The Weekly Standard’s Andy Ferguson is consistently one of the funniest and most insightful guys around. His latest piece (“Jingle Hell”), on the annual deluge of atrocious Christmas music, is among his best ever. Mariah Carey in a snowsuit and “All I Want for Christmas is You,” for weeks without end? It’s enough, Andy writes, to “make him shout for the death of the entire Mormon Tabernacle Choir by Columbus Day.” Well said. I’ll add this to Andy’s trenchant observations: the bombardment with lousy music is sufficiently intense to ruin—for a captive audience—not just Advent but also much of the actual…
Last week President Obama gave a speech to newly naturalized citizens at the National Archives. His remarks show why immigration, long rightly praised as an essential part of our heritage, has become a source of ever greater controversy. The President failed to acknowledge that it is the principles of limited government and individual rights that make United States a welcoming place for immigrants because they assure that newcomers cannot tip the political balance to make life worse for those already here.
Instead, the President celebrated the raw power of democracy to make “progress,” change that can come at the expense of long time residents.The President did suggest that one of the “binding forces” for America is “loyalty” to “the documents” that surrounded the new citizens at the Archives. But he never identified these documents by name, quoted any language from them, or explained why they have an enduring claim on our loyalty. In particular, President Obama cited almost none of the liberties protected by the Constitution and nothing of the structure of federalism and separation of powers that protects those liberties.
It is hard to believe this was mere oversight. His administration has notably failed to defend both the structure and rights that are actually in the Constitution.
Cass Sunstein is among the country’s foremost legal scholars, distinguished by both his prodigious output and an interdisciplinary approach that draws on the insights of behavioral psychology, economics, and social science research. In his latest book, Constitutional Personae: Heroes, Soldiers, Minimalists, and Mutes, he gives us an engaging study of jurisprudential comportment that classifies judges into the four groups of the subtitle.
In my view, the hardest part of the Constitution’s original meaning to understand is the 14th Amendment. While we have made great progress in understanding this provision, we unfortunately do not yet have a satisfactory theory of the Clause.
One of the scholars who has written about the Amendment is Kurt Lash. Kurt has written several articles on the Amendment that culminated in the publication of a book. On this site, Kurt has written several posts defending his interpretation of the Amendment. Kurt defends a view that I used to hold, but no longer do: that the Privileges or Immunities Clause of the 14th Amendment protects against state infringement of the constitutionally enumerated rights of citizens of the United States. Here I thought I would explain some of the strengths and weaknesses of this view, and identify why I now adopt a different interpretation. (I should note that while I have read the articles on which Kurt’s book is based, I have not yet read the book.)
Adequate theories of the original meaning of the 14th Amendment must do several things. Two of the most important are to give effect to the text of the Privileges or Immunities Clause and to explain how the Amendment established an equality requirement that rendered the black codes, which discriminated against former slaves, unconstitutional.
Roger Scruton is the greatest living conservative thinker. Well, that’s controversial, you might say. The other great thinkers around these days are more ambivalent about being conservative. Some libertarians, after all, think of themselves as liberals opposing themselves to conservatives. And the French philosopher Pierre Manent, like most American followers of Leo Strauss, thinks of himself as a conservative liberal. But the Buckinghamshire-born Scruton defines himself as a conservative, as opposed to a liberal, although he admits that it might be impossible to be conservative all the time.
Colm Toibin, it often seems, is everywhere. He divides his time between Dublin and Barcelona, and teaches frequently in the United States. He publishes about a book a year—novels, short stories, literary criticism—and his essays and reviews on artistic and cultural topics appear regularly in a variety of publications, including the Guardian and the London Review of Books. He lectures widely and grants lots of interviews. With the possible exception of William Trevor, Toibin is Ireland’s best-known literary figure.
Alexis de Tocqueville distills the lesson of the fourth chapter of Democracy in America with his usual epigrammatic power:
The people rule the American political world as God rules the universe. They are the cause and end of all things; everything arises from them and everything is absorbed by them.
What Tocqueville found remarkable in 1830s America was that the “principle of the sovereignty of the people” was neither “hidden” nor “sterile.” Rather, contrary to practice in the rest of the world, “it is recognized by the mores, proclaimed by the laws; it spreads freely and reaches its fullest consequences without obstacles.”
Could an impartial observer say the same today?
In a previous post, I discussed my new paper, The Duty of Clarity. There I show that the original meaning of the Constitution requires a clear violation of its terms before invalidating legislation. But the Constitution also demands that judges use the ample interpretive methods available to clarify the precise meaning of our fundamental law. Both the obligations of clarity and clarification flow from the judicial duty, a duty that is an aspect of the judicial power granted under Article III of the Constitution.
My paper helps resolve the long standing debate about whether judges should defer to the legislature. Judges are empowered to use legal methods to clarify a constitutional provision, and if they can be made clear by these methods, the provision offers a basis to invalidate legislation. But if judges cannot disambiguate or eliminate vagueness, they have no authority to replace the legislature’s judgment with their own.
Since finishing a draft of the paper, I have come across one more powerful piece of evidence for this proposition. It is widely agreed among early Supreme Court justices that this duty of clarity exists and was binding on them. Nevertheless, I had not previously found any instance in which a justice claimed that the duty was the proximate cause of a refusal to hold legislation unconstitutional.
The case in which the duty of clarity appeared to be decisive was United States v. Ravara.
The 20th century ended amid well-founded optimism that Latin America had taken firm steps toward democracy, the rule of law, and respect for human rights. Only the island of Cuba seemed stuck in the era of military dictatorship and authoritarianism. But in the last 15 years, things have changed. Political violence has reappeared in many Latin countries and criminality is on the rise, with concomitant erosion of respect for individual rights.
I recently published an essay in Regulation magazine proposing a reform that would promote deregulation. The idea is to establish an administrative agency with the power to deregulate – to identify undesirable regulations passed by other agencies and to repeal those regulations.
Here is the intro:
For those who favor strong limits on regulation, the last 100 years in the United States have been disappointing. During this period, regulation grew almost continually. One of the reasons for that growth is the delegation of legislative power to administrative agencies, which allows those agencies to who write regulations with little oversight from elected lawmakers. To rein in regulation, advocates of limited regulation argue that Congress’s delegation of its legislative authority must be restrained.
Unfortunately, reforms that attempt to eliminate or limit delegation are unlikely to be enacted. The practice of delegation has become a basic aspect of our political system. Its prevalence in the modern world is no accident. It occurs because delegation is popular with so many of the prevailing powers, including Congress, the president, the agencies, and those who favor regulation.
But proponents of limited regulation need not despair. While delegation certainly promotes regulation, it can also be used to promote deregulation. Congress could create an administrative agency that is given the power to pass deregulations – rules that either eliminate regulations or move the country back to a system of property and markets. By employing delegation in an effort to reduce regulation, proponents of limited regulation will not be fighting against one of the fundamental forces of our modern political system, but instead be employing that force for a beneficial purpose.