Taxes, Transfers, and Fees

State and local governments fund their operations from two major sources: federal (and, for local governments, state) transfers, and own-source taxes. But there is a third source of income: own-source non-tax revenues. These range from higher-ed tuition payments to sewerage fees to lottery proceeds. The graph below suggests an interesting story: The sharp increase in state own-source revenue in the late 1960s is principally attributable to increased tax revenues (fueled, as I’ve argued here, by federal Great Society transfer payments.) Soon thereafter, taxes took a nosedive, largely due to the property tax revolt; by 1990, they had recovered a bit but…

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Capitalism and Freedom versus Free to Choose

Over at the Bleeding Hearts Libertarian blog, Peter Boettke has an interesting post comparing these two defenses of freedom by Milton Friedman.  I had always thought of Capitalism and Freedom as the better academic book, regarding Free to Choose as a popularization of Friedman's ideas.  Boettke argues this is the common view, but he argues it is mistaken.  He speculates that it is held largely by people who were first persuaded by Capitalism and Freedom, and so were already convinced and familiar with libertarian ideas when they read Free to Choose.  This does describe me, as I first became convinced…

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James Q. Wilson, RIP

James Q. Wilson has died at the age of 80. He was arguably the greatest social scientist of his generation and, inarguably, a great teacher, mentor, and patriot. Jim Wilson’s writings, teaching (at Harvard, UCLA, and Pepperdine), and personal guidance have had a profound influence on several generations of scholars, thinkers, and public intellectuals (including among so many others William Kristol, whose tribute appears here.) But there is no “Wilson school” of political science: his mind was too encyclopedic, his range of interests too broad, and his contempt for academic sub-specialization too pronounced. Nor is there single a “Wilson theorem” or…

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Rehabilitating Lochner: A Law and Liberty Symposium

George Thomas, Keith Whittington, and Ted McAllister evaluate David Bernstein’s important new book Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform.











George Thomas

When the Legend becomes Fact

More than a hundred years after it was decided Lochner v. New York, the 1905 bakeshop case that struck down a New York maxim-hours law for bakers, continues to provoke. Jurists point to it as the exemplar of illegitimate judicial lawmaking, as does the occasional Senator at judicial confirmation hearings. Even constitutional scholars, who by now should know better, cannot seem to resist staid criticisms of the opinion that are, more often than not, wide of the mark.

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Ted McAllister: Don’t Print the Legend

Effective story-telling is ultimately an exercise of power.  When historical accounts take on the authority of received wisdom they frame the reality we experience, offering simplified narratives of our inheritance and narrowed perspectives on our current range of choices.  Powerful narratives have clear heroes, villains, victims and that help us see ourselves as part of a clear historical trajectory and they offer equally clear guidance about what direction we should choose.  The more stock are the characters in our history the more politically powerful is the story.  Those historical characters become part of a morality play.  As contemporary inhabitants of this play, people must seek to avoid being attached to certain characters or risk fundamental misunderstanding along with political, social, and cultural irrelevance.  Because all such powerful historical narratives are simplistic and produce stock characters, they necessarily determine the limits of political and cultural life in our time. The more distinct are the lines of development (causal relationships that lead to good or evil outcomes) the more effectively we can act on what we “know” about our past.  In short, the past as constructed by the story-tellers limits how we can speak and act relative to social and political power.

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Keith Whittington: The Troublesome Case of Lochner

I recently taught an undergraduate class on the history of civil liberties in the United States.  After a class session on the U.S. Supreme Court case of Lochner v. New York (1905), a student came up to me and asked when we were going to talk about substantive due process.  I should have expected the question, but I had allowed myself to forget the continuing popular resonance of the phrase.  The query forced me to think a bit more about how I should teach constitutional history.

The turn-of-the-century case of the bakers and New York’s maximum working-hours law is, of course, the poster child of substantive due process, the idea that the due process clause of the Fourteenth Amendment imposes substantive limitations on the legislature.  Lochner is now firmly entrenched in what law professors Jack Balkin and Sandy Levinson have called the “anti-canon,” cases that are held up as exemplars of when the Supreme Court got the legal answer dramatically wrong and as object lessons of what judges should not do in the future. 

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Tom Smith on Legal Realism and Formalism

Tom has a characteristically funny and insightful post on legal realism and formalism.  Here is an excerpt: Of course every legal system, if it is a legal system, is to a degree mechanical and if it's not just a mathematical exercise, to a degree not.  A twenty year old pickup, that wiggles and squeaks a great deal, is still a mechanical system.  That it does a great deal it can do in part because a lot of it is not rigid, hardly makes it less mechanical.  Part of how it works may not be explicable in terms of standard mechanics.  You…

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Democracy in Europe, Part n

For those who still have the patience—or the sick curiosity—to follow Europe’s parody on democracy and the rule of law, it’s been a fascinating few days.

Forget Greece and Portugal:  fiscal consolidation in Spain and Italy isn’t going particularly well, either.  In both countries, the lack of progress has a great deal to do with fiscal federalism’s pathology—i.e., the tendency of junior government to rack up debt and to gamble on a federal bailout. (I’ve droned on about that unfortunate tendency in a series of earlier posts.) In Spain, the regions (which account for the lion’s share of the Country’s excess debt) seem to be winning the game of chicken: the already-bankrupt government in Madrid is sending money their way, in return for empty promises. My buddy Alberto Mingardi’s terrific piece on the Italian situation appears here.

The EU is hardly an innocent bystander. For decades, it has been buttering up regions financially as well as politically, on the theory that what’s bad for nation-states is good for the EU and to the point where it’s hard to explain why Spain or Belgium still exist. They are the functional equivalents of insolvent pension funds with a colorful flag and a Chairman who answers to “His Majesty.”

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