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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The Guilty and the Oppressed


Growing up the son of a criminal defense lawyer who represented all sorts of unsavory people led to many strange experiences in my youth. I accepted collect phone calls from imprisoned felons, many of whom insisted, even to me—a kid answering the call—that they had been “wrongfully convicted.” I listened to my father rail against the abuses of unchecked executive branch power, as well as the ethical corner-cutting and sometimes flat out lying by the police. And I learned to balance the moral conflict—we could live in a world in which law enforcement did break rules and abuse power, while at the same time people who looked guilty, and were probably guilty, still deserved their legal rights. Innocence, my father always said, went out with Adam and Eve, but not guilty is a different kettle of fish.

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Inescapable Logic on Immigration

USA America Citizenship Application with glasses

There is no greater sign of what a good and generous people Americans are than our troubles over immigration.

Were Americans a downright mean people, we would have no compunction about shipping illegal immigrants back to their countries of origin en masse. Yet that is politically unacceptable. Why? Because most of us would find it morally unacceptable, particularly for people who have been here for long time and have begun to put down roots.

Kicking out someone who has just crossed the border without our permission is another matter altogether. But plenty of Americans object even to that. If these are poor people, arriving in our prosperous country to improve their lot in life, as most of our ancestors did, who are we to object?

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Honor Employers on Labor Day

Create your business

On Labor Day, we should praise employers as well as workers. In our economy employers make much of our labor possible by paying us wages. They make it more productive by arranging its structure most efficiently. They make it more forward looking by coming up with ideas for the next new product and service and by supplying the capital to get these ideas off the ground.

Yet many fail to acknowledge what a deeply moral act employing someone else in productive, legal work can be. By giving someone a job, an employer is not only providing a wage, but a framework of discipline and often a satisfying life that not everyone can provide for themselves. And large employers, like Walmart, do most of all by employing millions and creating paths for career advancement that would not otherwise exist.

In contrast, most of the shrill critics of companies like Walmart are academics and others who have never employed anyone except perhaps a nanny. They have done little to put bread on the table of their fellow man or set the less well off on a trajectory to a more ample livelihood.

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Appointing an Originalist Supreme Court Justice

In the Weekly Standard, libertarian law professors Josh Blackman and Randy Barnett offer five recommendations to a new Republican President on how to select Supreme Court nominees. Conservative blogger and activist Ed Whelan disagrees with many of these recommendations. I thought I would weigh in on each of them.

1. Bruising confirmation battles are worth the political capital for a lifetime appointment.

Whelan largely agrees with this, but he points out that only certain Presidents will be willing to incur those costs. That is certainly true. I would assume that both sides believe that it is important to elect a President who is committed to originalism and lawfulness, and therefore who would be willing to fight the good fight on this issue.

2. Paper trails are an asset, not a disqualification.

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