Obama and Trump: Playing to Party Strengths

Jackson Statue Lafayette Park White House Autumn Washington DC

Barack Obama and Donald Trump have been justly attacked for their recent inflammatory rhetoric. But these criticisms miss the mark unless they are seen in the context of how, in their ways, the Democratic President and leading Republican contender reflect the presidential politics of their respective parties.

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Bitcoin: A Hedge Against Bad Government

Bitcoin began as algorithm that created a token of no intrinsic value. But in a few short years it has become a hot commodity, trading now for about 250 dollars for each coin.  Nevertheless it does not yet constitute an effective currency.  It is still too volatile to be a reliable store of value.  Moreover, while 13 million people have used Bitcoins, far fewer use it on a consistent basis.  And the total value of Bitcoin is about 3 billion dollars—a fraction of the worth of many companies.

But Bitcoin has room to grow and become a currency. Of greatest aid to Bitcoin is the failure of governments. Already, Bitcoin is a household word in Argentina, where the government maintains an official exchange rate at substantial variance with real exchange rates. Bitcoin allows people to evade these controls by making their purchases via Bitcoin. If economic crisis leads other nations, like Brazil and Russia, to take such illiberal action, which is all too possible, Bitcoin will ride higher and begin to look more like a currency. And even after the crises subside, Bitcoin may well remain in use in such nations because of a distributed trust that does not depend on government and its relatively low transaction costs.

More generally, the less stable are national currencies, the more currency controls are imposed by government, the more inefficient are regulations of payment systems, the more attractive Bitcoin becomes. In short, Bitcoin  thrives as a  hedge against bad governance of one kind or another.

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Some Examples of the General Common Law

In my last post, I noted that there has been a growing acceptance of the general common law among originalists.  One way to make the basic point is that originalists have come to recognize that an important part of the legal regime that the Constitution’s original meaning established included the general common law.

Let me explore a number of cases where the common law has been recognized as legitimate by some originalists.  Let me start with the case Swift v. Tyson involving a commercial law matter adjudicated under a federal court’s diversity jurisdiction.  The old originalist critique of Swift made sense – there is no authority under the Constitution to allow a federal court sitting in diversity to displace state law, especially when Congress has no enumerated power over the matter.

But Brad Clark has argued, following William Fletcher, that states often were thought to have adopted the general law as the applicable law.  Fletcher, for example, argues that in marine insurance cases both the federal and state courts thought of themselves as following the general law.  He writes that “in marine insurance cases, deviations by individual state courts from the general law were sufficiently rare that these courts, even when they disagreed, considered themselves engaged in the joint endeavor of deciding cases under a general common law.”  It thus seems clear that the standard Erie critique of Swift and the general commercial law, as displacing without any warrant state law, was problematic at the time Swift was decided.

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Officer Removal, German-Style

Businessmen in rain

Last week, Germany’s chief prosecutor—Generalbundesanwalt Harald Lange—got himself fired. It’s a big enough deal to occupy the front pages and, in coming months and years, armies of administrative lawyers and scholars. The precise facts and circumstances are a bit murky, and the story is still unfolding. Enough is known, though, to invite some rule-of-law thoughts and a few cautious transatlantic comparisons and contrasts.

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Obergefell and the New Nullification

Perhaps we should add this affirmation to the orientation session for federal judges: The Supremacy Clause means the Constitution and laws arising under it outrank their state counterparts. It does not mean the judiciary is supreme over the coordinate national branches of government. Judge David Bunning of the Eastern District of Kentucky did not quite assert the latter in ruling this week, correctly, that an elected county clerk cannot exempt herself from a decision, however errant, of the Supreme Court. He flirted with it, though: “Our form of government will not survive," he wrote, "unless we, as a society, agree to respect…

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The Contest for Constitutional Liberty

A Funeral Procession for the Stamp Act of 1765.

In 1993 John Phillip Reid published the fourth and final volume of his Constitutional History of the American Revolution.  The subtitles for each volume are noteworthy: The Authority of Rights (1988); The Authority to Tax (1987); The Authority to Legislate (1991); and, finally, The Authority of Law.  The shelves of many American libraries, public and private, have welcomed the accumulated weight of historical explanations of the coming of American Independence with political, economic, and social templates serving as the sources of underlying causation.  Few, too few, have offered legal and constitutional analyses, an intellectual shortcoming that would have astounded, and likely angered, American whigs watching from their perch in 1775.

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Bitcoin: A Study in Spontaneous Order


Nathaniel Popper’s Digital Gold is a wonderfully researched, fast paced narrative of the beginnings of Bitcoin.  As its subtitle, The Inside Story of the Misfits and Millionaires Trying to Reinvent Money, suggests, its emphasis is on the colorful cast of characters who got Bitcoin off the ground. In my last post, I described the mechanics of Bitcoin—a potential instrument of freedom from the state. In this post, I describe how the development of Bitcoin itself exemplifies another aspect of liberty– spontaneous order. Different individuals with different interests combine in ways no central planner could direct to transform an idea into a valuable commodity that may someday represent a sufficiently stable source of value to become a currency. It is the story of a Platonic form becoming a reality in the messy cave that is our world.

Bitcoin has no intrinsic value whatsoever. It began as an algorithm that generates tokens in cyberspace. Popper shows that in 2009 and 2010 computer geeks were the first group to take an interest. They mined coins and provided the computer power to verify transactions because they admired the algorithm not because they want to make money. It is an appreciation of beauty that gives Bitcoin its start,

These transactions remained more akin to a game with monopoly money. But another group—people who wanted to engage in illicit transactions– did find an actual value, exploiting the anonymity of Bitcoin. 

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The Rigors of Boringly Bourgeois Marriage

Ring rainbow gay community on the flag

Over the last decade or so, the gay rights movement made a politically canny adjustment: It began featuring lesbian and gay families who wanted to enter the American mainstream, and the outré postmodernists were less heard from. By outré postmodernists I mean those whose views were unlikely to play well in Peoria.

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The Civil Rights of Officer Wilson

A year after being accused of violating Michael Brown’s civil rights, Officer Darren Wilson, late of the justly excoriated Ferguson Police Department, has yet to recover his. Those rights include a presumption of innocence denied even after a Justice Department investigation affirmatively exonerated him, compiling reams of physical evidence and witness accounts consistent with his account of events. That evidence conclusively disproved the “hands up, don’t shoot” narrative that—within minutes of the event, the DOJ report said—took flight on wings of since discredited testimony. The investigation also established that Brown attempted to seize Wilson’s gun. Yet the best The Washington Post, reporting on…

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