Highways to Hell

The federal Highway Trust Fund needs another bailout (upwards of $8 billion). It is facing insolvency some time in 2013, and it needs reauthorization by the end of March. The House is working on a bill menacingly entitled the American Energy and Infrastructure Jobs Act, a five-year, $260 billion transportation bill. Among some good ideas, the bill would supplement the “Trust,” which to date is financed almost exclusively from an 18.4 cent federal gas tax, with energy royalties. That is a very bad idea.

The HTF is a case study in institutional corruption. In its original (1956) version, the Fund financed the expansion of the federal interstate system. There’s a credible argument that the scheme wasn’t really needed (we built a respectable road system in the 1920s without much federal assistance), and you can argue over the distribution of the funds and, certainly, the Davis-Bacon requirements that tag along with them.  Still, the Fund provided a national public good (albeit one with local aspects in production and consumption), and funding through the federal gas tax was as close to benefit taxation as the national government can come under the Constitution.

The system was too good to last. In 1970, Congress began to divert funds for non-highway purposes. It took another, bigger step in 1982, when the interstate system was essentially completed and Congress dedicated 20 percent of the HTF to urban mass transit. Another law in 1991 (ISTEA) went yet further down that path. (Funny how these things tend to happen under Republican administrations.) Also in the 1990s, Congress began to divert gas tax increases from the HTF to the general budget. In the out-years, these maneuvers came to be called “raids,” and the HTF was periodically replenished with bailout transfers from general revenues. The 2005 enactment was the product of an earmarking, universalist Congress on acid; it contained the notorious “bridge to nowhere,” among countless other national priorities. About one-third of HTF funds are now being diverted to local, non-highway uses.

The only way to reverse this trend is to revert to the original design: gas tax for highways, end of debate. Senator Jim DeMint (R-SC) has supplied a proposal to that effect.  Any such move, of course, faces stiff opposition from state and local lobbies, which talk a good federalism game until someone tells them to finance local public goods from local taxes; and from the invest-in-America’s-future-boondoggles crowd that encompasses the Obama administration, the Chamber of Commerce, and n outfits in-between. Still, it’s not completely crazy to think that reform might be possible. The diversion of user-financed public goods always carries a risk of undermining the political coalition that sustains the scheme. It worked over the past three decades because that coalition could always be assured that heck, there’d be another pot of money around the corner.

It’s when there won’t be such a pot—and the highways are crumbling—that the original HTF coalition might find the resolve to throw the hangers-on under the locally financed bus.

Defining Judicial Power I: From “Merely Judgment” to “Force” and “Will”

In a famous passage in The Federalist, Alexander Hamilton wrote of the federal judiciary that it would have

 no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

If someone wrote these words today, he would be dismissed out of hand as totally ignorant of the practice of modern judges.  Federal courts issue complex decrees that sometimes involve them in continuous oversight of government institutions such as schools and prisons.  In connection with this task, they have ordered governments to impose taxes.  They routinely use injunctions to enforce constitutional rulings and invoke their power to punish contempt of court in levying fines against recalcitrant officials. 

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Self-Government and Judicial Imposition

Last week, a dispute was resolved in the English High Court between Bideford Town Council and one of its a former councillors backed by the National Secular Society. The two latter had taken the council to court to contest its right to open its meetings with prayer.

In a decision whose ramifications reverberated far beyond this quiet Devon town, Mr Justice Ouseley before whom the dispute was heard ruled all such prayer to be unlawful. He ruled them such, even though, as in the case of Bideford Council, the majority of councillors consistently indicated a wish to begin meetings with prayer and attendance and participation at them was strictly optional for councillors. .

The judge based his ruling on a section of the 1972 Local Government Act authorising councils to engage in anything ‘calculated to facilitate, or conducive or incidental to the discharge of any of their functions’. The judge construed this section in a purely empirical manner and calculated that an opening prayer could not possibly “facilitate” or be “conducive … to the discharge of any of their functions.”

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Statism III

In my first post on statism, I defined the concept as an excessive and harmful embrace of the power of the state.  In my second post, I attempted to show statism functions as a bias in economics – the most market oriented of academic disciplines.   In this third and final post, I attempt to discuss briefly how one might apply the newest insight into human behavior – cognitive biases – to government action by administrative agencies to show how their actions might turn out to be harmful.  One could then balance its effect on government and on the market to determine which was greater.

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Hadley Arkes: Could We Be in Heated Agreement?

