Houston Hits ‘Pause’


“Words had to change their ordinary meaning and to take that which was now given them.”

Houston voters, being Texan and therefore retrograde, have defeated an ordinance that Mayor Annise Parker, being progressive and therefore enlightened, says should never have been up to them. “No one’s rights,” she explains, “should be subject to a popular vote.”  The ordinance—in pursuit of which Parker tried to subpoena the sermons of opposing pastors—would have prohibited discrimination, which is to say distinctions, in a variety of areas, including public accommodations (bathrooms), for a variety of reasons, including gender identity.

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What Do We Have in Common?


After seeing so many utilitarian and, to be honest, philistine political comments about higher education and culture—the most recent came from Jeb Bush—it was in a sense refreshing to read President Obama’s exchange with novelist Marilynne Robinson, presented in two parts in the New York Review of Books. (Readers of this site should not neglect Paul Seaton’s very fine reflection on the Robinson’s collection of essays that provides the context for her conversation with the President.)

One of the most striking things the President said was this:

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Why Campaign Finance “Reform” Would Make Politics More Like Academia

The Republican debate on CNBC confirms that campaign finance reform would boost the progressive agenda, because it shows the depth of bias in the free media. The questions of reporters–even those who worked for a business news network– tended to be premised on the need for one government program or another to solve a social problem.  As William McGurn noted, in the Democratic debate reporters do not grill the candidates with questions from a small government perspective. And CNBC reporters are not the exception; studies show that media reporters lean strongly left.

It is the capacity of the media to shape the political agenda that puts Republicans on the defensive during campaigns. It is only at election time when citizens have more motivation to listen that independent political messages can puncture that progressive agenda control. That is the reason that Progressives want to reduce such messaging. Campaign finance reform magnifies the power of the agenda control that the media has the rest of the year.

One of the best comments in the debate was precisely to this effect, although it was not said in the context of a debate about campaign finance reform. Marco Rubio stated that the mainstream media was a ”Superpac for Democrats.”

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The GOP needs more than cosmetic surgery. It’s either showing signs of great health or is in crisis, or perhaps a little of both. The party controls both houses of Congress and is hitting historic highs in governorships and state legislatures. An array of bright, young, plausible Republican Presidents campaigns for the Oval Office—a far cry from 2012, when former Massachusetts Governor Mitt Romney won largely because he seemed to be the only person who was truly up to the job.

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Does the Constitution Allow a Female President? Originalism Says Yes. Some Types of Nonoriginalism May Say No.

This might seem like an odd question, but a journalist recently asked me my opinion about the matter.  It turns out that Article II of the Constitution refers to the President as a him.  For example: “He shall hold his Office during the Term of four Years.”  If this “he” meant only a male person, there would be a strong argument that the President had to be a male.

But I believe that this interpretation is mistaken.  It is my understanding that the term “he” at the time of the Constitution had multiple meanings or usages.  While one of those was to refer to a male person, another was to use the term “he” to mean “he or she.”  Under that usage, a female President would be constitutional.

The same issue arises as to members of Congress as well.  For example, Article I, section 2, clause 2 provides “No person shall be a Representative who shall not have attained to the Age of twenty-five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.”  (Emphasis added.)

There are strong reasons for preferring the “he or she” meaning over the “he” meaning.  Most importantly, the Constitution contains explicit qualifications for serving in Congress and in the presidency.  These are normally thought to be the exclusive qualifications set by the Constitution.  Reading in another qualification – maleness – would thus conflict with the constitutional structure.

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When Law Is a Second-Hand Emotion

businessman and huge maze

As we noodle over administrative law’s foundations, we should also think carefully about its mechanics, and how these could better shape its compliance with the rule of law. Herewith an example: preliminary relief. (I’ll run together a bunch of doctrines that are technically different. But they all go to the timing of effective judicial relief.)

