A Republic We Are in Danger of Losing

Has there ever been a July 4 other than during the Civil War or the Great Depression where the domestic prospects of our nation have been so dismal? No presidential contest has ever featured a choice that was as obviously dreadful as this one. I would be happy to hear of contrary claims from the annals of American history, but to me even Nixon v. McGovern falls short of our present plight. Nixon’s role in Watergate was not known at the time of the election, and McGovern at least was a man of good character.

But today we are about to elect someone with disabling character flaws and no commitment to the liberty that has been at the core of American ideals. On character, both Trump and Clinton have reputations for dishonesty unusual even for politicians. They also excel at dividing the American people, Trump with his outrageous remarks about ethnic groups, Clinton with her penchant for blaming her and her husband’s troubles of “vast conspiracies” of her political enemies even in instances where she has every reason to know the cause of these troubles is in her own home.

And these character flaws threaten to widen some of our most dangerous fault lines. Trust in government is at one of the lowest points ever. A President widely regarded as dishonest will exacerbate the trust deficit. Americans are more polarized than at any time since the Second World War. Polarizing figures making uncivil remarks about one group or the other are sure to lead to a more divided nation.

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Other Advisory Acts That Are Constitutional: The Legislative Veto and the White House Staff

In my last post, I argued that a national referendum on some important issue, such as whether the U.S. should withdraw from NATO or the UN, would probably be constitutional so long as it was nonbinding.  That it was technically nonbinding would not prevent the relevant decisionmaker -- say the President -- from choosing to follow the referendum's result. This aspect of the Constitution is not unique.  There are various other areas where technically nonbinding acts are allowed (and often followed), even though they would be unconstitutional if they were binding.  One involves the legislative veto.  A binding legislative veto, where…

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Rejecting Post-Political Europe

European Union flags outside EU headquarters in Brussels

Public debate before elections or referenda is seldom notable for its high intellectual level or honesty, and that which preceded the recent referendum on Britain’s membership of the European Union was no exception. On both sides names were called and nonsense spoken. Those for remaining in the Union implied that trade with Europe would cease if Britain left and even that war on the continent would be more likely. Those for leaving the Union played on fears of limitless immigration, though much of it (for example from Poland) has been good and even necessary for the country, and the inability or unwillingness of the British public administration to control the kind of immigration that is most feared, for example from Moslem countries, has nothing to do with Britain’s membership of the Union.

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Donald Trump’s Zero Sum Trade Policy Affronts Classical Liberalism

If judicial nominations are the best reasons to support Donald Trump, one of the best reasons to oppose him is his trade policy. In a speech this week he made clear that he will block the Transpacific Partnership, unravel NAFTA, and try to raise tariffs generally, which he implied were a good substitute for other kinds of taxes. He would be the President most opposed to foreign trade at least since President Hoover signed the disastrous Smoot-Hawley Tariff Act.

There is a reason that freer trade has always been at the heart of the classical liberal vision—from the Manchester School in the nineteenth century to Reagan’s America.  It is not only that trade creates wealth through exchange. It is that trade is part of the engine that sustains civilization through human cooperation when we get rid of mind forged manacles, like mercantilism and distaste for foreigners. It is the enlargement of the sphere of cooperation domestically and globally that offers a long-run boost to security as well as prosperity.

Beyond the details of his policies, Trump’s position on trade shows him the opposite of a classical liberal—someone who thinks that political and economic life is zero-sum where the point of  a nation is win over other nations and the point of an individual is to win over others.  That is the recipe for endless political conflict and division—a medieval Game of Thrones played out in the twenty-first century.

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The Migrating Power of the Purse

Chris DeMuth, an occasional contributor to this site, and yours truly have penned an exploratory article on “Agency Finance in the Age of Executive Government.”

