A Tale of Two Nations and Economic Freedom

The New York Times ran two stories within two days about two very different nations.  One story noted that France was an unhappy place in danger of electing an extremist, Marie Le Pen, as President.  But the author found the plight of the country puzzling, noting that France has wonderful infrastructure compared to the United States and continued to have a culture second to none. He puts its misery down to the French fixation on the losses of past glories.

Another story focuses on the very different mood in New Zealand. People are happy there and many foreigners want to immigrate. The prime reasons given are its isolation from the rest of the troubled world and its social tolerance, as demonstrated by its legalization of same-sex marriage and acceptance of refugees. The photo accompanying the story shows Sikh men in colorful turbans against some pleasant New Zealand scenery.

The two stories show the weaknesses of the analytic powers of our elite media and its indifference to economic freedom.  The best explanation of France’s stagnant misery and New Zealand dynamic happiness can be found in the The Heritage Foundation’s Index of Economic Freedom. New Zealand ranks No. 3 and France No. 72 of the 160 nations surveyed in the economic liberty they permits citizens.  Given that most nations ranked below France are developing nations, New Zealand and France inhabit pretty different economic universes among developed nations.

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The Constitution, Liquidation, and Originalism

Richard Reinsch, editor of this site, has written an interesting piece entitled The Liquid Constitution.  Richard emphasizes that there is a need to liquidate the meaning of unclear constitutional provisions, and notes that James Madison praised this approach.  Richard has some critical things to say about originalism, suggesting that it enthrones the judiciary at the expense of the people. Without engaging with his criticisms of originalism, I do want to note that the role of liquidation is an important issue within originalism, and that originalist scholars have begun to study the matter from an originalist perspective.  One issue is the extent…

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Meandering Malick

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What’s the difference between Terrence Malick and Zack Snyder?

Less than you might think.

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What Is Consent? A Reply to James R. Rogers

James R. Rogers contended in his piece, “Americans No Longer Believe in the ‘Consent of the Governed,’” that as a people we no longer believe in the consent of the governed, nor in the foundations of government noted in the Declaration of Independence.

The last general election seem to contradict those claims.

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Unleashing Arrogance, Complacency, and Mediocrity

Unleashing Demons: The Inside Story of Brexit is one of the worst books on any subject that I have read in a long time. It is a blow-by-boring-blow account of David Cameron’s referendum campaign, principally in the media of mass communication, to keep Britain in the European Union. It was written by Craig Oliver, whose job was director of politics and communications in David Cameron’s administration, a title instinct with dishonesty. At least one knows what a second-hand car salesman does. But a very bad book may, in its own way, be highly instructive, as this one is. If mediocrity can…

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The Filibuster – Meh

filibuster

Debates over government practices and processes in the U.S., like the Senate’s filibuster, typically come amidst specific disputes, such as Gorsuch’s confirmation. As a result, support or opposition to those practices or processes typically depend on whose ox is getting gored in the particular debate. Republicans last week eliminated the filibuster for Supreme Court nominees, Democrats opposed it. Democrats eliminated the filibuster for lower-court nominees and executive officers in 2013, Republicans opposed it. Given the taboo has been violated in these debates, and voters responded with little more than a yawn, I wouldn’t bet on the filibuster’s long-term continuation for ordinary legislation.

There’ll be some differences with its elimination, but I expect the overall effect will be a wash.

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The Liquid Constitution

Water

Legal historian Mary Sarah Bilder’s op-ed in the Boston Globe means to level originalism. Her effort has produced responses from Lawrence Solum and from John McGinnis and Mike Rappaport on this site. The criticisms sum to the notion that Bilder is shooting scattershot rounds at a defined scholarly target.

Bilder’s argument is that the members of the Constitutional Convention did not have “the luxury of even imagining that each and every word possessed an invariable, sacred meaning.” Who said they did?

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The New Retirement Calculus of Justices

The new politics of Supreme Court confirmations  substantially affects the retirement calculus for justices. The elimination of the filibuster for Supreme Court nominations together with the much stronger possibility that a Senate controlled by one party will not confirm a Court nomination by the President of the other will change the date of many justices’ retirements.

Three objectives inform  the retirement decisions of Supreme Court justices. First, justices would like to preserve their legacy and thus would prefer to be replaced by a justice like themselves. Second, most justices want to hand back the seat to a President of the party that appointed them. This is secondary to the first objective and when their judicial views diverge substantially from the party that appointed them, as it did in the cases of Justices Blackmun, Stevens and Souter, they will resign during the Presidency of the other party. Third, they want to resign at a time when it will not cause institutional damage to the Court or inconvenience to their colleagues.

The death of the filibuster and the possibility of a blockade generally makes it much easier to meet these objectives if the President and the Senate are controlled by the same party.  First, the blockade can leave the Court short staffed, inconveniencing their colleagues. More importantly, the standoff between the President and Senate places the Court in a partisan cross-fire, harming its legitimacy.

In contrast, the absence of a filibuster gives a free hand to the party that appointed the justice if he resigns during a period of unified control of the Senate and Presidency by that party.

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Historians and Originalists Part I: The Context of the Debate

In recent years, there have been acrimonious debates – both formal and informal – between these two groups.  Historians have viewed law professor originalists as engaged in an amateurish attempt to understand historical meanings that is often result oriented.  Originalist law professors have viewed the historians as protecting their own turf by endlessly lecturing the originalists about the historians' superiority, with the historians then sometimes misunderstanding what original meaning is.  It has been a relationship in dire need of improvement. One of the problems is that methodological differences between the disciplines are often reinforced by political differences.  Most of the historians tend…

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The Original Nuclear Option

The basic idea of the “nuclear option” in the U.S. Senate is that supermajority rules exist at the sufferance of simple majorities. Last week’s decision to use a simple majority to eliminate the Senate filibuster for Supreme Court nominees was thus not the original nuclear option. The Constitutional Convention of 1787 was.

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