Compensating Differentials Likely Temper Any Growth in Income Inequality

As a law professor, I earn a lot less than my law school classmates who graduated with similar records, and a small fraction of the income earned by those at the very top.  But I am compensated in other ways.  In the loveliest line of the wonderful song “If I Were a Rich Man,” from Fiddler on the Roof, Tevye says that the “sweetest thing of all” from becoming wealthy would be the leisure gained to “discuss the Holy Books with the learned men seven hours a day.” The secular equivalent is what I get paid to do.

My situation illustrates what economists call compensating differentials. I get less income from my job because I get more enjoyment than I would in a job requiring similar skills and education. Thus, as Tyler Cowen and Alex Tabarrock note in a recent video,  the market would pay a sewer inspector a lot more than a lifeguard even if it had to attract equally skilled job takers. Similarly, if a job creates risks of death, injury or ill health, it will have to pay more to workers to compensate.

This simple observation suggests that focusing only on earned income from employment can provide a misleading picture of  any growth in inequality.

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Gay Marriage and Foreign Law

The New York Times runs an interesting story about dueling amicus briefs submitted in the gay marriage case before the Supreme Court about the extent of gay marriage in other countries, especially constitutional and liberal democracies.  The briefs disagree about the extent of gay marriage, in part because they use different measures for how to count the countries.

The question whether the Supreme Court ought to consider the laws of other countries in deciding whether to interpret the Constitution is one that has been actively debated in the law review literature.  I have largely neglected this literature, since it seems so obvious what the correct originalist answers are.  (But see this post by co-blogger John McGinnis, who does write in the area.)  First, considering the present law of other countries is obviously not directly relevant to the original meaning of a Constitution written in late 18th century America. Second, it is theoretically possible that the meaning of the clauses might make what other countries do relevant (for example, a clause that asks whether a rule is practicable), but I have not really seen a persuasive argument that attributes any such meaning to one of our constitutional clauses.

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Doing Time with John Hughes

Breakfast_Club

The fanfare surrounding the 30th anniversary of The Breakfast Club may puzzle some people—anybody, in fact, who wasn’t born between 1966 and 1979 in the United States of America. Those of us who are older (as I am) or younger than that might well have missed “the movie that defined a generation.” The writer-director John Hughes made The Breakfast Club as the second in what became a trilogy of teen movies, in between Sixteen Candles (1984) and the box-office smash Ferris Bueller’s Day Off (1986).

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Deferred Action for Federal Government Accountability

immigration

DAPA—short for the clunky “Deferred Action for Parental Accountability,” or maybe “Parents of Americans” (I’ve seen both titles)—is the Obama administration’s 2014 policy seeking to defer the deportations of roughly 4 million aliens who are the parents of citizen children or permanent residents. About half the states, led by Texas, filed suit to block the program. In February, U.S. District Judge Andrew S. Hanen issued a preliminary (and nation-wide) injunction against the implementation of the program. Yesterday (April 7), Judge Hanen refused to lift the injunction and, on the occasion, expressed his annoyance with the government’s “misconduct.” 

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Foreign Law is Irrelevant to the Constitutionality of Same-Sex Marriage

In the same-sex marriage cases both sides have enlisted foreign law in support of their position. A group of scholars led by Harold Koh argues that the recent embrace of same-sex marriage in the law of other Western nations supports finding a right to same-sex marriage in our own Constitution. Another group of scholars, led by Lynn Wardle, observes that many more nations, including in some cases their judiciaries, have declined to interpret their guarantees of equality to mandate same-sex marriage.

Originalists must generally reject the evidence of contemporary foreign law in constitutional interpretation.  Such laws should not be used as authority or indeed given any weight in decision making  not because they are foreign or international, but because they are contemporary and in the ordinary case shed no light on the original understanding of the Constitution.

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Why Higher Education Needs Religious Liberty

life

Observing from afar the clamor over Indiana’s new religious freedom law, we in higher education are especially attuned to how that state’s colleges and universities have responded.

