The New Deal Constitution—the Upside-Down Constitution under which we live—was ratified on April 25, 1938. On that day, President Roosevelt’s Supreme Court handed down back-to-back decisions in United States v. Carolene Products and in Erie Railroad v. Tompkins. The American Enterprise Institute will mark the occasion with an event, put together by Richard Epstein and yours truly. The announcement and invite for the event (noon, April 25, at AEI) is here. I’ll moderate an exchange between Richard and Jack Balkin (Yale); the following panel discussion features Randy Barnett (Georgetown), Barry Cushman (Notre Dame), Jeremy Rabkin (GMU), and Suzanna Sherry (Vanderbilt). The event will be livestreamed. Do join—to quote a line that cost a great man his seat on the Supreme Court, it’ll be an intellectual feast. Some preliminary noodling: Continue Reading →
Liberty Law Blog
Over at Balkinization, Sandy Levinson makes some typically provocative claims about Justice Scalia:
So in rereading Justice Scalia’s fulminations, I was struck by the following sentence: “Article I contains no whatever-it-takes-to-solve-a-national-probem power.” This is, of course, typical Scalia, clever phrasing that lulls the reader to say “of course.” . . . Still, isn’t Scalia’s exuberant pronouncement directly at odds with what Felix Frankfurter once called the most important single sentence(s) in the canon, beginning with John Marshall’s statement in McCulloch (the most important single case in our canon) that “we must never forget it is a Constitution we are expounding.” . . .
So the question is whether Scalia (and his admirers) must admit that their real enemy is not “Progressive-era” living constitutionalists, but “the Great Chief Justice” himself. Can one possibly have genuine respect, let alone “veneration,” for a Constitution that is proudly construed to deny Congress the ability to solve a serious national problem? Must the Scalian theory of a “limited government of assigned powers” be adhered to though the heavens fall? . . . One further possibility, of course, is that he does not actually believe that the health care issue in the US presents a real problem, so what is actually coming out is his particular brand of conservative politics. Continue Reading →
With the enormous powers he would wield to expand racial and gender preferences in a large sector of employment, Tom Perez’s nomination as Secretary of Labor provides an opportunity to shed light on disturbing civil rights-enforcement practices.[i] Given their record, a Secretary Perez and the President would work together to increase incompetent bureaucracies’ power over hiring and promotion policies of federal contractors. Continue Reading →
Washington Post columnist Neil Irwin celebrates, kind of, the rise of independent experts over elected politicians. It’s happening all over the world, he writes. In the United States, an Independent Payment Advisory Board (IPAB) will decide how to keep Obamacare spending under control, and a global warming policy empire is being stick-built, one rulemaking at a time, by the EPA. Congress is awol. Irwin’s chief example, predictably, is the rise of central banks, here and in Europe, as central decision-makers in the 2008 crisis and ever since. Irwin isn’t terribly fond of the trend, but despairs of political institutions and their ability to act. “When the world is on the brink,” he concludes, “decisive problem-solving trumps the niceties of democratic process. I won’t like it much—but I’ll take it.”
Let the record reflect that I, too, prefer expert interventions—however dubious—to global annihilation. Beyond that, though, I’m rather more skeptical of the experts’ record. I’m not at all sure Irwin has the analysis right, and I suspect that his expert heroes may be in for a crash landing. Continue Reading →
When I was young banks were as solid as a rock and those who managed them were respectable if slightly boring members of the community (probity being the dullest of virtues). Nowadays, however, I doubt that the words ‘bank’ or ‘banker’ would evoke many flattering epithets or synonyms in a word association test. ‘Casino,’ ‘Ponzi scheme’ or ‘card-sharp’ would perhaps be the least unfavorable of them.
As is all too often the case, I cannot quite make up my mind whether my dislike of banks is purely rational or a manifestation of Man’s eternal search for a scapegoat. Continue Reading →
- April’s Liberty Forum attempts to answer the question What is Social Justice? Essays from Sam Gregg, Eric Mack, and David Rose evaluate this question from various philosophical, economic, and political perspectives. Gregg’s lead essay opens as follows:
Few terms have assumed more prominence in public discourse, especially that emanating from the left, in recent decades than “social justice.” It has now become part of the rhetorical apparatus of virtually all center-left, social democratic and labor political movements as well as central to the language of modern liberalism. In Western Europe, the term has also been embraced by more-than-a-few center-right, Christian Democrat, and conservative groupings, David Cameron’s Tory Party being a prominent example. Religious groups—most notably, but not exclusively, the Catholic Church—also utilize the expression extensively in their commentary on social and economic subjects. In the case of many mainline Protestant confessions, it seems to have become their defining creed.
A common criticism from the non-left is that social justice appears to have no stable or concrete meaning. This point features prominently in the critique articulated by Friedrich Hayek in The Mirage of Social Justice, in the second volume of his Law, Legislation and Liberty. Hayek struggled, he wrote, to find a clear definition of what people mean by the term. To the extent that social justice operates as a catch-all justification for any number of programs that range from extensive income redistribution and anti-discrimination policies, there is little doubt the phrase is used in a bewildering number of often contradictory and not especially coherent ways.
