An Eternal Introduction

USA Constitution Parchment

When I read the preface, I thought: What a great story awaits the reader. The authors of The Constitution: An Introduction, Michael Stokes Paulsen and Luke Paulsen, father and son, spent nine summer vacations together discussing the original Constitution and the Amendments. I wish I could have been privy to the conversations. Did the father ever say to the son, “you changed my mind on this point?” Did the son ever say to the father, “you changed my mind on that point?” After all, I think, the key to introducing America is by way of a dynamic conversation within and between the generations. Their aim is both lofty and restrained: to write an introductory book that is “rigorous, accurate, and scholarly” yet at the same time “brief and readable.” But they fall short.

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A Classical Liberal State Spends for Public Goods, Not Free Lunches

In the coming weeks Washington faces another budget showdown between Democrats and Republicans in Congress and then between Congress and the President. Sadly, whoever wins or whatever compromise is struck, the federal budget will remain not only bloated but grotesquely misshapen.

The reason is that the debate concerns only cutting discretionary spending, not reforming entitlements. Yet entitlements are the primary drivers of ever increasing spending.  In contrast, discretionary spending can generate public goods that aid long-term prosperity.  An economist would define the essence of a public good as one from which individuals cannot be excluded and where the use of the good by one individual does not prevent use by another.

National defense is the paradigm case of a public good.  Scientific knowledge is another. Given that such goods provide benefits which for which the provider cannot receive remuneration, they will be undersupplied. And some kinds of infrastructure goods with lots of positive spillovers also are likely to be undersupplied, even if they do not quite meet the definition of a public good. The primary fiscal focus of the classical liberal state should be on the creation of such goods, because neither the family nor the market will do so in sufficient quantity.

Not all federal discretionary spending supports these kinds of goods, but a good deal does. For instance, spending for the NIH is declining, despite very substantial evidence that it pays off in longer and better life for citizens.

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Enforcing the Separation of Powers: Buckley v. Valeo

Every year, I teach the 1976 case of Buckley v. Valeo in my Administrative Law class – not the portion that involves campaign finance regulation, but the part that concerns the Appointments Clause.

Congress had established the Federal Election Commission, which was an independent agency with significant power to administer the campaign finance laws.  Congress, however, had adopted a novel method for appointing the six voting members of the Commission.  It provided that

two members are appointed by the President pro tempore of the Senate “upon the recommendations of the majority leader of the Senate and the minority leader of the Senate.” Two more are to be appointed by the Speaker of the House of Representatives, likewise upon the recommendations of its respective majority and minority leaders. The remaining two members are appointed by the President. Each of the six voting members of the Commission must be confirmed by the majority of both Houses of Congress.

This method of appointing the commissioners obviously departs from the Appointments Clause of the Constitution.  The Appointments Clause provides that the President may appoint an officer with the advice and consent of the Senate.  (It is true that the Clause does specify other methods for the appointment of inferior officers, but the commissioners, who run the agency, are clearly not inferior officers.) 

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The Inevitable Divorce: Secular France and Radical Islam

PARIS, FRANCE - AUGUST 24:  French President, Francois Hollande (L) receives US-France Ambassador, Jane Hartley (C) and honorees at Elysee Palace on August 24, 2015 in Paris, France. Spencer Stone (2R), Anthony Sadler (R) and Alek Skarlatos (2L) were awarded the Legion d'Honneur. (Photo by Aurelien Meunier/Getty Images)

Ayoub El-Khazzani, aged 25, failed to reach the trigger of his Kalashnikov aboard a train passing through Belgium en route to Paris last month, which enabled three Americans and a Briton to stop the radical Islamist from killing any of the train’s nearly 500 passengers. When the four were awarded the Legion d’Honneur in Paris, it had been nine months since the gruesome Charlie Hebdo killings in that city.

The Americans remember 9/11; we remember Madrid (2004), London (2005), Paris (2015), and many other outrages, and we were relieved not to have to add the high-speed Thalys train to the list. Innocents have met a violent death at the hands of a few fanatics, thousands have been maimed. Europeans have been feeling under siege even before the new waves of refugees from Syria, Afghanistan, and Eritrea began reaching us; the possibility of ISIS fighters being smuggled in among them has added to the sense of crisis.

