Andrew Ferguson’s current feature essay in The Weekly Standard “The ‘Science’ of Same-Sex Marriage” considers the unique brief filed by Leon Kass and Harvey Mansfield in the Proposition 8 case that is now before the Court. Also discussed by Nelson Lund, the brief’s counsel of record, in Wednesday’s Wall Street Journal, the Kass-Mansfield brief does not engage in direct advocacy on behalf of the California law that bans same sex marriage in that state. Rather, the brief purports only to demonstrate that social science claims made in support of a radical departure from the principles of Western marriage law are quite inconclusive and are contrary to statements put forward by researchers and organizations like the American Psychological Association. Continue Reading →
Liberty Law Blog
Regarding my doubts that the Congress has a general power to regulate immigration, some observers, including Ken Masugi, have noted the provision in Article I, section 9 providing that “The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight.” The suggestion is that this provision would not have been necessary, as to “the migration of persons,” if Congress lacked authority to regulate immigration.
But notice that my post suggested that Congress does have certain authority over immigration, just not general authority. Thus, Congress can regulate certain aspects of immigration that constitute foreign commerce. Similarly, Congress can prohibit immigrants entering the country through federal territories. So this provision is not inconsistent with my argument.
A few months ago, Liberty Fund published an anthology on Mexican liberalism. The book, edited by José Antonio Aguilar Rivera, gathers 19 authors and 64 texts covering from the beginning of the history of Mexico as an independent nation (1821) to an acceptance speech by Octavio Paz of a prize he received in 1989. That is, in this book we have almost 170 years of the history of Mexico from the perspective of its most well-known and recognized liberales. Continue Reading →
Last week, the Supreme Court decided two big AdLaw cases, both having to do with agency discretion and judicial deference. Decker v. Northwest Environmental Defense Council dealt with the question of whether an agency (here, the EPA) gets judicial deference when it interprets its own regs—as opposed to its organic statute, where it gets Chevron deference. (For an earlier piece on a different aspect of Decker, see here.) The traditional answer has been “yes.” That’s called Auer deference, and the Decker Court applied it (and upheld the agency). The lone dissenter was Justice Scalia, who has come to the conclusion that Auer deference shouldn’t exist. The basic idea: Auer deference invites the agency to write vague, ambiguous, and overbroad regulations, and that makes no sense. For my money, he’s exactly right. Chief Justice Roberts, joined by Justice Alito, submitted a concurrence, saying he’d be happy to revisit Auer—just not in this case, without full briefing by the parties. So the bar has been invited to mount a frontal attack, and that case will come soon in this theater. Jon Adler and Sasha Volokh have more here and here. Continue Reading →
The death of Ronald Dworkin on February 14, 2013 provides an occasion to reflect not only on his contributions to legal philosophy, but to the entire enterprise of jurisprudential theory from the point of view of progressive thinkers.
By the time Dworkin collected a decade’s worth of his writings into Taking Rights Seriously in the late 1970s, he was responding to a deep need within the liberal intelligentsia. From the tumult of the 1960s and early 70s, liberals felt the need to substitute, once and for all, high principle for politics, yet at the same time not abandon the notion that all “truth”—and constitutional norms—must be time-bound, and permitted to grow as circumstances and progressive insight dictate. Continue Reading →
Over at Open Borders, Ilya Somin argues that the original meaning of the Constitution restricts Congress’s power to limit immigration. I am broadly sympathetic with Ilya’s argument, but I believe that the Constitution’s original meaning does not support libertarian type conclusions as much Ilya seems to suggest. It is my experience that the Constitution’s original meaning usually cuts in a number of directions and balances competing considerations. Let me address three issues. Continue Reading →
Never having read a textbook of economics in my life, I am at the mercy of newspapers for my knowledge of the dismal science. And by means of the intellectual equivalent of the Chinese water torture, I have come to the conclusion over many years that fiat money brings with it enormous psychological problems, not to say moral corruption. My conclusions are unoriginal, of course; I could have reached them in a few hours if only I had read a few texts. No doubt re-inventing the wheel is wasteful of time and effort, but it brings with it a certain pleasure not to be had from merely reading what others have invented before. Continue Reading →
You know it doesn’t make much sense There ought to be a law against Anyone who takes offense At a day in your celebration.
Awright: the lyrics get smarmy as Stevie Wonder’s song continues. But it’s a sensational arrangement that brings back fond memories of many a happy disco night. (More in that vein? Here, from German TV at the time. Mature immature audiences only.) So far as quoted, moreover, the lyrics fit the occasion: if ever we are to celebrate March 23 (Obamacare Day), they’ll have to make us. Call it the Individual Celebration Mandate.
On the occasion of this birthday (Obamacare’s third), The Wall Street Journal reports that health insurers warn of very major premium increases come 2014, when the law’s coverage mandates kick in. The Washington Post has a fine story on small employers in my home town (Alexandria, VA) who have no earthly idea as to what the law will mean for them, except that it might wipe out their entire profits. In other news, the U.S. Senate has voted—with the support of the likes of Senator Elizabeth Warren (D-MA) to repeal a tax on medical device firms. Said tax was one of multiple make-believe means to ensure that the Affordable Care Act would—in the President oft-repeated words—add “not one dime” to the deficit.
