Liberty Law Blog

Feb 26, 2013

‘The True Sage of Woodstock’

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 →

Feb 25, 2013

Commerce and the Court (I)

by Michael S. Greve / 0 Comments

Filed Under: Barry Friedman, Commerce Clause, Erwin Chereminsky, New Deal, Paul Clement, Richard Epstein, Supreme Court

I’ve griped before (I think) about the Supreme Court’s less-than-stellar record on protecting the commerce of the United States. The Upside-Down Constitution contains an extended riff on the theme. As always, I am entirely right. A pair of Supreme Court case—a lamentable cert denial last week, and a blockbuster argument this week—confirms the analysis and illustrates the justices’ passive-aggressive posture.

Continue Reading →

Feb 21, 2013

Federalism for Preschoolers

by Michael S. Greve / 0 Comments

Filed Under: Florida, Obamacare, PPACA, Rick Scott

As predicted here, another Republican governor has folded his states’ rights tent and consented to Obamacare’s Medicaid expansion in his state. That would be the intrepid Rick Scott of Florida—as it happens, the lead state in the litigation over the ACA. Today’s snarling Wall Street Journal editorial appears here; nro coverage here.

One more time: the GOP governors’ Medicaid position, as stated in the Obamacare litigation and embraced by the Supreme Court, has done zero, zilch to fix Medicaid’s insane fiscal incentives. The principal result was a marginal improvement in the states’ bargaining position vis-à-vis the feds. (Law professor Sam Bagenstos has a very fine piece on that subject here. The article is particularly impressive because the author in good faith attempts to extract, from a mess of a Supreme Court opinion, a defensible Spending Clause principle that’s probably at odds with his political orientation. Me, I’ve never gotten beyond playing the opinion for laughs.) Governor Scott, supposedly a shrewd businessman, has sought to exploit the bargaining advantage. He may have gained some added administrative “flexibility” in exchange for his surrender. Moreover, he says, the consent is good for only three years and so long as the feds pay 100 percent of the cost. So the Sunshine State will put a few hundred thousand people on the Medicaid rolls and then, when the feds tighten the screws or stem the flow of dollars they don’t have, kick the beneficiaries off again. Sounds like a plan.

Meanwhile, in a different ring of the federalism-for-four-year-olds circus, President Obama has proposed federal co-funding for pre-school programs, which are said to work in Georgia and Oklahoma. David Brooks of the New York Times (motto: “If we must have a conservative let it be Brooks”) has celebrated the proposal as “very good news”:

Washington’s main role will be to measure outcomes, not determine the way states design their operations. Washington will insist that states establish good assessment tools. They will insist that pre-K efforts align with the K-12 system. But beyond that, states will have a lot of latitude.

Should early education centers be integrated with K-12 school buildings or not? Should the early childhood teachers be unionized or certified? Obama officials say they want to leave those sorts of questions up to state experimentation. “I’m just about building quality,” Education Secretary Arne Duncan told me. The goal is to make the federal oversight as simple as possible.

Reihan Salam has a very good critique (including cites to the utterly depressing literature on the effectiveness of preschool programs) here. To pursue the point:

Would it be churlish to observe that every single “cooperative” federal program has been accompanied at its creation by promises of “latitude” and “experimentation”?

Is it wise to “align” prospective pre-K programs with a K-12 system in which the effects of early childhood education, to the modest extent that they exist, have consistently been shown to disappear within three years?

Suppose that five years in, the “good assessment tools” and “simple” federal oversight show that the programs have failed everywhere except in Nowhere, Nebraska. Or that they’ve been a rousing success all over, or (like Headstart, clocking in at $8 billion per year) a dismal failure everywhere. Or that the results have been mixed but could be improved. Is it not safe to predict that Washington’s response to each of these scenarios will be more money and oversight? Can David Brooks (a respected authority on the workings of Washington) envision anyscenario that might prompt a different response? In his rich experience, can he recall such an event?

If the predicted political response is invariant, why should we bother to “assess” and “measure outcomes”—to ensure employment for education bureaucrats and consultants from Yale? If so, why not economize on transaction costs and pay these people to stay home?

If the program proves less-than-perfect in some respect, should the Secretary of Education “build quality” by keeping the money flowing under extra-legal waivers from statutory requirements, as is now the practice for federal K-12 programs? Should we steer clear of rule-of-law problems by condensing the 2013 Pre-K Act to a single word and number (“Here: $10,000,000,000”)?