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State Attorneys General Challenge the EPA’s Clean Power Plan

Coal plant at night

Last month, the EPA finalized major new rules requiring carbon dioxide reductions across the energy-generating industry. The rules require power plants to reduce emissions levels to 32% below their 2005 levels in the next fifteen years, and it is part of the administration’s attempt to force plants to shift from coal to wind and solar energy. President Obama views the new rules as a crucial part of his environmental legacy; he introduced his “Clean Power Plan” (CPP) as “the single most important step America has ever taken in the fight against global “climate change.”

The new rules are big, they are complex – but we’ve seen the basic story of what the administration is doing here before. In various areas of environmental policy, along with several other policy areas as well – most notably with immigration, health care, and financial regulation – the president has directed agencies to do through administrative edict what could not be accomplished through Congress. Think of the CPP as the failed cap-and-trade bill, take two – only now announced through the executive branch, rather than enacted through the legislature.

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Two Cheers for Large Corporations

Large corporations help those of modest incomes by selling low-cost goods to the many. They help employees by providing relatively stable jobs, by offering a discipline that many workers cannot impose on themselves, and providing career opportunities that small businesses frequently do not.  Walmart to me is the paradigm example. It has been partially responsible for the happy fact that the cost of living has been going up more slowly for the those lower on the income scale than those higher. It has employed over a million people and not generally those who have backgrounds in prestigious education or other evidence of high human capital endowment.

But some commentators have doubted whether such large corporations are good for our republic and our civic culture generally. This concern has deep roots in American history, harking back to the Jeffersonian vision of a nation of sturdy and independent yeoman farmers.  Before the modern era some even thought to make the antitrust law the legal means to sustain an economic world of “small dealers and worthy men.” 

Nevertheless, on balance large corporations are good for our civic culture, at least given the kind of modern government we have. First, these corporations do indeed still promote a work ethic, particularly in a culture where government schools do such a bad job of this. Even modest jobs at companies socialize people into work and get them started on productive life.

Second, large corporations offer the closet approximation many people will have to civic associations of the kind Tocqueville celebrated.

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Strang on Originalism’s Subject Matter: Why the Declaration of Independence Is Not Part of the Constitution

Lee Strang, who has made important contributions to originalism, has a new essay out on the proper role of the Declaration of Independence in originalist interpretation.  Here is the abstract: Scholars across the ideological spectrum have argued for a unique role for the Declaration of Independence in constitutional interpretation. These scholars’ arguments fall into two general categories: (1) the Declaration is the “interpretive key” to the Constitution’s text’s meaning; and (2) the Declaration is itself part of the Constitution. In this Essay, I argue that, from an originalist perspective, the Declaration is not part of the Constitution. I argue that originalism’s subject…

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Paranoia and a Society of Victims

Nothing is more tempting, or intellectually hazardous, than to draw broad conclusions from a single isolated case. Indeed, whole clusters of unusual incidents may mislead people into thinking that they represent a serious trend, when in fact they represent nothing more than the operation of chance in human affairs. I was once asked to take part in an official inquiry into several untoward incidents (murders, actually) that took place in what seemed to be an unusually short period of time in an unusually small geographically area. A statistician subsequently proved that the assumption behind the inquiry, namely that there was an anomaly to be explained, was false.

Nevertheless, it is only natural that we should see signs of the times in very unusual incidents and try to derive wider meaning from them. So it is with the case of Vester Lee Flanagan, the former television journalist who broadcast under the name of Bryce Williams, and who shot two erstwhile colleagues dead and injured another while they were broadcasting, then committing suicide by shooting himself. We feel instinctively that such extraordinary conduct must be symbolic of somethings: not merely an event, but a signal.

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Administrative Law in Turmoil: New Coke Causes Indigestion

Sir Edward Coke

Harvard Law School’s dynamic AdLaw duo (Cass R. Sunstein and Adrian Vermeule) has struck again. In The New Coke: On the Plural Aims of Administrative Law  the authors take aim at the insurgent fundamental assault on the legitimacy of the administrative state, under the banner of “the separation of powers.” The challenge is playing a growing role in separate [Supreme Court] opinions, and on occasion, it finds its way into majority opinions as well. Justice Clarence Thomas is the principal advocate, but he has been joined, on prominent occasions, by Justice Antonin Scalia and  sometimes by Justices Samuel Alito and Chief…

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Natural Law and “This Court’s Authority”


Talk about a teachable moment: I couldn’t believe it when I found a reference to “natural law” in a Washington Post article about Rowan County Clerk Kim Davis’ ill-fated conscientious objection to our new marriage regime. I couldn’t resist taking it to my students, all sophomores in a core class where we’re currently reading and discussing John Locke’s Second Treatise of Government

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