Seizing the Opportunity to Revisit the Republic’s First Principles

On Monday Senator Harry Reid introduced an amendment, which would permit both Congress and state legislatures to prohibit the use of resources for political speech at election time. The Republicans did not vote to filibuster it but instead by a substantial majority agreed to open debate. Senator Reid then complained that Republicans were trying to “stall” the Senate from getting to other items on his agenda. Washington has reached a new high in legislative hypocrisy: criticizing the opposition for wanting to debate an amendment that you brought to the floor!

The debate is scheduled to last the week. And nothing is more important than having a debate that brings us back to the consideration of first principles. Political theorists since Machiavelli have been absorbed by the problem of preventing the decay and corruption of the republic as its founding principles gradually recede from public view. The most important safeguard against such decline is the creation of mechanisms that naturally ventilate deep disagreements and renew the citizens’ appreciation of their republic’s first principles. Floor time for divisive constitutional amendments is such a mechanism and this one illustrates three first principles on which our two major political parties disagree.

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The Reclining Controversy

When I first heard about the “Knee Defender,” I was really outraged.  The idea that a person could prevent you from reclining your airline seat with a device seemed ridiculous.  It was a clearly a part of the design of the seat to recline.  I had always assumed you have both a right to recline and that no one should be able to do anything about.  I should add that I find it extremely uncomfortable to sit on a plane without reclining.  In fact, I have hard time not reclining when you are forbidden to do so during take off and landing.

If everyone just reclines, what is the problem?  Nobody’s knees will be hurt because everyone will have the same amount of room.  What don’t these people get?

Yet, it appears that a sizeable number of people do not see it my way.  They think it is rude to recline your seat.  In fact, this survey indicates that 41 percent of people believe this.  I found this hard to believe, but there it is.

These numbers have forced me to come up with an explanation.  I now believe I understand what is going on.  Yes, if everyone reclines, then everyone will have “adequate” space.  But apparently not everyone reclines.  In fact, the number of people who don’t recline appears to be similar to the number who regard it as rude to recline.  According to the survey, twenty percent of people do not ever recline and 30 percent only do so once in a while.  If one takes two thirds of the people who only recline once in a while, on the ground that not all people who occasionally recline will regard it as rude to recline, and add it to the 20 percent who never recline, we are pretty much at the 41 percent figure of those who believe it is rude.

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Instructive Hijinks of the High-IQ Set

Jim Parsons was pretty apologetic the other day, upon winning his fourth Emmy for playing Sheldon on The Big Bang Theory. “There’s no accounting for taste,” he said, acknowledging that the other nominees in his category, actors from sophisticated shows on premium channels (such as William C. Macy on Shameless), were much more accomplished performers.

Undoubtedly true. Yet despite its mediocre acting and laugh track, in some ways, CBS’ The Big Bang Theory soars as a show about science. On it, scientists are portrayed and ranked as human types. Their real claims for knowledge and excellence are examined and largely vindicated. They all err in thinking their scientific knowledge more comprehensive than it really is, but they perform real work that genuinely contributes to scientific and technological progress. And the main characters, even Sheldon, seem to be good people full of personal and relational promise. They aren’t frauds like politicians and priests, lightweight windbags like humanists, or manipulative tyrants obsessing about how to gain rational control over their fellow human beings.

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The German Connection, Part II: Of Law and Citizens

My earlier post suggested that there might be something to learn from the liberal version of the German Rechtsstaat—the tradition that American Progressives ignored when they imported the most authoritarian versions of administrative law then circulating in Germany.

Philip Hamburger rightly calls attention to the Progressives’ selective acquisition, and he fully acknowledges that the liberal tradition, which over the long haul triumphed in Germany, has a great deal going for it. But he is diffident about the liberal Rechtsstaat because it remains rooted, he says, in a legal tradition that is inimical to the common law tradition that (according to Professor Hamburger) the Constitution seeks to enshrine.

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The Silver Lining of a Very Bad Proposed Amendment

This week, Senate majority leader Harry Reid will bring to the floor an amendment to the Constitution that would permit Congress and the states to target the resources that certain people use to speak about candidates and issues at election time.   A commentator recently complained that bringing this amendment to the floor wastes the Senate’s time, because the proposal has no chance of securing the supermajorities it would need to be passed and ratified. I nevertheless would welcome a prolonged debate.

My reason is not that I favor the amendment.  Giving Congress the power to send people to jail for messaging at election time seems to me the most pernicious effort to suppress free speech by the federal legislature since the Alien and Sedition Acts.  Prohibiting expenditures on political speech curtails the opportunity for citizens to make their voices heard and for other citizens to learn what their representatives are doing. And allowing members of Congress to determine the content of such restrictions turns the First Amendment’s charter of freedom into a delegation for regulation by self-interested regulators.

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Kissinger Doesn’t Have One, Either

45th Munich Security Conference

President Barack Obama drew criticism from our ruling class for acknowledging that “we don’t have a strategy yet” for putting an end to the Islamic State that calls for American blood by internetting the beheading of American captives, as well as for his complaisance with China’s harassment of an American aircraft over international waters and with Russia’s invasion of Ukraine. Sooner or later, Obama is sure to order some actions with regard to each of these situations. But even more surely, these will worsen problems rather than fix them because Obama, like the ruling class he represents, does not connect means with ends, wishes with actions.

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Hayek on the Rechtsstaat

Michael Greve has a great post on the German origins of progressive Administration Law in the United States. Michael notes that the German tradition was not all bad – instead there was a liberal and legal tradition of judicial review in Germany, which did not employ deference. The progressives borrowed most of the bad stuff.

This German idea of the Rechtsstaat – of a state or of government bound by the rule of law – was one that was celebrated by Austrian scholar Friedrich Hayek. Hayek, while known as a Nobel Prize winning economist and a political theorist, also studied law in Vienna where he imbibed the ideal of the Rechtsstaat.

In The Constitution of Liberty, Hayek devotes a portion of the book to the development of a law of liberty. Hayek’s approach is to discuss various countries’ distinctive contributions, from England to the United States to Germany. Hayek argues that the movement for liberty reached Germany last and therefore its contribution was in many ways the most developed and the one that best fits the modern world. 

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The Court can Strike a Blow for Occupational Freedom

Next month the Supreme Court will consider an antitrust case that pits federalism against occupational freedom.   Over the last decade, individuals and companies who are not practicing dentists have begun offering teeth whitening services. In North Carolina a state board has told them to desist. What makes the case interesting under antitrust law is that the substantial majority of the board is elected by  dentists and dental hygienists—precisely the groups that stand to lose from this competition. The Federal Trade Commission challenged their action as a restraint of trade and the Fourth Circuit Court of Appeals sustained its decision.

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Bringing an End to National Education Reforms


Andrew Ferguson of the Weekly Standard said recently that the Common Core state standards will ultimately be nothing more than another pile of ashes on the smoldering fire of national education reform. His excellent article reviewed the long and sorry history of such efforts, detailing how the Common Core came to replace George W. Bush’s vaunted (and then hated) No Child Left Behind Act of 2001, itself an effort to replace President Clinton’s Goals 2000, which superceded, that’s right, George H.W. Bush’s America 2000.

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