In an exceptionally well-written and economically literate op-ed, Mrs. Rhea Lana Riner describes her unpleasant interactions with the U.S. Department of Labor. She operates clothing consignment shops. Her business model, which she has franchised with great success, allows consignors to volunteer at sales events. The Labor Department says the volunteers are actually employees and must be paid minimum wage, plus overtime. So the Department went to town on Rhea Lana’s: it urged the volunteers to sue for back pay (none did) and then sent a demand letter: pay them or else. Mrs. Riner explains that

[t]he Labor Department’s years long and still-unofficial crusade has placed Rhea Lana’s into regulatory purgatory. The department is ordering me to conduct business to my detriment, and threatening hundreds of thousands of dollars in civil penalties if I fail to comply. Yet a federal court has ruled that I lack any meaningful recourse until the agency files an official complaint, which it has not done.

And may never do, Mrs. Riner. Because then, they’d have to defend their position in court.

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Martha Could Have Succeeded George

Hillary Clinton is the odds on favorite to be the next President of the United States. From a reporter this weekend, I learned that her possible victory has offered an occasion for Dean Erwin Chemerinsky to argue that the original meaning of the Constitution would prevent her from being President. His primary contention is that women are excluded form the highest office because the original Constitution refers in many places to the President as “he.” Of course, Dean Chemerinsky does not believe that the Constitution correctly interpreted actually prevents Clinton from becoming President nor is he predicting that any court will so hold. He just wants to score points against originalism.

But his argument shows that he understands little about originalism and seemingly less about the plain text of the Constitution. First, the language of the Constitution has to be interpreted against the linguistic convention that existed at that time (and indeed despite its political incorrectness may exist even now) that the masculine reference can include females.  Lest there be any doubt that this was a convention at the Framing, one just has to consult the King James Bible, surely the book best known in the United States in 1789.

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Kissinger’s Quest for Order


Henry Kissinger has drawn on his experience of statecraft to explore the contradictions of world order, and elucidate how statesmen keep international relations from becoming an anarchic struggle. Pithy observations punctuate his latest analysis, World Order, an engaging book informed by a wide appreciation of history and culture.

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Why the Likely Resurrection of Eximbank is Worse than the Budget Deal

The friends of liberty appear to be in danger of suffering two defeats— first, a budget deal that rolls back the sequester without reforms to the core of entitlements and, second, the resurrection of Eximbank. The second defeat would be more devastating than the first, because the procedural advantages are all with liberty in the case of Eximbank.

Although the Republicans have a majority in both houses of Congress, they confront substantial obstacles to working their will on the budget.  The President can veto (without fear of override) any appropriation bill they send up. Even worse, the Democrats can filibuster any bill in the Senate. As a result, the Republicans cannot even send a continuing resolution funding the government to the President’s desk without substantial Democratic support.

Without that resolution, the government will shut down. In the past, government shutdowns have been blamed on Republicans when in control of Congress. People are rationally ignorant of politics and will not follow the various machinations to understand that Republicans are not to blame. Moreover, the Republicans are the party favoring smaller government and thus seem in some sense the logical party at fault. Because of the likely landscape of public opinion, Republicans have little leverage in spending battles when the government is divided as now.

Mike Rappaport and I have suggested that when Republicans gain control of the entire government, they could create a default appropriation rule that keeps the government running but with a lower level of spending.

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Brown, Jim Crow and Originalism

Michael Dorf recently argued that originalism cannot justify Brown v. Board of Education (1954) and any constitutional interpretive theory that fails to justify Brown should be rejected. His argument has provoked many responses.

One response has been to question the claim that any single result should determine the acceptability of a constitutional theory. Any constitutional interpretive theory that limits interpreters will some of the time lead to bad results. Moreover, virtually all constitutional theories recognize that the original Constitution allowed (and to some extent protected) slavery, and that certainly was a bad result.

Another response is to question the claim that originalism cannot justify Brown. In my view, there are strong (although not conclusive) originalist arguments in favor of Brown made by Michael McConnell and others. I would add that McConnell and others often treat Congress’s passage or at least allowance of segregated schools in the District of Columbia as strong evidence against the originalist case for Brown. But that is not true.  As I argue in this paper, the equality requirements of the Fourteenth Amendment did not apply to the federal government and therefore actions by the federal government do not reflect anyone’s view of the Fourteenth Amendment’s content. 

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