President Trump’s executive order on healthcare received a great deal of attention, but almost all of it emphasized the order’s short-term policy implications. Commentary from the Left ignored the constitutional implications of unilateral executive action, so if anyone was going to speak up about those constitutional issues, conservatives would have to do so. Their record thus far has been mixed. The editors of National Review, like their liberal counterparts, addressed the policy angle, not the constitutional one. Yuval Levin, on the other hand, wrote in that same publication that officials in the administration in which he served (Bush II) doubted whether…
Donald Trump’s nominee for the Department of Education, Betsy DeVos, is an advocate of school vouchers. One should not exaggerate how much influence she will have in promoting this cause. The United States Department of Education has little direct authority over K-12 education and it certainly should not be given any more, because education is quintessentially a state and local issue. But any cabinet position is a bully pulpit, and classical liberals should hope she uses it to create a more favorable climate for state and local voucher initiatives.
The conventional argument for vouchers, itself classically liberal in nature, is that in the long run they are likely to improve human capital, because they will introduce more competition by supplying more private schools for those parents who want to use them. Schools that do better at matching students with the education that is best for them will gain students at the expense of those that do not. Moreover, more competition will lead to more beneficial innovations that will be shared throughout the K-12 educational system. Thus, even if some schools funded by vouchers do not perform well at first, a more competitive system has greater dynamism than a more government controlled system.
While there is much to be said for the human capital argument, yet another classical liberal argument for vouchers is that they promote a free citizenry by creating schools that compete to instill good values and norms in their students.
From my many friends who are Democrats, I hear a common complaint: the Republican Party is a party of obstruction while the Democratic party is much more accommodating. Of course, the first reaction of most Republican would be to note the many not so accommodating actions of Democrats, from the attempt to filibuster Justice Samuel Alito to the refusal to negotiate any reforms in social security with the newly reelected George W. Bush. But such back and forth is pretty fruitless and may miss a more fundamental point.
It is not at all clear that it is rational for parties to engage in the same amount of obstruction. The rational amount of obstruction depends on how easy it is to repeal the policy being obstructed. If it is easy to repeal the policy, it does not make sense to pay the political price for obstruction, because the policy can be readily ended when the party comes to power. But if the policy is hard to repeal, obstruction becomes a more natural course.
Thus, the real question on the rationality and justification for obstruction is whether the Republican and Democratic parties face the same political terrain for repealing the legislation they oppose. And I do not believe they do, particularly when it comes to the creation or expansion of entitlements.
Many obituaries of Antonin Scalia were accompanied by a picture of the justice and Ronald Reagan standing together on the day of his nomination. And that photograph perfectly captures Scalia’s importance to the American polity. Scalia changed our jurisprudence as much as Reagan changed our politics.
In an essay at City Journal I explore some of the deep connections between these two iconic figures of the conservative movement:
Last week President Obama gave a speech to newly naturalized citizens at the National Archives. His remarks show why immigration, long rightly praised as an essential part of our heritage, has become a source of ever greater controversy. The President failed to acknowledge that it is the principles of limited government and individual rights that make United States a welcoming place for immigrants because they assure that newcomers cannot tip the political balance to make life worse for those already here.
Instead, the President celebrated the raw power of democracy to make “progress,” change that can come at the expense of long time residents.The President did suggest that one of the “binding forces” for America is “loyalty” to “the documents” that surrounded the new citizens at the Archives. But he never identified these documents by name, quoted any language from them, or explained why they have an enduring claim on our loyalty. In particular, President Obama cited almost none of the liberties protected by the Constitution and nothing of the structure of federalism and separation of powers that protects those liberties.
It is hard to believe this was mere oversight. His administration has notably failed to defend both the structure and rights that are actually in the Constitution.
