Twenty Years after Welfare Reform: The Welfare System Remains in Place

Clinton_prwora

It was 20 years ago that leaders of both major political parties gathered in the Rose Garden of the White House to watch President Clinton sign the Personal Responsibility and Work Opportunity Reconciliation Act. The bill that Clinton signed into law on August 22, 1996, despite its obscure title (and unpronounceable acronym, PRWORA—hereafter we will simply call it “the Act”), represented the most extensive revision of federal welfare policy in more than a generation. There were smiles all around that day in the Rose Garden, and an uncommon political harmony as Democrats and Republicans basked together in the warm afterglow of…

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Saving Originalism from the Originalists

Law Books

For decades, adherents of “judicial restraint,” led by Justice Antonin Scalia, have railed against “judicial activism.”[1] Activist judges, they charge, have repeatedly overstepped the bounds of their authority by striking down acts of the democratically accountable branches of government on grounds having no proper basis in the Constitution. In the view of many who favor more restrained use of the power of judicial review, “originalism”—the notion that the Constitution should be interpreted in accordance with the intent of the Framers—is not only the sole defensible method of constitutional interpretation, but the last, best hope of ending misadventures in judicial activism. As…

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Constitutional Theory As Game Theory

Stephen F. Smith begins his Liberty Forum essay by quoting from Justice Antonin Scalia’s “Originalism: The Lesser Evil” speech from 1988. There Scalia announces that the Constitution, though it has an effect superior to other laws, is in its nature a sort of ‘law’ that is the business of the courts—an enactment that has a fixed…

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Promoting Originalism: Through Strategy or Principle?

Stephen Smith’s Liberty Forum essay concerns an important question for originalism: How can originalists provide nonoriginalists with an incentive to follow the Constitution’s original meaning? Smith identifies what he regards as a serious problem with originalism: “In a world in which many judges reject original intention as a binding constraint, originalism cannot achieve its goal of…

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Reactivists We Have Known and Loved (Just One, Actually)

Kudos to Stephen Smith, and kudos to the man behind the curtain (Richard Reinsch) for inviting his essay. What a breath of fresh air. In the current environment, constitutionalism seems unlikely to regain real-world traction any time soon. Surely, though, that must remain the long-term objective. To that end originalism must liberate itself from its…

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Reimagining Religion’s Distinctiveness in American Law

A row of Church pews

Historically we have understood our tradition of religious liberty to entail distinctive treatment for religion. We have interpreted the Free Exercise and Establishment Clauses of the First Amendment to afford special protections for religious exercise and to place special limitations on government involvement with religion. The religion clauses, we have said, protect religious belief and practice from the dangers of state intrusion; protect the state and its institutions from the dangers of sectarian control; and operate to prevent the domination of religious minorities by majorities. Equality of treatment between religion and nonreligion has also always been a part of our tradition…

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Who Threatens Whom? Which Religion Needs Protection?

Many of my undergraduate students have trouble understanding the threat that religion might pose to the state. Often when teaching the Investiture Controversy, the 11th century contest between Pope Gregory VII and King Henry IV, the Holy Roman Emperor, over the appointment of bishops, I put to them the anachronistic question of whether the Pope has…

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The Clashes of Values that Leviathan Foments

Kathleen Brady’s book The Distinctiveness of American Religion in Law: Rethinking Religion Clause Jurisprudence is a fascinating exposition of the changing role that religion plays in a rapidly secularizing society. What’s so special about religion? Why should courts treat it differently from non-religious belief systems? Why do we still mostly speak of religious free exercise…

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Reimagining Religion’s Distinctiveness: Kathleen Brady Replies to Her Critics

I would like to thank D.G. Hart and Ilya Shapiro for their thoughtful comments on my essay. Together their observations provide me with the opportunity to clarify some aspects of my account of religion’s distinctiveness and the implications of this distinctiveness for our understanding of the First Amendment’s religion clauses and other constitutional liberties. Professor Hart…

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A Modest Proposal for Reforming the Administrative State

Wooden Judges Gavel And Old Law Books On Wooden Background

The problem of administrative government in the United States is well known to the readers of Law and Liberty. Congress delegates broad legislative power to agencies, sacrificing something of our republican character. An agency thus exercises not only executive power as part of that department of government, but also legislative power delegated to it by the Congress. Independently, agencies often exercise judicial power as well, adjudicating not only public rights cases but also cases involving common-law private rights traditionally reserved for Article III courts. We have sacrificed not only some part of our republicanism, then, but also a much greater…

