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…

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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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The One and Only Richard Epstein

Can anyone make as powerful a point as quickly and eloquently as Richard? On health care. On income inequality. But law professors, at least,  know that these are par for the course for Richard.

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…

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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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