Liberty Law Blog

Friday Roundup, May 17th

by Richard Reinsch / 0 Comments

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In his new book, The One Thomas More, humanities professor Travis Curtright seeks to uncover the real More by eschewing the twin temptations of sentimental hagiography and ideological caricature in favor of serious engagement with More’s life and works in all their complexity.  His timing is propitious.  On the one hand, scholarship of the past 60 years has made huge strides, making it possible to speak reliably about the historical More.  On the other hand, outdated ideological and sectarian images of More persist both inside and outside the academy, tending to marginalize More’s influence as political and legal thinker.

This is a great shame, given that the issues so close to More, such as conscience rights, rule of law and the limits of state power, are of pressing concern today—even if the tyranny of our time is not that of a king with caesaro-papist pretensions, but that of an administrative state with increasingly totalitarian ambitions.  The One Thomas More goes a long way to restoring More’s reputation as a man of surpassing personal virtue and a thinker of profound moral and political insight.

  • What if you provided health insurance on a wide scale and it didn’t improve health outcomes? That’s the subject of the next Econ Talk which focuses on the recent Oregon Medicaid study and its interesting conclusions about healthcare policy.
  • The ongoing scholarly reverberations from Hosanna-Tabor: Paul Horwitz discusses on Prawfsblawg his new paper “Freedom of the Church Without Romance.” The paper itself comes from a conference on this main topic recently at the University of San Diego. Here is a link to other contributions to this conference.

Constitutional Presidentitis: Is There a Shot for That?

by Greg Weiner / 0 Comments

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It was March 27, 1809, three weeks into his presidency, and James Madison stood astride the world when he posted a letter to his predecessor Thomas Jefferson to inquire as to one particular secret of the office: “I forget whether the time piece in the sitting room [needs to be wound] monthly or weekly?”

That was then.  This being now, as recently as 1996 the White House employed a presidential attendant several days a week whose actual job—no, really—was winding clocks.  The late Senator Daniel Patrick Moynihan suggested that even Woodrow Wilson, champion of presidential government, might not recognize the office today:

A president who wrote and typed his own speeches is now at some removes succeeded by presidents who do not know the names of most of their speechwriters, much less of their lawyers, economists, statisticians, strategists, and yes, as of 1989 the White House demographer.  First the president got staff, then the staff got staff. (On the Law of Nations, 107) Continue Reading →

Brown v. Harlan

by Ken Masugi / 2 Comments

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 The 59th anniversary of Brown v. Board of Education should recall what that great decision did not do—overturn the racial segregation precedent of Plessy v. Ferguson (1896). Only by revisiting Justice Harlan’s classic dissent would segregation and Jim Crow in the law be finally overcome. Moreover such a Court opinion in Brown would have given civil rights laws a principled dignity and as well promoted an originalist jurisprudence that both protected individual rights and restrained government. This jurisprudence would be based on the Declaration of Independence.

Indeed, the brief for Homer Plessy argued that “The Declaration of Independence … is not a fable as some of our modern theorists would us believe, but the all-embracing formula of personal rights on which our government is based.” It is the “controlling genius of the American people.” And prior to the Plessy setback, as Charles Lofgren shows in his meticulous The Plessy Case (1987), this argument helped win anti-segregation suits at the state level. Continue Reading →

Will Indiana Zag from the Common Core?

by Richard Reinsch / 4 Comments

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Indiana has emerged, once again, in the national spotlight of states willing to buck national trends and go it alone for the good of its citizens and future citizens who might take root in its borders. Already a leader in freeing up its tax and labor policies, making it a standout in the Midwest, the Hoosier state halted last week its implementation of the Common Core (CC) education standards. Currently, 45 states have adopted the CC, and it has been championed by leading “reform” minded conservatives like Jeb Bush, Bobby Jindal, and former Indiana Governor Mitch Daniels. CC was tied to Obama’s stimulus funds and his “Race to the Top” initiative that promoted charter schools and tied increased education funding to a state’s adoption of the CC. So much for free choice and competitive state policies. Continue Reading →

The De-Eroticized University

by Ken Masugi / 7 Comments

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Most readers of this blog will already know the speech codes—viz. sex codes—that the Department of Education seeks to impose on universities, under the guise of preventing sexual harassment. Eugene Volokh has a lucid summary and the Office of Civil Rights of the Department of Education a tedious tongue-lashing about what constitutes sexual harassment.  The acts that keep Diversity Offices at full employment can range from telling a dirty joke to reading Anna Karenina. Similar directives go back into previous administrations, so, once again, the battle is not about a personality (even a powerful one such as Obama) but about the Administrative State.