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(Incrementally) Toward a More Libertarian Bureaucracy

The ambitious proposal reconsidering the foundations of the modern regulatory state that Ilan Wurman outlines in his thoughtful Liberty Forum essay is not an outlier. There seems to be a growing call—primarily among conservatives and libertarians—to return to first principles and rein in the administrative state. And I’m not just referring to Philip Hamburger’s condemnation…

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An Administrative Fairy Tale

Most everyone is familiar with the Hans Christian Andersen tale in which only a child is willing to pronounce what everyone knows: The emperor’s clothes are no clothes at all. As the emperor marches through town, he is as naked as the day he was born. His magnificent new outfit is a fiction, but a…

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Congress-ification of Agency Rulemaking

In his provocative Liberty Forum essay, Ilan Wurman proposes a novel solution to the explosive growth of the administrative state. Constitutional conservatives, rather than pursuing their dream remedy (that is, the Supreme Court overturning or severely limiting its prior holdings on the non-delegation doctrine), should accept that agencies will inevitably exercise a blend of executive,…

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Ilan Wurman Replies to His Critics

I would very much like to thank professors Chris Walker, Jonathan Adler, and Andy Grewal for their thoughtful and incisive responses to my “modest” (or perhaps not so modest) proposal for reforming the administrative state. Much of their criticisms, I think, will be addressed in the forthcoming, fuller accounts of this idea, but much of…

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Freedom of Association and Antidiscrimination Law: An Imperfect Reconciliation

double exposure of businessman or salesman handing over a contra

The topic of this essay[1] is to identify the proper role of antidiscrimination laws in relation to the general principle of freedom of association, which is itself a subset of the basic principle of freedom of contract. Historically, the usual understanding was that the principle of freedom of association enjoyed pride of place in the social hierarchy, such that the antidiscrimination principle was employed only in select contexts, primarily as a counterweight to monopoly power in a broad class of public utility and common carrier settings. The basic position had strong underpinnings in the constitutional provisions that protected equally property…

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Classical Liberalism: Teaching Its Own Undoing

Professor Richard Epstein has performed a welcome service in reminding us of the classical liberal case for the freedom of association. The classical liberal champions the primacy of rights as guarantors of the individual’s sovereignty to make free dealings with other sovereigns. He values rights as safeguards of the freedom to make moral and economic…

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Richard Epstein’s Imperfect Understanding of Antidiscrimination Law

Richard Epstein is right about how to think about antidiscrimination law. The general principle governing transactions between private parties should be freedom of association, for reasons of both liberty and efficiency. Any departure from that rule, such as a prohibition of discrimination, has the burden of proof. Epstein, however, can’t let go of that general rule…

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Government Intervention Springs Eternal for Antidiscrimination Laws

In his Liberty Forum essay, Professor Richard Epstein makes a persuasive case that antidiscrimination laws are “a great mistake outside of monopolies.” But advocates of “antidiscrimination” laws have a view of monopoly—or of “coercion” and “force”—that is much more expansive than Professor Epstein’s. The Progressive or modern liberal advocates of antidiscrimination laws advance a concept…

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How Classical Liberal Principles Address Cultural, Social and Economic Issues: Richard Epstein’s Reply

My Liberty Forum Essay, Freedom of Association and Antidiscrimination Law: An Imperfect Reconciliation has provoked three thoughtful responses. Those by Marc DeGirolami and Paul Moreno are supportive of my approach and may be  best described as intramural disputes among individuals who agree on the relationship between freedom of association and basic antidiscrimination laws. Andrew Koppelman’s…

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Springtime for Schmitt

Schmitt5

The political theorist Carl Schmitt (1888-1985) published his most important work in the 1920s and 1930s—in German. Though he lived to the age of 97, almost all of his postwar publications were cautious elaborations of themes he had deployed before the Second World War. The most remarkable thing about Schmitt is his appeal to contemporary academics in the English-speaking world. Of the 13 books by Schmitt now available in English, all but three have appeared for the first time in English (or in new, revised editions) since 2004. By the far the most citations to Schmitt in (English-language) academic publications are…

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Rethinking the Political Horizon of Liberalism

At the outset of his provocative Liberty Forum essay, Jeremy Rabkin notes that the most remarkable thing about Carl Schmitt is “his appeal to contemporary academics in the English-speaking world.” Schmitt’s literary afterlife and the current level of interest in his works are, indeed, surprising given his infamous political trajectory and his ambiguous and unconvincing…

