Entropy in the Executive

The Massachusetts Constitution’s Declaration of Rights says, in its conclusion, that:

In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.

That constitution, providing for a lower house, a Senate, and a governor armed with a (qualified) veto was, in many ways, the model for the federal Constitution drafted a few years later.

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Chevron, Independent Judgment, and Systematic Bias

 

The recent circuit court decision in Halbig v. Sebelius has exposed doubts about Chevron deference, but what exactly is wrong with such deference? The usual answer comes in terms of delegation, representative government, and other objections to agency interpretation. But there are more direct objections to judicial deference. First, it violates the constitutional duty of judges to exercise their own, independent judgment. Second, it is systematic judicial bias in violation of the Fifth Amendment.

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Bringing International Contempt upon America

Recently, President Obama protested to Vladimir Putin that Russia had been violating the 1987 Intermediate Nuclear Forces in Europe treaty (INF) for the last six years by testing precisely the kind of missile that the treaty prohibits. That protest, as reported by the New York Times, is a textbook lesson in how a government earns the contempt of others.

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Peace, Peace, When there is no Peace

Adams 1Recent events have led me back to Henry Adams’ great work on U.S. history.  There is a side of the American mind that wishes the world could be different than it is:

Few men have dared to legislate as though eternal peace were at hand, in a world torn by wars and convulsions and drowned in blood; but this was what Jefferson aspired to do.

Even in such dangers, he believed that Americans might safely set an example which the Christian world should be led by interest to respect and at length to imitate.  As he conceived a true American policy, war was a blunder, an unnecessary risk; and even in case of robbery and aggression the United States, he believed, had only to stand on the defensive in order to obtain justice in the end.  He would not consent to build up a new nationality merely to create more navies and armies, to perpetuate the crimes and follies of Europe; the central government at Washington should not be permitted to indulge the miserable ambitions that had made the Old World a hell, and frustrated the hopes of humanity.

After delusion, comes the inevitable come down. But, Adams realized, that does not necessarily mean the critics get their way.

Impoverished Pontifications, Part II

Many of the world’s religious leaders decry the evils of income inequality stemming from a globalized economy. My first post, based on economic reports from such institutions as the World Bank, showed that recent pronouncements by the Pope, the Ecumenical Patriarch, and the Dalai Lama have followed a conventional wisdom that does not capture what has actually gone on in recent economic history: namely, that even as inequality has widened, extreme poverty has simultaneously decreased. I brought in the economic analyst Nassim Nicholas Taleb and his insights about wealth production in modern societies and the wrong assumptions people make about it.

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Divided America—and How It Heals

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Staid old Gallup knows how to get attention. Its Presidential Job Approval Center recently announced a new report with the provocative title: U.S. Muslims Most Approving of Obama, Mormons Least. The full results of this extraordinarily large sample of 88,000 interviews showed an even more dramatic division. Majorities of Muslims (72 percent), other non-Christians (59 percent), Jews (55 percent) and atheists (54 percent) supporting President Obama faced Catholics (51 percent), Protestants (58 percent) and Mormons (78 percent) opposing him.

It looks like the basis for a religious war. Then it gets even bleaker.

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An Originalist Future

John McGinnis and I have a new essay, An Originalist Future, describing what the world would like if originalism became the dominant method of constitutional interpretation.  See here and here.   It is based in part on the last chapter of our book, Originalism and the Good Constitution, but goes beyond that chapter.

In the essay, we write:

Reviving a comprehensive originalism would greatly improve our polity, creating both better judicial decisions and a more vigorous constitutional politics.  It is a world where constitutional decisions would have good consequences and constitution making would become both popular and future-oriented.  It bears no resemblance to the world which critics of originalism fear—where the dead hand of the past traps the living into a dead end of anachronistic principles.  Only through a systematically originalist jurisprudence can constitutional law become what it must be if it is to act as the true rudder of the nation–simultaneously law that is unchanging and objective, law that is of high quality, and law that is subject to revision by the people of each generation.

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In Praise of Gridlock, Federalism’s BFF

As the 113th Congress winds to a close, there are a lot of complaints about its lack of productivity, not least from the President himself. The Senate and the House are controlled by different parties and do not agree on much. But the resulting gridlock has one great virtue. It promotes federalism by preventing Congress from preempting the policy choices of the several states.

This effect is all the more important in the modern era, because the Constitution’s original protection of the political space for state policy making—the enumerated powers—has been almost entirely destroyed. It is true that the Supreme Court slightly revived constraints on the federal government in United States v. Lopez, but the actual effects of that revival have been more symbolic than consequential. On economic matters, as a matter of positive law rather than the original meaning of the Constitution, the federal government enjoys almost plenary powers.

But happily federalism is also protected by the difficulty of enacting federal legislation—which is more than a parchment barrier. Federal laws can be only be enacted with the agreement of both Houses and the President. This requirement in effect creates a mild supermajority rule, making it harder to enact legislation to preempt the states at a time, like now, when the nation is closely divided between the parties.

For fans of federalism, this division has a silver lining that outshines the clouds of partisan rancor.

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Impoverished Pontifications, Part I

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If there is one thing that religious leaders around the world seem to agree on today, it is the evils of income inequality stemming from a globalized economy.

Pope Francis said last year in his apostolic exhortation Evangelii Gaudium that “we … have to say ‘thou shalt not’ to an economy of exclusion and inequality. Such an economy kills.”

In a 2008 speech at George Mason University, the Dalai Lama asserted: “Economic inequality, especially that between developed and developing nations, remains the greatest source of suffering on this planet.”

Ecumenical Patriarch Bartholomew wrote in his 2012 Christmas encyclical that “the gloomy consequences of the overconcentration of wealth in the hands of the few and the financial desolation of the vast human masses are ignored. This disproportion, which is described worldwide as a financial crisis, is essentially the product of a moral crisis.”

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