Buckley’s Prize


On Friday, National Review published a scathing editorial in opposition to Donald Trump as the Republican candidate for President, followed by the statements of 22 prominent conservatives ranging from neocons like Bill Kristol, to social conservatives like Cal Thomas and Michael Medved, to radio/television personalities like Glenn Beck. The editorial slammed Trump as “a philosophically unmoored political opportunist who would trash the broad conservative ideological consensus within the GOP in favor of a free-floating populism with strong-man overtones.” True to pugnacious form, Trump fired back, asserting that “the late, great William F. Buckley would have been ashamed of what happened to his prize.”…

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Confessions of a Campaign-Finance Racketeer

Dirty Money

The year was 1988, the first presidential election in which I was eligible to vote, and the trauma is still nearly too much to recount. The duo, brothers, arrived at my dormitory room at the University of Texas, hauled me from the intensity of my studies and dragged me to a polling place, where one wrenched my left arm behind my back and the other bodily placed the right on the voting machine and, depressing the lever, made my choice. As they released me into the chill and black of a November night, I demanded their names. “Koch,” they replied, their snarls announcing they made no apologies and felt no remorse.

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Lenin’s Ghost: How Did Marxist Professors Create a New Wave of Political Leaders?

Pablo Manuel Iglesias Turrion, a political science professor, leads Podemos ("We Can") in Spain.

Europe has by no means recovered from its crisis. The new wave of migrants from Africa, Asia, and the Middle East has worsened the economic forecast. The economies of the Eurozone, with a collective growth rate of under 1.5 percent in 2015, are almost stagnant. Gone are the days of the German economic miracle. Nowadays, nearly 4.5 million young persons under 25 are unemployed in the EU-28 — a staggering figure, to which Chancellor Merkel just added an extra million refugees. Particularly in the Mediterranean countries, youth unemployment is at very high levels: 47.9 percent in Greece, 47.7 percent in Spain and 39.8 percent in Italy.

Confronted with this bleak picture, politicians, journalists, religious leaders, and public intellectuals all search for an explanation. Why is the European dream failing so many young people? How long will the economic recovery last? Will the EU be able to cope with another massive crash of the financial international system?

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Two Non-Constitutional Ways of Protecting Economic Liberty

In two recent posts, I have suggested that the Fourteenth Amendment of the Constitution does protect economic liberty against the states but in a modest way. Legislation, like a state granted monopoly,  that merely protects one group of people over another is illegal.  But states are free to pass inefficient legislation that trenches on liberty so long as it has a bona fide police power rationale, like health and safety. The Fourteenth Amendment does not enact cost-benefit analysis.

Thus, the direct results for economic liberty of hewing to a more originalist understanding of the Fourteenth Amendment will be modest, because much legislation is inefficient, but not simply protectionist.  But there are other means of achieving the goals sought by a more stringent judicial review of economic legislation, most importantly more vigorous use of the federal antitrust law and the establishment of state and local agencies that impose cost-benefit analysis on regulations.

In North Carolina State Board of Dental Examiners v. FTC, The Supreme Court recently made clear that agencies that are composed of a majority of industry representatives are subject to antitrust scrutiny, unless they are “actively supervised by the state.”

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Whither Puerto Rico?

San Juan, Puerto Rico

Is there any salient public policy issue that the Supremes are not going to rule on this Term? And: are the Justices entirely sure how to think about highly salient cases where ideological preferences and deeply held jurisprudential convictions cut against and across each other—and where there’s a real premium on sorting things out?

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Volkswagen Is Not the Only One with a “Defeater Device”


It has always seemed odd that the ultimate power of man over nature—science—is supposed to be what will preserve the naturalness of the environment.

Last time we celebrated Earth Day, President Obama had no doubts when he told the “science guy” Bill Nye that it is “part of our constitutional duty” to promote science for the environment. “I’m not a scientist either, but I know a lot of scientists,” said the President. “I have the capacity to understand science. I have the capacity to look at facts and base my conclusions on evidence.”

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Texas Has a Plan

Texas Governor Greg Abbott recently called for a convention of states to amend the U.S. Constitution.

Proposals for a “convention of the states” roil the Left and Right.

Texas Governor Greg Abbott made news early this month when he advocated an Article V convention of states to amend the U.S. Constitution to rein in the overreaching federal government, and restore the proper balance of power between the states and the federal government.

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Conservative and Libertarian Legal Scholars Are More Published and Cited

In a fascinating article, James Phillips has focused on the productivity, citations, and credentials of scholars at the top sixteen law schools. His analysis suggests that conservatives and libertarians are more productive, better cited, and, with one important exception, better credentialed than other scholars. The powerful combination of these findings is thus consistent with the hypothesis that conservatives suffer discrimination in hiring, perhaps particularly in the lateral market when productivity and citation data are very visible. It is as if they are competing in a race with an extra weight on their backs.

I recommend reading the entire article, whose statistics cannot be full summarized nor independently evaluated here.  But on what appear to me to be the best specifications, the differences in productivity and citations are not small. Conservatives and libertarians write about three quarters of an article more per year than other professors, both liberals and those of unknown ideology. They garner 13 to 37 more citations than other professors, which is quite a lot given that the average for a year across faculties is only 41 citations. When measured against liberals alone, they are also more productive and more cited, although not by quite as much. They are also better credentialed in matters like membership on law reviews and grade honors in law schools and clerkships, although others are more likely to have a doctorate in another discipline.

Assuming this article is accurate, the normative implication that I draw is that in hiring schools should weigh more objective data, like productivity and citations counts more heavily and take less account of their faculty’s more subjective impression of scholarship.

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Gans on Reconstruction and Affirmative Action

At Balkinization, David Gans criticizes one of my earlier posts concerning original meaning and affirmative action, where I argued that the Freedmen’s Bureau Act does not provide support for the constitutionality of affirmative action under the 14th Amendment.  Gans makes two points:

First, he claims that in

the debates over the federal race-conscious measures of the Reconstruction Era, no one took the view, suggested by Rappaport, that the federal government was not bound by the Constitution’s demand for equal treatment before the law.  That was a core principle of due process, to which the federal government was bound under the Fifth Amendment.  (The Supreme Court has said as much repeatedly.)  In the arguments over racial preferences in Congress, the Fourteenth Amendment Framers and their opponents all assumed that the federal government was required to respect the equality of all persons.

Gans point here is problematic.  It is true that during these debates, people often argued about equality.  But in many of these cases, the appeal to equality was best interpreted as involving a political principle rather than a constitutional requirement.  It is an undeniable fact that the Equal Protection Clause (which most commentators view as the source of equality) was not applied to the federal government. 

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American by Nature


A great deal of ink has been spilled of late on the question what, exactly, it means for someone to be a natural born citizen under the U.S. Constitution. As Senator Cruz was born in Canada, to a mother who was a citizen and father who was not a citizen, the question is on point. The Constitution states in Article II that “no Persons except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.”

What, exactly, does that mean?

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