More American Exceptionalism: Less Dangerous Populists

In both parties’ primaries a real populist is running, the kind of person many of the Framers would have called a demagogue. On the Republican side, the billionaire says we can deport all illegal immigrants and he will persuade Mexico to give the money to build a fence.  Although he proclaims himself a conservative, his most substantial complaint about big government appears to be that he is not running it.

On the Democratic side, a self-proclaimed socialist argues that the problem with government is that it is not even bigger. He wants to sharply raise taxes and provide more government jobs. He also wants to criminalize all kinds of voluntary acts, from choosing to work at mutually agreeable wages to trading goods and services with foreigners, including those for whom that trade may mean the difference between subsistence and penury. This tribune of equality would ground down the truly destitute of the world.  And, sadly, both these candidates are riding pretty high in the polls.

But these candidacies actually show the relative health of the United States compared to the most comparable democracies—those in Europe. Our populists of right and left are less bad then their populists, less likely to win power, and even in power less likely to do permanent damage.

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Certification Instead of Regulation

In the last couple of generations, regulation has exploded, with harmful effects on both our freedom and the economy.  One of the areas of regulation involve rules that are designed to protect consumers from being harmed by the products that they purchase.  Yet, there is a strong argument that these regulations are largely unnecessary.

Free market advocates generally argue that much of this regulation is not needed – that the market will develop mechanisms for protecting consumers.  The reputations of sellers and brand names provide strong incentives for sellers to provide safe and effective products.  Moreover, private companies, such as consumer reports, can also test the products and sell the information to consumers.

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Do We Want a Redeemed Constitution?

Textured American Constitution with US Flag

My current podcast is a discussion with a most excellent scholar, Michael Paulsen, on the book he has coauthored with his son, Luke Paulsen, introducing the U. S. Constitution to the general reader. Good as the book is in many respects, it did surprise me with its embrace of the idea that the Constitution of 1787 was a pro-slavery document.

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The Regulatory State: A Modest Reform Proposal

Stack of compliance and rules books (clipping path included)

The Mercatus Center has just published a troubling snapshot analysis of the accumulation of regulatory mandates and restrictions since the Carter administration. Other analyses confirm the picture of a burgeoning regulatory state. My own favorite is the Competitive Enterprise Institute’s annual, invaluable !0,000 Commandments Report. But it’s the same picture wherever you look:

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In Defense of Scalia’s Style

Justice Antonin Scalia is criticized these days ostensibly not for the substance but for the style of his opinions. His writing is said to be disrespectful as when he critiques the Justice Kennedy’s opinion in Obergefell, the recent case on same-sex marriage. There he stated: “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag.”  He also noted: “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

I cannot join in the criticism of his style. That is not to say I particularly warm to the all rhetoric of his dissent in Obergefell.  It is not as powerful as that of his masterpiece in Casey, which also had harsh passages, but his disdain has a point.   The value of an opinion is measured by the coherence of its reasoning. If someone’s opinion is as unreasoned as Kennedy vapidities about identity, it is worth pointing out with some virulence.  What John Hart Ely famously said of Roe is true of Obergefell: it is not constitutional law and gives almost no sense of an obligation to try to be.

If Scalia believes (and I think he has reason to believe) that the many of the justices joining in Kennedy’s opinion were doing so for its result not for its reasons, they are not acting judicially.  Ridicule in defense of the rule of law is no vice.

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What Did the 14th Amendment Congress Think about “Birthright Citizenship”?

USA Citizenship Application Documents

Candidate Donald Trump’s recent proclamation that he is opposed to so-called “birthright citizenship” for the offspring of illegal aliens born in the United States has, like many of his campaign statements, set off hysterical paroxysms of outrage and protest. I do not support Donald Trump for President, but much of his appeal lies in the fact that he is willing to address taboo subjects in a way that the public—tired of candidates and elected officials cowed by rigid protocols of political correctness—finds refreshing. The topic of “birthright citizenship” is a perfect example.

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Our Supermajoritarian Constitution – Part II: The Republican Purpose of the Supermajority Rules of the Constitution

In my last post, I discussed how John McGinnis and I argue that the dominant character of the Constitution is that it is supermajoritarian.  I explained that the three basic provisions of the Constitution – individual rights provision, the process for passing ordinary legislation, and express supermajority rules – all turn out to be supermajority provisions.

In this post, I want to explore some of the context and purposes of the Constitution that also contributed to the Framers establishing a supermajoritarian constitution.

The Framers of the Constitution wanted to establish a more republican version of the English Constitution.  They not only eschewed a monarchy and an hereditary aristocracy, but they also believed that the English Constitution of the Glorious Revolution had been corrupted  (such as by giving Parliament unlimited authority and allowing the King to purchase votes in the legislature). 

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The First Progressive?

The first canon of Progressivism is faith in human reason. Politics for the Progressive is a science not in the Aristotelian but in the Baconian sense. Political questions are not prudential complexities to which human judgment approaches better or worse answers but rather moral rigidities with right or wrong solutions wholly within the ambit of the all-powerful human mind. The distance from that schematic to administration by experts is brief. In fairness, that portrayal substantially attenuates the chain. But a recent family visit to Monticello served as a reminder that, however ironically, Thomas Jefferson is one of the chain's first American links.…

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