Constitutionalism by Word Association: A Reply to Evan Bernick

The doors of the Supreme Court

At The Huffington Post, Evan Bernick has offered a thoughtful reply to my suggestion that judicial deference to Congress differs categorically from judicial deference to the administrative state, arguing instead that the real problem is deference simply: “Judicial deference of any kind sees judges elevating will over the reasoned judgment that judges who draw their power from Article III must exercise.”

This usefully identifies the core of the issue. If federal judges actually possessed all the power Bernick says Article III assigns them, there would be less constitutional basis for constraining their authority. If they do not, the issue is whether they can commandeer it.

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History versus Ideologies of Oppression

The Early Discovery of Hawaii by Captain James Cook

The trip to Hawaii I wrote about in my previous post yielded some interesting Ricardian, Schumpeterian, and Hayekian lessons, as I noted. It was also enlightening in terms of how prevailing conceptions of our 50th state compare to its actual history.

The reader of  James L. Haley’s excellent 2014 book, Captive Paradise: A History of Hawaii, will see sobering disparities that match a larger trend in our society: the tendency to distort the historical record so as to exaggerate the vices of the early European settlers while exaggerating the virtues of pre-contact indigenous cultures. This revisionism has the (desired?) effect of minimizing the benefits of Western influence, and even—in the case of Hawaii—calling into question the legitimacy of its statehood.

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Chuck Schumer Wants to Raise Your Airfare

Interior of airplane with passengers on seats.

One of the Carter administration’s great achievements was deregulation, and in no sector was the success greater than in the airlines industry. The result was more competition and lower fares that democratized travel. It is a troubling sign of America’s lurch from liberty and free markets that Democratic legislators are trying to re-regulate the airlines and that the Obama administration is dampening competition.

The most egregious offender is Chuck Schumer, the incoming Democratic leader of the Senate (he will be majority leader if the prediction markets are right). He wants to regulate the width and leg room of airline seats. This is hardly a safety issue: the FAA has not expressed concern, and airline travel has never been safer with no fatalities on domestic commercial passenger flights last year.

Airlines already offer more room in first class and economy-plus for additional money. Are consumers not capable of choosing how much leg room they want to pay for? What other decisions does Schumer want to make for us? 

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The Difference between Talking and Marching

"We All March" campaign in Cuba protests the abuses of the Castro regime.

The Argentine writer and poet Jorge Luis Borges was once invited to deliver a lecture at Peru’s most respected university. It was 1965. By then he was elderly and blind, and Peru was under a military dictatorship that was considered “Progressive.” Borges, a classical liberal, was outspoken against the regime’s military authoritarianism.

He was accosted on the campus by student supporters of the regime harshly protesting his presence. When the students’ militant chants finally died down, Borges was asked by one of them: “Mr. Borges, how is it possible for an intelligent person like you to hold unpopular positions that go against the course of history?”

He calmly replied: “Listen, young man, don’t you know that gentlemen only defend causes that are lost?”

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Little Sisters, Would You Please

Mother Loraine Marie Maguire, (C), of the Little Sisters of the Poor, walks down the steps of the US Supreme Court.(Photo by Mark Wilson/Getty Images)

Scenes from an Argument

I’ve perused the argument transcript in Zubik v. Burwell (better known as Little Sisters of the Poor v. Burwell) and some of the press coverage. I’ve also looked at the press pictures and noodled over whose side I’m on—the grim-faced harridans demanding free contraceptives now, or the cheerful Little Sisters.

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Is Libertarianism the Law? Part II: Using the Modalities to Support Libertarian Results

In this and my previous post, I argue that the constraints imposed by several liberal positivist theories do not operate to place significant limits on Supreme Court decisions.  Thus, the suggestion of these theorists that the law requires judges to take actions turns out to be largely illusory.  While the law under these theories does place some limits on the justices, those limits are relevatively weak.  To make this argument, I attempt to show how these theories (or at least one of them in this post) would allow a libertarian Supreme Court justice to reach significantly libertarian results.  Since these theorists argue that these theories allow liberal results, it seems clear that the constraints they impose are not substantial.

In my previous post, I briefly described Dick Fallon’s Constructivists Coherence Theory of constitutional law, which requires the justices to decide cases based on five types of constitutional arguments: text, intent, theory, precedent, and values.  Here I will show how a libertarian could use these arguments to reach libertarian results.

Let me start with the text.  While the text might seem like a significant constraint, Fallon’s theory renders it much less substantial because he allows the interpreter to rely on either the original or the contemporary meaning.  Based on either the original or contemporary meaning, the text of the Takings Clause, the Privileges or Immunities Clause, the Contracts Clause, the Ninth Amendment, and the Due Process Clause could strongly support libertarian results.  (Other clauses might also be important, such as a First Amendment protection of commercial speech.)        

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The Gipper Wins Another One


Ronald Reagan is the latest entry in the American Presidents Series from Times Books, the publishing house owned by the New York Times. The original general editor of the series, the late Arthur Schlesinger, Jr., selected authors with the appropriate ideological pedigree to chronicle the nation’s 43 chief executives.[1] The core precept of the Schlesinger series was that successful Presidents push the boundaries of their office in pursuit of a Progressive agenda. Schlesinger, succinctly described by David Broder as “James Carville in a cap and gown,” recruited such noted presidential scholars as Gary Hart and George McGovern (the latter was assigned…

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Is Trump or Sanders Worse for Liberty?

Is Bernie Sanders or Donald Trump a greater long term threat to the principles of classical liberalism? Trump’s program is antithetical to classical liberalism. He wants to follow protectionist trade policies. He has disclaimed any interest in reforming the burgeoning entitlements that are the principal engines for growing the state. He seems to quite content to praise authoritarian leaders abroad, like Vladimir Putin. He wants to make it easier for public figures to sue private citizens for their criticism. And he is so vulgar and gratuitously offensive that he undermines the culture of self-restraint necessary to the classical liberal order.

Of course, Sanders is worse on many of these axes. He not only wants to preserve all entitlements but add to social security and to create an entirely new entitlement to higher education. He also is a protectionist. He would destroy the private provision of health care. And he would raise tax rates sky high. As for authoritarianism, he seems to have trouble condemning any regime, such as Cuba, so long as he can entertain the false belief that the regime has been good for the social welfare of its citizens. 

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A Better Account of Corporate Social Responsibility

The Solomeo School

It was Milton Friedman who said: “a corporation’s responsibility is to make as much money for the stockholders as possible.” Despite his Nobel Prize, Friedman definitely hasn’t persuaded our business schools of that. In fact much of the literature on the social responsibilities of business was produced as a retort to that 1962 assertion of his.

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The Prudence, Principles, and Passion of Edmund Burke: A Conversation with Richard Bourke

burke.bookRichard Bourke's new book, Empire and Revolution: The Political Life of Edmund Burke  is the subject of this new conversation at Liberty Law Talk.