Originalism and Ideology

I missed this article – Originalists, Politics, and Criminal Law on the Rehnquist Court by Rachel Barkow – when it came out, but I thought this part of the abstract was interesting: By reviewing all of the Rehnquist Court's criminal opinions in argued cases during the ten-year period from the October 1994 Term through the 2003 Term, this Article shows that the Justices' votes in criminal cases do not fit neatly into the attitudinal model. [Mike Rappaport insertion: the attitudinal model holds that the votes of the Justices are based on their political views, not the law.]  While a review of…

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David Brooks, Lincoln, and the Ties that Bind

David Brooks’ recent column on the relative friendlessness of Americans’ lives captures something of the way we live now. But his idea of establishing summer camp-like meetings of diverse people to plant the seeds of friendship seems clumsy. Abraham Lincoln had civil society thoughts, too; Brooks quotes philosophers but misses out by not referencing Lincoln, who saw the potential in such get-togethers as county fairs, lyceums, and Fourth of July gatherings. Whereas Brooks focuses on the here and now, Lincoln thought of this socializing as rooted in a past that deserves veneration.

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The Boss Turned 65

In a temporary obsession over the mysteries of interstate taxation (a subject of forthcoming posts—skip alert!), I missed an important event until my twelve-year-old reminded me today: on September 23, Bruce Springsteen turned 65. Happy birthday, and God bless! And do let’s celebrate. Mick Jagger famously intoned that he’d rather be dead than sing “Satisfaction” at 45; how’s that working out for you, Mr. Geezer? Mr. Ezekiel Emanuel, who’s not much into revving up young people but would rather have government force them to subsidize others, wants to be dead at 75; let’s see how that plays out. Say about the…

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A Government Agency Tries to Succeed by Failing

The Secret Service has a difficult and important job but, like other government agencies, it appears to use failure as an excuse to grow its powers. The Secret Service has recently suggested screening tourists in a facility blocks away from the White House to detect threats and enlarge the buffer zone around 1600 Pennsylvania Avenue.  The agency floated this proposal immediately after an event of breathtaking incompetence.  

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Rationalizing Discrimination

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When I was young, discrimination had a good name. It was the ability to distinguish between the good from the bad and to prefer the former to the latter. My teachers tried to form my taste so that I could discriminate, and I am grateful to them – more grateful than I seemed at the time – for that.

Since then, of course, the emotional charge of the word discrimination has changed. It is now entirely negative. It means to treat people not according to their individual merits, but badly because of the supposed characteristics of their group as assumed by brute prejudice. To discriminate is to be unfair, unjust and cold-hearted. Discrimination is at the root of many ills, not least of them poverty and inequality.

But is it ever rational to discriminate on the basis of group characteristics?

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It’s Time for a Free Market NFL

Pro Football Hall of Fame in Canton, Ohio. Built in 1963.

First the obligatories: The nauseating video of former Baltimore Ravens running back Ray Rice punching his then fiancée, now wife, into unconsciousness in an Atlantic City casino should have landed him in the New Jersey state prison system. NFL Commissioner Roger Goodell so badly bungled the case and the communications surrounding it that he ought to be disabused of the delusion that his very public job is a personal right to which he is entitled until conclusive evidence of actual wrongdoing separates him from it. And the number of domestic-violence cases in the NFL suggests a culture of lawlessness, not to mention simple indecency, among at least some of its players.

All true. And all of it was established, and was being vigorously and effectively debated, in the Tocquevillian sector—namely, civil society—without members of Congress queuing up to offer rhetorical interventions, from calls for official inquiries to demands that teams sit players under investigation. Some of their criticism was right, but on what authority—according to which of the 18 enumerated constitutional powers—were they acting? The moral-preening clause?

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Robert Harris’s Imperium

Recently, I read a very good book of historical fiction on Cicero.  Robert Harris’s Imperium: A Novel of Ancient Rome tells the story of Cicero from his early career until his election to the consulship.  Some years ago, I had started Anthony Everitt’s Cicero, which is admirable biography of Cicero, but somehow my interest waned and I didn’t finish the book.  By contrast, Harris’s work had my interest throughout. There is something about a fictional biography – a work written about a person’s life but supplying details that the author does not know to be true – that makes it easier…

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In Sickness and in Health

If Ezekiel Emanuel (age 57)  had just stated his preference for dying at 75 or if he were a citizen uninvolved in public affairs, no attention need be paid. There is no use disagreeing with tastes, and the world is full of eccentrics. But Emanuel was one of the enthusiastic cheerleaders of the President’s health care plan, and he offers a lot of reasons to justify his preference. The considerations he adduces and those he fails to account for provide an unsettling perspective on the world view underlying some progressive support for Obamacare.

Insufficient interest in future innovation. Emanuel is concerned that, even if he lives longer than 75, he is likely to be a shadow of his former self. But Emanuel considers the world as it is today, not one that innovation could create when he is 75.

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A Grand Confusion of Language and of Understanding

Successful statisticsHere’s a summary of Peter Thiel’s take, as expressed recently in the Wall Street Journal, on the contrast between competition and monopoly:

Competition is not as marvelous, and monopoly is not as monstrous, as pop culture and economic theory proclaim. Entrepreneurial creativity brings incessant change, so competitive firms are lame nonentities while firms that win a monopoly position through innovation are magnificent benefactors to their owners and the general public alike.

Thiel is on the right track.

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