Rotten Boroughs Everywhere

William Hogarth's Canvassing for Votes.

The British people’s decision to leave the European Union reveals that Britain, like the EU itself, suffers from a “democracy deficit.”

Several commentators have noted that that reality suggests the problem is not so much a political one, but instead concerns a feeling that “globalization can and has run roughshod over the economic and social orders of old,” and “the extraordinary movement of populations in the world today.” Ramesh Ponnuru argues that it is not Britain but the EU that suffers from the problem; but he probably overcorrects.

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Posner’s Inadequate Apology for Dismissing Study of the Constitution

Judge Richard Posner has recently dismissed the study of the Constitution of the United States. He said:

I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation (across the centuries—well, just a little more than two centuries, and of course less for many of the amendments). Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century. Which means that the original Constitution, the Bill of Rights, and the post–Civil War amendments (including the 14th), do not speak to today.

That was an extraordinary and indeed shocking comment from a federal judge, but sadly his later apology or clarification is insufficient. There Judge Posner expresses sorrow if his previous statement is understood as saying that the Constitution is irrelevant or to be forgotten. But he goes on to say:

What I think is undeniably true is that while the Constitution contains a number of specific provisions—such as the prohibition of titles of nobility (a slap at our former English rulers, who mainly were kings and aristocrats), the requirement that the president be at least 35 years old, and the very detailed provisions regarding congressional authority—many other provisions are quite vague. The vagueness was almost certainly intentional, one reason being the tensions among the 13 states, which required compromise.” This vagueness justifies judges in making a “living Constitution.

But one can only credibly contend that provisions are vague if one had studied the meaning of the Constitution carefully.  And as Mike Rappaport and I have argued, on careful examination many provisions that may seem vague or abstract are not so read in their original legal context.

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A Brief History of Socialist Support for Gun Rights

Democratic members of Congress recently staged an around-the clock sit-in to demand that gun-control legislation (their slogan was “No bill, no break”) be passed by the House of Representatives. This unification by Democrats reveals how, with a few Republican exceptions, they have owned the issue of gun control, pardon the pun, lock, stock and barrel. They proudly point to an honorable tradition of gun-control measures extending back to FDR, and continued by LBJ, Bill Clinton, and Barack Obama.

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The Court’s Last Shreds of Legitimacy

U.S. Supreme Court Justice Clarence Thomas  (Photo by Alex Wong/Getty Images)

Justice Thomas' masterful dissent in Whole Woman’s Health v. Hellerstedt skewers the Court's arbitrary use of rational, intermediate, and strict scrutiny tiers of review used in evaluating different constitutional rights. Justice Clarence Thomas has written two significant opinions concerning abortion.  Seventeen years ago in his lengthy dissent in Stenberg v. Carhart (2000), he denied that there is a constitutional right to abortion; he called Roe v. Wade (1973) “grievously wrong” and insisted that nothing in the Constitution “deprives the people of this country of the right to determine whether the consequences of abortion to the fetus and to society outweigh the burden of…

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Kevin Durant, Disastrous Decisions, and Institutional Failures

The signing of Kevin Durant by the Golden State Warriors is an enormous issue for professional basketball, but also has wider lessons for the problems with our institutions.  It helps explain what accounts for disastrous decisions in modern institutions.

For those who are not basketball fans, Kevin Durant is one of the top basketball players in the world.  He used to play on the Oklahoma City Thunder, a title contending team.  Durant became a free agent this summer, allowing him to sign with any other team in the league that had the ability to pay him the top salary his talent demanded.  Each team is subject to a variety of rules as to how much salary they can pay, so not all teams would have been able to pay Durant that salary.

Earlier this week, Durant announced that he would be signing with the Golden State Warriors.  For nonbasketball fans, the Warriors were the defending NBA champions and the dominant team this past year, breaking the record for the best overall record (with a 73-9 season), but losing in the finals in 7 games to the Cleveland Cavaliers.

