Intensifying International Competition

Judge Stephen Williams has provided an excellent description of some of the Hayekian advantages of international competition. Here I discus how sound legal policy can protect and intensify such competition. First, I want to suggest a few more points about the virtues of international competition.

1. Military Competition. As war has demanded ever better financing and technology, the connection between the flourishing of a nation’s citizens and its success in war has increased. Great Britain beat the continental powers in the eighteenth and nineteenth centuries in no small measure because her limited and democratic government gave lenders confidence that they would be repaid. As a result of the greater capacity to borrow Britain was able to muster greater military force in a crisis.

Today technological progress and military might are ever more connected: the robots conceived today will be the soldiers of tomorrow. The United States’ technological superiority is intimately connected to its open society and an educational system that favors creativity over rote learning. Authoritarian nations are at some disadvantage in replicating the decentralized structures that promote rapid technological progress.

This advantage for the West and the United States should make us wary of entering into agreements to limit the deployment of technologically advanced weapons like drones.

2. Competition from In-Migration of Firms and Individuals. The capacity of the United States to attract immigrants shows the relative power of its social norms. Indeed, its growth from a  relatively small nation of a few million people at the founding to the third most populous nation of the world is the most persuasive evidence of its greatness.

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Is Originalism the Law?: The Basis of Nonoriginalism

In my last post on Steve Sachs’s new paper, I noted that Steve argues that one can have nonoriginalist rules enforced even though originalism is the law. I wrote: To illustrate his point, he imagines a hypothetical society where there is a law that says the people may not eat creatures that feel pain. The people in this society believe that lobsters did not feel pain and consequently eat lobsters regularly. As a descriptive matter, one might conclude that eating lobsters was lawful in this society. But suppose it turned out that lobsters do feel pain. In that event, Steve argues,…

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What a Providentially Bad President Can Do for America

King Arthur: I am your king!

Woman: Well I didn’t vote for you!

King Arthur: You don’t vote for kings.

Woman: Well how’d you become king then?

— “Monty Python and the Holy Grail”

In his enviably readable book Inventing Freedom, Daniel Hannan refers to King John of England as “providentially bad.” Most importantly for the cause of English liberty (and by extension American liberty), the “obnoxious” and overbearing behavior of King John resulted in the Magna Carta. Had John been more artful and politically deft he might have aggrandized more power to himself and imposed a number of political innovations on a disgruntled people. But John, being bad, inspired reaction.

A century and a half after the Norman invasion brought to England a new ruling class and an imposed Continental feudal political arrangement, the nobility—who were themselves the offspring of the “bastard” Normans—drew deeply from the older Anglo-Saxon traditions still encoded in the sinews of English order to check the king and produce a crystalized defense of old liberties. In the Magna Carta they drew from the past but also altered the future. Often in reaction we make progress.

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The Islamic State, and Us

The U.S. government, along with mainstream commentators Left and Right, debate how to meet what they deem to be the growing threat to America posed by the Sunni fighters who last month declared themselves to be “the Islamic State” and their leader, one Abu Bakr al Baghdadi, as the caliph—secular and religious leader—of all Muslims. This reaction mirrors the group’s ignorant evaluation of its own importance. In fact, jumping the gun on the caliphate is likely to diminish its standing within the Muslim world, never mind vis a vis the West.

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The Recess Appointments Decision Part IV: The Motivations Underlying Justice Breyer’s Practice Based Decision

The day after the Noel Canning case involving the Recess Appointments Clause came down, the Federalist Society held a teleforum conference on the issue. I was on a panel with Noel Canning’s attorney in the Supreme Court, Noel Francisco, as well as Professor Kristin Hickman from Minnesota Law School. Kristin raised an interesting point. She argued that one of the principal motivations for Justice Breyer’s majority decision relying on practice to allow a broad recess appointment power was a strong reluctance for the Supreme Court to hold that hundreds of recess appointments by Presidents had been unconstitutional. I am not sure that…

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Hayekian Sifting: The Role of International Competition

Hayek argues that international or inter-society competition will cause regimes to evolve for the better through natural selection: Most of the steps in the evolution of culture were made possible by some individuals breaking some traditional rules and practicing new forms of conduct - not because they understood them to be better, but because the groups which acted on them prospered more than others and grew.[1] I take the argument to be that when one or a few societies stumble on sound rules, their innovations will spread to others by competitive selection. My object here is to reflect on how (if at…

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Has “Originalism” Lost Its Way?

We all know the basic story. In the 1960s and 70s, the Supreme Court rendered decisions and announced doctrines that seemed to have only the remotest connection, if any, to the actual Constitution that the enactors had thought they were adopting. Roe v. Wade was perhaps the most egregious example. These decisions and doctrines seemed in severe tension with American commitments to democratic decision-making and rule of law. In the academy, one response to this perceived tension was a massive project, still on-going, to rationalize the Court’s doings. A different response was the emergence of a movement usually called “originalism.”

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Reconciling “Inalienable Rights” and Government by Consent

An article in the New York Times yesterday discussed a new controversy about the Declaration of Independence—whether there is period after “life, liberty, and pursuit of happiness.” Any controversy that encourages more people to focus on the Declaration and recall our past is most welcome. Nevertheless, I do not believe that the resolution of this debate would fundamentally change the Declaration’s important understanding of the relation between liberty and government. However the document is punctuated, I see three important propositions of political theory implicit in its majestic words:

1. Government is limited to securing “inalienable rights.” Thus, government while necessary is limited by reference to the rights it protects.  It is a servant, not a master of citizens.

2. These inalienable rights are largely negative rights and the procedural mechanisms of justice to assure them.

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The Declaration and Thoughtful Citizenship

If democracy is to endure, thoughtful citizenship is a requirement for a critical mass of the citizenry. We have an opportunity to live up to that obligation today. America’s birthday offers an opportunity to go back to the self-conscious beginnings of our common enterprise, where we meet the Declaration of Independence.

In a letter to Richard Henry Lee, Jefferson famously characterized the Declaration as “an expression of the American mind.” Let’s spend a few minutes considering that mind. We will find it to be: 1) logical; 2) liberty-loving; 3) manly; and 4) gesturing towards, and calling for, philosophical and theological reflection.

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The Real Lesson of Hobby Lobby

My general view on the Supreme Court is that it should do less. That nouveau libertarian George Will criticized the Court for resorting to “judicial minimalism” to achieve unanimity. But I, for one, find the Chief Justice’s emphasis on achieving modest but sustainable results refreshing. Judicial minimalism is generally better than the other extreme more characteristic of our time—judicial maximalism.

In some ways, my view is the opposite of that of the outstanding libertarian constitutional scholar Randy Barnett. Randy wants to combine the spirit of Lochner with the spirit of Roe to achieve a kind of consistent judicial activism based on the presumption of liberty on both the economic and the personal autonomy fronts. I doubt there’s a constitutional warrant for either kind of activism. As far as I can tell, our Framers made judicial review legal, but they also thought that in order for it to be safe, it would have to be rare.

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