James R. Rogers

James Rogers is associate professor of political science at Texas A&M University, and is a fellow with the Institute for Science, Technology and Public Policy at the Bush School of Government and Public Service. He also served as editor of the Journal of Theoretical Politics from 2006 through 2013.

The Judicial Behavior We Never Observe

Wood judge's gavel over a legal book with white space top.

Outcomes that occur with probability zero are more relevant, and more confounding, to what we do see than we often think they are. Take, for example, the absence of nuclear war during the Cold War era. One side argued from the absence of war that the Soviet government was a pacific regime, and the West could safely demilitarize Western Europe without fear of Soviet aggression. The other side argued that the absence of war resulted from deterrence: eliminate the deterrent and they predicted we’d observe Soviet aggression.

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Focusing on Flat Incomes Obscures Fundamental Economic Changes

Economic growth concept

In General Sherman’s memoirs, he reports that in 1850 the U.S. Army reassigned him from San Francisco to the east coast of the United States. He mentions that the passage from San Francisco back to the east coast of the U.S. cost him $600. I priced a ticket from SFO to NYC for a flight next month. It came in from between $200 and $550 on AA.com. So today, we can get from one end of the country to the other end for about the same nominal cost, and for stratospherically less time — several hours instead of several months.

The qualitative improvements considered by themselves are astounding. But we shouldn’t compare nominal cost of transportation. Annual income in the U.S. in 1850 (in 2005 dollars) was around $2,500. So it took about a quarter of a year’s oncome (around 88 days at average wages) to pay for the travel from San Francisco to the east coast of the U.S. Today average income in the U.S. is around $45,000 (in 2005 dollars). It takes the average worker about three days of wages to pay for a ticket to cross the U.S. in a matter of hours.

To point out the obvious: the change for society and for economics is simply revolutionary.

The data got me thinking about comparing household wealth across time.

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Liberty, Licentiousness, and the Pursuit of Happiness

Replica of the U.S. Declaration of Independence, closeup

The Declaration of Independence famously affirms inalienable rights to life, liberty, and the pursuit of happiness. As I discussed last week, the heavy lifting of the adjective “unalienable” means that people cannot give or otherwise transfer these rights away. Inalienability is a restriction on rights’ holders. This immediately changes implications of the terms. To wit, today Americans often think of liberty as “autonomy.” Indeed, in the Supreme Court notably defines the Fourteenth Amendment liberty guarantee as a protection of individual autonomy. According to the Declaration, however, inalienable rights to life and the pursuit of happiness exist in tandem with liberty. In the philosophy of the Declaration, “liberty” cannot mean, say, a right to alienate one’s life by committing suicide, assisted or otherwise. So the inalienability of the rights to life and to the pursuit of happiness necessarily structure the meaning of liberty in the Declaration.

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The Filibuster – Meh

filibuster

Debates over government practices and processes in the U.S., like the Senate’s filibuster, typically come amidst specific disputes, such as Gorsuch’s confirmation. As a result, support or opposition to those practices or processes typically depend on whose ox is getting gored in the particular debate. Republicans last week eliminated the filibuster for Supreme Court nominees, Democrats opposed it. Democrats eliminated the filibuster for lower-court nominees and executive officers in 2013, Republicans opposed it. Given the taboo has been violated in these debates, and voters responded with little more than a yawn, I wouldn’t bet on the filibuster’s long-term continuation for ordinary legislation.

There’ll be some differences with its elimination, but I expect the overall effect will be a wash.

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God Talk and Americans’ Belief in Inalienable Rights

I posted earlier this week regarding whether Americans still believe the Declaration of Independence’s affirmation that they “consent” to laws and taxes through their legislative representatives. There may be good reasons Americans no longer believe they really consent to the laws their representatives enact, but it is a striking change from the beliefs articulated during the founding era.

