In David Schorr’s well-researched and well-written book, The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier, he argues that the primary driver in the formation of western US water rights, and indeed, property rights to critical natural resources, such as mineral land, was distributive justice, rather than efficiency. Continue Reading →
Liberty Law Blog
The Friedman Foundation has published an intriguing report on The School Staffing Surge: Decades of Employment Growth In America’s Public Schools. The numbers are astounding:
Between fiscal year (FY) 1950 and FY 2009, the number of K-12 public school students in the United States increased by 96 percent while the number of full-time equivalent (FTE) school employees grew 386 percent. Public schools grew staffing at a rate four times faster than the increase in students over that time period. Of those personnel, teachers’ numbers increased 252 percent while administrators and other staff experienced growth of 702 percent, more than seven times the increase in students.
Increases between 1992 and 2009: students, 17%; teachers, 32%; staff, 46%. In 2009, the nation’s public school systems employed 3.2 million teachers and 3.1 million non-teaching staff. All this, for what appears to be essentially no net gain in educational achievement. Continue Reading →
In a recent post, I discussed the fact that administrative agencies combine prosecutorial (executive) and judicial power, with the result that agencies are judges in their own cases. In this post, I want to propose a solution to the problem.
One way to avoid the combination of executive and judicial power is to have two different entities decide these matters. Interestingly, this actually exists in an agency — the National Labor Relations Board. The Board adjudicates cases under the National Labor Relations Act. The General Counsel of the agency, who is independent of the Board, makes the prosecutorial decisions. Thus, executive and judicial power are separated.
But there is another way of separating executive and judicial powers that would require a more significant change in agencies. One could employ Article III administrative courts instead of Administrative Law Judges (ALJs) to adjudicate. Article III administrative judges would have life tenure like other Article III judges. They would also not engage in any prosecutorial functions nor would they be supervised by officers who did. Continue Reading →
We come now to the final and perhaps most important part of McCraw’s Founders and Finance: the practical effects of Hamilton’s political economy. Here is where Hamilton’s ultimate legacy is often said to be. The precedent of the idea of a national bank or ultimate regulatory authority over money became, at this point in time, inextricably part of American politics. This is not to say that the idea of national banking was inextricable institutionally. Andrew Jackson ended the second Bank of the United States, and the idea of the Independent Treasury held sway until the National Bank Acts of the Civil War. But Hamilton had established the first political precedent of national involvement in money and finance. That history and its supposed success would be continually asserted to pave the way, at least in part, for the Federal Reserve System in the early twentieth century. Continue Reading →
This is an absolutely marvelous work of fan fiction written in the Harry Potter universe. But what distinguishes it from other first rate fan fiction is the underlying approach of the author Eliezer Yudkowsky of the Less Wrong blog. Yudkowsky is a rationalist. He hopes to make people more rational by getting them to avoid mistakes caused by cognitive biases and to rely on more reliable methods of reaching correct results.
Yudkowsky is well versed in this literature of cognitive biases and rational methods. While I find this literature interesting, Yudkowsky makes it enormous fun by working it into his retelling of Harry Potter’s first year at Hogwarts. Yudkowsky has changed the story so that Petunia married a brilliant biochemist rather than Vernon Dursley, and Harry grew up reading science and science fiction to become an incredible prodigy. Harry decides that he will use the methods of science to study magic.
I don’t read all that much fiction, but I made it through 87 chapters and more than 1000 pages of the novel – so that is saying something. Unfortunately, the novel is not yet finished, but is still being written, and so I am in the unexpected situation of waiting impatiently with the many other fans for the next batch of chapters. Its like a 19th century serialization of a novel. Continue Reading →
Over at originalismblog, Mike Ramsey has a generous, fair-minded, but critical comment on my most recent musings about the “dormant” Commerce Clause and modern-day originalists’ resistance to the notion. He’s entirely right that my blog post doesn’t do enough to defend the dormant Commerce Clause, and he raises the right sort of textual and structural objections.
The Upside-Down Constitution contains an extended defense of the doctrine on what I think are originalist grounds. Today, though, something completely different—a consequentialist point that, I think, conservatives and libertarians haven’t considered sufficiently. Continue Reading →
Last year’s Supreme Court decision on the constitutionality of the Affordable Care Act was one of the most controversial cases in American history. In NFIB v. Sebelius, a narrow 5-4 ruling, the Court upheld the ACA’s individual health insurance mandate on the grounds that it was a constitutionally permissible tax, but rejected the federal government’s central arguments in defense of the mandate: the claim that it was authorized by Congress’ powers under the Commerce Clause and the Necessary and Proper Clause. The mandate, which requires most Americans to purchase government-approved health insurance by 2014, was the central focus of challenges to the constitutionality of “Obamacare” mounted by 28 state governments and numerous private parties.