The actual number of dimes is something in the order of 62 trillion. AEI’s Chris Conover, who knows this stuff like nobody else, has the explanation and the chilling numbers. Must read.
Uncork the champagne, and then something harder. I Wanna Be Sedated.
- Remembering the weight of modern ideology: In this week’s featured review, Liberty Fund Senior Fellow Peter Mentzel considers Anne Applebaum’s latest book, Iron Curtain: The Crushing of Eastern Europe 1944-1956. Mentzel notes that a prominent feature in Iron Curtain is the author’s discussion of the evisceration of civil society:
Importantly, the utter destruction of civil society in Eastern Europe was not simply a political strategy on the part of the communist parties to eliminate any possible rivals, though it was that too. More importantly for Applebaum, totalitarian ideology dictated that the numerous groups and clubs that made up civil society not only should not exist, but that they literally could not exist. By definition, no aspect of human activity could thrive outside of the embrace of the Party. Not only youth groups, church organizations, philanthropic foundations, and charities were deemed suspicious and subject to absorption by the Communist Party, but even such prosaic groups as chess clubs and bird-watching societies were brought within the communist fold.
- David Henderson @ Econ Log on the economics of oil at the ten year anniversary of the Iraq War.
- We recently featured a review of Kenneth Minogue’s latest book, The Servile Mind. Minogue has contributed greatly to our learning about the degradations of progressive thought and its nurturing of activist government. A much earlier work of his, The Liberal Mind (featured at our Online Library of Liberty), which performs these tasks admirably, turns 50 this year. We’ll be featuring it soon on this site and look forward to bringing Minogue’s discerning eye for philosophic and political corruption into conversation.
- Provocative thoughts from Hadley Arkes on the case of Clapper v. Amnesty International.
- Dale Carpenter notes George Will’s favorable reception to the federalism arguments of an amicus brief contesting the assertion of federal power in the Defense of Marriage Act. Will observes:
The question now is whether DOMA is “necessary and proper” for the exercise of a constitutionally enumerated congressional power. There is no such power pertaining to marriage. This subject is a state responsibility, a tradition established and validated by what can be called constitutional silence: The 10th Amendment says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The amicus brief takes no position on same-sex marriage as social policy. Rather, it addresses a question that should obviate the need to address whether DOMA violates the constitutional guarantee of equal protection of the laws. The threshold question is: Does the federal government have the power that DOMA’s preamble proclaims, the power “to define and protect the institution of marriage”?
DOMA’s obvious purpose is, as the scholars’ brief says, “to reject state governments’ policy judgments.” Its purpose is to endorse, and to some extent enforce, the traditional understanding of marriage. The scholars’ brief says:
But what was the original purpose of DOMA? Is Will right in his understanding of the type of power being asserted with regard to marriage by the feds? Is the compound nature of state/federal authority in marriage policy necessarily shoved aside by DOMA in the manner asserted by the federalism brief’s authors?
- Those questions Hadley Arkes addresses in this new essay “Waiting for the Court: The Coming Arguments on Marriage.”
- Ed Whelan also attempts to address Will’s argument in a 2 part series @ Bench Memos. Whelan on this point argues
Will recites the amicus brief’s claim that DOMA amounts to the federal exercise of a “general police power.” But the federal government’s authority to define the term marriage in provisions of federal law does not involve any assertion of a “general police power.” DOMA’s definition of marriage simply plugs into other congressional enactments. If those other enactments are within Congress’s power, then it is plainly within Congress’s power to define the terms it uses in those enactments. (And if any of those other enactments are outside Congress’s power, it is those enactments, not DOMA, that fall.)
Will takes seriously a hypothetical offered by law professor Ernest Young (the “principal author of the federalism brief”) that aims to show how Congress could abuse its power to define marriage in a way that “would wreak [chaos] in the administration of state programs” and put undue “pressure … on states not to experiment with divorce law.”. . . Further, there is zero evidence that DOMA has the effect of Young’s hypothetical statute. The fact that nine states (as well as the District of Columbia) have adopted same-sex marriage laws since DOMA’s enactment, and that several others are considering doing so, disproves the brief’s absurdly hyperbolic claim that DOMA “interferes with the States’ exercise of their reserved power to define marriage for their own purposes” to such an extent that it “discourages States from experimenting in this area at all.”
Over at Slate, Eric Posner has a piece attacking the D.C. Circuit’s Recess Appointment decision in Noel Canning. Posner writes:
But here’s the point. It defies belief that the founders intended to constrain recess appointments by using the word “the” rather than “a”, or by using the word “happen” rather than “exist.” If the founders had feared that the president would abuse the recess appointments power in order to create a tyranny, they would have made their intentions to constrain the president a bit more explicit.
In fact, we know next to nothing about what the founders intended because of the paucity of contemporary documents revealing their intentions. We can surmise that they wanted the president and Senate to share the appointments power but also that they recognized that the president might need to make appointments to keep the government running when the Senate was out of session. Both the court’s and the Obama administration’s readings of the clause are consistent with this general purpose, so it is idle speculation to draw on the original understanding to resolve the dispute. Continue Reading →