Under what circumstances, if any, are politicians’ good intentions bad news?

Feb 21, 2013

Richard Epstein on “Constitutionalism, Originalism, and Libertarianism”

by Mike Rappaport / 0 Comments

Filed Under: Classical Liberalism, Originalism, Richard Epstein

Last month, the Center for the Study of Constitutionalism Originalism at the University of San Diego hosted a talk by leading Libertarian scholar Richard Epstein based on his new book The Classical Liberal Constitution. Commentary was provided by Larry Alexander, David McGowan and myself. You can watch the talk here. (You have to scroll down a little.)

Richard’s brand of originalism works as follows. He believes that the constitutional language should be given its original meaning, but that the language is often incomplete or vague. Therefore, he argues that the language must be interpreted in accordance with some background principles, and those are classical liberal principles, because the leading political theory at the time of the Constitution was classical liberalism. As a result, Richard is able to argue that the Constitution’s originalism meaning leads largely to classical liberalism. Continue Reading →

Feb 21, 2013

Alexander Hamilton: Switzerland or the Caribbean, Anyone?

by Hans Eicholz / 0 Comments

Filed Under: Albert Gallatin, Alexander Hamilton, Articles of Confederation, Federalism, Maryland Farmer, Swiss Cantons

McCraw uses the immigrant experience to explain in part the development of a national perspective (see here and here for the 1st 2 installments in this series). Being originally outsiders, immigrants could see the forest for the trees while many, if not most of their native born friends were freighted with the prejudices of particular states. (363) It was this, combined with Hamilton’s and Gallatin’s natural brilliance, McCraw contends “that enabled them to envision and then to execute the responsible deployment of rootless capital in the forging of a new economy.” (326)

Looked at from this perspective, McCraw understandably connects only partially to his subjects pre-American experiences, and then more for Hamilton than Gallatin. Much of the former’s sense of urgency and impatience stemmed, as he notes, from Hamilton’s youth on the island of Nevis: “He knew from his boyhood that things could fall apart on short notice.” (49)

The Caribbean was not the most stable region politically. Hamilton’s own French Huguenot background through his mother, and his father’s origins in Scotland, testify to the imperial seesaw that characterized the geopolitical reality of the islands. Yet for Gallatin, he misses a similar opportunity. Continue Reading →

Feb 21, 2013

Compromising Our Way to Ordered Liberty

by Richard Reinsch / 1 Comment

Filed Under: Declaration of Independence, Image of America, We Hold These Truths

So we need a theory to justify the practices of our constitutional order. We can start with the Declaration of Independence and move forward.

We can accept the Declaration of Independence as providing “a few basic political principles that undergird our constitutional order without having to insist on an orthodoxy of first principles.”[i] As James Stoner argues in his thoughtful essay, “Is There a Political Philosophy in the Declaration of Independence?”

To be true to the spirit of the Declaration means, from my perspective, not that we are bound to the most radical reading of its most abstract truth, but that we ought to recover the spirited aspiration to self-government that gave the American Revolution its force and its justification. Rather than look to an unelected judiciary for the formulation of our ideals—or to the liberal philosophers who want to rule through them—we should neither shy away from free debate on important social questions nor demand that every consensus work out its derivation from first things in order to count.[ii]

The theory required is one that mediates the compromises that allowed a regime of ordered liberty to emerge that was superior to the competing notions that were actually compromised. Continue Reading →

Feb 20, 2013

LOST at Sea

by Doug Bandow / 0 Comments

Filed Under: International Seabed Authority, Law of the Sea Treaty, New International Economic Order, United Nations

Secretary of State John Kerry has a full political agenda. One likely action item will be the Law of the Sea Treaty (LOST), which long has bedeviled Washington.

President Ronald Reagan refused to sign the omnibus agreement. However, the UN convention refused to die. It was revived by George H.W. Bush and Bill Clinton, backed by George W. Bush, and endorsed by Barack Obama.

LOST is the sort of esoterica which fills Washington. The agreement took three UN conferences over decades to negotiate. It mixed unrelated issues: navigation, seabed mining, environmental protection, fishing. It is long, complex, and counterproductive. Its genesis was a different world: social engineering was the rage in Washington, communism seemed to be on the march, and Third World dictatorships claimed the moral high ground. Indeed, LOST was seen as an important tool to advance what was then called the New International Economic Order (NIEO). Continue Reading →

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