This is the second part of a three-part summary of a speech that I gave last weekend at the 2015 National Lawyers Convention of the Federalist Society. The first part focuses on how commerce encourages civic virtue. The second continues by discussing how limited government aids civic culture and how the Constitution helps assure that religion will be helpful rather than harmful to that culture:
Besides encouraging a commercial society, the Constitution also sharply limits government. The federal government is limited by the enumerated powers. The states’ capacity to create large, intrusive, anti-commercial government is circumscribed by the right of citizens to exit. To take just a purely hypothetical example, if my home state of Illinois exacts large taxes in favor of small groups like public sector unions, many of its citizens will leave.
Limited government creates the space and indeed the need for the kind of private associations that Alexis de Tocqueville celebrated. Varying in size and mission, these associations may concern self-improvement, mutual aid, or social welfare. As the Nobel Prize-winning political scientist Elinor Ostrom showed, these associations can help people develop bonds of social trust and maintain long-term relations of reciprocal goodwill, which can also help sustain a free society.
Perhaps never in the history of the Supreme Court has a case of such limited practical significance generated as much press attention and hyperbole as has Hobby Lobby. Hillary Clinton is the latest politician to try to make inflammatory use of it: just yesterday she stated that it was step toward the kind of anti-women policies seen in extremist and undemocratic societies.
The case has captured attention for three reasons. First, it lies on the fault line of our culture wars, pitting the religiously oriented Hobby Lobby against the secularly oriented Obama administration. Second, its actual legal issues are very complex and inaccessible to the non-lawyer public, thus permitting politicians like Clinton to use it for their own ends. Finally, it provides catnip to reporters and pundits because it concerns contraception: sex helps sell the news as surely as it does other products.
Yet the case is of limited practical importance for no less than four reasons. First, it interprets the Religious Freedom Restoration Act, not the Constitution. Congress could change the result tomorrow, if it chose. To be sure, a law on the books benefits from inertia and a divided Congress is unlikely to amend RFRA soon on this matter. But its failure to do so shows that the Supreme Court’s decision is not wildly out of step with popular sentiment as sometimes are its constitutional decisions, which are far more difficult to amend. So much for Hobby Lobby being a step to undemocratic extremism. And going forward, Congress can exempt future legislation from RFRA’s strictures to the extent it wishes.
Thanks to Greg Weiner (and the commenters) for taking on my original piece, which has gathered far more attention than I had anticipated. Greg argues that, “It has become commonplace to see the Declaration as a radical break with this tradition—and, in some circles, the Constitution as a radical break again—but a continuum of this symbol is clearly traceable.” Yet, though there is some “traceable” continuity, the Declaration is of a different order.
New York Times columnist Thomas Friedman created a stir when he offered the following comments: “One-party autocracy certainly has its drawbacks. But when it is led by a reasonably enlightened group of people, as China is today, it can also have great advantages. That one party can just impose the politically difficult but critically important policies needed to move a society forward in the 21st century… . Our one-party democracy is worse.”
I am reluctant to offer criteria for what it takes to be “a reasonably enlightened group of people,” but if Western academic legal theory and political philosophy stand in for what Friedman’s group believes, then we ought to be cautious in our optimism, to say the least. After all, their position is at times murky, and at times at odds with the American constitutional order. On pressing issues, Chinese academics assiduously studying American court cases, published journal articles, academic books, etc. may find an endorsement of China’s policies, not a repudiation of them. Far from “speaking truth to power,” Western academics may simply have nothing to say.
In his new book, Why Coolidge Matters: Leadership Lessons from America’s Most Underrated President, Charles C. Johnson claims that ‘Silent Cal’ wasn’t so much silent as he was silenced. But today, thirty years since Tom Silver’s underrated book about America’s underrated thirtieth president, Coolidge and the Historians, that is changing. In addition to Johnson’s book, we also have Amity Shlaes’s new biography, Coolidge, a prequel of sorts to her bestseller, The Forgotten Man: A New History of the Great Depression. Undoubtedly, there is growing interest in Coolidge that, although somewhat delayed, is especially timely for the present. Here are six lessons for President Obama from the not-so-silent Cal Coolidge.