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.
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.
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.
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.
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…
Britain Makes History
By Richard Samuelson
So yet another effort to put all of Europe under one government seems to be failing. From Caesar to Charlemagne to Charles V to Louis XIV to Napoleon and beyond the vision of unity has been a recurring theme in European politics. The latest effort, a union forged in the wake of two destructive and nearly universal wars, is different in some ways—although not democratic, there have been democratic elements in the EU. Moreover, and most importantly, expansion has been peaceful, featuring conquest by referendum.
All that notwithstanding, one can, quite accurately see the Brexit as the latest in a long series of rejections of a universal European empire, with Eurocrats in the place of previous would-be emperors. As in previous centuries, Cambridge and Oxford dons are more comfortable conferencing with their peers at the Sorbonne than with their fellow subjects, and once again the would-be coutiers they train look to the Continent for moral guidance. And, as before, many of Her Majesty’s common subjects resent it.
The National Constitution Center is doing a series of essays on the provisions of the Constitution. It asked Peter Shane of the Moritz College of Law at Ohio University and me to write about The Treaty Power and the Appointments Clause which together compromise Article 2, Section 2. We wrote a joint essay describing where the Supreme Court case law leaves us and then short essays of our own summarizing where the law should be.
Mine sharply criticizes the Court’s jurisprudence for its departures from the original meaning of the Clause, Its opinions on the Appointments Clause are often self-serving because they generally maximize the Court’s discretionary powers at the expense of clearer rules actually contained in the Constitution. The resulting discretion allows them to be political and policy decision makers rather than faithful servants of the law. Here is my general take on the interpretive method that should be followed:
The practice and jurisprudence of the Treaty and Appointments Clauses err when they depart, as they too often do, from the original meaning of the Constitution. The original meaning is the meaning that would have been most likely embraced by a reasonable person at the time of the Framing. Because the Constitution is written in the language of the law, the original meaning is constituted by the text in its historical and legal context.
In particular, I am critical of the Court’s usurpation of decisions about when the President can fire his executive officers:
I was recently invited to speak about ranching to a group of students at Dartmouth, offering them the kind of curve ball Jeffersonian agrarian pitch needed to keep them on their toes. It’s a decidedly left-leaning school (as they all are), so it’s hardly surprising that the talk was, to put it charitably, ‘provocative.’ The students were enthusiastic and well informed, rising ardently to my challenge to their worldview.
Leaving their passions aside, what shocked me most was how deeply entrenched the myth has become for them that government stands in benign counterpoise to private enterprise.
Rather against my better judgment, and that of my wife, I allowed myself to be persuaded to take part recently in a debate, or public conversation, about prostitution. It was not a subject about which I knew much, after all, or one to which I had given much thought. The conversation was supposed to consider the question of whether prostitutes were the victims or conquerors of men. This seemed to me to be about as fair a question as whether a man has stopped beating his wife yet, yes or no? It was an example of a very reduced view of…