Once again I appreciate Michael Ramsey’s thoughtful comments as he extends the discussion of natural law and the Constitution.   We will have the chance to move even further into this discussion when he joins us, in March in Washington, in our seminar for judges and professors under our new Claremont Center for the Jurisprudence of Natural Law.   His added commentary here would indeed furnish more material for that discussion, but it may also bring signs that our differences are narrowing in the most revealing way.  To take a line from a colleague of mine, it could be that we are, on some critical points, “in heated agreement.”

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Further Thoughts on Hadley Arkes and Natural Law Constitutionalism

Professor Ramsey has posted the following response on the Originalism blog to Hadley Arkes’ earlier reply to Ramsey’s review of Constitutional Illusions and Anchoring Truths. Liberty Law Blog thought it would be of further interest to post this interesting discussion.

Michael Ramsey:

Without, I hope, unduly prolonging the discussion or repeating what I wrote earlier, here are a few further thoughts on the questions he puts directly to me.

It may be true that we must often look to background principles to understand the text – as Professor Arkes puts it, “the task of judging cases will persistently draw us back to those principles that were there before the text was made.”  There remain (at least) two different ways to understand those principles – as the people who drafted and ratified the language in question understood them, or as we now think they are best understood.  I don’t think these are the same, or collapse into one other.

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Breitbart on Libertarians and Conservatives

Over at Reason, they have a review of Andrew Breitbart’s speech to CPAC:

Breitbart, who admits to having libertarian leanings, thinks libertarians should not be discouraged by the media’s portrayal of the conservative movement. “[Libertarians] don’t want to be in the same room as conservatives because it will hurt their street cred. Conservatives, especially right now, have a hell of a lot more in common with libertarianism than Barack Obama and what the progressive left stand for,” he said.

Alas, I think there is quite a bit to say for what Breitbart is claiming.  Certainly, libertarians — even those who are hostile to conservatives — must recognize that Obama and the progressives are the great threat now.  And I think, as compared to 2008, libertarians tend to get this.  It is true that, even if the Republicans and conservatives win the Presidency, the Senate, and the House, they would likely achieve less than one would hope.  But that is, one must admit, the reality of politics.  Change is gradual.

Libertarians are in a tricky situation.  Being neither liberal nor conservative, they must navigate in a world in which they are a small minority.  For those in the academy, there is a strong temptation to emphasize the distinction with conservatives, so that they can “pass” for non-conservatives.  Back in the day, which I was less conservative than I am now, I was invited to a wedding of a guy I knew in law school.  His bride admitted to me at the wedding itself, that I would not have been invited, had I been a conservative.  A libertarian could pass, but not a conservative.

Libertarians who are in other circles dominated by conservatives — say in Republican politics — have the reverse situation, where they are treated badly by social conservatives.  Sadly, the Weekly Standard for many years was quite unfair to libertarians.

I have seen this from different perspectives over the course of my life.  In my early years as a libertarian, I equally resisted the conservative and liberal labels.  (Hence, I was invited to the wedding.)  But over time I came to move a bit to the conservative side, and often was viewed as a conservative — I still am to this very day.

There is, whether we like it or not, a social side to politics, and people — being both social and political animals — respond to both.  So there is no use denying or ignoring it.

We the People, Part II: Constitutions, Competition, and Cartels

Providence has been pleased to give this one connected country, one united people; a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in manners and customs, and who, by their joint counsels, arms and efforts, fighting side by side throughout a long and bloody war, have nobly established their general liberty and independence.

John Jay, Federalist 2.

Yesterday’s post discussed Adam Liptak’s New York Times piece on the decline of the U.S. Constitution as a global model, entitled “’We the People’ Loses Appeal With People Around the World.” Today’s post is dedicated to the proposition that Liptak’s title is right on the money, although quite probably not in the intended sense: the “We the People” of the Constitution encapsulates a constitutional model that is simply not available to many countries, under modern conditions. Their constitutions don’t look like ours because they can’t, and any discussion as to whether they should or shouldn’t is a silly distraction. As always, The Upside Down Constitution contains a more extensive version of the argument.

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We the People, Part I: Them the Complications

Mike Rappaport’s Feb. 7 post flagged a New York Times piece by Adam Liptak, headlined “’We the People’ Loses Appeal With People Around the World.” The article summarized a study by David S. Law and Mila Versteeg, purporting to document the waning global influence of the U.S. Constitution since the 1980s. To summarize today’s and tomorrow’s post: the authors are probably right. But the picture is a great deal more complicated than their study (let alone Liptak’s summary) suggests. Moreover, and pace Liptak’s snarky subhead (“The Constitution has seen better days”), there’s no reason to worry.

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