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Schmitt and the Power of Language

Jeremy Rabkin has captured a good sense of Carl Schmitt in his Liberty Forum essay. Like him, I agree that it is difficult to grapple with the author’s exceedingly abstract prose. But there is a certain urgency that requires us to try, if only because, as Rabkin has also shown, the allure is proving all…

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Carl Schmitt, Between Banality and Catholicism

Encountering Carl Schmitt for the first time is a shock, especially if one is raised to respect what Jeremy Rabkin, in his Liberty Forum essay, correctly describes as the liberal pieties. But if one cares about liberalism it would be a mistake to write Schmitt off as a Nazi, a nihilist, or a promoter of…

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Springtime for Schmitt? Jeremy Rabkin Responds to His Critics

I am grateful to the other contributors to this forum for enlarging our discussion of Carl Schmitt. They have not persuaded me to temper my own conclusion: Schmitt offered a great deal of poison, which is not rendered more palatable by his large admixtures of well-aged snake oil. Perhaps the best way to explain my obduracy…

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Respectable Partisans of Modern Liberty

Sir George Hayter's 'The House of Commons' (1833)

Fifty years have passed since Harvey Mansfield’s path-breaking Statesmanship and Party Government first appeared. It is a book so good that Leo Strauss is said to have wished he had written it. The original edition is now available as an e-book, so the busy Democratic operative may read it on hilarymail as she travels in search of wisdom from Hollywood to Havana. Of course, she is unlikely to seize the opportunity. The illumination scholars could once offer well-meaning politicians about prudence, statesmanship, and natural law—topics Mansfield discusses—is today dimmed by academics’ enlistment as experts on turnout, traffic, taxes, and triage. Those…

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The Work of Reputable Parties

Parties have long been respectable features of modern liberal democracy. But that is not to say that in America our current political parties are respected. The summer of Donald Trump, which may finally be fading, suggests a craving for leadership and boldness that is larger than partisan affiliation: Americans increasingly doubt that either party is…

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The Prudential Path of Natural Rights

Edmund Burke’s defense of political parties is also a defense of conservatism. It remains true that the “respectability of party”—Harvey C. Mansfield’s perfect phrase from Statesmanship and Party Government: A Study of Burke and Bolingbroke—continues to depend on the respectability of conservatism. Professor Blitz suggests this also, asking in his Liberty Forum essay what we can…

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Whose Statesmanship? Which Burke?

Mark Blitz reads Harvey Mansfield as closely as Mansfield reads Edmund Burke. For this, and for his excellent Liberty Forum essay on Mansfield’s Statesmanship and Party Government, we are in Blitz’s debt. The book’s simultaneously ambivalent and appreciative reading of Burke endures 50 years after its publication, and will rank among the definitive texts on the…

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Mark Blitz Replies to His Critics

The three replies to my essay are thoughtful discussions of important issues, and I thank the respondents for writing them. Professor Weiner correctly suggests that to rely on great men is a mistake. A polity will not endure if it allows significant decline and constantly requires for its salvation an excellence that is always rare. It…

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Government Decoherence and Its Discontents

Confused way of a businessman

If scholars of American government are like blind men trying to describe our ever-evolving elephant, what is most striking about scholarship in recent years is how many of us, making very different approaches to our subject matter, have been grasping for similar descriptors. Caesarism. Government by Deal. Government by Waiver. Kludgeocracy. Lawless law. In my own recent book: adhocracy. It would be wrong to suggest that these are merely different names for exactly the same underlying phenomenon. Those groping around the presidential head feel different textures than those who approach from the welfare state flanks or the regulatory rear. But there is…

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Responses

Decoherence . . . Or Incoherence?

Philip Wallach proposes the addition of a new term to our analysis of regulatory jargon—regulatory “decoherence.” I have no inherent objection to coining a new term: jargon can illuminate or obscure. In this case, however, Wallach has coined a new term when a perfectly valid old term would do—the problem with government regulatory policy is not…

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Adhocracy or Capture?

