Liberty Law Blog

Posner on Originalism and Recess Appointments

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At Slate, Eric Posner wrote a post criticizing the originalist interpretation of the Recess Appointments Clause. In the post, Posner discusses my paper presenting originalist evidence, but argues that originalism is a bad way to resolve this issue. The post was put up about 10 days ago, but I didn’t see it then.

Posner’s argument is that, whatever the original meaning of the Recess Appointments Clause, the question at the Supreme Court today should not be decided based on originalism:

Is the right way to resolve a 21st-century controversy to place the minutiae of the 1790s under a magnifying glass and ignore everything that came later? Whether you come down for or against Obama, surely the answer is no.

Obviously, I don’t agree that the original meaning should be ignored. As to subsequent history, I have a new article that argues that it does not justify departing from the original meaning.

Let me examine a couple of Posner’s arguments. He writes:

A conscientious originalist should also take into account that the recess appointment issue was never high on the founders’ agenda, that they may have used broad language to duck an elusive policy question, and that the early presidents and their advisers, who were politically vulnerable, may have cautiously interpreted the recess appointments clause to avoid a fight with Congress.

I don’t agree. I don’t know how Eric knows the issue didn’t matter much to the founders. Nor do I see any reason to think that they used broad language to duck an elusive policy question – in fact, the language is pretty darn clear (especially as to the happen issue). And I don’t know why a public meaning originalist would care if these speculations did turn out to be true – what matters is what they enacted, not their motivations. Finally, given that early interpreters, such as Hamilton and Randolph, linked their views to the language of the Constitution, it would be odd to regard their interpretations as disingenuous or politically motivated (without some evidence to that effect); if we followed that method, we could reject any evidence we didn’t like.

Posner also argues that we should consider modern policy considerations. Yet, it is not clear why the arguments he appears to make for departing from the original meaning actually support that result. For example, he claims that the originalist must ignore the vast expansion of the federal bureaucracy and the party system. But it is not clear why those changes suggest a broader recess appointment power. In a large bureaucracy, there are more people who can serve in an acting position. Posner writes that the party system allows obstruction in the Senate, but the filibuster was ended by a simple majority vote in the Senate without compromising the Constitution.

In the end, Posner’s argument is based on his belief that the modern decisionmakers should rewrite the Constitution if they believe that would be desirable. The old Constitution is inadequate and outdated. But there are good reasons for believing that the Constitution set up a desirable arrangement. The supermajoritarian process for enactment meant that a great deal of thought and deliberation went into it.  And the decision to require senatorial confirmation both made sense originally and continues to do so. Moreover, the original constitutional decisions are accepted by people as the law of the land. It is no accident that nonoriginalists never admit in public that they are departing from the original meaning based on policy arguments (as opposed to precedent). It is not generally accepted that the Supreme Court justices get to decide these things as a matter of policy. Nor, I would argue, is it a good way to decide these matters.

Polarized States: A Quick Update

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A few weeks ago I blogged political polarization among states, and the potential upsides. The topic has traction. Adam Freedman and the Manhattan Institute have a fine take here. And the New York Times has two feature-length pieces here and here. Mirabile dictu, these actually convey information.

The first piece examines the national political strategies (on both sides) to shape state politics: hugely interesting. The pessimistic interpretation is that states are becoming mere staging grounds for national winner-takes-all combat. The optimistic interpretation: it’s good that the combatants have to fight state-by-state. It diffuses and compartmentalizes the conflicts.

The second piece is on the stark differences between Duluth (Minnesota) and Superior (Wisconsin), across the St. Louis river from each other and connected by a bridge. The article illustrates not only the pronounced, policy-driven differences among states that ought to be pretty similar but also federalism’s bundling effects: you get gay rights on one side and a favorable business environment on the other. You can’t have both.

The bundling effect is often mobilized to “demonstrate” that competitive federalism can’t be “efficient.” In blackboard models (of the “Tiebout” variety), this is true: you lose the equilibrium. But that has never struck me as a terribly useful line of inquiry. As one of my mentors (the late Aaron Wildavsky) used to say, “Life comes in bundles.” Children are a joy and a pest—you can’t have one without the other. You may want a car with the safety of a Sherman tank and the fuel efficiency of a Volt: you can’t have it. The trade-offs are everywhere, and no regulator can do anything about them. On federalism as on many other matters, the question is whether we get to choose the bundles or have the federal government decide the optimal mix.

