De-Rigging Capitalist Privilege

Internet Abstract

When Charles G. Koch, the chief executive officer of his family business, recently wrote an op-ed for the Washington Post saying he agreed with Democratic presidential candidate Bernie Sanders that our economic system is “often rigged to help the privileged few,” it raised eyebrows even among the company-town’s power structure.

The online version was absolutely swamped with comments. Almost all of the commenters agreed about the evils of crony capitalism but most of them unfairly attacked Koch as hypocritical for being a capitalist himself. The examples he presented of Koch Industries’ opposing government subsidies that could have advantaged its business counted for exactly nothing. Pretty tough to crack the capitalist stereotype even when the capitalist supports one of the Left’s core precepts.

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Freedom and the Amorphous Individual

Elements of Mind

A year ago, Donald Devine offered readers of Law and Liberty an expert summary and a warm endorsement of the political philosopher Larry Siedentop’s latest book Inventing the Individual: The Origins of Western Liberalism. Siedentop traces the modern, “secular,” and liberal ideas of moral equality and equal liberty to the Christian overturning of “the aristocratic assumption upon which all ancient thinking was based, that of natural inequality,” and he finds in this intellectual genealogy an argument for a contemporary alliance of secular liberals and Christians in affirmation of individual rights.

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The Left’s New Push to Politicize the Law

Many on Left want to politicize American law and they are emboldened by the vacancy on the Supreme Court to achieve their long sought goal. But don’t take my word for it. Zephyr Teachout, a professor of law at Fordham, ex-candidate for the governorship of New York and current candidate for Congress, laments the current state of antitrust law: “If you can depoliticize antitrust law, you can depoliticize anything.”

The quote comes at the end of a long article in the New York Times in which many commentators complain about Supreme Court decisions friendly to business. The evidence that the Roberts Court has been the best court for business in decades comes from a study by Lee Epstein, Bill Landes, and Richard Posner. This study has been ably critiqued by Jonathan Adler, who notes, among other things,  that the study leaves out regulatory decisions quite unfriendly to business.

But my observation here is that neither the authors of the study nor the commentators in the Times article try to show that that the decisions in favor of business were legally incorrect.

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Panel on the Scalia Vacancy

At the University of San Diego Law School, the American Constitution Society recently held a panel discussion on the issues raised by the Justice Scalia vacancy.  The panel included Don Dripps, Larry Alexander (who was plagued by laryngitis), and myself.

I started off arguing that the original meaning of the Constitution does not require the Senate to act on any nomination made by President Obama.  The language of the Advice and Consent provision certainly does not support it.  The text of the provision states: “He shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the Supreme Court, and other Officers of the United States.”  Obviously, this merely requires that a Supreme Court Justice be confirmed before being appointed.  It does not require that the Senate act in response to a nomination.

I also argued that this reading of the provision accords with similar parts of the Constitution.  For example, when the House of Representatives passes a bill, there is no obligation for the Senate to vote on or even to consider that bill.  While the Constitution states that the President may “recommend to [Congress’s] consideration such measures as he shall judge necessary and expedient,” no one believes that Congress must respond to these recommendations.  In fact, the Constitution does occasionally specify an obligation to respond and consequences from failing to respond.  In the veto provision, the President is given 10 days to approve or veto a bill, and if he fails to act, the bill is treated as passed (unless the Congress is not in session).  A comparison of this provision with the Constitution’s silence about any Senate’s obligation to respond to a nomination is instructive. After making this point at the panel discussion, I was pleased to see that Vik Amar made the same point in print.

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Holding the Fort on Intelligence: A Cold War Story

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Spying Through a Glass Darkly: American Espionage against the Soviet Union, 1945-1946 is about a little-known intelligence unit whose continued activity after World War II invalidates the conventional wisdom that the wartime Office of Strategic Services had been disbanded upon the victory of the Allies. The authors construct a heroic portrait of this short-lived Strategic Services Unit (SSU), arguing that it managed to provide vital assistance in the face of great obstacles—one being the calling home of embedded agents after Germany surrendered, and the other a bureaucratic power struggle with the FBI, which refused to step into the intelligence-collection void unless it was made supreme over all U.S. intelligence.

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Up in Arms About a Coat of Arms

harvard ls

Harvard Law School, in abject surrender to student activists, is about to change its escutcheon because its design was derived from that of Isaac Royall, Jr., who endowed the first chair at the school. Royall’s father made the family fortune from slave plantations in the West Indies and Massachusetts, a fortune that was therefore tainted (as Balzac said that all great fortunes are).

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Does Originalism Constrain Judges?

One of the criticisms made of originalism is that an originalist methodology does not constrain judges.  Recently, I heard a nonoriginalist critic of originalism claim that an originalist judge can reach any result that he desires.  Even if we interpret this claim as exaggeration, I still believe that the claim is unfounded.

It is certainly true that the original meaning of many constitutional clauses is contested.  One of the reasons for this is nonoriginalism.  Because the Supreme Court for many years was not interested in originalism, academics focused on other types of arguments.  As a result, we know much less about the original meaning of many constitutional clauses than we would if originalism had been taken seriously. If originalism continues to be influential on the Supreme Court, then we should expect to know much more about original meaning in the future.

But whatever the cause or whatever happens in the future, the criticism of originalism is focused on today: it is claimed that originalist judges can reach any result they desire.  But this is mistaken.

Under many clauses, the original meaning is clear.  The familiar examples of two Senators and a 35 year old President are just the tip of the iceberg.  One example is the claim that the Federal Election Commissioners are officers of the United States and therefore had to be appointed in accord with the Appointments Clause – the holding in Buckley v. Valeo.  This is clear, even though “officer of the United States” might not be thought to have the precision of “35 years.”

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An Alternative Southern Conservative Tradition

The Haygood-Hopkins Memorial Gateway at Emory University

Students at the Oxford College of Emory University can spend their semester living in Haygood Hall. The college website describes the dormitory as the “smallest, most intimate community on campus” and is the closest student residence to the dining hall. It is also named after one of the most emphatic defenders of African American education and civil liberties in Georgia during the years after Reconstruction.

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Scalia with Reagan: An Iconic, but Fading, Photo

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Many obituaries of Antonin Scalia were accompanied by a picture of the justice and Ronald Reagan standing together on the day of his nomination. And that photograph perfectly captures Scalia’s importance to the American polity. Scalia changed our jurisprudence as much as Reagan changed our politics.

In an essay at City Journal I explore some of the deep connections between these two iconic figures of the conservative movement:

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Seventh Originalism Works in Progress Conference

Recently, the Originalism Center at the University of San Diego held its Seventh Annual Originalism Works-in-Progress Conference.  Each year we videotape all of the proceedings for those who are interested in viewing the conference.  This year’s proceedings are here. The following papers were given: 1. Will Baude (Chicago) and Stephen Sachs (Duke), The Law of Interpretation Commentator: Randy Barnett (Georgetown) 2.  Jamal Greene (Columbia), Originalism, Constitutional Rules, and the Separation of Powers Commentator: Michael McConnell (Stanford) 3.  Kurt Lash (Illinois), The Amendment, the Act, and the Article: Reconstructing the Historical Relationship Between the Fourteenth Amendment, the 1866 Civil Rights Act and the Comity Clause of Article…

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