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 →
Liberty Law Blog
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 →
Policy makers and economists of various stripes have had a field day since the onset of the last financial crisis blaming the downturn on market failures and proclaiming new regulatory fixes. Never mind that most of the mainstream either did not anticipate the collapse or had even preached perpetual boom, they were brimming with solutions. That fact has set a few members of the economics profession on edge and in one case, has inspired an important new contribution to thinking about markets. What is the right way of conceiving the relation of public policy and law to economics? Continue Reading →
Commentators have missed the most significant element of Sam Tanenhaus’s controversial essay “Original Sin: Why the GOP is and will continue to be the party of white people.” Unfortunately both Tanenhaus and his critics have missed the major point about John C. Calhoun—Tanenhaus by overstating his influence on the right and him and his critics by missing Calhoun’s influence on our political understanding generally. Continue Reading →
Earlier this month, the Federalist Society held its always-excellent Annual Student Conference in Austin, Texas. Among the highlights: a panel on federal grants and transfers, featuring Lynn Baker (University of Texas Law School), Sam Bagenstos (Michigan Law School), and yours truly. Graciously moderated by Judge Edith Jones (Fifth Circuit). The tape is here.
Professor Baker’s remarks provide a concise summary of the state of the law on federal spending after NFIB v. Sebelius. Sam Bagenstos elaborates on the theme. Plus, he has a truly terrific, eminently fair-minded paper on the Medicaid piece of NFIB here. (He presents an “uneasy defense” of the decision. It’s the only remotely plausible defense I’ve seen.) The principal effect of the opinion, he argues, has been to strengthen the bargaining position of states vis-à-vis the feds. That strikes me as precisely right.
My further, oft-rehearsed view: contrary to NFIB and conservative lamestream opinion, I don’t think there’s a coherent theory of federal spending “coercion.” And even if that theory existed it wouldn’t do any good. The problems of federal spending programs have nothing to do with coercion; they have to do with freakish incentives. Nothing in NFIB or “coercion” theory does anything to address those problems.
Correction: an informed and courteous reader has pointed out that my earlier post on pharmaceuticals and federal preemption contains a significant error. The Supreme Court vote in Wyeth v. Levine was 6-3, not 5-4. Thus, Justice Thomas’s concurrence wasn’t exactly decisive. Reminder to self: never do things from unaided memory. Apologies, and thanks.
My previous post on Arguments from the Future touches on an extremely important issue — the Rhetoric of Judicial Opinions. Originalism has an extremely powerful rhetorical appeal. Most people regard the original meaning of the Constitution as the real Constitution. Therefore, when someone seeks to depart from that, they are at a disadvantage.
There are a variety of moves that nonoriginalists have used to deflect this attack. One is to bring up something of a red herring. They interpret originalism as reflecting merely the expected applications of the framers — the specific applications of the constitutional clauses that the framers expected to occur — and then argue that those expected applications are not the Constitution.
But obviously this deflection is insufficient. It does nothing to address the more plausible types of originalism, such as original public meaning, that go beyond the expected applications. Continue Reading →
Stuart Taylor, Jr. has an interesting essay in the March American Spectator analyzing the rules of both federal and state courts that permit frivolous lawsuits to move forward by delegating to private individuals the governmental power to issue summons. As Taylor notes, “Anyone can, with little more than a court filing fee, require anyone else to respond to any charges—no matter how far-fetched—without even having a judge read them, let alone find them to be legitimate and in good faith.” Continue Reading →