Peter Lawler’s passing has been quite painful to me as it has to so very many people who were his students, friends, and colleagues. His death means that a source of incomparable wisdom in my life is gone. One story that sticks in my mind is the time that Peter secured a rather sizable grant from a certain foundation. He had to participate in a contest of sorts for the grant. His other competitors had put together PowerPoint presentations, binders, flow charts, deploying MBA-speak to demonstrate the vital impact the money would have if they could make use of it. Peter, who never hesitated to mock MBA-speak in deadpan tones, thought the episode illustrated technocratic practices at their best, applying corporate business techniques in the realm of non-profit outreach. Peter told me that he wrote down a few lines on a scratch paper while waiting his turn to speak to the grant-making committee. He delivered his “innovative” talk in a few minutes. He focused on—what else?—virtue and human nature. Needless to say, he was chosen to receive the funding.
The Senate is broken, but eliminating the filibuster is only likely to exacerbate the underlying causes of the institution’s dysfunction.
This is not the conventional wisdom, of course, which maintains that it’s excessive minority obstruction that makes the Senate unable to pass important legislation. Proponents of this view point to the gridlock that results from the filibuster. And behind it they see ideological and partisan polarization, geographic sorting of the electorate, and the prevalence of special interest money in campaigns.
Along with Michael Rappaport, I participated in Michael McConnell’s “Big Fix” conference, held at Stanford Law School this past week. “Should We Amend the Constitution?” was the subtitle of the fun event. You can talk me into that, provided law profs don’t get to vote. A dismaying number of amendment proposals aimed to Europeanize the U.S. Constitution (for example, by importing the European and Canadian courts’ “proportionality” tests into our ConLaw, which I had thought could not get any worse). Others sought to make the republic yet more “democratic”—an endeavor that for n reasons, some ably stated by Brother Rappaport, merits firm resistance and, in the event of success, a bulk purchase of OxyContin.
If one is interested in a counterpoint to the received wisdom about the plight of the white working class, look no further than to Manchester by the Sea, the finest film I have seen this year.
The usual narrative is that the white working class is in decline because of economic stress. But Manchester by the Sea focuses on its spiritual causes. It is a post-Christian film in two senses. Its structure returns to greatest pagan art form—Greek tragedy—and its content concerns the spiritual void left in places like New England by the decline of Christianity—a decline that also undermines one of the sources for self-discipline needed for flourishing in a republic.
The protagonist of the story, Lee Chandler, is pursued by furies—the Eumenides of Greek tragedy– because of a negligent act shown in a flashback by which he destroyed his young family. Chief among the furies was his now ex-wife who said terrible things about him in the aftermath. Many people in Manchester are furies as well: they don’t want him around and he has left his ancestral home to work in Boston. But the greatest furies are the demons within his own mind. Not only do others not forgive him, he cannot find forgiveness himself.
A lot of the discussion of President Trump’s election interprets his election as reflecting a significant change in the American electorate. I don’t think so. We see precursors of the Trump coalition in Ross Perot’s presidential bid, and Pat Buchanan’s, and even Ronald Reagan’s. Nativists have been a crucial, if variable, part of the Republican coalition since before the Civil War. And support for protective tariffs were a common feature of Republican platforms through at least World War II.
Since seeing the movie Julie and Julia the other year, I do a double-take whenever I see an old photograph of Julia Child on a cookbook: Is that the actual chef, I wonder, or Meryl Streep, who played her so realistically? So I found myself doing a double-take when I saw the photograph today of my too-soon departed friend Peter Lawler, for his image looked so like the famous picture of Walker Percy, the novelist and essayist he most admired. Both were Southern and Catholic and, to borrow the title of one of Percy’s novels, both adopted the conceit of the “Last Gentleman,” an ideal whose lasting charm insures it will never quite be true.
In politics, there are no final victories and no lessons that are learned for good: error, like hope, springs eternal. Moreover, what counts as error for some may be wisdom, or at least temporary advantage, for others. There is no catastrophe, political or economic, from which someone does not benefit.
In modern democracies, promises to tax-and-spend are like sin, a permanent temptation: only that they are worse, in so far as they are an instrument for some to gain and (as they hope) to keep power. And so the pendulum swings, seemingly for ever, between extravagance and retrenchment, the former always being more popular than the latter.
In Britain, Mrs. May has overthrown the legacy of Mrs. Thatcher, though nominally she is of the same political party.
The power to impeach officers of the United State government is one of the gravest powers entrusted to Congress in the U.S. Constitution. The power is far-ranging and flexible, laying at the feet of Congress the ultimate responsibility to insure that the officers of the federal government are acting in the national interest and not abusing their authority. Congress has not had many occasions to use the power over the course of the nation’s history, and the most frequent targets have been low-level judges who had engaged in undoubtedly bad behavior. Impeachments of more high-profile targets like presidents raise more difficult political and constitutional issues about how the power should be used and what the role of the impeachment power might be within the American constitutional system.
The FCC is about to eviscerate the Obama administration’s rules on net neutrality. One of its reasons is that the elimination of net neutrality will provide incentives for internet providers to put more investments into speeding up the system, because the network providers, not the government, will make pricing decisions. But how can internet providers be confident that they will reap the value of their investments given that any Democratic Administration elected in 2020 will almost surely bring back net neutrality? And one of the Democrats’ arguments in favor of net neutrality will surely be that net neutrality gives content providers the confidence to invest in content. Wash, rinse and repeat!
The partisan vacillation about net neutrality show how the administrative state in our politically polarized time can be a powerful force for instability and therefore a hindrance to economic growth. Of course, the original conception of the administrative state made it a bulwark of stability, since its judgments rested on technocratic science. But no one much defends anymore the view that administrative policies emerge from a transmission belt of science. Instead agencies use their broad statutory delegations to make substantially political decisions. And Chevron has effectively broadened those delegations, because it gives agencies the power to interpret the scope and content of these delegations so long as that interpretation is reasonable, even if it is not the best one.
The instability created by the administrative state contrasts with the stability in government that James Madison believed “essential to [its]national character.”
The firing of James Comey and the appointment of a special counsel have once again raised the issue of independent counsels and how we address government wrongdoing. I have long thought about this issue, proposing various different solutions to the problem. The basic problem is that we simply do not have adequate institutions in place to address government wrongdoing. During the late 1970s until the end of the Clinton Administration, the Independent Counsel statute was in place. The statute had many significant defects, although it did have some virtues. One virtue was that it had a uniform standard – although probably…