It is often said that California foretells the nation’s future. If so, we should really be worried about the cost of living.
Bitcoin, as I have argued, is a store of value that is now more attractive than bad fiat currencies and is likely to become even more attractive over time. It is an innovation that replaces trust in government with trust in a decentralized order— an order run by the miners—who verify transactions over a transparent blockchain. The interests of these miners are well aligned with holders of bitcoins, because the miners are partially compensated in bitcoins. It is this alignment that has sustained Bitcoin’s trajectory to ever higher valuations—a more than tenfold increase in this calendar year alone.
Bitcoin’s market order is strengthening because other markets are arising to improve the function of the underlying market. Yesterday the Chicago Board of Trade provided a futures market in Bitcoin, just it has for other commodities, like gold and oil, and as other exchanges have for fiat currencies.
Masterpiece Cakeshop v. Colorado Civil Rights Commission is a hard First Amendment case on which reasonable people can differ.
When most people focus on the program of left-liberal constitutionalism, they naturally think of the expansion of unenumerated rights, from the right of abortion to same-sex marriage. But in my view the more important part of their current project is structural—to create centers of constitutionally protected power naturally inhabited by left-liberals and thus resistant to the vagaries of electoral control.
One example is campaign finance jurisprudence. The press has obvious influence on elections with its ability for agenda setting and framing. And the press is overwhelming left-liberal. One important check on that power is the ability of outside groups to raise money and buy advertising at election time. One might naively believe that these groups had the same free speech rights as the institutional press, but the entire thrust of left-liberal campaign jurisprudence is to provide constitutional protection to legislation that gives different rights to the press and citizens. Accordingly, this jurisprudence would protect a structure where an important left-liberal sector does not have as many competitors to its influence on an essential part of republican government–elections.
Another example is “diversity” jurisprudence.
Like Mark Pulliam, I think a lot about Robert Bork: anyone who teaches either antitrust law or constitutional law should, and I teach both. He was great scholar. In particular, he powerfully challenged the conventional views of living constitutionalism that dominated his time and begin to make the intellectual case for originalism. But it was only the beginning of the case and does not mark the best understanding of originalism today.
In a previous post, I explained how constitutional federalism uses two levels of governments to protect liberty and restrain the state. In contrast, the new school of national federalism uses two levels of government to create a more activist and burdensome state than one level does.
First, scholars advocating national federalism do not see much, if any, role for judicial enforcement of the Constitution’s textual limitations on the federal government. That failure alone allows the federal government to be much more intrusive than permitted by the design of the Framers. Moreover, failing to enforce the enumerated powers also can kill useful policy competition among the states, because a single federal policy then replaces many state policies. Sometimes such competition deadening federal statutes are passed at the behest of state officials who, not unlike private actors, would prefer not to compete if they can create a cartel and an easier life. Constitutional federalism, in contrast, protects a beneficent distribution of powers that the Constitution’s agents cannot undermine to the public’s detriment.
Second, so-called cooperative federalism—the form of federalism that national federalists most admire—is a recipe for bigger government.
Thanksgiving is a time to reflect on trust and to be grateful for its presence in our lives. Originally, Thanksgiving was a celebration of trust between two different peoples, the indigenous Indians and the Pilgrim settlers. Despite their different cultures and religions, they were able to trust one another enough to contribute food to a feast and sit down to dine with one another.
Today Thanksgiving is quintessentially a family celebration. At its best, it is suffused with trust because the family is a locus of trust. Because of the bonds among kin, for most of human history much commerce took place among extended families. And most of the rest of it took place between people who were known to one another. Being a repeat player who must live in a community inspires trust in others, particularly past eras when being ostracized was very costly.
But as civilization developed, communities became larger and the opportunities for gains from trade extended beyond those that could be easily satisfied by family, new institutions had to arise to police trust.
The happy paradox of constitutional federalism is that two sets of government can protect liberty better than one. This promotion of liberty depends on a federalism of different governmental spheres laid down in the Constitution itself. The Constitution enumerates and thereby limits the powers of the federal government– basically to provide national defense, protection of interstate commerce, and a few other public goods that state and local governments cannot provide.
The states are thus left with very substantial powers. But they are forced to compete with one another in market for governance that is intensified by a few federal constitutional guarantees–those of the free flow of goods, people, and speech across state lines. As the limitation of power protects against tyranny of the federal government so does the ability of citizens to exit protect against state tyranny.
Moreover, by decentralizing most legislative responsibilities constitutional federalism addresses a fact that we must never forget: federal legislation is an exercise in central planning by temporary majorities.
On Thursday I spoke at a panel at the Federalist Society’s National Convention entitled: Is Everyone for Federalism Now? The title is a backhanded tribute to the President. Finally, he is bringing us together, because he has caused the liberal resistance to Trump to appreciate federalism—a cornerstone of conservative thinking about constitution! But that is actually the shallower reason for the renewed interest in possible cross- ideological agreement on America’s most famous practical contribution to governance. The deeper reason is that a whole new school of law professors has embraced federalism under the new name of “national federalism.” Two of its most distinguished adherents, Heather Gerken and Abbe Gluck, were on this panel.
Count me a skeptic, however, about the prospect of any enduring alliance. To be sure, there may be tactical and opportunistic use of federalism by those who oppose the administration: that is the nature of politics particularly in Washington where for many politicians the meaning of the Constitution changes depending on whether they are in power. And there may be a few actual areas of rapprochement: it is conceivable, for instance, that some liberals may join conservatives in opposing commandeering of state officials.
But in general there will be no intellectual convergence because the right and left’s understanding of federalism—its content, origins and purposes—is very different. The right believes that federalism derives from a text of the Constitution that limits the power of the federal government, giving different responsibilities to federal and state officials. The purpose of this distribution of power is ultimately to protect individual liberty from government.
In contrast, progressives who promote federalism support a federalism that promotes activist government and exists largely at its sufferance—almost the opposite of constitutional federalism.
In an important sense, everyone must be a multiculturalist, because each culture is itself a multiculture. Take the social and political culture of the West. It is famously constituted by a dialogue between two intellectual poles—Athens and Jerusalem—a culture of reason and a culture of faith and tradition. But, of course, the culture of the West is not only a social and political culture but an aesthetic one. And here it is composed in part of all sorts of national cultures that are themselves the products of subcultures within the nation.
All cultures thus are mongrel cultures. A culture is also never static but always in motion propelled by collisions with others. And what emerges from the collisions is the result of millions of choices of individuals over generations who determine how to mix and match what many cultures offer them. At its best what underlies all multicultures is the dynamism of liberty.
Unfortunately, much that goes under the name of multiculturalism today is a multiculturalism of coercion.