Liberty Law Blog

Feb 28, 2013

Indiana’s Imminent Application for a Limited Convention

Over at Balkinization, Gerard Magliocca writes that Indiana “is poised to pass a resolution petitioning for a national constitutional convention.” The resolution calls for a limited convention — one that is “strictly confined to consideration of amendments concerning the limitation of the commerce and taxing powers of Congress.” Moreover, the resolution states that at the convention each state should have one vote.

Like all applications for a convention — whether limited or not — the odds are against this one. But you never know. There is always a first time. It is too bad that this aspect of our Constitution works so poorly. For elaboration on this argument, see here. Continue Reading →

Feb 28, 2013

Post-Cold War Marxism and Us

by David Conway / 2 Comments

Filed Under: Age of Fracture, Cold War, Daniel Rodgers, Free Market, Marxism, Michael Foucault, One Dimensional man

Of the riotous 1960s, it has been said, if you can remember them, you weren’t there. The same cannot be said of the several ensuing, more sober decades, especially if you were at all well disposed to the free market and limited government. For it was during the twentieth century’s final quarter that these ideals staged a dramatic comeback, after a long period of eclipse in America during which there had been ever-increasing governmental regulation of the economy and dispensation of welfare.

That resurgence of free-market ideas was capped off towards the century’s end by the spectacular triumph of American capitalism over Soviet communism. Increasing numbers swiftly began to learn to stand on their own feet economically-speaking and to accept that, in the words of one of capitalism’s most exuberant champions, there is no such thing as a free lunch. Rounding off the apparent victory of free-market ideals over collectivism was the major retrenchment of public welfare in America achieved through the 1996 Welfare Reform Act. Continue Reading →

Feb 27, 2013

Politics at the Academy Awards

by Mike Rappaport / 1 Comment

Filed Under: Academy Awards

Now that a couple of days have passed, I thought I would write briefly about the decision to have Michelle Obama present the Academy Award for Best Picture, and why I thought this was such a distasteful mistake.

I wanted to let some time pass to reflect on the matter. Michelle Obama is not exactly my favorite public person, and so I wanted to try to prevent my dislike of her from biasing my view of the decision to have her present the award.

It is easy simply to conclude that this is an example of liberal Hollywood bringing its politics into an event where they should not be. But is that really true? After all, Ms. Obama is the First Lady for the whole country. But I think that one must nonetheless conclude that it was quite partisan.

The first question is what justification was there for her to be given this role? Had any other First Lady ever been given the job before? Had any politician? My guess is that the answer is no.

The next question, then, is why give her the role? Certainly Jack Nicholson would have been an excellent presenter. He needed no assistance.

The obvious answer is that those in control of the awards liked Michelle Obama (and the Obama White House) and wanted to give her exposure and status.

While there is no law against it and there shouldn’t be, this will obviously be alienating to those who dislike the First Lady. It is one thing to hear “jokes” at your expense, but it is quite another to have the main event of the evening ruined.

So was there a reason to dislike the Obama presentation aside from political partisanship? The answer is yes. The awards should not be turned into a political event — to a kind of Obama campaign rally, if you will. The Academy Awards should be for everyone.

Of course, liberal politics at the Academy Awards is hardly new. But it was never so disruptive before. I shall think long and hard before watching those Awards again.

Feb 27, 2013

Triple the Sequester

by Michael S. Greve / 4 Comments

Filed Under: median household income, sequester

President Obama isn’t the only one with a road show warning of the coming sequester’s dire, a-two-percent-cut-means-Hoovervilles consequences. Governors O’Malley (D-Maryland) and McDonnell (R-Virginia) have hit the airwaves and op-ed pages with laments over the impending collapse of their economies. I suppose governors are supposed to be beggars; and to the extent that federal funds are our federalism’s lifeblood, Messrs. O’Malley and McDonnell qualify as “federalists.” That said, their conduct is disgusting. Continue Reading →

Feb 26, 2013

Commerce and the Court (II)

by Michael S. Greve / 0 Comments

Filed Under: American Express, Commerce Clause, FAA

The Supreme Court, I lamented yesterday, routinely falls down on its job of protecting interstate commerce against state depredation unless Congress has (arguably, sort of) made the first move. Mercifully, though, the Court is very generous both in finding that Congress has made such a move and in spinning out what that move entails. Exhibit A is the Federal Arbitration Act, on deck in tomorrow’s argument in American Express C. v. Italian Colors Restaurant. Continue Reading →

Feb 26, 2013

The Bank of the United States and Mr. Hamilton’s Surprise!

by Hans Eicholz / 1 Comment

Filed Under: Bank of the United States, Delegation of Powers, Implied Powers, Mercantilism, Sovereignty

As noted in the first post, Albert Gallatin initially aspired to being a private, rather than a political, entrepreneur. To that end the firm of Albert Gallatin and Co. tried to attract renters or buyers to land in Pennsylvania. McCraw describes how the firm “organized a company store, a boatyard on the Monongahela, and later a glassworks.” (192) Like many commercial men of his day, not the least of whom was Robert Morris, Gallatin’s speculations in land development eventually failed, but the experience of trying to make a go of it in the private economy was important.

