The Carpenter v. United States case, which was argued before the Supreme Court earlier this week, may turn out to be one of the most important Fourth Amendment cases.
President Trump, whose reflex for pugnacity has its uses, threw a vicious and entirely fair constitutional body check when he named OMB Director Mick Mulvaney acting director of the Consumer Financial Protection Bureau. It is exactly how constitutional conflicts are supposed to be resolved: power checking power.
Though I lived in Rhodesia (as it then was) for only seven months, and returned to Zimbabwe (as it had by then become) ten years later for only a couple of weeks, the country has occupied my thoughts since then intermittently but quite often. It raised, at least in my mind, questions of political philosophy which I am still not sure that I can fully answer.
Such is the state of American law and of American society that the decision of a single Colorado baker not to make a cake for a customer because of his religious objection to what the cake was for will now go before the Supreme Court. Argument in the “cake case,” Masterpiece Cakeshop v. Colorado Civil Rights Commission, will take place next Tuesday, December 5th.
In the last year or so, I have discovered that Google Search refuses to recognize some of my posts from this blog. For example, in 2013, I wrote a post for this blog entitled Separating Legislative and Executive Power. If one puts in the title of the post, my last name, and Liberty Law Blog into Google, the post does not come up. By contrast, if one puts those same search terms into the Bing search engine, the post comes up at the top of the list. This is not merely true of this one blog post. It is true of…
In a previous post, I explained how constitutional federalism uses two levels of governments to protect liberty and restrain the state. In contrast, the new school of national federalism uses two levels of government to create a more activist and burdensome state than one level does.
First, scholars advocating national federalism do not see much, if any, role for judicial enforcement of the Constitution’s textual limitations on the federal government. That failure alone allows the federal government to be much more intrusive than permitted by the design of the Framers. Moreover, failing to enforce the enumerated powers also can kill useful policy competition among the states, because a single federal policy then replaces many state policies. Sometimes such competition deadening federal statutes are passed at the behest of state officials who, not unlike private actors, would prefer not to compete if they can create a cartel and an easier life. Constitutional federalism, in contrast, protects a beneficent distribution of powers that the Constitution’s agents cannot undermine to the public’s detriment.
Second, so-called cooperative federalism—the form of federalism that national federalists most admire—is a recipe for bigger government.
Aristotle reports an ancient example of rational choice theory in international affairs. Indeed, if rational choice theory had existed at the time, Aristotle’s report would have begged the complaint of caricature given the parties to the conflict not only viewed their goals instrumentally, but even reduced their goals to cash equivalents.
When people ask for authors that can give them insight into the peculiar politics and ideas that animate us today, I often point them to Walker Percy (1916-1990), the author of six novels, a satirical self-help book, and dozens of essays—all of which aimed at grappling with the human condition in these deranged times. Percy often suggested that his calling as a writer involved being attentive to signs. He likened his role to that of the canary in a coal mine. In an essay on the peculiarities of writing novels in an “apocalyptic” age, Percy said that what interests the novelist,…