Gorsuch Nods

I haven’t been able to catch too much of the Gorsuch hearings, but I have heard some of it.  One of the exchanges, which has drawn some attention, involved Senator Amy Klobuchar asking Judge Gorsuch whether a woman President is consistent with the original public meaning: "So when the Constitution refers like 30-some times to ‘his' or ‘he' when describing the president of the United States, you would see that as, ‘Well, back then, they actually thought a woman could be president even though women couldn't vote?" Klobuchar asked. "Senator, I'm not looking to take us back to quill pens and horses…

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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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The Paranoid Style and Senator Whitehouse


Richard Hofstadter wrote a famous essay, The Paranoid Style in American Politics. It is about the recurring tendency of our political actors to allege that there is a vast and powerful conspiracy against the public interest. The Masons were alleged to be at the center of the conspiracy early in the nineteenth century, the Catholics later in the century.

In his opposition to Judge Gorsuch, Senator Sheldon Whitehouse embraces this style of argument. In his  opening statement,  he asserted that there is a “machine” that helps conservative Republicans get on the Supreme Court and then write amicus briefs to show them which way to rule. He endorses the characterization of the Roberts Court as a “delivery service” for the Republican party and right-wing ideology.  How different in terms of respect for judicial independence is calling the Supreme Court a “delivery service” from referring to a judge as a “so-called judge?” Senator Whitehouse claims that this “delivery service”  continually offers up cases against the public interest, protecting gerrymandering, money in politics and the rights of corporations against the people.

Like all conspiracy theories, it has a simplicity about it. But its simplicity is delusive because the world is a more complicated place.

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How about a Liberal Option – And It Could Be Done Through Reconciliation

Could the market help us solve our healthcare problems? Market economists and theorists say of course it could; big government/Progressive types say no. Let’s find out. As Franklin said when discussing his famous Kite, “let the experiment be made.” When the Obama administration was debating just how heavily to regulate America’s healthcare system, many on the Left wanted a truly government-run health insurance scheme, or “public option.” As Progressives’ default assumption is that government programs work better than the alternatives, they believed a “public option” would demonstrate the wisdom of turning to fully socialized medicine in the United States. Average Americans reacted sensibly:…

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Chuck Berry v. The Administrative State

I have very fond memories of the late Chuck Berry, deceased this past weekend at the age of 90.  His music changed my life, from my ill-spent youth to the AdLaw lessons I seek to convey in my dotage.

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What Was the Common Law Right to an Impartial Jury at the Time of the Constitution?

In my last post, I argued that Justice Thomas’s dissenting originalist opinion in Pena-Rodriguez v. Colorado required that one view the Constitution as written in the language of the law.  Thomas viewed the Sixth Amendment right to an impartial jury as deriving its content from the common law that existed at the time of the Constitution.  I agree with Thomas that the Sixth Amendment does have the legal meaning of the common law right at the time. But was Thomas right about the content of the common law right in 1791?  Is it clear that it did not allow juror statements…

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Trumpism: A Politics Desperately Seeking a Theory

If Hillary Clinton were President, conservative scholars and journalists would know what to say about the current state of American politics, the Republican Party, and conservatism. With Trump, all is in flux. It might explain why awkwardness and a talking-past-each-other quality would be the impressions left by a panel discussion in Washington that the Claremont Institute sponsored last week.

The institute, located in California, not Washington, is nonetheless being spoken of as “the academic home of Trumpism.” (See this piece in the Chronicle of Higher Education and another in the New York Times.) Anyone expecting to get the inside scoop on “Conservatism in the Trump Era,” as the event was entitled, would have gone away unfulfilled. Trumpism is at this point as hard to pin down as its unpredictable namesake.

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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 U.S. 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 the U.S. 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 20th Century, as the Coen Brothers’ recent movie, Hail Caesar, hilariously reminds, was its claim to be a scientific theory.

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Judicial Tyranny’s Final Frontier

Law and justice concept. Scales of justice, gavel, paragraphs, brown wooden background, place for text

Daniel Horowitz’s Stolen Sovereignty: How to Stop Unelected Judges from Transforming America (2016), published before the presidential election, is proving to be prescient—even prophetic.

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Bitcoin’s Creation of Order without Law

Concept Of Bitcoin Like A Computer Processor On Motherboard

Modern fiat currencies depend for their value on confidence in the laws of the states that issue them. Some nations, like the United States with its established central bank, inspire substantial confidence relative to nations that may debase for their currency for political objectives. But no nation can absolutely insulate its currency from political manipulation.

That is what gives Bitcoin the opportunity to succeed as a currency. But what gives users confidence in Bitcoin? It is precisely the fact that the rules regulating its currency do not depend on the currency law of any nation state. Bitcoin provides an example of order without law or at least without currency law.

Order without law is not unknown to society. Social norms often regulate behavior without the benefit of formal law. Rules of etiquette tell people how to behave at table without causing offense. Coordination rules help people walk down the street without bumping into one another. In a major work, Robert Ellickson showed that social norms, not law, governed responsibility in a community of cattle ranchers and farmers for the damage caused by cattle straying on the range.

But while order without law is possible without software, software can improve on the enforcement of that order. The beauty of Bitcoin’s design is that its mechanism for enforcement can not only be more powerful than the informal mechanisms that enforce social norms but even more powerful in some respects than the formal mechanisms of law.

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