In the Atlantic, Garrett Epps has a piece on Clarence Thomas. I like Epps. He has been to two of the Originalist Conferences that I run and his presentations and writing are lively, entertaining, and thoughtful. And his book on the 14th Amendment was quite enjoyable. But Epps’s politics are far to the left of Clarence Thomas’s and therefore it is not surprising that he is very critical of Thomas. In fact, I think Epps was quite unfair to Thomas. I thought I would respond to some of his major points.
First, Epps starts his piece discussing how Thomas’s confirmation involved charges by Anita Hill that Thomas had sexually harassed her during their tenures at the EEOC. Epps notes that the “experience left him embittered.” While Epps sort of presents both sides, he neglects an obvious inference. The most likely reason that Thomas would have been so embittered by the experience is that he believed the charges were false. To be clear, I don’t know what happened between the two. But the failure to note this obvious explanation for Thomas’s reaction is disappointing.
Second, Epps complains that Thomas’s dissent in Obergfell, the same sex marriage case, did not mention the “key gay-rights precedents.” This complaint is curious. Thomas joined the three other dissents, which did mention these precedents. Thomas wrote separately to discuss the original meaning. Since Thomas had already indicated that he did not believe these dissents reflected the original meaning, he did not need to do so again.
Sticking with the state court theme of my last series of posts, I now turn to what Governor Jerry Brown is doing with judicial appointments in California.
Princeton University Press had just published a new paperback edition of my book, Accelerating Democracy: Transforming Governance Through Technology. It argues for using the tools given by our new computational technology to help democracy adapt to our accelerating rate of social change.
The basic insight of the book should be congenial to friends of the classical liberal tradition in political thought. It is to deploy decentralized mechanisms that modern technology makes possible to improve self-government. For instance, the internet greatly facilitates betting pools, called information or prediction markets, which permit people to bet on the occurrence of future events. Such markets already gauge election results more accurately than polls. If legalized and modestly subsidized, they could also foretell many policy results better than politicians or experts alone. We could then better predict the consequences of changes in educational policy on educational outcomes or a stimulus program on economic growth. In short, such markets would provide a visible hand to help guide policy results. Unfortunately, while such markets are a public good, our government now impedes them at every turn.
The internet today also encourages dispersed media like blogs to intensify confrontations about contending policy claims.
Recently, I critically reviewed Damon Root’s new book, Overruled: The Long-War for the Control of the Supreme Court (see Part 1 and Part 2). In response, Root and others have now taken to the blogosphere in defense of the book and of libertarian constitutionalism. Unfortunately, Root just digs a deeper hole and his defenders only illustrate the problem with libertarian readings of the Privileges or Immunities Clause.
I live in Illinois, the worst governed state of the union. And the consequences have been severe. Our fiscal position is the last in the union and we are at the bottom for ease of doing business. Thus, in the current state of taxation and regulation, there is no prospect of climbing out of the fiscal hole. And unless there is radical reform, Illinois is in terminal decline. It does not have California’s climate or New York’s Stock Exchange to break its fall.
There is bipartisan blame to go around. Governors of both parties for decades have been willing to sign legislation to provide unfunded pensions whose bills would come due when they were safely in retirement. Politicians of both parties have all declined to take on public sector unions and other special interest groups that have made the state uncompetitive. But even if fault must be laid at the door of both Democrats and Republicans, there has been one man who has been the power in Illinois politics for three decades and thus must be held most accountable—Michael Madigan, the Democratic speaker of the House for all but two years since 1983.
The accumulation of immense power in one legislative leader is a practical problem for democratic accountability in a system of separation of powers.
In a recent speech in Bolivia, Pope Francis voiced his indictment of what he calls “the globalization of exclusion and indifference.” Speaking of what he believes to be problems universal to Latin America, he wishes, “May the cry of the excluded be heard in Latin America and throughout the world.” But who, I wonder, are they listening to?
Just when I thought was done with Departmentalism vs. Judicial Supremacy, they pull me back in again! In my last post, I quoted Abraham Lincoln’s famous statement about Dred Scott in his first inaugural: “if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers” (emphasis added). I noted that one might interpret this as expressing the view that a series of decisions might…
My previous posts on this topic, I & II, reflected on the reasoning and fallout from the judicial mandating of parity in school funding in the Lone Star State. In this final post on the topic of Edgewood, I will elaborate on the unfortunate legacy of that decision, and speculate about the reasons for its continued vitality as a precedent.
Judicial activism is bad in the abstract because it alters the proper balance of power among the branches of government, diminishes democracy, and abuses the rule of law. In the case of Edgewood, the problems are not just abstract, but concrete.
At the end of the day, the best and most deeply committed collectivists ought to be advocates of a small and limited government. Why? Because the state isn’t the only collective; it’s just the most obvious one. State collectivism received a devastating critique in James R. Otteson’s recent book (reviewed here), and I want to supplement Otteson’s case: In addition to the solitary individual staring down the centralized bureaucracy, we can think about the collections of individuals in civil society who are greater than the sum of their parts.