Bringing International Contempt upon America

Recently, President Obama protested to Vladimir Putin that Russia had been violating the 1987 Intermediate Nuclear Forces in Europe treaty (INF) for the last six years by testing precisely the kind of missile that the treaty prohibits. That protest, as reported by the New York Times, is a textbook lesson in how a government earns the contempt of others.

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Peace, Peace, When there is no Peace

Recent events have led me back to Henry Adams’ great work on U.S. history.  There is a side of the American mind that wishes the world could be different than it is: Few men have dared to legislate as though eternal peace were at hand, in a world torn by wars and convulsions and drowned in blood; but this was what Jefferson aspired to do. Even in such dangers, he believed that Americans might safely set an example which the Christian world should be led by interest to respect and at length to imitate.  As he conceived a true American policy, war…

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Impoverished Pontifications, Part II

Many of the world’s religious leaders decry the evils of income inequality stemming from a globalized economy. My first post, based on economic reports from such institutions as the World Bank, showed that recent pronouncements by the Pope, the Ecumenical Patriarch, and the Dalai Lama have followed a conventional wisdom that does not capture what has actually gone on in recent economic history: namely, that even as inequality has widened, extreme poverty has simultaneously decreased. I brought in the economic analyst Nassim Nicholas Taleb and his insights about wealth production in modern societies and the wrong assumptions people make about it.

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Divided America—and How It Heals

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Staid old Gallup knows how to get attention. Its Presidential Job Approval Center recently announced a new report with the provocative title: U.S. Muslims Most Approving of Obama, Mormons Least. The full results of this extraordinarily large sample of 88,000 interviews showed an even more dramatic division. Majorities of Muslims (72 percent), other non-Christians (59 percent), Jews (55 percent) and atheists (54 percent) supporting President Obama faced Catholics (51 percent), Protestants (58 percent) and Mormons (78 percent) opposing him.

It looks like the basis for a religious war. Then it gets even bleaker.

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An Originalist Future

John McGinnis and I have a new essay, An Originalist Future, describing what the world would like if originalism became the dominant method of constitutional interpretation.  See here and here.   It is based in part on the last chapter of our book, Originalism and the Good Constitution, but goes beyond that chapter.

In the essay, we write:

Reviving a comprehensive originalism would greatly improve our polity, creating both better judicial decisions and a more vigorous constitutional politics.  It is a world where constitutional decisions would have good consequences and constitution making would become both popular and future-oriented.  It bears no resemblance to the world which critics of originalism fear—where the dead hand of the past traps the living into a dead end of anachronistic principles.  Only through a systematically originalist jurisprudence can constitutional law become what it must be if it is to act as the true rudder of the nation–simultaneously law that is unchanging and objective, law that is of high quality, and law that is subject to revision by the people of each generation.

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In Praise of Gridlock, Federalism’s BFF

As the 113th Congress winds to a close, there are a lot of complaints about its lack of productivity, not least from the President himself. The Senate and the House are controlled by different parties and do not agree on much. But the resulting gridlock has one great virtue. It promotes federalism by preventing Congress from preempting the policy choices of the several states.

This effect is all the more important in the modern era, because the Constitution’s original protection of the political space for state policy making—the enumerated powers—has been almost entirely destroyed. It is true that the Supreme Court slightly revived constraints on the federal government in United States v. Lopez, but the actual effects of that revival have been more symbolic than consequential. On economic matters, as a matter of positive law rather than the original meaning of the Constitution, the federal government enjoys almost plenary powers.

But happily federalism is also protected by the difficulty of enacting federal legislation—which is more than a parchment barrier. Federal laws can be only be enacted with the agreement of both Houses and the President. This requirement in effect creates a mild supermajority rule, making it harder to enact legislation to preempt the states at a time, like now, when the nation is closely divided between the parties.

For fans of federalism, this division has a silver lining that outshines the clouds of partisan rancor.

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Impoverished Pontifications, Part I

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If there is one thing that religious leaders around the world seem to agree on today, it is the evils of income inequality stemming from a globalized economy.

Pope Francis said last year in his apostolic exhortation Evangelii Gaudium that “we … have to say ‘thou shalt not’ to an economy of exclusion and inequality. Such an economy kills.”

In a 2008 speech at George Mason University, the Dalai Lama asserted: “Economic inequality, especially that between developed and developing nations, remains the greatest source of suffering on this planet.”

Ecumenical Patriarch Bartholomew wrote in his 2012 Christmas encyclical that “the gloomy consequences of the overconcentration of wealth in the hands of the few and the financial desolation of the vast human masses are ignored. This disproportion, which is described worldwide as a financial crisis, is essentially the product of a moral crisis.”

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Halbig and Obamacare: What We Have Learned (Part II)

Herewith, as promised in Part I, a few additional thoughts on Halbig’s lessons. My humble observations aren’t intended as nuanced legal analysis; there’ll be time enough for that as the cases progress. Today’s subject is the broader context of how the doctrines and institutions that have sustained administrative law are coming apart at the seams.

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