It turns out, as Volokh notes, that sexual harassment at an institution of higher education might be found in any public or private discussion of sex, love, or eroticism. This means that the speech constituting the core purpose of higher education would have to be scrutinized by Washington bureaucrats. This is dangerous professionally—terrify your favorite male professor by sending him a DVD of David Mamet’s Oleanna, about a supposed episode of sexual harassment. And, more important, the vague codes enforce a debilitating self-censorship on professors and students that simultaneously increases the blandness and the freakishness of higher education. Continue Reading →

Originalism and Affirmative Action Part II: The Weakness of The Critics’ Argument

by Mike Rappaport / 4 Comments

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In my last post, I started to discuss the arguments made by various academics who maintain that the original meaning of the Constitution clearly allows affirmative action. Their arguments are based on a set of federal statutes passed at the time of the 14th Amendment that are said to have provided race based benefits to blacks. In this post, I want to explain why I argue these statutes are weak evidence in favor of affirmative action.

There are two basic reasons why this evidence is weak. First, these statutes are federal statutes and therefore not subject to the 14th Amendment. Second, the statutes relied upon by the critics are not good evidence of race based action.

Let me start with the fact that the statutes are federal statutes. The Equal Protection Clause and the Privileges or Immunities Clause (the two provisions that might impose equality requirements) only applied to the states, not to the federal government. Thus, when Congress passed these laws there is no reason to believe that it was interpreting or implementing the 14th Amendment, because the Amendment did not apply to the federal government.

The critics reply that it is unlikely that a Congress that enacted the 14th Amendment would have violated the principles in that amendment when passing federal statutes. This seems like a potentially strong argument at first, but not upon examination. This argument assumes that the same rules ought to apply to the states and the federal government. But clearly the enactors of the 14th Amendment did not believe that, since they did not apply the Amendment to the federal government.

Understanding Congress’s actions in this area requires offering an explanation for why the 14th Amendment was applied to the states, but not to the federal government.  In my view, the Amendment was applied to the states, but not the federal government, based on two considerations.  First, Congress needed a strict limitation on the states to stop racially discriminatory actions, but did not need one as to the federal government, because the latter was thought to be more trustworthy regarding the treatment of minorities.  Second, there was not full agreement on the content of the equality requirement.  While people were willing to compromise on that requirement as to the states, because of the need for a constitutional restriction on the states, they did not feel the same need to compromise as to the federal government.  Under this view, then, the fact that Congress might have passed laws that benefited (or harmed) blacks would not be indicative of the meaning of the 14th Amendment, because the Amendment neither applied to the federal government nor was intended to do so. Continue Reading →

Curbing the Regulatory State: The Search for a Second-Best

by Michael S. Greve / 3 Comments

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On the volokhconspiracy, my colleague Todd Zywicki has a little piece on auto safety before and after NHTSA’s creation in 1970. It has a graph suggesting (though, Todd notes with excess caution, not showing) that NHTSA has made little if any difference. I use graphs of this sort when I teach State Farm (1983), the famous “airbags case” in which the Supreme Court took a “hard look” at NHTSA’s regulation—alas, without the slightest comprehension of what it was doing. I even happen to know the rate of decline in fatalities per passenger vehicle miles: 3.5% per year in the decades preceding NHTSA; 3.5% thereafter.