A prime example of the “adhocracy” that Philip Wallach refers to in his Liberty Forum essay is presented in his book To the Edge. He there describes as “adhocracy” the response to the 2008 financial crisis by the Bush and Obama administrations. For Wallach, the government’s actions amounted to “adhocracy” because they were “an unpredictable…

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Government Decoherence and Its Discontents – Wallach Responds to His Critics

What is required to maintain complex national policies and adjust them to the realities of a changing world—and to do so in a way that produces legitimate policies?  However we answer this, is our current institutional matrix up to the task? My suggestion of the term “decoherence” to organize thinking about these questions implies answers to…

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Congress Incongruous

grief

In the late 1970s, I taught at the Kennedy School of Government and directed the “Harvard Faculty Project on Regulation.” Our group—professors of law, economics, political science, business, and public health—was part of the then-vibrant regulatory reform movement, which also had cells at Chicago and other universities and at the American Enterprise Institute and Brookings Institution. We were forthright deregulators when it came to price and entry controls in transportation, energy, and financial markets. For the newer programs of health, safety, and environmental regulation,[1] we thought the agencies were pursuing worthy purposes in ways that were wasteful and counterproductive. We…

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Responses

Bucking Up the People’s Branch

We live still nominally under the Constitution of 1789 (as amended) but not under its republican government. The states are largely subordinated to the federal establishment. The people loathe the people’s branch, and in any case, Congress seems unwilling to make laws or to fight its corner in the balancing of powers. As Christopher DeMuth…

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Return to the Original Sources of the Separation of Powers

I want to begin this response with a series of questions and comments. When and why did America go wrong? Put slightly differently, when and why did America get derailed? Who or what did the derailing? And why is this derailment so much different, in kind and not simply degree, from every other perceived previous…

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Bring Back Institutional Jealousy

Christopher DeMuth has identified the primary ailment afflicting administrative law today: the absentee Congress. Two stories from the Wall Street Journal on the day I write (August 10, 2015) tell the tale. Page One has an article, “Industry, States Set to Fight EPA Rules,” describing planned legal challenges by a number states and interest groups against…

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Congress Incongruous — Response to Commentaries

I am grateful for the smart and informed commentaries on my Liberty Law Forum essay by John Samples, Gordon Lloyd, Michael M. Uhlmann, and those who posted shorter comments. They do not, I think, call for point-by-point author responses, but reading them altogether suggests that I should say a few words about the motivations and…

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Is It Curtains for Mandatory Public Sector Union Dues?

MADISON, WI - MARCH 12:  Thousands of demonstrators protest outside the Wisconsin State Capitol March 12, 2011 in Madison, Wisconsin. Organizers were expecting 200 thousand participants to attend the rally to voice their opposition to Governor Scott Walker public sector union reforms.  (Photo by Scott Olson/Getty Images)

In America’s experiment with unionized government, 2005 was a watershed year. California was then in the second year of the Age of Arnold. Elected on a pledge to put the Golden State’s dysfunctional fiscal house in order, Governor Schwarzenegger terminated the car tax on his first day in office. In his first year, the Republican and self-proclaimed Milton Friedman devotee successfully championed a balanced budget initiative and legislation putting a lid on spiraling worker-compensation costs. His prime time address at the 2004 GOP convention portrayed the Republican Party as dedicated to the principles of free enterprise and to “getting government off your…

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Clawing Back the Right of Free Speech

Many say the Roberts Court has been exceptionally supportive of First Amendment principles. As Michael Toth ably details in his Liberty Forum essay, these principles have been at issue in two recent cases, Knox v. SEIU Local 1000 (2012) and Harris v. Quinn (2014). Both dealt with public employee unions and both were decided in…

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Time to Drive a Stake Through the Heart of Mandatory Dues

Let me start with a disclaimer. I was once a member of a union—albeit involuntarily. During college, I responded to Southwestern Bell’s ad for a part-time, 20-hour-a-week graveyard shift job designing Yellow Pages advertisements. I was offered the position, but was required to join the union as a condition of my employment. Had I been…

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A Great Example of Judicial Restraint

The Supreme Court is slowly but surely demonstrating, over a series of cases, that the First Amendment cannot plausibly be squared with public sector unions’ court-awarded power to require payments from non-members. The Court’s 1977 decision granting unions that extraordinary power, Abood v. Detroit Board of Education, is an anomaly that should be overturned next…

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Public Servants and the Future of Reform: Michael Toth Responds

The state of Illinois, according to a recent article in the Chicago Tribune, is headed for a “pension doomsday.” So are other states. Across the country, unionized governments are a halfway house to nosebleed long-term pension and healthcare costs, giving politicians a Hobson’s choice. They can renege on existing collective bargaining agreements, hike taxes, or pare back social…

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