention. Goldwater’s acceptance speech was not a great speech, Goldwater admitting himself that he was no great orator. It will always be remembered for two phrases: extremism in the defense of liberty is no vice and moderation in the pursuit of justice is no virtue.
Harry Jaffa, perhaps the foremost expert on the political thought of Abraham Lincoln, wrote the phrases for Goldwater, although Goldwater, bizarrely, claimed that the phrases were written by Cicero when the lines came under attack. Jaffa recalls helping to write the speech:
I wrote that statement, in part, as a repudiation of the critique of extremism that was made by Rockefeller and Scranton witnesses before the [platform] committee. Sometimes these things get out of hand. They are like letters you do not intend to send. But they blow out the window and somebody picks them up and they are delivered. And this one was delivered to the Senator, who fell in love with it and ordered that it be incorporated in his Acceptance Speech, and it led to my becoming the principal drafter of the speech. And, there it was. It was not my political judgment that the thing be used in the speech at all, although I must say that I was flattered at the time and didn’t think too much of what the consequences would be. . . The Senator liked it because he had been goaded by mean-spirited attacks through the long months of the primaries. Nothing in the political history of the country surpasses in fundamental indecency the kind of attacks that were made on Goldwater by Nelson Rockefeller and his followers. . . But I was not asked for the extremism statement; I had written it as an in-house memorandum, and it was appropriated. I’m not making an excuse for myself in saying I wasn’t responsible for it. I was certainly enthusiastically in favor of it at the time. Continue reading
Michael McConnell, a Law Professor at Stanford, offers this in a First Things review of Philip Hamburger’s new book titled Law and Judicial Duty:
Hamburger traces the development of modern conceptions of the law to the realization, in Europe and especially Britain, that human reason rarely provided clear answers to moral questions and therefore that an attempt to ground law in divine will, or a search for abstract reason and justice, would inevitably lead to discord. As a result, “Europeans increasingly located the obligation of law in the authority of the lawmaker rather than the reason or justice of his laws.” The task of judges, then, was not to seek after elusive notions of justice and right reason but to enforce the law of the land. Natural law shifted in emphasis from moral content to legitimacy and authority, and increasingly to an understanding of authority based on the will of the people.
This seems to me a profound explanation of how and why we understand law today the way we do. It simultaneously shows you what is wrong with the modern conception of the law and what is right.