Will Temer Douse the Flames?

Michel Temer, acting president of Brazil in his first ministerial meeting - 13 May 2016.

After the Brazilian Chamber of Deputies accepted President Dilma Rousseff’s impeachment, the Senate approved it, and she will be tried in the Senate in a proceeding that has to finish within 180 days. The President of Brazil in the interim is Michel Temer, who was Dilma’s Vice President—and who is almost as unpopular as she. Few observers give high odds for her return to power. Brazil’s future now appears to be in the hands of Temer’s government, and so your humble correspondent offers here informed speculation as to what the government may do—also what it most needs to do in the current economically stressed circumstances.

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Trump, Clinton, and the Supreme Court

There are many reasons for classical liberals to oppose Donald Trump in the general election, but Supreme Court appointments are not now one of them. We can hardly be confident that his appointments will make America great, but we can be pretty confident that Hillary Clinton’s will end the current project of making the Supreme Court a court of law rather than a dynamo of Progressive politics.

After Donald Trump’s announcement of eleven judges whom he would consider appointing to the Scalia vacancy, many libertarian and conservatives commentators still doubted that Supreme Court appointments were a good reason to support Trump in the general election. They conceded that that those on his list were generally excellent candidates, but suggested that Trump could not be trusted to appoint people like them.

And they certainly have a point: on many issues Trump points in no direction more consistently than a weathervane. Moreover, he has supported a variety of legal causes, like property condemnation on behalf of private development, that would not likely fare well with the kind of justices he has promised to appoint.

Nevertheless, I believe there is a substantial probability, even a likelihood that Trump would follow through on his judicial promises.

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The Real Wayne

(Photo by CBS Photo Archive/Getty Images)

On a movie set many years ago, actress Geraldine Page found herself seated between actor Ward Bond, an enforcer of the blacklist of communists then raging in Hollywood, and his friend, the conservative actor John Wayne. Page was only accustomed to being around her fellow show business liberals, so she listened to the two men’s conservative views with a sense of “horror.” But as the conversation went on, she developed a marginally more favorable view of Wayne, whom she called a “reactionary for all sorts of non-reactionary reasons.”

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Airport Screening: TSA Versus Private Security Firms

TSA

With lines at airports now approaching absurd lengths, a movement is arising for employing private screeners instead of the government TSA screeners. There are such strong reasons for doing this that even Vox, hardly a friend of the private sector, argues in favor of the move.

Many people argued in favor of private screeners after 9/11, but let’s not forget that Democrats pushed through government screeners in an effort to promote unionization and additional government employees. George Bush agreed to the Democrats’ demands, and here we are.

Under the law, airports can hire private screeners, which would then be regulated by TSA. But relatively few airports use private screeners, even though those that do appear to have experienced significant benefits. There is evidence that private screeners are better at detecting bombs and that they process travelers more quickly. There are other benefits:

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Arise, Ye Prisoners of Scalia

Businessman running to the future

The particular danger of conservatives’ turning to the courts to pursue preferred outcomes, even constitutional ones, is that doing so legitimizes the same strategy by constitutional liberals, who will—it bears repetition—sooner or later reassume control of the levers of judicial power. The time for warnings may soon give way to a season of regret: The liberal judicial ascendance is begun.

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The Case Against Disclosing Candidates’ Tax Returns

I have previously expressed very substantial reservations about Donald Trump’s candidacy, but decline to join in the criticism about his refusal to release his tax returns. While a norm has developed suggesting that citizens have a right to see tax returns of presidential candidates and indeed candidates for some other offices, it is a bad norm.  It invades privacy, discourages some people from entering politics, distracts from policy issues, and harms the prospects of those with complex financial affairs.

The secrecy of our tax returns from prying eyes is itself a valuable social norm that reflects the overriding fact that our earnings are our own, not the government’s. The government can scrutinize our tax returns but only for the purpose of showing what we owe. Strong laws protect the secrecy of our tax returns, showing the strength of privacy norms in this area.

Thus, countervailing factors would have to be strong enough to overcome this basic norm.  But in fact there are issues peculiar to political campaign that also militate against a norm for disclosure.

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Steam Shovels Went Away . . . but Our Enviro-Trendiness Never Will

steam shovel

You don’t expect to find profound political lessons in preschool, but of course they’re there. I found one yesterday, buried in the breezy prose of the 1939 classic Mike Mulligan and His Steam Shovel. If you haven’t read it in a while, you should.

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The Secret Lives of Right-Wing Professors: A Conversation with Joshua Dunn

passing

This next edition of Liberty Law Talk is a conversation with Joshua Dunn on a new book that he has co-authored with Jon Shields entitled Passing on the Right. Dunn and Shields interviewed 153 professors across a range of disciplines who consider themselves conservatives and libertarians. Their findings paint a more moderate position on the types of challenges conservative academics face compared to much conventional thinking on this subject. Evidence that they are the victims of a systematic campaign of exclusion and persecution doesn't seem to exist. What does seem to exist is a host of other problems that must be carefully…

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The Problem of the Cities

Crumbling infrastructure in Detroit, Michigan

Ever since people began migrating in large numbers from America’s rural areas to its urban areas  in the 19th century, cities have presented unique challenges: sanitation, housing, transportation, education, public safety, and fire protection, to name just a few. Responding to these challenges typically entailed government intervention, the precursor to the Great Society and the modern welfare state.

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Michael McConnell on the Ninth Amendment

One of the puzzles in constitutional law has been the original meaning of the Ninth Amendment. Some years ago, during his unsuccessful confirmation hearings, Judge Robert Bork analogized our lack of understanding of the Amendment to the situation where the language of a constitutional provision was obscured by an inkblot. He argued that since we don’t understand the provision, we are in no better position to enforce it than if an ink blot covered it.

Over the years, various explanations have been offered for the amendment. Some have argued that it protects enumerated natural rights to the same extent as the enumerated constitutional rights.  Others have interpreted it to have a much less significant role.

In my view, the best interpretation of the Amendment is supplied by Michael McConnell in a relatively recent law review article. At the beginning of my scholarly career, I had come upon the same idea, but was persuaded not to write it up. My mistake, although I don’t think I would have done as good a job as McConnell does.

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