Ronald Reagan and Margaret Thatcher together moved the world decisively back toward classical liberal principles in the 1980s. Thatcher was elected earlier than Reagan, and she was a harbinger of what was to come in America and the world. Thus, it is significant today that new Prime Minister of Britain, Theresa May, is moving the Conservative Party decisively in the opposite direction—toward more statism and less liberty. It is not only in the United States that the party of the right seems to have lost its classical liberal bearings.
Tesla provides an autopilot that allows its cars to drive themselves in certain circumstances. Recently, while on autopilot, a Tesla car crashed and killed the driver. The autopilot apparently did not distinguish between a white tractor-trailer and a brightly lit sky in the background of the trailer. The driver is rumored to have been looking at a movie, against the express mandate that a driver using the autopilot keep his hands on the steering wheel.
The National Highway Traffic Safety Administration (NHTSA) is investigating the crash, and the government is now considering how to regulate autopilots. I fear that if regulators aren’t careful, they may kill more people than they save. The basic problem is that first recognized by the great French economist Frederic Bastiat. People too often consider effects that can be seen, but not those that are invisible. Here the focus is likely to be on lives lost by the autopilot, often in fiery crashes that get attention. But lives may be saved as well by its introduction and these lives will receive almost no attention. Statically, the current autopilot itself may save some lives. Dynamically, permitting autopilots may lead to faster improvement in self-driving cars that may save more lives in the future. There are a lot of such lives to be saved. More than 30,000 people die each year in car crashes in the United States, and most such crashes are caused by driver error.
This problem is compounded by the prism though which government bureaucrats view regulation.
Many people are concerned about Donald Trump’s commitment to the rule of law, a concern I share. But the other choice in this election is a Progressive one, and Progressivism by its nature lacks that commitment. Moreover, its history shows that it permanently damages the constitutional foundations of the United States. And the United States suffers from the fevers of progressivism more than any time since the 1960s. Thus, this election pits a candidate lawless by virtue of temperament against one lawless by virtue of ideology and emboldened by the spirit of the times. The rule of law is under threat, whoever wins.
Progressivism has proved a greater long-term danger than any single individual, because it is born in part out of systematic rather than personal hostility to the Constitution. Federalism and separation of powers are obstacles to the social engineering at the heart of progressivism, and thus progressivism has tried to eviscerate these restraints. Packed with FDR appointees in the 1930s, the Supreme Court gutted the enumerated powers. The administrative state has eroded the separation of powers, making the executive ever more powerful in domestic affairs. The theory used to justify these departures from the original constitution, living constitutionalism, is itself a threat to the rule of law, because it devalues the formal rules laid down by the Constitution.
And today we see all across a society a renewed progressive disdain for the rule of law.
It has puzzled some that evangelicals and other religious people are supporting Donald Trump. He is twice divorced, boasts of many affairs, and seems to know nothing of scripture. In religious matters, he has reminded me of Rex Mottram, an industrialist turned politician and figure of fun in Brideshead Revisited, about whom it was said that “he has no religious curiosity or natural piety.”
But for those concerned about the religious rights, Trump’s indifference pales before Hillary Clinton’s hostility. Of course, Clinton does not say she is hostile, but her core beliefs and political coalition will collide again and again with religious liberty, as surely as have those of President Obama. It was his administration that filed an extraordinary amicus brief stating that churches should receive no more protection for their employment decisions than secular associations, despite the Free Exercise and Establishment Clauses. It was his administration that has tried to force religious organizations to be complicit in advancing access to devices they deemed immoral, even though there were other ways of providing access.
There is every reason to believe that Clinton will continue to encourage government entrenchment on religious liberty and freedom of conscience.
I do not apologize for posting yearly on the Game of Thrones. Tens of millions of people watch the show and thus its analysis of the structure of politics reaches far more people in contemporary American than does that of Hobbes and Machiavelli. And its sketch of the political world is quite insightful and revealing.
This season ends with three forces contending for the Iron Throne of the Kingdom of Westeros and each of these forces sees the essence of politics completely differently. For the Starks, one of the seven aristocratic houses in the Kingdom, political and social behavior should be guided by tradition. Living in the most rural, northern part of the kingdom, they worship the old gods, and believe in norms of honor and reciprocity that have developed over centuries. As a result, they are the only noble family that behaves consistently nobly. That wins them loyalty from many of their retainers.
But their adherence to tradition is also their tragic flaw.
Judge Richard Posner has recently dismissed the study of the Constitution of the United States. He said:
I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation (across the centuries—well, just a little more than two centuries, and of course less for many of the amendments). Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century. Which means that the original Constitution, the Bill of Rights, and the post–Civil War amendments (including the 14th), do not speak to today.