Unlike Hamilton, Gallatin had a more nuanced feel for the variations of taste and opinion that a businessman must have to adapt to opportunities as they are, rather than as he might wish them to be. Failure has a way of accentuating the point. Again, McCraw’s text does not specifically highlight this difference, but it comes through well enough in the evidence.

As noted in the two previous posts, a powerful illustration is the attitude of both men to the subject of finance and its relationship to the economy. Most of those who dabbled in political economy at the time presented a hodgepodge of Smithian free-trade arguments and mercantilist expediencies, and neither Hamilton (as we have seen) nor Gallatin were immune to the mixing of apples and oranges. Continue Reading →

Feb 26, 2013

‘The True Sage of Woodstock’

by Richard Reinsch / 0 Comments

Filed Under: Constitutional Convention of 1787, Declaration of Independence, John Courtney Murray, We Hold These Truths, Willmoore Kendall

How can reasonable men and women reclaim equality over and above egalitarianism? The first principled step is to get right with our compromised Declaration of Independence. This Declaration both affirms equality in self-government and reconciles our deeply contrasting Lockeanism and Calvinist Christianity as the basis of our liberty. This is an American Thomism of sorts, a reconciliation of seemingly opposed principles on the head of deliberative republicanism. It’s probably our best hope.

We should, however, look even deeper into our compromising. In doing so, we can recover John Courtney Murray’s notion that “Civilization is formed by men locked together in argument.” I offer Murray’s account to underscore his American Proposition. Its components are human dignity, constitutionalism, government limited by law as given to America by the common law tradition, self-government as faith in citizens to exercise the duties of moral judgment in basic political decisions, and the constitutional consensus that forms the Proposition and serves as the basis for rational argument and the compromises that it forges. This is the deep background that enables “the deliberate sense of the community” effectuated by our republican institutions to be reasonable. Continue Reading →

Feb 25, 2013

No to Musical Marxists, Yes to Jimmy Carter

by Ken Masugi / 1 Comment

Filed Under: Argo, Coriolanus, Lincoln, The Hurt Locker, Zero Dark Thirty

Even before FLOTUS’s announcing Argo as the best picture, it was not a good night at the Oscars, and not just for conservatives. Neither Lincoln nor Zero Dark Thirty won all the accolades they deserved. But for them to be bested by a film which ends with Jimmy Carter as the hero is a humiliation for the Academy and the country, yet again.

I once attended an annual meeting of the American Political Science Association in Atlanta in the 1980s, at which Jimmy Carter was wildly applauded. And there are more conservatives in Hollywood than among political scientists. At least Hollywood split their tickets between Carter and Lincoln, while denying top prize to the Marxist musical. (I have already reviewed Lincoln for this site.)

Zero Dark Thirty and certainly its director, Kathryn Bigelow, deserved better, but politics got in the way. Their competition was not only singing communists but George Bush and Dick Cheney’s Iraq policies and bipartisan opposition to the alleged praise of torture in the film. Continue Reading →

Feb 25, 2013

Combining Executive and Judicial Power

by Mike Rappaport / 0 Comments

Filed Under: Administrative Law, Administrative Procedure Act, Executive Power, Judicial Power

Michael Greve’s earlier post on Administrative Law has inspired me to write a couple of posts about the subject.

One of the key issues in Administrative Law is that administrative agencies do not conform to the separation of powers. In a meaningful sense, agencies possess legislative, executive, and judicial power, which makes them a separation of powers monstrosity.

In this post, I will discuss an aspect of this problem: the combining of prosecutorial and adjudicative functions in the agency.

Prosecuting and adjudicating seems like an obvious violation not merely of the separation of powers but also of the rule of law. It has long been recognized that a man should not be a judge in his own case, and allowing administrative agencies to adjudicate their own prosecutions does exactly that. As a result, agencies may not faithfully follow the existing law, but instead bias the adjudication towards their own interests.

The Administrative Procedure Act, passed in 1946 to impose some constraints on agencies, established some checks on an agency’s power to adjudicate its own cases. In cases involving formal adjudication – those adjudications that are subject to the strongest procedural checks – the agency adjudicator (typically an administrative law judge or ALJ) cannot be supervised by an agency official who prosecutes. This is a significant check, and is all for the good. Continue Reading →

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