- The Books section this week features Ken Masugi’s learned review on the best recent translations and introductions to Alexis de Tocqueville’s Democracy in America.
- Econ Lib’s current feature essay is Pedro Schwartz on the Euro and the ‘men of system‘:
The current crisis has led the European authorities and the Bank to throw away the monetary ideal of rule-bound action, independence from politics and attention to the long run. The ECB is now a lender of last resort not only to the commercial banks in its club but to governments in its area. Far from being independent of politics, it is in continuous consultation and collaboration with European and national authorities. The current president of the ECB has gone so far as to says that the Bank will “do whatever it takes” to save the euro, which markets have understood as creating all the liquidity necessary to stop speculators. Thus, the ECB is now turning itself into a traditional government banker, ready to aid and abet in counter-cyclical monetary management, protectionist exchange rate policy, and ‘controlled’ inflationism.
- So the New York Times‘ editorial board firmly rejects Justice Ruth Bader Ginsburg’s counsel that Roe was imprudently decided, not necessarily wrongly decided mind you, but a decision rendered before history (I mean autonomy) could supply the ground of the right. Of course, the Times‘ editorial writers, so consumed with judicial legislation supplanting, well, legislation, overlook Ginsburg’s considered judgment that the right would be more secure if the public conversation then occurring about abortion had been permitted to continue. In nationalizing the right to unconditionally terminate pregnancies, the Roe Court took away the opportunity for democratic support to more firmly entrench abortion. It’s probably Ginsburg’s steadfast belief in abortion rights that leads her to this observation, but, then again, the editorial board of the Times calculates that getting to 5 votes on the Court is easier than the democratic alternative.
- A new website devoted to the late James Q. Wilson has been launched. Stay tuned to this site for upcoming essays on Wilson’s bureaucracy scholarship from his former student Jeremy Rabkin.
- David Friedman at his appropriately entitled blog “Ideas” compares contemporary patent litigation with feudal warfare. [Update] with all apologies to David Friedman, per his comment below, I should have said a comparison of patent litigation with a legal system whose rules are enforced by feud. In any event, I thought it was an interesting post and wanted to highlight it.
Executive government and over-indebted government have arisen simultaneously as a result of affluence and technological mastery. Although wonderful in themselves, these developments have transformed our politics and government (along with much else) in surprising ways, and we have yet to assimilate them to the proper conduct of public affairs.
The illustrious audience went “wow,” and the text reads even better: there’s a thought worth pondering in every paragraph. E.g., Chris’s remedy is to re-empower Congress and to parochialize our politics—that, from the man who ran OIRA under the Reagan administration. And I take my former boss’s gentle reproach: I’m with your program, Greve, but at the end of the day it’s Mickey Mouse.
Chris DeMuth may be right or wrong, but he has thought more earnestly about our institutions than any of us. He has opened a way to think seriously about constitutional government. The angels listened in. So, frankly, should you.
In my prior post, I mentioned that I believe there is an originalist case both for constitutionally requiring same sex marriage and for not requiring it. I briefly mentioned the case for requiring it and then noted that most originalist discussions of the case for not requiring it seemed to rely on original expected applications arguments (which might be thought to be inconsistent with textualist originalism). Here, I want to briefly set forth the outlines of a textualist case for not requiring same sex marriage.
Let’s assume that the Equal Protection Clause (or possibly the Privileges or Immunities Clause) adopted an equality requirement that prohibited class legislation that singled out a group for special burdens. Of course, all laws classify and therefore one needs a principle that determines which classifications are constitutional and which not. It seems that laws that identified irrelevant characteristics of groups, such as race, were deemed to involve arbitrary distinctions that resulted in class legislation.
But it is clear that, although this equality principle prohibited arbitrary distinctions, it allowed laws that drew distinctions based on traditional moral principles. There are various arguments that support this conclusion. One views a law that is based on a traditional moral notion as not making an arbitrary distinction. Another notes that the police power was thought to limit all rights, and this power allowed for regulation to protect the health, safety, welfare, and morals of the people. Continue Reading →
“I do not, gentlemen, trust you!” thundered Gunning Bedford at the Constitutional Convention. He was a small state delegate, speaking directly to those from the large states. “If you possess the power,” he continued, “the abuse of it could not be checked; and what then would prevent you from exercising it to our destruction?”
The other small state delegates shared his concerns. Their states would not—could not—be free if they were being tyrannized by the decisions of large state citizens. Their concerns came to the fore when a direct national election for President was proposed. Continue Reading →
The late Ronald Dworkin might have seen last week’s arguments as a repudiation of his life’s work. His project was all about law (very loosely speaking) as a high-toned principle, imported with Herculean effort into open-ended rights guarantees. That pitch, hurled at the Court by the unlikely Olson-Boies team, ended up wide off the plate. Instead of grand rights claims, questions of constitutional structure took center stage: standing; federalism; justiciability. Continue Reading →