Amateur Hour

KEENE, NH - SEPTEMBER 30 (Photo by Darren McCollester/Getty Images)

A while ago, I was driving back to Indiana from the place of my birth and America’s most dysfunctional city, Chicago. As thoughts of Greek-style pensions for public employees, exorbitant property taxes, and sky high murder rates were passing through my consciousness, my car began emitting a strange noise on the expressway. It grew louder, and my stomach sank. It was a flat. The car wobbled onto a nearby exit ramp, and I slowed to the shoulder cursing my lousy luck.

Thankfully I had just renewed my Triple-A membership (after debating to myself whether or not the fee was worth it), so my luck held in the end. The incident led me to ponder the fact that it would not have occurred to me in my distress to try calling a real estate developer, a neurosurgeon, or a former CEO for help. That is to say, anyone lacking a background in auto repair.

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“Competition Is for Losers”

Miniature soldiers are fighting on the desk

It was supposed to make consumers happy. Last month, Target launched a line of clothes designed by Lilly Pulitzer. Within hours, however, things turned ugly. Customers flooded the stores and cleared the shelves. The story online was the same, a torrent of early sales caused Target’s website to crash and supplies to vanish. Shoppers who came up empty-handed fumed when Target announced that it would not restock the clothing line. The anger only increased when items from the limited-edition collection began popping up on eBay for several times the prices they were offered at Target.

Who would have guessed, the media wondered that the designer of preppy resort wear could cause so much trouble?

René Girard, for one.

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Justice Breyer Needs an Originalist Law Clerk


McCutcheon v. FEC reveals fundamental differences between the Roberts Court majority and the dissenters about the First Amendment’s protection of political speech. The justices in the majority asserted the traditional view that the First Amendment is an individual right.   In contrast, Justice Breyer argues for the McCutcheon dissenters that the First Amendment is in part a “collective right,” and thus government interests in favor of campaign finance regulation are not “to be weighed against the constitutional right to political speech. Rather they are interests represented in the First Amendment itself.”  The latter view makes it much easier to upheld government restrictions that are targeted at resources to support speech at election time.

To support his view of the First Amendment as embodying a “collective right,” Breyer appeals to Founding-era statements that describe how speech connects a legislator with the sentiments of his constituents.  But the materials he cites undermine his claims. First, he purports to demonstrate that James Wilson believed that “the First Amendment would facilitate a ‘chain of communications between the people and those to whom they have committed the exercise of the powers of government,” by quoting a snippet from a lecture by Wilson on the Constitution.

But the quote from Wilson does not appear in a discussion of the First Amendment, as Justice Breyer states, but in a discussion of the novelty and virtue of representative government, as opposed to “monarchical, aristocratical, and democratical” forms of government. 

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Is the Republic Lost?

Money keep silent

When the delegates were departing the Constitutional Convention, a woman stopped Benjamin Franklin outside Independence Hall and asked the Pennsylvania delegate, “Well, Doctor, what have we got? A republic or a monarchy?” Franklin responded, “A republic, if you can keep it.”

Political journalist Jay Cost believes we didn’t. His new book, A Republic No More: Big Government and the Rise of American Political Corruption, is a highly informative and at times deeply dispiriting account of how we failed Franklin’s challenge.

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Judicial Activism Isn’t the Remedy Publius Prescribed: A Reply to Evan Bernick

philo-publiusTo gauge how carefully they have read Federalist 10, I often ask students on what constitutional institutions Madison relies to solve the problem of majority factions. It’s a trick question, the last refuge of the professor. The answer is none. Madison reaches the end of the essay, proclaiming a “republican remedy for the diseases most incident to republican government,” without mentioning the Constitution, a Bill of Rights or, significantly, the courts.

That has not dissuaded advocates of an assertive judiciary from quoting Madison on the “mischiefs of faction” to support their cause. The most recent is Evan Bernick of the Institute for Justice, who, at the Huffington Post, has taken my post on judicial restraint to pointed task. “Professor: Who Needs Judges?” the headline announces. “Let’s Put Our Constitutional Rights to a Vote.”

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How the Subservient Branch Declares War

Obama Asks Congress to Authorize War Against Islamic State

In the debate over the proposed new Authorization for the Use of Military Force, some have suggested that the President is asking to have his arms tied. In fact the move is cleverer. He is asking Congress to authorize what he has already done and therefore apparently thinks he can do anyway, and asking with enough modifiers—what is an “enduring” ground operation? who will decide how long it “endures”?—to vitiate any congressional limitations on his power.

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Accidental Wisdom from the Podium

When questioned recently about the administration’s Ebola response, President Obama’s exasperated White House press secretary, Josh Earnest, proclaimed to a reporter: “I guess you can take that up with James Madison.” Earnest, in his attempt to express the evolving nature of governance in a federated republic, correctly affirmed Madison’s central role in the debate, and directed the thoughtful citizen to appreciate original understandings of power.

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Entropy in the Executive

The Massachusetts Constitution’s Declaration of Rights says, in its conclusion, that:

In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.

That constitution, providing for a lower house, a Senate, and a governor armed with a (qualified) veto was, in many ways, the model for the federal Constitution drafted a few years later.

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The Kind of Book Political Theorists Ought to Read

That drip-drip-drip sound you hear is condescension falling from the mouths of skeptics appalled that such as Lynne Cheney, who does not even hold a tenured position on a university faculty and whose hands are sullied by the actual practice of politics, to say nothing of the side on which she has practiced it, and whose previous writings have not always sounded the depths of profundity, has now dared without so much as the permission of a double-blind peer-review process to produce a sober, scholarly biography of James Madison and, what is worst of all, with a prestigious trade press.

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James MacGregor Burns’ Transformative Constitutionalism

Virtually everything that James MacGregor Burns—who died on Tuesday at the age of 95 and who is rightly being honored as one of the greatest political scientists of his time—wrote about the Constitution was wonderfully provocative, incisively argued and totally wrong. He was perhaps the leading Constitutional critic of his era, a vital service, even if Burns sometimes performed it, as in his critiques of separation of powers, in demonstrable error. He was a Progressive, both a student and an advocate of what he called “transforming leadership” and a critic of institutional mechanisms that inhibited it.

Perhaps best known among students of American political thought for his critique of separation of powers in 1963’s The Deadlock of Democracy, Burns—then frustrated by the Senate’s obstruction of civil rights legislation he thought to have been publicly endorsed in the 1960 presidential election—believed he had caught James Madison in a mistake. That is hard to do, and Burns’ effort, while innovative, stumbled.

The attempt was this: If Madison, as he claimed, solved the problem of the abusive majority in Federalist 10—and this without relying on institutional blocking mechanisms—why did he need the added security of the separation of powers, which, to the extent it was unnecessary, was also gratuitously undemocratic? Fifteen years later, George W. Carey decisively answered that Madison was not trying to solve the problem of an abusive majority through the separation of powers, he was trying to solve the problem of a tyrannical government—something the Founder explicitly stated in Federalist 51 that he regarded to be a different problem.

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