What Power of the Purse?

A few years ago Eugene Steuerle (Brookings) and his colleague Tim Roeper developed a “fiscal democracy index.” It measures the extent to which revenues are already claimed by permanent programs—the big entitlement programs, and interest payments on the debt. The remaining “discretionary” portion has to pay for the entire government’s operations, from defense to roads to education to the DoJ. The trajectory over the past half-century looks like this: Note how in this as in many other respects, the Clinton years look pretty darn good. And note how the index turned negative in 2009. The picture going forward doesn’t look much…

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Go Down, Moses

Statue at Harriet Tubman Square, Pembroke Street and Columbus Avenue, Boston.

When the Secretary of the Treasury announced that Andrew Jackson would be replaced on the face of the $20 bill by Harriet Tubman, responses from conservatives were lively.

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Last Paroxysm of the Tyrant


In Martin Amis’ underrated study of Josef Stalin, he asserted that Stalin’s much larger body count than Hitler’s was based on weapons the Nazi dictator did not have. Chief among these was that Stalin lived longer.

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Horatio Alger Matters

Wachstum mit Erfolg oder erfolgreich Strategie im Business Menschen

The traditional—or at least doctrinaire—response of conservatives and libertarians to the phenomenon of income inequality has been, “So what?” The common attitude of many on the Right is that, in a free-market economy, individual differences in ability, skill, and effort will lead to inequality of income. James Madison summed up the sentiment nicely in Federalist 10 when he stated that the “first object of Government” consists of “the protection of different and unequal faculties of acquiring property,” which “immediately results” in “the possession of different degrees and kinds of property.” In a free society, it is often believed that unequal results are inevitable—for some, even desirable

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Let Tesla Sell Directly to Its Customers


There is a debate about how innovative are Tesla’s new cars, but the company is indeed trying to do something new in the way it sells them. Tesla wants to sell directly to consumers without the use of dealers. Unfortunately, however, many states are trying to prevent direct sales. These laws are outrageous exercises in economic protectionism in favor of special interests.

When it comes to keeping down the costs of distribution, a manufacturer is the consumer’s BFF. Both the manufacturer’s and the consumer’s interest is the same—having the most efficient and cost-effective form of distribution. An efficient distribution allows the manufacturer to sell more cars, because the total cost of the product is lower.  It also benefits the consumer, because the distribution is incidental to the enjoyment he or she gets from the product.

Some legislators argue that dealers are necessary because they can provide important services to consumers. But the manufacturer takes the level of service into account when deciding whether to sell directly.  Optimal service helps the manufacturer’s bottom line as well, because it gains a reputation for cars that are well serviced and thus last a long time.

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The Equal Rights Amendments and Its Possible Meanings

In the 1970s, the proposed Equal Rights Amendment passed both houses of Congress with the requisite two thirds supermajority and then went to the states for ratification.  The proposed Amendment then quickly secured numerous ratifications (ultimately securing 35 of the requisite 38 state ratifications) and looked sure to pass.  But then the momentum for the Amendment stopped and it never secured the necessary ratifications. A big part of the arguments against the proposed Amendment were that it would lead to certain consequences, which were generally regarded at the time as extremely unattractive.  While opponents of the Amendment argued it might or…

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Coopting the Words

Statue of Aristotle

The difference between human beings and other creatures, Aristotle teaches, is logos, humans’ unique capacity to employ language to express moral abstractions. Aristotle never met Judge Henry Floyd of the U.S. Fourth Circuit Court of Appeals.

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Trauma in Brazil

BRASILIA, BRAZIL - APRIL 17: Deputies of the Lower House of Congress vote on whether to impeach President Dilma Rousseff. (Photo by Igo Estrela/Getty Images)

The people of Brazil confront the impeachment of their President for the second time in 25 years. It is always a traumatic event. What does it mean? Is it true that President Dilma Rousseff is under attack because our elite can’t stand a popular government, as the members of her Workers’ Party (Partido dos Trabalhadores, or PT) say? Or is it a constitutional and necessary step to get rid of a thoroughly corrupt government?

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Sunstein’s False Claim that Scalia Was a Living Constitutionalist

In an essay forthcoming for the Harvard Law Review, Cass Sunstein argues that Justice Antonin Scalia was in many important opinions a practitioner of living constitutionalism, that is someone who believes “the meaning of the Constitution evolves over time.”  This claim is contrary to the received wisdom about Scalia.  But it is consistent with a long-term project of the left—to deny that originalism is distinct either conceptually or in practice from living constitutionalism and thus to remove a barrier to  the progressive transformation of the United States.

But Sunstein’s arguments are weak.  First, he contends that some of Scalia’s opinions do not rely on the original meaning of provisions. But he has to acknowledge Scalia’s own response to these complaints: that as a judge he also has some duty to follow precedent. And applying precedent under neutral rules is emphatically not inconsistent with originalism. Analytically, precedent generally concerns the adjudication of the Constitution, not its meaning. Moreover, as Michael Rappaport and I have argued, the original Constitution contemplates the application of precedent.

Sunstein then downplays the full-throated originalism of District of Columbia v. Heller’s holding in favor of an individual right to hold arms at home.  First, he quibbles that an originalist should have to show that the Second Amendment reference to “arms” was not limited to the firearms at the Founding.   Scalia dismissed this argument as almost frivolous, as indeed it is even as matter of originalism.

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The Not-So-Independent Judiciary

Lady Justice with Scale and Sword

The Constitution permits Congress to do amazing stuff to the independent judiciary. It can withhold jurisdiction, or yank jurisdiction that’s been given. It can change the law for pending cases. It can legislate for a “legitimate class of one.” But suppose Smith sues Jones in federal court and Congress enacts a law saying, “In Smith v. Jones [docket number], Smith wins.” Constitutional? An ancient, messy case, U.S. v. Klein (1872), seems to say “no.” After Wednesday’s decision in Bank Markazi v. Peterson,  the answer may be “yes.” I’ve written about the case before: The outcome is more depressing than I had apprehended.

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