The Dignity of Wage Labor in the Republicans’ Free Labor Ideology

Volume 2 of historian John Ashworth’s discussion in Slavery, Capitalism, and Politics in the Antebellum Republic touches on a shift in Americans’ views toward wage labor. This shift anticipated the rise of the Republican Party’s “free labor” ideology, and then continued to develop concurrent with it. Prior to this shift, Americans widely viewed wage labor as invested with little dignity, as scarcely preferable than indentured service. If one worked for wages, respectability required that one aim to work out of this form of employment, saving toward property ownership or work as an independent artisan. Only those who couldn’t or wouldn’t move out of wage labor remained in that condition permanently. Lifelong wage labor was for losers.

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Approaching Unlimited Despotism

control over the brain

Identity and political power have allied themselves in the modern academy in troubling ways. Exemplifying this is the new “personal pronoun” overture. I recently had to attend a seminar, as a part of my doctoral studies, on “microaggressions and diversity,” and a discussion leader greeted us with: “Hello, my name is Simon, and my personal pronouns are ‘He, Him, His.’”

This strange, preemptive declaration of one’s preferred gender identity is apparently intended to ward off “microaggressions” from potentially confused colleagues.

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Laws Preventing Business from Displaying the Costs of Regulation Are Unconstitutional

Minimum wage laws have forced restaurants to raise prices and lose business.  Many owners are not happy. One recourse is to tell customers about the effects of these laws on their pocketbook. Some restaurants are posting a minimum wage surcharge on their menus, so that diners recognize the reasons that establishments have jacked up their prices.

But in some jurisdictions this surcharge is illegal. For instance, in New York a statewide law bans the practice even if notice is prominently displayed. Such laws violate the First Amendment and block one of the best ways of getting the public to debate the costs of minimum wage laws.

Commercial speech gets somewhat less protection than political speech under current doctrine. But even if this surcharge and explanation were (wrongly) given only the protection afforded to commercial speech, such laws would still be unconstitutional. Commercial speech, like advertising, cannot be prohibited unless the restriction is “narrowly tailored to advance a significant government interest.” But it is hard to see any significant government interest advanced by these laws.

In any event, the speech at issue here is political speech, because it provides information about the effects of the minimum wage. If so, it can only be suppressed by a compelling government interest, like forestalling violence. 

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Originalism and the Incentives of the Legislator


We usually assume that legislators write laws to be understood. But cases exist in which legislators write less clearly rather than more clearly. Well known and often discussed are the whys and wherefores of legislative delegation to executive agencies. Without intending a comprehensive list, here are a couple of other reasons why legislators write more ambiguously rather than less.

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The Ring of Buckley

Great writers, thinkers, and men are rare. William F. Buckley, Jr. qualifies by any number of measures and in any number of areas.

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Sunstein on Regulatory Reform

Few people who served in the Obama Administration or are professors at Harvard Law School praise the Trump Administration for anything, but Cass Sunstein is commending the Trump Executive Orders on regulatory reform.  Sunstein writes: The [new executive] order calls for the official designation of “Regulatory Reform Officers” and “Regulatory Reform Task Forces” within each department and agency of the federal government. The reform officers are charged with carrying out three earlier executive orders. The first is Trump’s own requirement that agencies eliminate two regulations for every one that they issue. More surprisingly, the second and third come from Presidents Bill Clinton…

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The Right Unwritten Constitution

Historical Document US Constitution with America Flag

Beneath its cool blue cover, Constitutional Morality and the Rise of Quasi-Law is an explosive book. The thesis of coauthors Bruce Frohnen and George W. Carey is that constitutional government as was once known in the United States is in fact a memory.

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The Constitution Is Written in the Language of the Law

The Constitution has launched hundreds of debates about its meaning.  But before these disputes can be settled an underlying clash of visions about the nature of its very language requires resolution.  One view holds that the Constitution is written in ordinary language and is thus fully accessible to anyone with knowledge of the English language.  The other, in contrast, is that the Constitution is written, like many other documents with legal force, in the language of the law.

The ordinary language view is often assumed both by the Supreme Court and scholars. But in a new paper Mike Rappaport and I show that the better view is that the Constitution is written in the language of law and that this has important implications for constitutional interpretation. Surprisingly, no one has ever considered how to determine whether the Constitution is written in the language of the law or in ordinary language.

We describe the factors to determine whether Constitution is written in the language of the law. The language is key and the paper for the first time catalogues all the technical terms in the original document.  We show that the number of legal terms in the Constitution is much larger than most people recognize and probably numbers about one hundred!

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Race, Real Estate, and Retirement

Green seedlings with small house in soil on bright background

The Pew Research Center reports median net wealth in 2013 of households headed by African Americans was less than a tenth of net wealth of households headed by whites; $11,200 for black households and $144,200 for white households. This difference exists even when controlling for education and other demographic characteristics. The impact extends inter-generationally, with reduced opportunities for children and grandchildren in African-American families because of limited assets, and the implication that today’s racial disparities will continue into the future.

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Gary Lawson on Proving the Law

I received this book – Evidence of the Law: Proving Legal Claims – in the mail and am looking forward to reading it.  Gary Lawson, of course, is a leading originalist and an expert in administrative law.  I use his first rate Administrative Law casebook. In Evidence of the Law, Gary discusses the fact that our legal system, while focusing carefully on the methods and standards for proving facts, generally ignores the methods and standards for proving law.  Yet, such methods are crucial. And nowhere is this more true than in originalism.  If one thinks about constitutional originalism, it is very much concerned…

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