Since seeing the movie Julie and Julia the other year, I do a double-take whenever I see an old photograph of Julia Child on a cookbook: Is that the actual chef, I wonder, or Meryl Streep, who played her so realistically? So I found myself doing a double-take when I saw the photograph today of my too-soon departed friend Peter Lawler, for his image looked so like the famous picture of Walker Percy, the novelist and essayist he most admired. Both were Southern and Catholic and, to borrow the title of one of Percy’s novels, both adopted the conceit of the “Last Gentleman,” an ideal whose lasting charm insures it will never quite be true.
In politics, there are no final victories and no lessons that are learned for good: error, like hope, springs eternal. Moreover, what counts as error for some may be wisdom, or at least temporary advantage, for others. There is no catastrophe, political or economic, from which someone does not benefit.
In modern democracies, promises to tax-and-spend are like sin, a permanent temptation: only that they are worse, in so far as they are an instrument for some to gain and (as they hope) to keep power. And so the pendulum swings, seemingly for ever, between extravagance and retrenchment, the former always being more popular than the latter.
In Britain, Mrs. May has overthrown the legacy of Mrs. Thatcher, though nominally she is of the same political party.
The power to impeach officers of the United State government is one of the gravest powers entrusted to Congress in the U.S. Constitution. The power is far-ranging and flexible, laying at the feet of Congress the ultimate responsibility to insure that the officers of the federal government are acting in the national interest and not abusing their authority. Congress has not had many occasions to use the power over the course of the nation’s history, and the most frequent targets have been low-level judges who had engaged in undoubtedly bad behavior. Impeachments of more high-profile targets like presidents raise more difficult political and constitutional issues about how the power should be used and what the role of the impeachment power might be within the American constitutional system.
The FCC is about to eviscerate the Obama administration’s rules on net neutrality. One of its reasons is that the elimination of net neutrality will provide incentives for internet providers to put more investments into speeding up the system, because the network providers, not the government, will make pricing decisions. But how can internet providers be confident that they will reap the value of their investments given that any Democratic Administration elected in 2020 will almost surely bring back net neutrality? And one of the Democrats’ arguments in favor of net neutrality will surely be that net neutrality gives content providers the confidence to invest in content. Wash, rinse and repeat!
The partisan vacillation about net neutrality show how the administrative state in our politically polarized time can be a powerful force for instability and therefore a hindrance to economic growth. Of course, the original conception of the administrative state made it a bulwark of stability, since its judgments rested on technocratic science. But no one much defends anymore the view that administrative policies emerge from a transmission belt of science. Instead agencies use their broad statutory delegations to make substantially political decisions. And Chevron has effectively broadened those delegations, because it gives agencies the power to interpret the scope and content of these delegations so long as that interpretation is reasonable, even if it is not the best one.
The instability created by the administrative state contrasts with the stability in government that James Madison believed “essential to [its]national character.”
The firing of James Comey and the appointment of a special counsel have once again raised the issue of independent counsels and how we address government wrongdoing. I have long thought about this issue, proposing various different solutions to the problem. The basic problem is that we simply do not have adequate institutions in place to address government wrongdoing. During the late 1970s until the end of the Clinton Administration, the Independent Counsel statute was in place. The statute had many significant defects, although it did have some virtues. One virtue was that it had a uniform standard – although probably…
The doctrine of humanity’s original, common ownership of the earth was a staple of natural rights philosophers of the seventeenth and eighteenth centuries. These philosophers greatly influenced the natural rights philosophy of America’s founding generation, a philosophy which the founders articulated, among other places, in the Declaration of Independence. I’ve mused this last week on the arguments of one of these natural rights theorists, Hugo Grotius. Grotius devotes a great deal of attention to how (in his view) the original state of humanity’s common ownership of the earth continues to influence just claims even after the rise of nations and private property.
Of special interest given current events are Grotius’s arguments on the implications of the original condition for immigration and refugees. Earlier I considered Grotius’s argument that a nation must allow immigrants to claim “waste or barren land” in a country as a matter of right. But barren, unused land was not the only condition under which Grotius would require a nation to admit immigrants as a matter of (natural) right. Perhaps even closer to current events is Grotius’s discussion of “necessity” as a condition conferring a right to immigrate into other countries.
In his Inaugural Address, President Trump intoned that “we are not merely transferring power from one administration to another or from one party to another, but we are transferring power from Washington, D.C. and giving it back to you, the people.” He praised the “just and reasonable demands of a righteous people and a righteous public.”
The Trump rhetoric evoked a strain in all democratic politics, since such governments are indeed to follow in some sense the will of the people. But the populist conceit is that The People form a single and coherent whole whose mind is discernible, with the populist leader liable to claim clairvoyance as to what that mind holds.
The reputation of Clarence Darrow (1857-1938) as one of the greatest of American lawyers rests largely on two courtroom performances: in the murder trial of Leopold and Loeb in Chicago in 1924, and the “Scopes Monkey Trial,” which took place in Dayton, Tennessee in 1925. Both were extensively covered by the news media and later became the subject of numerous plays, books, and movies. Darrow’s 12-hour-long closing argument at the sentencing hearing in the case (the teenaged “thrill killers” had confessed, and Darrow convinced them to plead guilty for tactical reasons), which persuaded the trial judge to spare the defendants’ lives, is regarded as a classic of courtroom oratory. The bizarre case was fictionalized in the 1956 book and 1959 film Compulsion, and inspired aspects of the play and Alfred Hitchcock’s 1948 movie Rope (and, some believe, the ransom delivery sequence in 1971’s Dirty Harry).
One of the glories of our constitutional structure is competitive federalism. Under the original Constitution, the states had very substantial powers of regulation. But they were disciplined in large measure because they were forced to compete in a market for governance. If a state imposed too many burdens on their citizens through either taxation or regulation or failed to provide needed public goods, citizens could leave.
For competitive federalism to work well, the federal government, however, does need to facilitate it. Most important are the constitutional rights that ease movement. Article IV of the original Constitution requires each state to extend the privileges and immunities it extends to citizens within its state to citizens of other states. Presumably that right effectively guarantees free movement in, out and, within the state for out-of-state citizens since states universally grant that right to their own citizens. The self-ownership assured by the Thirteenth Amendment eliminated a legal obstacle that African Americans faced travelling from state to state. The First Amendment assures that citizens can hear about conditions in other states and compare it to their own.
But it is not only the Constitution but federal statutes that can make a difference to the vibrancy of state competition.
No man enters the presidency prepared for the office, yet few chief magistrates have managed a stage entry as startlingly rife with incompetence and impropriety as Donald Trump. The reason is that the inherent, inertial conservatism of the office disciplines most of its occupants.