Barnett on the Invasion of Iraq

My friend Randy Barnett has an interesting post discussing his views on libertarian policy and the Iraq War.  He also discusses my recent series of posts detailing my change of position on the War.  I strongly recommend Randy’s post.

I agree with virtually all of Randy’s analysis. In particular, I agree with his skepticism “that the ex post results means that the invasion of Iraq was a mistake ex ante.”  The mere fact that the invasion of Iraq has in many ways turned out poorly does not necessarily mean it was a mistake.  I recognize that it is possible to interpret my posts as drawing that problematic inference, but that was not my intention.  Whether it makes sense to engage in an action ex ante should not be decided simply on the results, but on what made sense at the time. For example, it might make sense to undergo a medical procedure, even though we know that a certain percentage of the time it might lead to bad results.  If the medical procedure happens to lead to a bad outcome, there is a sense in which it was a mistake to undergo the procedure.  But the right way to analyze the decision is to ask whether we would make the same choice again, knowing what we did at the time.  If we would attempt the medical procedure again, even though there is a chance of a bad result, then undergoing the procedure was the right decision.  The same holds for public policy decisions.

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The Guilelessness of Tricky Dick

In Oliver Stone’s laughable Nixon (1996), the director’s penchant for inventive history is exampled by a drunken—and randy—Pat Nixon advising her husband to destroy the tapes. “They’re not about you,” she slurs, “they are you.”

This has been certainly seconded by Nixon’s critics. For 40 years, they have zeroed in on the potty mouth (the biggest surprise for my Republican parents), the anti-Semitism, the enemies list (the work of a “fascist,” according to William F. Buckley), the pay-offs, the disturbing plots against political enemies (for example, slipping LSD to hostile reporter Jack Anderson), to present the image of a paranoid, insecure totalitarian.

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Rule by Edict: Shep Melnick on the Power of the Civil Rights State


This conversation with Shep Melnick looks into the enforcement practices of the Office for Civil Rights in the Department of Education, one of the most powerful and secretive agencies in the administrative state. This agency caught the attention of many in 2011 when Russlynn Ali, Assistant Secretary for Civil Rights, sent a “Dear Colleague” letter to colleges and universities lowering the standard of guilt in a sexual harassment or sexual violence proceeding from guilt beyond a reasonable doubt to preponderance of the evidence (i.e., it is more likely than not that sexual harassment or violence occurred). Topping it off was…

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No Taxation Without Sensation

The trend of corporate inversions has highlighted problems with our corporate tax code. Inversions happen when American corporations shift their corporate nationality to a foreign jurisdiction, often through a merger with a foreign corporation. These inversions avoid the 35 percent U.S. marginal corporate tax rate, one of the highest in the world.

A wide variety of commentators, including James Pethokoukis of AEI, have suggested that one response to inversions and other problems with the code is simply to eliminate the corporate tax. The result would simplify taxes, reduce corporate efforts at legal tax avoidance, and boost economic growth from greater corporate investment. Any revenue loss could be balanced by increases in other taxes. For example, individuals could pay ordinary rates of tax on dividends and yearly appreciation on the value of assets.  Additional ways of making up the revenue might include a carbon tax.

My point here is not to endorse any particular version of corporate tax revision (although I think moves in this direction would be sensible), but to note that such reform would be salutary for another reason that should be of substantial concern to classical liberals in formulating tax policy. The more individuals feel the pain of taxes, the more taxes will constrain the size and growth of government.

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Originalism and Current Practices

With a view towards President Obama’s military actions against ISIS, Mike Ramsey has a good post on whether the significant limits imposed by the Constitution’s original meaning on the President’s power to initiate hostilities operate to place inconvenient constraints on the US’s ability to take desirable actions. Mike concludes that the original meaning’s constraints, while considerable, would still allow the US significant ability to take action.

Mike writes that the President: “has independent power to respond to attacks . . . on the United States”; to “deply troops to defensive positions in support of an ally” (and to respond if those troops are attacked); and to “transfer weapons and supplies to allied forces” (which in my opinion should have been done a long time ago).

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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

Recent 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…

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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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