Thinking about President Obama’s second inaugural address and the ubiquity of egalitarian political rhetoric is enough to make you wonder if anything can be preserved from the reach of government. Even philanthropy itself, the unique American contribution to civil society, made by possible by the overflows from prior gains in trade, might now have to account to government for its independent work. So what does equality mean in the American republic? The inability to speak in a grounded manner about this principle seems to doom attempts to limit the size of government, protect commerce from undue interference, and uphold a robust civil society, among other worthy goals. Continue Reading →
Liberty Law Blog
No tourist, I think, ever said ‘If it’s Tuesday, this must be North Korea;’ for whatever else might be said about that country, it is certainly distinctive. Whoever has been there, as I have, is unlikely ever to forget it; indeed he is also likely, from a combination of continued horror and fascination, to buy books about it whenever they appear. Fortunately this is not a great call on anyone’s income.
Recently in Paris I came across a volume entitled (in English, though the book was published in France) Kim Jong Il Looking at Things. It consists of a series of photographs, taken from the official North Korean news agency, of the late Dear Leader on his tours of inspection of his country, examining close-up its agricultural produce and its industrial products. The pictures come with lapidary captions, always in the form of ‘Kim Jong Il looking at x’ or ‘Kim Jong Il looking at y.’
The idea to put these photographs together was that of an art director of a Portuguese advertising company, João Rocha. He put them first on a website that is said in the book, in that inelegant but expressive phrase, to have ‘gone viral.’ It was a clever and original idea, and well worth consecration in book form. Continue Reading →
Alexander Hamilton and the Politics of Impatience (From Balancing Trade to a Balanced History): Part III
Adam Smith’s Wealth of Nations was published the same year as the Declaration of Independence, and Hamilton was right to perceive a growing appreciation of its basic message among his countrymen. Smith wrote to dispel the errors of mercantilism. Hamilton wrote to keep them current. In particular, he was fond of Sir James Steuart, who represented Smith’s “chief foil.” Curiously, McCraw buries this in his footnotes at the back of The Founders and Finance. (383/4 n. 4) But McCraw is not at all hesitant to declare Hamilton a “first-class student of both economics and administration.”
Hamilton apparently saw “how everything in the national economy was related to everything else.” And “he saw that in the construction of grand strategy, every move must be coordinated so as to make the whole of public policy exceed the sum of its parts.” Hardly reserved in his applause, McCraw proceeds, “And this is what he proceeded to do as secretary.” (93) But one can take a different view, and in the matter of economic theory, one would be right to do so. Continue Reading →
As well as laying claim to being land of the free and home of the brave, until recently America could boast of a more devout populace than any other Western country. As Seymour Martin Lipset observed in his 1996 study of American Exceptionalism:
The puzzling strength of organized religion [is] a phenomenon that impressed most nineteenth-century observers and continues to show up… in cross-national opinion polls… These polls indicate Americans are the most churchgoing in Protestantism and the most fundamentalist in Christendom… Compared to West Europe as a whole, Americans place a higher importance on the role of religion in their lives.
Recent polls suggest Americans are becoming more like their European cousins with respect to losing their religion. According to a poll published last October by the Pew Forum on Religion and Public Life, the number of Americans without affiliation to any organized form of religion has grown from 16 per cent of the total population in 2008 to 20 per cent. Continue Reading →
- Don’t miss the current podcast with Randy Simmons on his recently updated book, Beyond Politics: The Roots of Government Failure. Simmons, in this discussion, challenges the iron-clad belief that government rules and regulations live and move in rational operation, having their being serving the commonweal 24/7. Instead, Simmons provides a comprehensive way to think about the giant suck of political reality.
- Getting off the campaign finance merry-go-round: The Books section this week features former FEC Commissioner Bradley Smith reviewing Curbing Campaign Cash by Paula Baker.
- Garett Jones at Econ Log: Is that a government purchase or are you getting transfer payments?
- Inspired by this report on the U.S. Department of Agriculture’s cultural sensitivity program requiring USDA employees to say, among other foolish things, that the Pilgrims were “illegal aliens”, Eugene Volokh responds with this interesting piece on immigration policy and adds, to my mind, a sensible observation about immigration, that is
The bottom line is that for all the good that immigration can do (and I’m an immigrant to the U.S., who is very glad that America let me in, and who generally supports immigration), unregulated immigration can dramatically change the nature of the target society. It makes a lot of sense for those who live there to think hard about how those changes can be managed, and in some situations to restrict the flow of immigrants — who, after all, will soon be entitled to affect their new countrymen’s rights and lives, through the vote if not through force.
I sometimes pose for my liberal friends a stylized thought experiment. Say that they live in a country of 3 million people (the size of New Zealand) where 55% of the citizens are pro-choice and 45% are pro-life (1.65 million vs. 1.35 million). Now the country is facing an influx of 1 million devoutly Catholic immigrants, who are 90% pro-life. If these immigrants are let in and become citizens, the balance will flip to 2.25 million pro-life to 1.75 million pro-choice (56% to 44% pro-choice); and what my friends might see as their fundamental human right to abortion may well vanish, perfectly peacefully and democratically.
