Maybe Once You’ve “Arrived,” Being Fair Is Optional

Rick Perlstein’s reputation rests upon his award-winning first book from 2001, Before the Storm, about the crushing defeat of conservative icon Barry Goldwater in his 1964 run against President Johnson, and the conservative movement born in that defeat.

A frank left-winger who got his start at the Nation, Lingua Franca, and Mother Jones, Perlstein nevertheless was, Orwell-like, harder on his own side than on his opponent’s. Although taking swipes at Goldwater for denouncing federal intrusions into the business world when his family’s fortune was gained with government help, Perlstein depicted the Republican as much more admirable overall than President Johnson. (As an example, Goldwater ran a clean campaign whereas LBJ brought out the heavy lumber, authorizing CIA agent Howard Hunt to violate the Agency’s domestic charter and bug Goldwater’s campaign headquarters.) Perlstein saw it all and was so fair-minded, with a slight bias toward the Right, that it was hard to detect any agenda in that book.

The same cannot be said of his latest, The Invisible Bridge: The Fall of Nixon and the Rise of Reagan.

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Is Originalism the Law?: The Constitution in Exile Problem

In the past, I have discussed the justification for originalism that the original meaning of the Constitution is the law. Under this positivist view, originalism is the law and and therefore one can make a normative argument that the original meaning should be followed. I have expressed skepticism about this argument: my tentative position is that the law allows, within significant limits, both originalism and nonoriginalism.

Steve Sachs has a new paper out that attempts to develop the positivist originalist argument further. In The “Constitution in Exile” as a Problem for Legal Theory, Steve in part responds to my post questioning this positivist argument:

On its face, the jurisprudential objection is quite plausible. It has even persuaded some originalists. Michael Rappaport, for example, straightforwardly defends originalism as a “desirable” reform program, rather than as a consequence of “following the law.” He notes that “people are in jail in the U.S.—lots of them—for violating laws that are inconsistent with the Constitution’s original meaning,” and that “nonoriginalist Supreme Court decisions are enforced without a second thought by most people all the time.” In this context, “[w]hat does it mean to say that the Constitution’s original meaning is the law?” More generally, “[w]hat does it mean for something to be the law, if the legal system is not enforcing it?”

Steve’s paper is excellent and I strongly recommend it. The paper contains all types of interesting insights from which I learned quite a bit. But in the end the paper does not really move me any closer to the view that the original meaning is the law under positivism.

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Failure in the Use of Knowledge

Good sense, said Descartes at the beginning of the Discourse on Method, is the most evenly-distributed thing in the world. However displeased we may be with the distribution of anything else, each of us believes that we have a sufficiency of it (unlike, he might have added, everyone else).

I suppose the question of who are the wise men and who the fools will never be settled once and for all—certainly not in matters that touch on politics. For my own part, though not over-endowed with political perspicacity, I am often surprised by the utter foolishness of the great ones of the world. They seem to me to take the Bourbons, who learnt nothing and forgot nothing, not as a warning but as a model. Over and over they make the same mistakes and fall prey to the same illusions. It is almost as if ineducability were the key to success in a political career. That, or naivety.

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Saved By the Bar?

2014 has been a great year for reading about the tense relationship between the modern administrative state and American constitutionalism. F.H. Buckley’s The Once and Future King attempts to grapple with the accretion of power towards the executive in modern democracies, while Philip Hamburger’s Is Administrative Law Unlawful? explores the challenges that the administrative state poses for the rule of law.

A third contribution by Georgetown Law professor Daniel Ernst, titled Tocqueville’s Nightmare, argues that the tension between bureaucracy and freedom was actually resolved in American history by reformers between 1900-1940. Thus (like Jerry Mashaw’s 2012 book Creating the Administrative Constitution) it seeks to defend the administrative state against accusations that it cannot coexist peacefully without our constitutional system.