That was an extraordinary and indeed shocking comment from a federal judge, but sadly his later apology or clarification is insufficient. There Judge Posner expresses sorrow if his previous statement is understood as saying that the Constitution is irrelevant or to be forgotten. But he goes on to say:
What I think is undeniably true is that while the Constitution contains a number of specific provisions—such as the prohibition of titles of nobility (a slap at our former English rulers, who mainly were kings and aristocrats), the requirement that the president be at least 35 years old, and the very detailed provisions regarding congressional authority—many other provisions are quite vague. The vagueness was almost certainly intentional, one reason being the tensions among the 13 states, which required compromise.” This vagueness justifies judges in making a “living Constitution.
But one can only credibly contend that provisions are vague if one had studied the meaning of the Constitution carefully. And as Mike Rappaport and I have argued, on careful examination many provisions that may seem vague or abstract are not so read in their original legal context.
Has there ever been a July 4 other than during the Civil War or the Great Depression where the domestic prospects of our nation have been so dismal? No presidential contest has ever featured a choice that was as obviously dreadful as this one. I would be happy to hear of contrary claims from the annals of American history, but to me even Nixon v. McGovern falls short of our present plight. Nixon’s role in Watergate was not known at the time of the election, and McGovern at least was a man of good character.
But today we are about to elect someone with disabling character flaws and no commitment to the liberty that has been at the core of American ideals. On character, both Trump and Clinton have reputations for dishonesty unusual even for politicians. They also excel at dividing the American people, Trump with his outrageous remarks about ethnic groups, Clinton with her penchant for blaming her and her husband’s troubles of “vast conspiracies” of her political enemies even in instances where she has every reason to know the cause of these troubles is in her own home.
And these character flaws threaten to widen some of our most dangerous fault lines. Trust in government is at one of the lowest points ever. A President widely regarded as dishonest will exacerbate the trust deficit. Americans are more polarized than at any time since the Second World War. Polarizing figures making uncivil remarks about one group or the other are sure to lead to a more divided nation.
If judicial nominations are the best reasons to support Donald Trump, one of the best reasons to oppose him is his trade policy. In a speech this week he made clear that he will block the Transpacific Partnership, unravel NAFTA, and try to raise tariffs generally, which he implied were a good substitute for other kinds of taxes. He would be the President most opposed to foreign trade at least since President Hoover signed the disastrous Smoot-Hawley Tariff Act.
There is a reason that freer trade has always been at the heart of the classical liberal vision—from the Manchester School in the nineteenth century to Reagan’s America. It is not only that trade creates wealth through exchange. It is that trade is part of the engine that sustains civilization through human cooperation when we get rid of mind forged manacles, like mercantilism and distaste for foreigners. It is the enlargement of the sphere of cooperation domestically and globally that offers a long-run boost to security as well as prosperity.
Beyond the details of his policies, Trump’s position on trade shows him the opposite of a classical liberal—someone who thinks that political and economic life is zero-sum where the point of a nation is win over other nations and the point of an individual is to win over others. That is the recipe for endless political conflict and division—a medieval Game of Thrones played out in the twenty-first century.
Ours has become a multicultural society, but despite this, or more likely because of it, the areas of social policy that touch on race and ethnicity are marked by evasions and prevarications. The diversity justification for race and ethnic preferences at universities is a case in point. The notion that universities are actually interested in fostering diverse views is belied by their general complacency with their politically homogeneous faculties and the political correctness they tolerate and indeed often foster on campus. The claimed interest in avoiding stereotypes is hardly advanced by admitting students with standardized test scores in many cases almost a standard deviation lower. To the contrary, as predicted by Judge Macklin Fleming in letter to the Dean of the Yale law school in 1969, differential admission standards have led to lower standards of academic dialogue on our most contentious subjects and a politicized atmosphere on campus.
Thus, it is not surprising that Supreme Court decisions in the area are notable for their obfuscation and, to put it charitably, economy with truth. Fisher v. Texas II continues and indeed deepens this tendency. First, it proclaims that it is applying strict scrutiny to Texas’ decision to use racial preferences even when its plan admitting the top ten percent of each high school class results in a substantial percentage of minority students. But while strict scrutiny is generally fatal in fact here it becomes instead a lenient standard of review.
The National Constitution Center is doing a series of essays on the provisions of the Constitution. It asked Peter Shane of the Moritz College of Law at Ohio University and me to write about The Treaty Power and the Appointments Clause which together compromise Article 2, Section 2. We wrote a joint essay describing where the Supreme Court case law leaves us and then short essays of our own summarizing where the law should be.
Mine sharply criticizes the Court’s jurisprudence for its departures from the original meaning of the Clause, Its opinions on the Appointments Clause are often self-serving because they generally maximize the Court’s discretionary powers at the expense of clearer rules actually contained in the Constitution. The resulting discretion allows them to be political and policy decision makers rather than faithful servants of the law. Here is my general take on the interpretive method that should be followed:
The practice and jurisprudence of the Treaty and Appointments Clauses err when they depart, as they too often do, from the original meaning of the Constitution. The original meaning is the meaning that would have been most likely embraced by a reasonable person at the time of the Framing. Because the Constitution is written in the language of the law, the original meaning is constituted by the text in its historical and legal context.
In particular, I am critical of the Court’s usurpation of decisions about when the President can fire his executive officers: