By Thomas, Christopher M. | Harvard Journal of Law & Public Policy, Spring 2009 | Go to article overview


Thomas, Christopher M., Harvard Journal of Law & Public Policy

It has been almost 400 years since John Winthrop first described early colonial America as a shining City upon a Hill with the eyes of all the world upon her. Alexis de Tocqueville further enunciated this view when he described the Republic's special place among nations. Although Winthrop's explicitly religious references no longer ring true to many Americans, the idea of American exceptionalism retains a central role in our modern political discourse. Nearly three decades ago, President Ronald Reagan sailed to two landslide victories with a recurring theme of restoring America to her rightful place atop that Hill. In his farewell address to the American people, he spoke fervently of the shining City he envisioned, "windswept, God-blessed, and teeming with people of all kinds living in harmony and peace."

But this view of America is not universal. Some Americans reject the idea that our Republic is any better than or different from other nations. Others caution that infidelity to our ideals in the War on Terror jeopardizes the very qualities that make America so distinctive. These issues were the topic of debate at the 2007 Federalist Society National Lawyers Convention. This Issue of the JOURNAL includes five essays developed from remarks given at the Convention. We are pleased to publish Professor Randy Barnett, David Rivkin, Jr., Professor Nicholas Rosenkranz, Professor Nadine Strossen, and Professor Graham Wilson. Their essays discuss different aspects of the theme American Exceptionalism, including American constitutionalism, executive power, judicial use of foreign law, and citizen conceptions of the Republic. I am hopeful that these essays will provide a starting point for continued conversation about America's rightful place in the world.

The JOURNAL is also delighted to publish an essay by Judge Laurence Silberman of the D.C. Circuit. On Honor argues that too few of our public servants today appreciate the importance of honor. Drawing from forty years of public service, Judge Silberman sets forth his vision of honorable conduct for governmental officials. When officials disagree with the policies of their President, their only choices should be resignation or soldiering on. Anonymous leaking to the press and writing tell-all books are dishonorable and self-serving conduct that undermines the President all public servants pledge to support. Judge Silberman's essay challenges us all to think deeply about the foundations of public trust in our society.

The neutrality of law is typically regarded as a defining feature of liberal democracy, but what does it mean for the law to be neutral? Professor John Breen sheds light on this question by examining both liberal theory and Catholic social thought across four dimensions of neutrality. He demonstrates that the idea of neutrality provides little insight because, as Catholic thinkers have long understood, any attempt to craft a viable system of law without an underlying theory of the good either obfuscates the reality that governments constantly make and apply value judgments, or loses the benefit of structuring a society with an eye toward the inherent truths of human nature. Professor Breen's work is a powerful testament to the theory that all sound public policy must rest upon an understanding of the fundamentals of the human condition.

In a controversial opinion, the Federal Circuit recently held that a university's academic research could render it liable for patent infringement, greatly narrowing the experimental use exception. Academic commentators have criticized the decision, arguing that such strong restrictions on experimental use will inevitably lead to decreased innovation, because of the cumulative nature of innovation and irrational holdouts. Alan Devlin persuasively defends strong patent holder rights to control experimental use. He demonstrates that, rather than decreasing the net public good created by the patent system, such strong protections will increase the ex ante incentives to invent, which will lead to more innovation. …

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