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Uber and Taxicab Licensing

John McGinnis argues against compensating traditional taxi companies for the harm that Uber imposes on them. His policy argument is that:

New technologies always replace the old. That is the story of the creative destruction of capitalism. Providing compensation would make individuals less likely to shift employment in the face of foreseen technological change and government more likely to suppress innovation. . . . Taxis are in the same position as blacksmiths, carriage makers, and providers of telegraph services, all enterprises that lost out to new competitors with better technologies.

I agree with John, but I have some thoughts to add.

It is not simply that the new technology of Uber should be allowed to displace the old technology of taxicabs. It is also that taxicab licensing is a pernicious regulation. Like most licensing systems, the system restricts competition. There are strong arguments against any licensing, but even if one believes licensing should be allowed, one can only make a plausible case for it if consumers are unable to monitor the quality of the service. This is certainly not the case with taxicabs. Moreover, even if one allows licensing of a service, one would not permit a restriction on the number of persons allowed to enter the industry, as does taxicab licensing. (One could conceivably make an argument that industries with high fixed costs require restrictions on entry, but that is not true of taxicab companies.)

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An Insular, Discrete, and Disdained Majority

Sotomayor Senate RolesSome fans of Justice Sonia Sotomayor have recently dubbed her “the people’s justice.” But if her dissent in Schuette v. BAMN is any indication, she doesn’t seem to really like the actual people. And unfortunately for popular government, her colleagues on the bench do not seem very friendly either.

In Schuette, the Supreme Court held that the Constitution did not prohibit the people of Michigan from adopting a constitutional amendment banning governmental racial discrimination, including racial preferences. The Court’s decision overturned a Sixth Circuit decision invalidating the ban.

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Sect and Power in Syria and Iraq

Important as it is to keep in mind that sectarian socio-religious hate is what drives the vast bulk of the people engaged in today’s Muslim-world war, understanding that war requires taking into account those who provide the contending forces’ military organization. On all sides, this has less to do with religion than with secular considerations, including by highly placed atheists, of how to promote their own power.

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Against Compensation for Uber’s Competitors

Last Monday my post celebrated Uber, the car service summoned by phone apps, arguing that this disruptive technology promotes efficiency, helps the environment, and reduces inequality. Some commenters nevertheless suggested that taxis should be compensated for the loss of value to their business caused by Uber.

I do not believe compensation is warranted as a matter of law or policy. First, unless the localities had given taxi services an express contractual or charter right to be the exclusive carriers, permitting entry by Uber would not violate the Contract Clause. That proposition is as as venerable as the Charles River Bridge case where the Taney Court held that a new bridge could be built over the Charles River despite a previous state charter granted to a bridge building company for the same river.   Economists have thought this case important to American economic development, because it impeded the establishment of state sanctioned monopolies.

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Does the President Have Authority to Bomb ISIS in Iraq without Congressional Authorization?

This is an interesting question that raises many of the same issues as the US involvement in Libya and the proposed involvement in Syria. The possible bombing of ISIS, of course, raises additional issues. There are two possible bases for action by the executive without congressional authorization. First, the executive might rely on statutory authority that Congress provided in the past. There is the 2002 Iraq AUMF (Authorization for Use of Military Force), which provided that “The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to .…

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Here the People (are supposed to) Rule

ClintonAs she hawks her new book, Mrs. Clinton is saying provocative things. Her assertion that “American political system is probably the most difficult, even brutal, in the world” has raised eyebrows across the country.

In a world in which violent coup d-etat are still relatively common in many parts of the world, that’s a striking claim. American politicians are toppled by elections, not by violence. The parties hurl invective at each other, not ordinance. As John Adams reflected to Thomas Jefferson in 1823, “I should like to see an election for a President in the British empire or in France or in Spain or in Prussia or Russia by way of experiment. We go on pretty well—for we use no other artillery than goose quills: & our ink is not so deleterious as language & grape.”*

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