As bad as the economics of the Carrier shakedown may be—and it is entirely unclear in which direction the shaking went down, except to note that a supply of rents tends to create a demand for them—the constitutional politics are far worse.
Donald J. Trump’s remarkable rise to the presidency presents this conundrum: The constitutional duties of the office he attained by stoking public passions now requires him to be willing to resist them. That is not because his voters should be regarded, merely for having supported him, as impassioned rather than reasonable. Such would be the very condescension that partly motivated them. The point, rather, is that the constitutional purpose of the presidency is not to give the people the “voice” that Trump promised to provide but rather to channel their impulses toward their interests.
First, in the truest tradition of conservative thought, the bad news: At this time on Wednesday, one of the major parties in American politics will be institutionally invested in inflating a presidential office already swollen beyond healthy constitutional proportions.
Whatever may be said about Gavin Grimm’s legal case, the plaintiff in Gloucester County School Board v. G.G.—which the Supreme Court on Friday agreed to hear—should be credited with handling the lawsuit with the dignity and courage required for a teenager to assert a public position on an intimate matter. One only wishes Grimm and the advocates pursuing the case showed similar empathy for those who are, with equal sincerity, maintaining competing views—views that transgender advocates are using the courts to delegitimize.
The Progressive apoplexy over Donald Trump—which is justified on myriad grounds, many of them other than those his critics are articulating—ought not obscure this decisive fact: Trumpism is a disease of Progressive constitutionalism. Its symptoms include an inflamed presidency and Supreme Court—and embrace of the former and a reaction against the latter.
The Supreme Court is lost. Sunday night’s debate settled that. The question now is not how to save the Court but rather how to navigate an adverse one, and the answer is to deprive it of power.
There are few economists smarter than Bryan Caplan, whose efforts to apply economic analysis to political phenomena have produced breakthrough insights, none more than his pioneering Myth of the Rational Voter (2007). But higher authorities also command deference. Aristotle is one. He warned in Book II of his Politics that political life is not reducible to an economic problem. Caplan’s recent post at Law and Liberty’s sister publication, EconLog, illustrates why.
Presidential debates neither are nor ought to be midterm exams. The people who administer midterms do not necessarily possess political wisdom (see “Wilson, Woodrow”), and the people who excel at taking them may be better at demonstrating technical detail than prudential judgment (see above). Thus questions that make a candidate stumble—and that can win the journalistic brass ring for the moderator, namely, instigating news—tend not to be as valuable as those that prompt reflection and reveal a mind at work.
Aristotle teaches that justice is necessary where friendship has failed. His point is that the strictures of the law need only be imposed where ordinary, informal, face-to-face interactions collapse. Lawsuits—and, for that matter, laws—thus begin where comity and common sense end. That is worth keeping in mind as the first frontal constitutional challenge to the U.S. Department of Education’s attempt to impose a one-size-fits-all approach to transgender access to intimate facilities—bathrooms, locker rooms, and showers—works its way through the courts.
According to Livy’s History, the Roman consul Publius Decius Mus sacrificed himself to the gods by “leap[ing] upon his horse and dash[ing] into the middle of the enemy” in a ritual that secured victory for his embattled army. One hopes the polemicist using Decius as a pseudonym in a much discussed broadside against Never Trumpers, having anonymously expressed an opinion with which somewhere north of 40 percent of Americans agree, is safe. The republic almost certainly will be.