The Tiers of Scrutiny: A Public Choice Analysis

In my last post, I discussed Justice Clarence Thomas’s criticism of the Supreme Court’s tiers of scrutiny jurisprudence.  Given Thomas’s criticism of the tiers as both made up and inconsistently applied, one might wonder why the Supreme Court follows this approach.  My explanation is one that relies on a public choice theory of the justices.  The Supreme Court follows this approach because it enhances – perhaps maximizes – its power. One might question that the Supreme Court’s power is enhanced by the tiers of scrutiny jurisprudence.  After all, the tiers seem to involve rules of a sort that would arguably limit…

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Airport Screening: TSA Versus Private Security Firms


With lines at airports now approaching absurd lengths, a movement is arising for employing private screeners instead of the government TSA screeners. There are such strong reasons for doing this that even Vox, hardly a friend of the private sector, argues in favor of the move.

Many people argued in favor of private screeners after 9/11, but let’s not forget that Democrats pushed through government screeners in an effort to promote unionization and additional government employees. George Bush agreed to the Democrats’ demands, and here we are.

Under the law, airports can hire private screeners, which would then be regulated by TSA. But relatively few airports use private screeners, even though those that do appear to have experienced significant benefits. There is evidence that private screeners are better at detecting bombs and that they process travelers more quickly. There are other benefits:

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Anti-Bullying: Can the Schools Be Trusted?

One of the new initiatives of government is to act against the bullying of children.  As a general matter, I believe that concern about bullying is a force for good.  As a child, I experienced a little bit of bullying (as do virtually all children) but saw others who were treated much worse.  From my own experience and observations, I can attest to how harmful such bullying can be for a child.

One might argue that parents should be the ones who address bullying but of course parents cannot do the job entirely.  They are often not aware that the bullying is occurring and my guess is that the children who are bullied often had parents who were bullied and therefore would not really know how to address it.  Thus, additional protection would be helpful and government schools appear to be well positioned to intervene.

Unfortunately, government does a poor job of most things and bullying is likely to be one of them.  The standard litany of public choice problems ranging from poor incentives to do a good job, poor knowledge about how to do that job, and the power of special interests and ideological extremists apply in this area no less than others.  And the more jobs that government undertakes, the less likely they are to do each one of them well.

Low test schools and poor learning are just a small part of the problems with government schools.  There are, of course, the problems of teachers unions and disciplining bad teachers.  And most pertinently, there are the absurdities of policies such as zero tolerance.  Thus, no one should be surprised if the schools do a poor job of policing against bullying.

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Feel the Romantic Bern

Hand touching vote button with american flag

Public choice theory, which applies to the realm of politics the rational-actor postulate of economists, rightly enjoys a high regard among advocates of liberty. From voting habits to inefficient, Kafkaesque bureaucracies, to the strength of special interest lobbies and rent-seeking behavior, public choice has shined a bright light on the need to affirm limited government and political freedom. It is politics, to use James Buchanan’s phrase, “without romance.”

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Citizen or Consumer? Michael Munger Responds

Target audience

When it comes to voting by citizens in a democracy, there are four essential questions, as I see it, in marrying up the “should” and the “is.”

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Bernie Sanders, Genteel Socialist

Bernie Sanders storms the gates of power as the newly elected mayor of Burlington, VT in 1981.

Not much has been said yet about the fact that the man now giving Hillary Clinton a run for her money in the Democratic primaries, Bernie Sanders, is a self-proclaimed socialist with a picture of Eugene Debs hanging in his Senate office in Washington. Even when his socialism is discussed, for example in a recent Politico article by David Greenberg, more time is spent describing the history of American socialism and relatively little explaining how Sanders fits in.

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The Consequences from Mandating Egalitarian Education Funding (Part Three)

My previous posts on this topic, I & II, reflected on the reasoning and fallout from the judicial mandating of parity in school funding in the Lone Star State. In this final post on the topic of Edgewood, I will elaborate on the unfortunate legacy of that decision, and speculate about the reasons for its continued vitality as a precedent.

Judicial activism is bad in the abstract because it alters the proper balance of power among the branches of government, diminishes democracy, and abuses the rule of law.  In the case of Edgewood, the problems are not just abstract, but concrete. 

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Defending Citizens United in Hostile Territory

The National Constitutional Center has inaugurated a series of debates around the country on recent Supreme Court cases. Two weeks ago the proposition for dispute in Boston was:  “Citizens United was wrongly decided.’ I took the negative side with Anthony Johnstone of Montana Law School in the affirmative.  The Center recently posted the  debate online.

The audience was decidedly hostile to Citizens United. The Center took a poll at the beginning of the debate. 76 percent of the audience were opposed and only 24 percent in favor. After the debate 65 percent were opposed and 35 percent in favor.  I had persuaded some listeners, but not enough to turn the tide.

Why does Citizens United elicit such visceral hostility from most audiences?

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The Dismal Performance in Federal Policy-Making: A Discussion with Peter Schuck

govt fails

Peter Schuck comes to Liberty Law Talk to discuss Why Government Fails So Often. Like James Buckley and John DiIulio, Schuck doesn’t have much good news for the large majority of Americans who are disgusted with the performance of the federal government and its ability to devise and execute policies. Schuck notes that in April 2013, only 28% of Americans had a favorable opinion of the federal government. Many have tried to explain this phenomenon with various government affirming answers, but Schuck is forthright in the book and this interview when he states that the best answer is that the…

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Public Pensions, Public Choice, and the War Against the Young

Almost every week brings new word of the crisis in public pensions. Yesterday the news was that New York City pensions are underfunded, make unrealistic assumptions about future investment returns, and are subject to political interference in their management. Consequently, public spending for necessary projects like infrastructure is crowded out and future generations will likely be stuck with a big bill.

Public pensions may provide the best illustration of the truth of a branch of economics known as public choice. Public choice understands that politicians are no more public-spirited than other individuals, but are simply maximizers subject to different constraints.

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