The U.S. Constitution: Help Wanted

The American Enterprise Institute’s Values and Capitalism Project has produced some terrific short monographs on important public issues. The booklets are intended for use by college professors in undergraduate (especially introductory) college courses.

AEI President Arthur Brooks’ idea for the series was a stroke of brilliance. By contrast, the solicitation of a Greve contribution on the Constitution is open to doubt. I tend to write on a principle of complete audience indifference; I have no idea what frosh can be expected to know or get; and my riff on constitutionalism may be a tad unorthodox, if not downright exotic.

A draft of the Conclusion to the forthcoming pamphlet appears below. It is meant to leave the reader with two thoughts that may merit further consideration: one, concerning the relative health of our constitutional debate; the other, concerning the deep pathology of our institutions. Comments and suggestions, on style or substance, on- or off-blog, would be greatly appreciated.

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Interested in a Career in Legal Academia

Then sign up for the Online Law Scholars Conference happening in May and learn from established scholars in the conservative and libertarian legal academic community. This link contains all of the information you need.

Middle Age: An Evolutionary Explanation

One area I have found of interest over the years is evolutionary psychology.  Friedrich Hayek first exposed me to the discipline, which at that time was known as sociobiology.  While it has certainly been criticized, it is often the only scientific explanation we have for certain human behaviors and to me it does a pretty good of job generally of explaining such behavior.   I recently came across this article, which sought to explain middle age from an evolutionary perspective.   As someone in middle age, I found it to be fascinating.  First, the physical changes in middle age make evolutionary sense: As…

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Edward Lopez on Republic, Lost

From Edward Lopez's just posted review of Lawrence Lessig's Republic, Lost: How Money Corrupts Congress—and a Game Plan to Stop It:   This book advances the above core premise to argue that campaign finance has recently fastened a lethal grip of control over the polity, such that voters and representatives have increasingly come to perceive themselves, and each other, as doing very poor jobs. Neither money in politics nor congressional corruption is new, of course. Indeed, Lessig repeatedly praises today’s Congress for being less venal than perhaps any in history, and the 1995 Lobbying Disclosure Act deserves credit for that. Yet a…

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Upholding the Rule of Law, in Season and out of Season

One common assertion arising from the onset and resolution of the 2008 financial crisis is the belief that it proves the purported need and propriety of the government acting in a swift and discretionary manner and not have its hands tied by the constraints of the rule of law.  Yet a close examination of the most recent crisis as well as those of the past reveals the exact opposite truth: adherence to the rule of law is actually more important during periods of economic crisis, both to restore short-term economic prosperity during the crisis as well as for the long-term systemic impact.

There are four reasons why this is so.  First, adherence to the rule of law is necessary for economic prosperity in general, but even moreso during economic crisis.  Second, adherence to the rule of law is necessary to restrain the opportunism of politicians and special interests that use the opportunity presented by the crisis to piggyback their own narrow interests, often with no relationship to the real problems.  Third, once discretion is unleashed during the crisis history tells us that the dissipation of the crisis does not promote a return to the rule of law—in fact, there is a “ratchet effect” of government discretion as the post-crisis period brings about a consolidation of governmental discretion rather than new limits on it.  And finally, the mere potential for discretionary action promotes moral hazard, thereby creating the conditions for still further rounds of intervention.  Thus, while little is lost in the short run by tying the government’s hands from discretion, more importantly the only way to promote long-term economic growth and preserve freedom in the long run, and to avoid precisely the circumstances that then justify future arbitrary government intervention is to constrain government discretion in the short-run. 

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Constitutionalism, Hegel, and Us

Constitutionalism is in crisis—obviously in Europe, more arguably in America. High on the list of intellectual breakthroughs that might help us sort through our contemporary confusions is Georg Friedrich Wilhelm Hegel’s Philosophy of Right—to my mind, the best book ever written on the subject.

Argh! Barf! Say what?

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Bleeding Heart Libertarianism III: Friedman versus Zwolinksi and Tomasi

Over at Cato Unbound, David Friedman commented on Matt Zwolinski and John Tomasi’s essay arguing that concerns of social justice informed the classical liberals.  Friedman, who is sympathetic to utilitarianism, argues that Zwolinksi and Tomasi do no sufficient emphasize the importance to classical liberals of human welfare. Friedman writes: In their lead essay, Matt Zwolinski and John Tomasi . . . argue that “earlier thinkers in the classical liberal/libertarian tradition were less sympathetic to a hard line propertarian version of their position, more sympathetic to one in part based on concepts of social justice, than postwar libertarian thinkers such as Rand and…

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Just in Time: The Future of the Rule of Law in England

This week sees the unfolding in England of two long-running legal sagas upon whose outcomes the future of the rule of law there could depend. And not just there, its  future could be affected throughout Europe and even beyond.