First, some background. The Indiana law differs in modest, but I think, important and helpful ways from its federal counterpart, the Religious Freedom Restoration Act of 1993. RFRA, which was passed by an overwhelming bipartisan majority, has since been replicated by a number of states—including, by the way, Illinois, with then-State Senator Barack Obama joining all his colleagues in favor in 1998.

There has been plenty of commentary about why so many people have reacted so negatively, but let’s zero in on where Indiana’s college and universities, mostly through statements by their presidents, have come down.

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Korematsu, National Power, and Individual Rights

One of the key cases in modern Constitutional Law is Korematsu v. United States, where the Supreme Court held that the exclusion of Japanese citizens from large parts of the West Coast was constitutional. (While the case technically did not cover the internment of the Japanese, the exclusion of Japanese from such a large area without any individualized suspicion renders both internment and exclusion to be largely subject to the same analysis that I make here.) This case is normally thought to represent an egregious failure on the part of the Supreme Court to enforce constitutional law.

But things are more complicated than they at first seem. To begin with, the normal argument is that the Supreme Court should have struck down the exclusion and internment as a violation of the Equal Protection Clause. But the Equal Protection Clause does not apply to the federal government. For that reason, the major nonoriginalist critics of Korematsu argue strenuously that the Equal Protection principles are somehow reverse incorporated or otherwise applied to the federal government. That ignores the text and is a mistake. For more of my views on the matter, see here.

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Title-Deed of Liberty: Winston Churchill on Magna Carta

Winston_Churchill

This year marks the 800th anniversary of Magna Carta, an important landmark in the development of the English common law. His consent dramatically extorted by defiant barons at Runnymede in June of 1215, King John agreed to limits on the power of the crown.

The spectacle of a proud king bending before the will of his subjects fired the imagination of one the greatest guardians of freedom: Sir Winston S. Churchill. Churchill frequently pointed to Magna Carta as the foundation of the British liberties he strove so mightily to defend. Indeed, the medieval charter retained a remarkable inspirational immediacy for Churchill, who was inclined to trace clear lines of descent through the congested and meandering corridors of history.

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Justice Breyer Needs an Originalist Law Clerk

breyer

McCutcheon v. FEC reveals fundamental differences between the Roberts Court majority and the dissenters about the First Amendment’s protection of political speech. The justices in the majority asserted the traditional view that the First Amendment is an individual right.   In contrast, Justice Breyer argues for the McCutcheon dissenters that the First Amendment is in part a “collective right,” and thus government interests in favor of campaign finance regulation are not “to be weighed against the constitutional right to political speech. Rather they are interests represented in the First Amendment itself.”  The latter view makes it much easier to upheld government restrictions that are targeted at resources to support speech at election time.

To support his view of the First Amendment as embodying a “collective right,” Breyer appeals to Founding-era statements that describe how speech connects a legislator with the sentiments of his constituents.  But the materials he cites undermine his claims. First, he purports to demonstrate that James Wilson believed that “the First Amendment would facilitate a ‘chain of communications between the people and those to whom they have committed the exercise of the powers of government,” by quoting a snippet from a lecture by Wilson on the Constitution.

But the quote from Wilson does not appear in a discussion of the First Amendment, as Justice Breyer states, but in a discussion of the novelty and virtue of representative government, as opposed to “monarchical, aristocratical, and democratical” forms of government. 

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Don’t Print the Narrative

ReaganBerlinWall

Here’s my story: I’m sick of narratives. My story, vision, dream—whatever—speaks against the so-called “grand narratives” that populate our rhetorical landscape like so many garden gnomes or pink flamingos. It’s not just that they’re awkward and unpleasant. They distract us from what should be the focus of our attention: the facts. Appealing to a narrative makes the speaker sound lofty in his ideals; it makes a politician’s policy decisions seem inevitable—but that’s just not the case. Call me a narrative skeptic.

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