Ilya Somin, co-blogger at Volokh, pens an interesting response to the effect that
There are many ways to reduce potential negative political effects of migration short of banning immigration itself. The most obvious is to deny the immigrants in question the right to vote. Both the United States and most other nations already impose waiting periods before new immigrants become eligible for citizenship (currently five years in the case of the US). If necessary, the five year period could be extended to ten years, fifteen, or even longer. We could even grant permanent residency rights to people who are ineligible to vote for life. Living in a country for many years without the right to vote may seem like an injustice. But living that way in a relatively free and prosperous society is still far better than living in a poor and oppressive Third World country – in many of which the citizens also lack any effective political influence.
None of the above proves that the danger of political externalities never justifies keeping out immigrants. To the contrary, I think there are extreme cases where it does. But before imposing such restrictions, natives have an obligation to seriously consider whether the externalities can be prevented or reduced by less repressive measures, such as delaying the grant of citizenship and constitutional constraints on government power. And in weighing costs against benefits, they cannot completely ignore the interests of the potential migrants themselves.
- I would add that Vincent Cannato and Peter Skerry have made interesting contributions to this debate at National Affairs. Both of their essays: Cannato on our evolving policy of immigration, and Skerry on a permanent non-citizen resident program, are worth reading in full.
The legal giant, Ronald Dworkin, has passed on. I was interested to read the New York Times obituary to see what a non-specialized paper would see as his most important contribution. Significantly, the obituary did not highlight his contributions to jurisprudence until the latter part of the review. Instead, the article led with the following:
Professor Dworkin’s central argument started with the premise that the crucial phrases in the Constitution — “the freedom of speech,” “due process of law,” “equal protection of the laws” — were, as he put it, “drafted in exceedingly abstract moral language.”
“These clauses,” he continued, “must be understood in the way their language most naturally suggests: they refer to abstract moral principles and incorporate these by reference, as limits on the government’s power.”
It is not hard to hear echoes of Professor Dworkin’s approach in the writings of Justice Anthony M. Kennedy, who often holds the crucial vote in morally charged debates before the United States Supreme Court and is quite likely to play a decisive role in two pending cases on same-sex marriage.
I would have suspected that this would be the New York Times’s perspective.
That’s too bad, because I believe this aspect of Dworkin’s work was mistaken. While I am not sure about his jurisprudential views, I am much more open to them than to this constitutional argument.
So returning to Thomas McCraw’s The Founders and Finance, McCraw’s interpretive concept around which he builds his narrative is the idea of the “immigrant,” but not just any immigrant. Rather, he has highlighted the traits of a select few: those with commercial and financial experience and understanding. This group, he points out, had particular facility with numbers. They were at home with account books. They understood commercial instruments. They could handle all manner of complex transactions.
Robert Morris, Alexander Hamilton and Albert Gallatin were exemplars of this type. But aside from their technical proficiencies, McCraw finds one further trait to be of paramount importance: a national perspective on their adopted homeland. (363) And among this select few, it is Hamilton who takes the lead, rising to the level of brilliance. Continue Reading →
More and more frequently (I’d heard or read someplace) federal agencies issue regulations without public notice and comment. They may do so (1) when Congress has required or authorized the procedure or (2) the rule falls under one of the Administrative Procedure Act’s exemptions from generally applicable (informal) rulemaking requirements. Among them is an alarmingly broad “good cause” exemption, which permits the suspension of ordinary process requirements “when the agency for good cause finds […] that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” APA Sec. 553(b)(3)(B). (There are a few legal wrinkles, but none are relevant here.) Adrian Vermeule has tagged this provision as one of many legal “grey holes” that swallow the rule of law. That sounds plausible: Notice and comment is the legal process we impose on agencies as the price of delegated lawmaking authority. The good cause exemption looks like (and has been widely understood as) as “emergency” exemption. In times of crisis, government will take liberties with it and courts will “dial down” their review.
Is that happening? I wouldn’t dignify my preliminary inquiries to date with the word “research,” but a quick look suggests a pattern that’s quite at odds with my expectations and with the picture of a “Schmittian” emergency state. Continue Reading →
On Friday and Saturday, the University of San Diego’s Originalism Center (of which I am the Director) will be holding the Fourth Annual Hugh and Hazel Darling Originalism Works in Progress Conference in San Diego. Each year, the Center selects 7 outstanding works on constitutional originalism to be given at the Conference where leading originalist scholars can debate them. The Conference is now one of the leading academic originalist events during the year. Continue Reading →
I very much enjoyed Michael Greve’s discussion of the Chenery case. As I am also a teacher of Administrative Law, having taught it for 20 years (and having the distinction of taking it over at USD from Administrative Law founder Ken Davis), I was pleased to learn some new details about that old chestnut, the Chenery case. Yes, as Michael mentions, the SEC behaved as a lawless bureaucracy — but all for the public good, no doubt. And yes, as Michael mentions, the courts have constrained the SEC and other agencies a bit as to their lawlessness, including through administrative common law (I am less ok with this than Michael is).
But the best part of the post is the information that the Chenery who was harmed by the SEC turned out to be the original owner of Secretariat. That kindly old man in the movie Secretariat, played by Scott Glenn, was screwed by the same nice bunch of guys who treated Preston Tucker so well in the movie about him. Its fun to get your history from Hollywood.