What Power of the Purse?

A few years ago Eugene Steuerle (Brookings) and his colleague Tim Roeper developed a “fiscal democracy index.” It measures the extent to which revenues are already claimed by permanent programs—the big entitlement programs, and interest payments on the debt. The remaining “discretionary” portion has to pay for the entire government’s operations, from defense to roads to education to the DoJ. The trajectory over the past half-century looks like this: Note how in this as in many other respects, the Clinton years look pretty darn good. And note how the index turned negative in 2009. The picture going forward doesn’t look much…

Read More

Congress as the Guardian of Individual Rights: A Conversation with Louis Fisher

congress-rightsThis episode of Liberty Law Talk is a conversation with congressional scholar Louis Fisher on his recent book, Congress: Protecting Individual Rights. Fisher argues that contrary to popular belief, Congress, not the Court, has been the foremost champion in protecting the rights of racial minorities, children, Native Americans, and religious liberties.

Judge Garland’s “Restraint” and the Anti-Politics of the Administrative State

Judge Merrick Garland (Photo by Chip Somodevilla/Getty Images)

Judge Merrick Garland may be the best for which constitutionalists can reasonably hope with a President Clinton or President Trump in the offing, but there is no basis on the record presented thus far for the popular press’ breathless conclusion—see, for example, here and here—that he believes in judicial restraint rightly, which is to say politically, understood.

Read More

The Crisis of the New Order

Washington DC

Peggy Noonan recently suggested that “elites are often the last to see their system is under siege. ‘It couldn’t be, I’ve done so well.’” There is much to this idea, especially in a nation like America where many are, in fact, doing very well, and are often socially isolated from others who are not doing so well. Near zero interest rates have flooded the stock market with money, and that, among other things, has been good for the wealthy. Outside of that, however, things are tougher, and not only economically. Because Americans are increasingly isolated socially and economically, our governing class often has trouble seeing this reality.

Our system was supposed to be designed to ensure regular contact between elites and the common citizen.

Read More

Congress Derailed: A Conversation with Christopher DeMuth

US Capitol Building, Washington DCChristopher DeMuth, the great conservative authority on regulatory policy, comes to Liberty Law Talk to discuss his recent work on the institutional decline of congress and how it can return to its place of constitutional prominence.

Living the New Constitutional Morality

Photo: Doug Mills/The New York Times

The presidential nominating contests continue to befuddle prognosticators, but the consensus winner of the Syntactical Caucus of 2016 is already in. Whether Republican or Democrat, the next President will almost certainly display an unreasoning proclivity for the first person singular.

Read More

Is the Tax Court Still Constitutional?

Congress is notoriously lousy at terminating the life of government entities. However, in a stroke of sheer genius, it has managed to make one of them homeless: the U.S. Tax Court.

Read More

Our Secretive Presidency

Mount Rushmore

Constitutions built upon a separation of powers were not made to last. The conceit that executive and legislative branches of government might be set in equipoise, and balance each other off over the decades, was amusingly mocked by Oliver Wendell Holmes, Sr. in The Deacon’s Masterpiece (1858):

Have you heard of the wonderful one-hoss shay,

That was built in such a logical way

It ran a hundred years to a day…?

The secret to building a carriage, the Deacon thought, was to make each piece as strong as the rest, so that no one part wears out first. And as there’d never be a weakest spot, the shay would go on forever, just like the imagined Madisonian Constitution. Well, it lasted and lasted, the talk of the town, until 100 years to the day it all collapsed at once and the new owner found himself sitting on a pile of ashes. No part wore out first. Everything went simultaneously. “End of the wonderful one-hoss shay. Logic is logic. That’s all I say.”

Read More

The End of American Democracy?

Matt Yglesias argues that American democracy is “doomed.” Along with some over-the-top scenarios of military coups and the like, the essay contains sober—and sobering—analysis of our predicament, based on a pretty good survey of the PoliSci literature.

Read More

Dysfunction Is No Excuse for Misreading the Constitution

Can the U.S. House of Representatives elect a non-member to the Speakership? Disgusted by the dysfunction in Congress, some are suggesting this is constitutionally possible. Connor Ewing, in this space yesterday, asserted the only thing standing in the way is “over two centuries of legislative practice to the contrary.” (Editor’s note: Ewing’s latest, written in reply to Schaub and National Review’s Matthew Franck, is here.)

Read More