Durant going to the Golden State Warriors is a disaster for the NBA.  For many people, this means there will be no real competition for the NBA championship.  Even if that is premature, for one of the best players in basketball to join Stephen Curry and the Warriors does violence to the notion of NBA competitiveness.

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George Will, Burkean

george will

The forgotten etymology of “conservatism” lies in its hardly hidden first two syllables—to “conserve”—so when the Republican Party underwent its lurching metamorphosis from its commitments to constitutionalism, free trade, and chivalry to royalism, protectionism, and vulgarity, the news was not that George F. Will, conservative, stood still. It was that, in the terms of conservatism’s father Edmund Burke, the Republican Party may no longer constitute, properly speaking, a party at all. It is at risk of reverting to the primordial state of “faction” from which Burke rescued what he called the practice of political “connection.”

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Dark Times, the Declaration, and the Despotic Executive

Independence Hall, Philadelphia

It’s been a year since my last little piece on the Declaration of Independence, and what a year it’s been.

On the Right of our political spectrum, one could sum up its events and eventfulness in one word: Trump. A party has been captured by an outsider, the disaffection of millions of its rank-and-file revealed. At the national level, the Grand Old Party is not so grand or even particularly coherent, and some fear it might not last as a party. Something similar can be said of the party of the Left. Substitute “Clinton” and “Sanders” and comparable deep fissures emerge, although perhaps with less likelihood of disintegration.

What light, in terms of principles and manner of thinking about politics, might this context shed?

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A Republic We Are in Danger of Losing

Has there ever been a July 4 other than during the Civil War or the Great Depression where the domestic prospects of our nation have been so dismal? No presidential contest has ever featured a choice that was as obviously dreadful as this one. I would be happy to hear of contrary claims from the annals of American history, but to me even Nixon v. McGovern falls short of our present plight. Nixon’s role in Watergate was not known at the time of the election, and McGovern at least was a man of good character.

But today we are about to elect someone with disabling character flaws and no commitment to the liberty that has been at the core of American ideals. On character, both Trump and Clinton have reputations for dishonesty unusual even for politicians. They also excel at dividing the American people, Trump with his outrageous remarks about ethnic groups, Clinton with her penchant for blaming her and her husband’s troubles of “vast conspiracies” of her political enemies even in instances where she has every reason to know the cause of these troubles is in her own home.

And these character flaws threaten to widen some of our most dangerous fault lines. Trust in government is at one of the lowest points ever. A President widely regarded as dishonest will exacerbate the trust deficit. Americans are more polarized than at any time since the Second World War. Polarizing figures making uncivil remarks about one group or the other are sure to lead to a more divided nation.

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Other Advisory Acts That Are Constitutional: The Legislative Veto and the White House Staff

In my last post, I argued that a national referendum on some important issue, such as whether the U.S. should withdraw from NATO or the UN, would probably be constitutional so long as it was nonbinding.  That it was technically nonbinding would not prevent the relevant decisionmaker -- say the President -- from choosing to follow the referendum's result. This aspect of the Constitution is not unique.  There are various other areas where technically nonbinding acts are allowed (and often followed), even though they would be unconstitutional if they were binding.  One involves the legislative veto.  A binding legislative veto, where…

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Rejecting Post-Political Europe

European Union flags outside EU headquarters in Brussels

Public debate before elections or referenda is seldom notable for its high intellectual level or honesty, and that which preceded the recent referendum on Britain’s membership of the European Union was no exception. On both sides names were called and nonsense spoken. Those for remaining in the Union implied that trade with Europe would cease if Britain left and even that war on the continent would be more likely. Those for leaving the Union played on fears of limitless immigration, though much of it (for example from Poland) has been good and even necessary for the country, and the inability or unwillingness of the British public administration to control the kind of immigration that is most feared, for example from Moslem countries, has nothing to do with Britain’s membership of the Union.

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