Harvard Law Professor Einer Elhauge’s book Obamacare on Trial is a useful and sometimes insightful statement of several arguments in defense of the mandate. It is impressive that Elhauge managed to get the book in print just a couple months after the Court’s decision came down on June 28, 2012. But, perhaps because of the haste with which it was published, the book fails to adequately address some key issues, and likely will not be persuasive to those not already inclined to agree with Elhauge’s conclusions. Continue Reading →
John Maddox (1925 – 2009) was for many years the editor of Nature, one of the two most important general science journals in the world. In 1972 he published a broadside against the radical pessimism then very prevalent with the title The Doomsday Syndrome: An Assault on Pessimism. In this book, which makes interesting reading today, Maddox attacked the propensity of scientists such as Paul Ehrlich and Barry Commoner to project current trends indefinitely into the future and to conclude therefrom that catastrophe must sooner or later (usually sooner) result.
Ehrlich – who is still predicting catastrophe with as much confidence as if all that he had predicted for the recent past had actually come to pass – famously, or infamously, asserted in his neo-Malthusian book, The Population Bomb, published in 1968, that the battle to feed mankind was over and that hundreds of millions of people would inevitably starve to death in the 1970s, irrespective of what anyone did to try to avoid it. Continue Reading →
- This month’s Liberty Forum features a lead essay by the sage of Malibu, Gordon Lloyd, on the constitutional liberty of the Antifederalists. Excellent responses from Adam Tate and Ken Masugi follow and greatly add to the discussion. That’s right, capital ‘A’ because as Lloyd argues they are coherent and relevant. We need their wisdom now more than ever. “The constitutional impediments to the completion of the Progressive national democracy project actually rest on promoting the Antifederalist rather than the Federalist features of the Constitution and Bill of Rights.” Lloyd disentangles our understanding of the Antifederalists from the scholarship on the Antifederalists that tends to make it impossible to understand them in their original voice, relegates them to an insignificant past, or disputes the very credibility of their arguments. Lloyd argues:
When we hear the claim that our representatives operate independently of the people, and that Congress fails to represent the broad cross-section of interests in America, we are hearing an echo of the Antifederalist critique of the potentiality of the representation system. When we hear that the federal government has spawned a vast and unresponsive administrative bureaucracy that interferes too much with the life of American citizens, we are reminded of the warnings of the Antifederalists concerning consolidated government. They warn that, in effect, executive orders, executive privileges, and executive agreements will create the “Imperial Presidency.” And they warn that an activist and independent judiciary will undermine the deliberate sense of the majority.
- William Atto reminds us of a different aspect of Rough Rider Teddy Roosevelt’s legacy with his review of Jean Yarbrough’s excellent new biography, Theodore Roosevelt and the American Political Tradition.
To many Americans, at least, his patriotic nationalism, his efforts to establish a system of national parks, and his assertion of American exceptionalism qualified him for inclusion on Mount Rushmore. . . . However, of the many studies to appear in the last fifteen years, none has made a thorough assessment of his political thought and action as it related to those he claimed to admire most: the founding generation, especially the authors of The Federalist and Abraham Lincoln – who Roosevelt cited early and often in his political career.
Fortunately, Jean Yarbrough’s fine study of Roosevelt’s political thought and career has remedied that. Though by her own admission this is not an “intellectual biography,” she has nonetheless skillfully woven together biographical sketches from Roosevelt’s life that . . . suggest the extent to which he in fact strayed from their understanding of limited, republican government. In the end, Yarbrough concludes, Roosevelt might lay claim to his spot on Mount Rushmore by virtue of his “fighting spirit and love of his country” . . . but not for his faithfulness to the principles of the founding
- Anthony de Jasay at Econ Lib writes about a tri-angled Europe, muddling through, with no discernible purpose or unifying principle. I’m sure it will work out brilliantly.
- In “The Perils of Neutrality” Bruce Frohnen’s University Bookman essay considers the continued viability of the liberal project.
- Turning 30 today, Ronald Reagan’s ‘Evil Empire‘ speech. Paul Kengor has a short essay at the American Spectator that remembers the speech well. So this has always been my favorite line:
[B]eware the temptation of pride — the temptation of blithely declaring yourselves above it all and label both sides equally at fault, to ignore the facts of history and the aggressive impulses of an evil empire, to simply call the arms race a giant misunderstanding and thereby remove yourself from the struggle between right and wrong and good and evil.
Natan Sharansky, then a prisoner in the Gulag, recalls that after learning about Reagan’s words he was ecstatic because “someone had finally spoken the truth” about the USSR. “Finally, the leader of the free world had spoken the truth — a truth that burned inside the heart of each and every one of us.”
- Legal Theory Blog points us to Adam Winkler’s short essay on the constitutionality of the filibuster.