The first legal saga is the resumption of the British Government’s ten-year long battle to deport the radical Muslim cleric Abu Qatada back to Jordan, where he awaits trial on terror related charges.

To date, Abu Qatada, whom England  granted refugee status after he moved there from Jordan his wife and children, has successfully resisted all government efforts to deport him. He has done so by invoking his human right not to suffer torture or trial using evidence gained by its means.

During the long period in which he has been fighting this legal battle through the English and Strasbourg Courts, Qatada, along with more than a dozen other foreign terror suspects domiciled in Britain, have also been able to secure their release from custody by invoking their human right not to suffer (more than briefest period of) detention without trial.

After Britain’s Home Secretary Theresa May had obtained from Jordan all the assurances she needed to render his deportation to it lawful in her eyes, Abu Qatada was arrested in the early hours last Tuesday morning, after his arresting officers  had informed him that the deportation process against him had been resumed.

So confident was the Home Secretary that her department had finally closed all legal loopholes that had earlier enabled Qatada’s lawyers to prevent his deportation, she felt able, later that same day, to stand at the despatch box in the House of Commons from where government ministers traditionally deliver important statements, to announce, much to the general relief of all those present and much of the rest of the country, that by, the end of the month, Qatada would be on his way back to Jordan.

She had not counted on the ingenuity of Qatada’s lawyers quickly to spot and exploit a small loop-hole that had evaded both her eye and those of her legal advisors at her Department, or else that his lawyers had craftily opened up literally at the eleventh hour.

With less than an hour to go to mid-night on Tuesday, after which time which he would have forfeited all possible legal right to do so, Qatada’s lawyers submitted to the European Court of Human Rights in Strasbourg an appeal against the ruling that it had made exactly three months earlier over the legality of his deportation. It was that ruling which had formed the legal basis on which the Home Secretary had been acting in resuming his deportation.  

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The Spirit of 1798, and Ours

The contributions to the Spirit of 1798 exchange are just terrific. They raise some very deep and to my mind disturbing questions.

One of them is suggested by James Read’s admirably hard-headed post: with the (arguable) exception of 1798, can anyone think of any example in our history when states—collectively—have served as instruments in defense of the rights of “the people themselves” and against an overbearing central government? If the answer to that question is “no” (as I think it must be), doesn’t that suggest that there is something wrong with Madison’s theory, with the way we understand it, or with both?

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Bleeding Heart Libertarianism II: The Move to Utilitarianism

In my last post on Bleeding Heart Libertarianism, I described how I have always been a Bleeding Heart type of Libertarian.  Today, I want to describe where I am now on this issue.

Somewhere along the line – I think it was in the early 1980s – I became convinced of a type of utilitarianism, namely welfare consequentialism.  I had been a Nozickian libertarian but became persuaded of consequentialism.  Much of the responsibility, I believe, must be assigned to Richard Epstein and Friedrich Hayek (even though Hayek claimed not to be a utilitarian).  It was easy, as a libertarian, to become a welfare consequentialist.  If libertarian institutions have the good effects that libertarians believe they do, then welfare consequentialism provides a strong basis for libertarianism.

Moreover, the weakness of the deontological cases for libertarianism – that they rely on intuitions about the primacy of certain rights that most people do not share – can now be avoided.  Libertarianism can now be justified on the basis of its consequences for the welfare of people.  These claims are largely factual claims (albeit difficult factual claims to establish).  Further, the counterarguments made about utilitarianism – that it requires people to do unjust things, like hanging an innocent man – also can be avoided.  Under the two level theory of utilitarianism developed by R. M. Hare, these counterarguments turn out to be mistaken, because such actions will not, in the real world, be welfare enhancing.

I recognize that most libertarians eschew a (strictly) consequentialist approach to normative matters.  But I suppose that is just another way that I differ from the dominant libertarian approach.

So how, then, does welfare consequentialism address the issues central to Bleeding Heart Libertarianism?  In particular, how should government institutions address the special needs of the poor under welfare consequentialism?

This is a complicated matter, but some points can be made.  The diminishing marginal utility of money provides a strong reason why the needs of the poor should be given strong consideration.  The benefits from spending on the poor are likely, other things being equal, to be greater than the benefits from spending on other people.

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