There is a rich literature on the subject, beginning with a 1975 study by Sam Peltzman. People, Peltzman argued, don’t behave like crash dummies: regulate, and they change their behavior (e.g. by driving more recklessly); and the response is big enough to wipe out the expected safety gains. That finding has held up pretty well, and you get a “Peltzman effect” and very similar results regardless of what you look at—drug safety and “effectiveness,” workplace safety, child labor, even the environment. This is a depressing performance, especially considering the cost of regulation. Alas, it’ll continue. Continue Reading →

Government as a Reptile Fund

by Michael S. Greve / 1 Comment

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Last Saturday’s Washington Post carried a front-page article on the IRS’s enforcement choices (“IRS targeted tea party groups for tax scrutiny”). We’ll hear more about that matter. Right underneath the IRS piece, still above the fold, the Post had this: “HHS asking firms for money for Obamacare.” Secretary Sebelius, we learn, has called health industry executives and other “stakeholders” for money to promote Obamacare and to enhance enrollment. Continue Reading →

The Professionally Political IRS

by Ken Masugi / 9 Comments

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The Obama Administration’s now-disintegrating excuse for the IRS’s investigation of Tea Party and other conservative groups is that it was done by career employees and not politically directed. After all, “The IRS has two political appointees: the commissioner, who serves a five-year term, and the chief counsel.”

Staying on the superficial level of comparing Obama with Nixon ignores the fundamental problem coming into sight here: the administrative state. In Woodrow Wilson’s conception, this scientific, a-political unity would inflict the will of an elite class on an electorate. In its modest way the IRS in this current scandal is playing out the logic of the great Progressive theorists of the administrative state—as well as its practitioners (see Woodrow Wilson, especially his classic essay on public administration). I have made this argument in some posts for this site, e.g., this one on Cass Sunstein and FDR, and several others, including John Marini and Joseph Postell, have made similar arguments.

If we know how the Administrative State came to be and what its purposes are, we see the depth of the crisis in self-government the IRS scandals disclose. Franklin Roosevelt centralized federal government power in the White House, with an administrative apparatus that would be the party that would end all parties. (Sidney Milkis’s study of FDR, The President and the Parties,  is particularly telling on this point.) Of course what FDR and the Progressives before him meant by ending parties or being apolitical is partisan liberal. This he made clear toward the end of his 1944 State of the Union Address:

One of the great American industrialists of our day—a man who has rendered yeoman service to his country in this crisis-recently emphasized the grave dangers of “rightist reaction” in this Nation. All clear-thinking businessmen share his concern. Indeed, if such reaction should develop—if history were to repeat itself and we were to return to the so-called normalcy of the 1920’s—then it is certain that even though we shall have conquered our enemies on the battlefields abroad, we shall have yielded to the spirit of fascism here at home.

FDR’s once revisionist history of Calvin Coolidge as a precursor of Hitler has been played out in various ways in the institutions that prop up the Administrative State—universities, the chattering classes, and journalism. The highly educated professionals that staff the IRS and other Washington bureaucracies don’t even need to be told who the enemy is—organizations that have “Constitution” (or “Liberty,” for that matter) in their names—because their education has told them whom and what to suspect.

The assault on bureaucracy today pits the rights of the people against the wisdom of the ruling elite. Try reforming the CIA, the civil rights division of the Justice Department, or the IRS through political appointees, who reflect the results of elections. Those agencies have long been captured, not through some iron triangle of interests, but through the acceptance of their employees of a conception of justice that is at war with constitutional government. That is what the IRS scandal is bringing to light.

Combating Government Wrongdoing

by Mike Rappaport / 1 Comment

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The revelations about IRS targeting of tea party groups, despite repeated denials by the Administration, and of manipulation of talking points about Benghazi, again despite repeated denials by the Administration, raise the question of what institutions should be used to stop government – especially executive branch – wrongdoing.  This is a complicated issue, but I thought I would discuss the issue a bit.

The original Constitution employed the following political checks – good faith on the part of the executive branch (including prosecuting executive wrongdoers) combined with the check of legislative impeachment.  This might have made sense in the beginning, with a small government, but certainly it does not work adequately for a large government.

One additional check in the early days involved lawsuits by individuals against government officials for wrongdoing.  For example, if a government official searched or seized your property, one could sue him for trespass or some other relevant tort.  The individual could defend on the ground that his action was legally authorized.  But if it was not, then one might have a tort suit against him for damages to be paid out of his pocket.  This provided government officials with incentives to conform to the law.

Unfortunately, over time the movement for big government made up immunity for government officials that prevented them from having to pay damages so long as they had a reasonable basis in the law for their actions.  Continue Reading →

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