Not even close.

Tradition and Democracy in Burke and Paine

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In a wonderful new book, The Great Debate: Edmund Burke, Thomas Paine and the Birth of the Right and Left, Yuval Levin shows that much of Edmund Burke’s greatest work was aimed at refuting Thomas Paine, just as much of Paine’s greatest work was designed to rebut Burke. Levin also shows persuasively how both of these men’s views find echoes in today’s ideological struggle between the right and left. Paine championed reason as an immanent force of nature that allows man to discover all social truths, including the deistic truths of religion. In Burke’s view, tradition provides ballast to man, who, far from seeing wholly through the prism of reason, is blinded by partiality, circumstance, and limited knowledge.

I strongly encourage readers of this blog to pick up a copy of this important and lucid work. For me, the book raises some questions about Burke’s relative enthusiasm for tradition and relative disdain for democracy. When Burke was alive, these positions were two sides of the same coin. For Burke, tradition was a way to capture what worked over a long period and the judgment of many minds through the centuries. These were indicia of tradition’s beneficence. Democracy, even representative democracy, in its turbulence and focus on the present, threatened to overturn this source of social stability and wisdom.

But Burke’s veneration of tradition over all of methods of social regulation sits less well today. Because the world now changes a lot faster than in Burke’s day, tradition is less likely to be a good guide to present policy. Democracy, like tradition, is also a method of getting the views of many minds. While still imperfect, an extended voting franchise works better in our day than it would have in his. A larger number of people are better educated and have a larger stake in society, both in protecting their property and human capital. Continue Reading →

A ‘Normal’ President

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Few public figures in the world were so utterly dull and lacking in apparent human interest until recently as the President of France, François Hollande, who even made an electoral virtue of his dullness by comparison with the meretricious firework sparkle of his predecessor, Nicolas Sarkozy. He promised to be a ‘normal’ president, though whether a normal person devotes his whole life to politics, as M. Hollande has done, was something I rather doubted from the first. Whenever I read something that he said I could not help but think of Doctor Johnson’s opinion of Thomas Sheridan: ‘Sherry is dull, Sir, naturally dull; but it must have taken him a great deal of pains to become what we now see him.’ Indeed, for the psychologist and sociologist, M. Hollande was outwardly so dull that he posed a puzzle: how could so dull a man have become so prominent? He was one of those strange careerists who rise without trace. Continue Reading →

Congress Slouches Towards Illegitimacy

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America is under one-party rule. That is illegitimate because it is irresponsible. Restoring responsible government will take a revolt from within the ruling coalition, or a new party formed explicitly to represent the people against the ruling class.

The New York Times’ “News Alert” heralded the House of Representatives’ passage (359-67) of a single bill that appropriates money for the US government’s discretionary accounts through fiscal 2014: “The legislation, 1,582 pages in length and unveiled only two nights ago, embodies precisely what many House Republicans have railed against since the Tea Party movement began, a massive bill dropped in the cover of darkness and voted on before lawmakers could possibly have read it.” The same day, a Wall Street Journal headline hailed the event as “Budget Deal Gives Parties Break From Fiscal Combat.” Like the Times, the Journal published a summary list of “who gets what” from the $1.1 trillion deal.

iStock_000001750148SmallThe Party bosses and the lobbyists closest to them who worked out the deal over the previous weekend answered only to themselves. Continue Reading →

Happy Birthday Lysander Spooner!

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Spooner263Everyone interested in individual freedom, should take a moment on Sunday, January 19th, to remember the birth of entrepreneur, lawyer, abolitionist, and scholar Lysander Spooner, born in 1808 in Athol, MA. In his prodigious corpus of work, Spooner emerges as an uncompromising champion of individual freedom, which he grounds in a robust understanding of Natural Law, what he came to call the “Science of Justice.” His strong belief in the liberty of the individual manifested itself in a number of ways.

