The Shell Game of “Tiers of Scrutiny”— Exposed, Once and for All

shell game

We have absorbed over the last few weeks the burst of anger on the part of pro-lifers and conservatives over the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt.

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Hong Kong

Recently, I visited Hong Kong and China for the first time.  Traveling to Hong Kong was a lifelong dream for me, as I have long admired the economic freedom that it possesses.  But how would the real Hong Kong appear to me, as opposed to the theoretical place that topped the Economic Freedom lists?  And would Hong Kong be significantly changed, given the 20 years it has been under Chinese control? I thought the real Hong Kong was incredible.  This city of skyscrapers was absolutely beautiful, with a skyline that rivals and perhaps surpasses any city in the world.  Hong Kong…

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Direct Democracy Produces Neither Wisdom or Enlightenment

Voting station

Britain’s experience of direct democracy by means of referendum has not so far been very happy. The first referendum ever held in Britain was in 1975, and also concerned its (then recent) membership of the then European Economic Community. The result was a decisive vote in favour of remaining, by two thirds of the votes cast; however, because of the high rate of abstention, this represented only 44.44 per cent of the population eligible to vote. Of historical interest is the fact that Scotland was considerably less enthusiastic about membership of the EEC than England: 68.7 per cent in favour in…

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The Improper Comments of Ruth Bader Ginsburg

Supreme Court Justice Ruth Bader Ginsburg is now 83 years old.  One often hears it said that she ought to step down.  By now, Ginsburg has a set response to this criticism: She says that she is not the only old justice.  She notes that Kennedy is about to turn 80 and Breyer is going to turn 78.

I have no idea whether Ginsburg is too old to perform her duties.  What I do know is that Ginsburg appears increasingly prone to making politically inappropriate statements.

In an interview last week, Ginsburg made several improper statements. First, Ginsburg gave what the New York Times describe as “an unequivocal endorsement of Judge Garland,” who President Obama had nominated for the Court but the Senate has refused to consider.  It is normally considered improper for a Supreme Court justice to comment on a politically charged issue of this type.

In addition, Ginsburg also asserted that the Senate had an obligation to assess Judge Garland’s qualifications, stating “that’s their job” and “there’s nothing in the Constitution that says the president stops being president in his last year.”  Not only do I regard this comment as mistaken, it is once again inappropriate.  The President remains the President, of course.  The Senate has simply decided not to act on this nominee.  Ginsburg’s argument reads like Democratic Party talking points.

Second, Ginsburg made critical comments about Republican presidential nominee Donald Trump.  She stated “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president.”  She also suggested that if Trump were elected, it would be time to move to New Zealand. 

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Criminalizing Politics

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Kimberly Strassel has written a timely, bold, and important book explaining why a great many people are supporting Donald Trump for President. You wouldn’t know it from the book’s title, however, because the title — The Intimidation Game: How the Left Is Silencing Free Speech — reflects Ms. Strassel’s mission, which is to reveal the full extent of the threat to free speech and small d democracy brought on by the coordinated efforts of the political left since 2010 to silence conservative opposition.

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Tradition, Interests, and Principle in the Game of Thrones

I do not apologize for posting yearly on the Game of Thrones. Tens of millions of people watch the show and thus its analysis of the structure of politics reaches far more people in contemporary American than does that of Hobbes and Machiavelli. And its sketch of the political world is quite insightful and revealing.

This season ends with three forces contending for the Iron Throne of the Kingdom of Westeros and each of these forces sees the essence of politics completely differently.  For the Starks, one of the seven aristocratic houses in the Kingdom, political and social behavior should be guided by tradition.  Living in the most rural, northern part of the kingdom, they worship the old gods, and believe in norms of honor and reciprocity that have developed over centuries. As a result, they are the only noble family that behaves consistently nobly.  That wins them loyalty from many of their retainers.

But their adherence to tradition is also their tragic flaw.

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Regulatory Dark Matter: A Conversation with Wayne Crews

Threat of OverregulationThis interview with Wayne Crews explores the growing lawlessness in the administrative state's exercise of its powers. This regulatory "dark matter" ignores the formal rule-making requirements of the Administrative Procedure Act that mandates publishing a notice of proposed rule-making and allowing public comment. Crews outlines how the agencies of the regulatory state are resorting to the exceptions of using “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice” to exert authority informally and without accountability.

Rotten Boroughs Everywhere

William Hogarth's Canvassing for Votes.

The British people’s decision to leave the European Union reveals that Britain, like the EU itself, suffers from a “democracy deficit.”

Several commentators have noted that that reality suggests the problem is not so much a political one, but instead concerns a feeling that “globalization can and has run roughshod over the economic and social orders of old,” and “the extraordinary movement of populations in the world today.” Ramesh Ponnuru argues that it is not Britain but the EU that suffers from the problem; but he probably overcorrects.

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Posner’s Inadequate Apology for Dismissing Study of the Constitution

Judge Richard Posner has recently dismissed the study of the Constitution of the United States. He said:

I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation (across the centuries—well, just a little more than two centuries, and of course less for many of the amendments). Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century. Which means that the original Constitution, the Bill of Rights, and the post–Civil War amendments (including the 14th), do not speak to today.

That was an extraordinary and indeed shocking comment from a federal judge, but sadly his later apology or clarification is insufficient. There Judge Posner expresses sorrow if his previous statement is understood as saying that the Constitution is irrelevant or to be forgotten. But he goes on to say:

What I think is undeniably true is that while the Constitution contains a number of specific provisions—such as the prohibition of titles of nobility (a slap at our former English rulers, who mainly were kings and aristocrats), the requirement that the president be at least 35 years old, and the very detailed provisions regarding congressional authority—many other provisions are quite vague. The vagueness was almost certainly intentional, one reason being the tensions among the 13 states, which required compromise.” This vagueness justifies judges in making a “living Constitution.

But one can only credibly contend that provisions are vague if one had studied the meaning of the Constitution carefully.  And as Mike Rappaport and I have argued, on careful examination many provisions that may seem vague or abstract are not so read in their original legal context.

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A Brief History of Socialist Support for Gun Rights

Democratic members of Congress recently staged an around-the clock sit-in to demand that gun-control legislation (their slogan was “No bill, no break”) be passed by the House of Representatives. This unification by Democrats reveals how, with a few Republican exceptions, they have owned the issue of gun control, pardon the pun, lock, stock and barrel. They proudly point to an honorable tradition of gun-control measures extending back to FDR, and continued by LBJ, Bill Clinton, and Barack Obama.

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