In considering whether Americans still believe the Declaration of Independence, we next consider the most-well known section in the Declaration, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness, that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”

There are, of course, entire books devoted to these few lines. A few observations, however. First, what is the link between there being a creator and persons being endowed with “unalienable” (or inalienable) rights?

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Americans No Longer Believe in the “Consent of the Governed”

Way back at the founding era, Americans took seriously the idea of the “consent of the governed.” As Greg Weiner noted recently, and as I’ve discussed elsewhere, this consent is exercised collectively, either in aggregating individuals’ votes or through voter representatives. But Americans at the Founding took seriously the idea that their consent could be conferred by their representatives. This belief has changed in the intervening couple of hundred years. On both left and right, Americans now talk about taxes being forced on them to pay for things for which they disapprove, even though their respective legislatures adopted the taxes. I doubt many Americans today seriously believe that they’ve consented to most of the laws and taxes that their legislatures adopt. What changed?

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The Freedom Caucus Is Playing the Clock

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I expect if one were to ask Republicans in the House of Representatives and Senate (and the White House) whether they want Obamacare replaced, all, or close to all, would give a hearty “yes.” Where things break down is what replacement proposal could get majority support in the House, and the requisite majority or supermajority in the Senate.

House Speaker Paul Ryan’s and, apparently, the White House’s assessment as well, was that moving last week’s proposal to the right to satisfy members of the Freedom Caucus in the House would lose the pivotal votes in the Senate, and insure defeat there.

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Originalism and the Shakespeare Test

sold copy of complete works of  shakespeare open at the first pa

Ken Levy, law professor at LSU Law School, makes a strange case against originalism in his New York Times editorial, “The Case Against Originalism.”

First, the setup:

Textualism says that when interpreting the Constitution, judges should confine themselves to the words of the Constitution. Originalism says that if the words are at all unclear, then judges need to consult historical sources to determine their meaning at the time of ratification, and the correct application of these words to new cases should clearly follow.

Here’s what I call the Shakespeare test. I substitute “Shakespeare play” and related words for the “Constitution.” The point is simply to judge whether, and to what extent, a proposed method of reading the Constitution differs from what we’d use when reading something more familiar. (It doesn’t need to be a Shakespeare play. It could be a baseball rulebook, or a math textbook, or the newspaper. Whatever.)

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The Rational Federalist

In The Federalist No. 51, James Madison develops a political analogue to the way Adam Smith’s “invisible hand” in the market channels self-interest to promote the public good. Akin to Smith, Madison argues that the structure of political institutions in separation-of-power systems channel ambition and self interest so that they reduce the risk of tyranny rather than promote it: But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.  . . .  Ambition…

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Is There “Science” in “Political Science”?

Crystal Globe with Pen on Grunge World Map

The first problem with the phrase “political science” is that “science” is a god-term in the United States. Perhaps not as much as it was in the late 19th and early 20th centuries, but many folks still hear “science” and think it’s a claim to a settled body of True Knowledge. (This is the regrettable way science is still often taught to students in elementary school and above; that, or as a cook-book approach to investigating the physical world, which is almost as sad.) Plus natural scientists and engineers held extremely high standing in America from the late 19th century through most of the 20th century. So in choosing to name the discipline “political science” over a century ago, disciplinary scholars were no doubt aiming to crib some of the divine aura of “Science!” for themselves.

Further, during this time, “Science!” was tied up with the Whig narrative of ever-increasing Progress, human achievement, and human liberty; with the expectation of extending human control over the very forces of nature itself. “Social science” and “political science” aspired to share in this scientistic teleology, with disciplines purporting to develop scientific expertise regarding the human subject with the goal of improving (and controlling) human life and humanity itself.

We tend to forget how much pull terming something as “Science!” had during this period. Indeed, one of the real pulls of Marxism for American intellectuals in the first half of the 2oth century, as the Coen Brothers’ recent movie, Hail Caesar, hilariously reminds us, was its claim to be a scientific theory.

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