Spooner operated a highly successful private postal service (soon shut down by the Federal Government). He developed a startlingly original and sophisticated argument that the US Constitution does not condone slavery (which greatly impressed, among others, Frederick Douglass). Next, he posed a powerful defense of personal freedom in Vices are Not Crimes: A Vindication of Moral Liberty (1875). Perhaps his most famous work was a series of essays entitled No Treason (1867, 1870) in which he makes a bold argument against the legitimacy of the US Constitution and, by implication, of State power in general.

For more information on the life and work of Lysander Spooner, please visit the excellent website www.lysanderspooner.org and the exhaustive collection of Spooner’s work at the Online Library of Liberty http://oll.libertyfund.org/person/4664.

James Buchanan and Supermajority Rules

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Over at the Independent Review, they have a symposium on James Buchanan, who passed away last year.  Buchanan was a giant.  My own work on supermajority rules (with John McGinnis) was greatly influenced by that of Buchanan (and Tullock).  In this article, John and I built upon Buchanan and Tullock’s The Calculus of Consent to argue that supermajority rules should be used for various types of decisions, including most importantly the decision to enact and amend constitutional provisions.  John and I used a different model than Buchanan and Tullock but reach similar conclusions.

In our work, we argue that supermajority rules should be used in situations where special interests are arrayed disproportionately in favor of passing legislation.  In this situation, special interests will lead to too much of that legislation passing.  We argue that spending laws are favored by special interests, but tend not to be opposed by special interests, and therefore we argue for a supermajority rule for spending laws.

A more difficult question is whether supermajority rules should be employed for regulations. We also believe (but much more tentatively) that special interests tend to arrayed more in favor of regulations than against regulations.  This suggests the possiblity of a case for a supermajority rule for regulations.

But what to do about existing regulatory laws that special interests favor but need to be repealed?  One does not want to add to require a repeal to secure a supermajority when special interests are also against the repeal.  One possible solution is to apply the supermajority rule for laws that add regulations, but not to laws that reduce regulations.

An Innovation Agenda For Growth and Equality

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In my last two posts, I suggested that technological innovation is an important and undercounted source of economic growth and that it helps temper inequality by creating new ideas that can rapidly be enjoyed by most people. Thus, any agenda for increasing economic growth and reducing inequality should focus on increasing innovation and decreasing barriers to its enjoyment. Here are four items for an innovation agenda.

1. Clear obstacles to innovation. Federal, state, and local governments should eliminate regulations that make it harder for new firms offering disruptive technologies to enter markets. At the local level, for instance, big-box stores are often thwarted by big-city labor unions. Low-income urban residents in particular would could purchase cheaper goods from such outlets. The middle class would benefit from access to new car services, like Uber, that allow individuals to contract with taxis and private cars by smart phone. It is a service that gives one almost the equivalent of a chauffeur at beck and call—previously the province of the extremely rich.

2. Shrink protections for firms that are “too big to fail.” By increasing returns in the financial sector, these protections encourage talented people go into banking instead of other areas, such as high tech, that would produce innovations that could be quickly shared.

3. Improve intellectual property laws. Some laws make it harder to share innovative ideas. In some sectors, such as software development, companies use patent litigation to prevent innovation by their competitors. Further, as Alex Tabarrok observes in his excellent book, Launching the Innovation Renaissance, IP protection is not a prerequisite for innovation. He cites the fashion industry as an example. Greater protection may be justified in areas that require large investments to develop products that are hard to discover and easy to copy, like pharmaceuticals. But not all industries are like that. Differentiated intellectual property laws could help promote innovation more optimally.

4. Fund basic science research. Basic science cannot easily be patented, and private companies will underfund basic scientific research to the extent that they do not capture all of its benefits. Some basic research, such as the discovery of some natural processes, cannot be patented at all, as the Supreme Court reminded us this last term in the Myriad case. Government could increase funding for this research to the enormous benefit of both companies and their customers, who derive value in excess of what they pay for innovative products. Programs like the President’s BRAIN initiative  which matches foundation funds to study the brain are worth taxpayers’ support.