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The Spunk of Albion

Blake's image of Albion from his A Large Book of Designs

You may have noticed that not much is said in this space about what goes on in other countries. It’s not that I don’t have opinions; it’s just I don’t imagine mine are worth much. I conspicuously didn’t take a stand on Brexit. It seemed to me there was a good case to be made for Britain’s leaving the European Union and a good case to be made for its staying in. I thought I’d leave it up to them. If I were British, I would have been more psyched up about the whole thing.

The outcome surprised me, because the past history of secessionist movements—such as Quebec and Scotland—has been of a petering out at the end. Just enough people get all prudent and make a safe choice. Not only that, all the factions of the respectably British cognitive elite—top politicians, public intellectuals, the business leaders, celebrities, the unions, and so forth—advocated making the Progressive choice. “Progressive” here means stay the course when it comes to evolving beyond the nation-state in the direction of larger and more cosmopolitan unions. We aspire to be citizens of the world, politics being that pathology that we shed as we move, as Tyler Cowen puts it, from being brutish to being nice.

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Dysfunctional Constitutional Reform

Editing Fourth Amendment US Constitution Marker

To review Stephen M. Griffin’s new book, Broken Trust: Dysfunctional Government and Constitutional Reform, is to envy his comfortable life within the academic university cocoon, a place where dissenting views fall safely within a very narrow range of well-mannered and moderate Progressive reasonableness.

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The Jurisprudence of Multiculturalism is a Jurisprudence of Obfuscation

Ours has become a multicultural society, but despite this, or more likely because of it, the areas of social policy that touch on race and ethnicity are marked by evasions and prevarications.  The diversity justification for race and ethnic preferences at universities is a case in point. The notion that universities are actually interested in fostering diverse views is belied by their general complacency with their politically homogeneous faculties and the political correctness they tolerate and indeed often foster on campus. The claimed interest in avoiding stereotypes is hardly advanced by admitting students with standardized test scores in many cases almost a standard deviation lower. To the contrary, as predicted by Judge Macklin Fleming in letter to the Dean of  the Yale law school in 1969, differential admission standards have led to lower standards of academic dialogue on our most contentious subjects and a politicized atmosphere on campus.

Thus, it is not surprising that Supreme Court decisions in the area are notable for their obfuscation and, to put it charitably, economy with truth.  Fisher v. Texas II continues and indeed deepens this tendency. First, it proclaims that it is applying strict scrutiny to Texas’ decision to use racial preferences even when its plan admitting the top ten percent of each high school class results in  a substantial percentage of minority students. But while strict scrutiny is generally fatal in fact here it becomes instead a lenient standard of review.

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The Mau-Mauing of Justice Kennedy

U.S. Supreme Court Justice Anthony Kennedy (Photo by Dennis Brack/Bloomberg via Getty Images)

The cowardice of Fisher II suggests that Justice Anthony Kennedy fears another confrontation by the “Wise Latina.”

Justice Anthony Kennedy’s milquetoast 4-3 opinion in Fisher v. University of Texas (Fisher II) has been lambasted from all directions as “a devastating blow to the cause of a color-blind Constitution” (by John Yoo), a “logical pretzel” (by the Wall Street Journal), and a “hedgy, compromise opinion” representing a “pyrrhic victory” for UT that “paves the way for more lawsuits against more universities in the future” (by The Daily Beast).  The most damning criticism, however, was mounted by Justice Samuel Alito, whose blistering 51-page dissenting opinion begins with these words: “Something strange has happened since our prior decision in this case.”  Something strange, indeed. 

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National Referenda and the U.S. Constitution

One interesting aspect of the Brexit decision was that it involved a legally nonbinding referendum. The UK Parliament was not legally bound to follow the result, but nearly everyone accepts the result, with a statement like, the people have spoken and we have to follow it. I think part of the reason for this is that prior to the vote, it was recognized that this decision would be decisive, even though it was technically nonbinding. Thus, it would be morally illegitimate not to follow the decision because one did not like the result. Keith Whittington makes a similar point about…

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