Progressivism Is a Long-Term Threat to the Rule of Law

Many people are concerned about Donald Trump’s commitment to the rule of law, a concern I share. But the other choice in this election is a Progressive one, and Progressivism by its nature lacks that commitment. Moreover, its history shows that it permanently damages the constitutional foundations of the United States. And the United States suffers from the fevers of progressivism more than any time since the 1960s.  Thus, this election pits a candidate lawless by virtue of temperament against one lawless by virtue of ideology and emboldened by the spirit of the times.  The rule of law is under threat, whoever wins.

Progressivism has proved a greater long-term danger than any single individual, because it is born in part out of systematic rather than personal hostility to the Constitution. Federalism and separation of powers are obstacles to the social engineering at the heart of progressivism, and thus progressivism has tried to eviscerate these restraints. Packed with FDR appointees in the 1930s, the Supreme Court gutted the enumerated powers. The administrative state has eroded the separation of powers, making the executive ever more powerful in domestic affairs. The theory used to justify these departures from the original constitution, living constitutionalism, is itself a threat to the rule of law, because it devalues the formal rules laid down by the Constitution.

And today we see all across a society a renewed progressive disdain for the rule of law.

Read More

The Court’s Last Shreds of Legitimacy

U.S. Supreme Court Justice Clarence Thomas  (Photo by Alex Wong/Getty Images)

Justice Thomas' masterful dissent in Whole Woman’s Health v. Hellerstedt skewers the Court's arbitrary use of rational, intermediate, and strict scrutiny tiers of review used in evaluating different constitutional rights. Justice Clarence Thomas has written two significant opinions concerning abortion.  Seventeen years ago in his lengthy dissent in Stenberg v. Carhart (2000), he denied that there is a constitutional right to abortion; he called Roe v. Wade (1973) “grievously wrong” and insisted that nothing in the Constitution “deprives the people of this country of the right to determine whether the consequences of abortion to the fetus and to society outweigh the burden of…

Read More

When Innovation Collides with Rules, Which Should Prevail?

Businessman drawing on a paper next to green paint splash with blue sky on the background

Regulating cyber-commerce is controversial. The advent of smart phones and web-based interfaces has facilitated many new consumer services. Customers using these digital platforms often insist that existing regulatory models are outmoded and simply shouldn’t apply to new technologies.

As do the companies. When residents of Austin, Texas recently rejected Proposition 1—an ordinance proposed by Uber and Lyft—it generated national attention around this important question: How should a free society deal with innovative new technologies? Should existing regulations apply, should exceptions be made, or should the collision between existing rules and innovation cause us to re-examine the existing rules altogether?

Read More

Ornery Lion of the Law

Leo McKern as Rumpole of the Bailey

“How does a lawyer sleep?”

“—First he lies on one side and then on the other.”

Ugh what an unfunny joke, you say. Well we non-lawyers have to vent our feelings about lawyers somehow.

Actually there’s at least one lawyer who conquers the layman’s cynicism about the profession. He isn’t an American or even a real person. He is Rumpole of the Bailey, the creation of the late British writer John Mortimer. A new audiobook edition of Rumpole is out, with the wonderful actor Tony Britton reading the stories in Mortimer’s 2001 collection, Rumpole Rests His Case.

Read More

The Left’s New Push to Politicize the Law

Many on Left want to politicize American law and they are emboldened by the vacancy on the Supreme Court to achieve their long sought goal. But don’t take my word for it. Zephyr Teachout, a professor of law at Fordham, ex-candidate for the governorship of New York and current candidate for Congress, laments the current state of antitrust law: “If you can depoliticize antitrust law, you can depoliticize anything.”

The quote comes at the end of a long article in the New York Times in which many commentators complain about Supreme Court decisions friendly to business. The evidence that the Roberts Court has been the best court for business in decades comes from a study by Lee Epstein, Bill Landes, and Richard Posner. This study has been ably critiqued by Jonathan Adler, who notes, among other things,  that the study leaves out regulatory decisions quite unfriendly to business.

But my observation here is that neither the authors of the study nor the commentators in the Times article try to show that that the decisions in favor of business were legally incorrect.

Read More

Executive Power in the Age of Obama

lawlessThis edition of Liberty Law Talk features a discussion with George Mason Law School Professor David Bernstein on his recently released book, Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law.

Unconstitutional at Any Speed: Assessing the Legacy of Obama

President Obama at a Chrysler Jeep factory in Ohio saved by the auto industry bailout, PHOTO/Mandel NGAN /AFP/Getty Images)

The burgeoning literature on the Obama administration, one of the most lawless in U.S. history, includes Michelle Malkin’s Culture of Corruption (2009), Tom Fitton’s The Corruption Chronicles (2012), Gene Healy’s False Idol (2012), John Fund and Hans von Spakovsky’s Obama’s Enforcer: Eric Holder’s Justice Department (2014), Andrew McCarthy’s Faithless Execution (2014), and the many legal critiques of Obamacare. None, however, focuses on the damage the 44th President has done to the U.S. Constitution like George Mason University law school professor David E. Bernstein’s excellent new book, Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law.

Read More

Against Judicial Minimalism

At the beginning of this term of the Supreme Court, Cass Sunstein has praised judicial minimalism. Professor Sunstein argues that the justices should decide cases as narrowly as possible: “Minimalists . . .  insist on small steps and narrow, unambitious rulings. They want to resolve the specific problem at hand, but without pronouncing broadly on liberty or equality, or on the system of checks and balances.”

So described, minimalism is the antithesis of a principled jurisprudence. First, minimalism does not offer a method for discerning the Constitution’s meaning. One does not need to be an originalist who believes that the meaning of the Constitution is fixed at the time it was enacted to recognize that an interpretive theory has to give account of how it is following the meaning of the Constitution. It is that meaning which should govern the case, and the relevant principles may be either broad or narrow depending on the meaning. For instance, if one follows the original meaning that the term “session” in the Recess Appointments Clause is limited to the intersession of Congress, the holding will necessarily rule out recess appointments in all cases but appointments made at the intersession.

Second, minimalism is incompatible with the rule of law. Deciding cases based on their peculiar facts gives little guidance to citizens as to what their rights and obligations are. Indeed, the reductio ad absurdum of minimalism is to decide the case of A v. B for A or B without giving any reasons at all: that approach surely resolves the case by making as little law as possible!

Read More

Administrative Law in Turmoil: New Coke Causes Indigestion

Sir Edward Coke

Harvard Law School’s dynamic AdLaw duo (Cass R. Sunstein and Adrian Vermeule) has struck again. In The New Coke: On the Plural Aims of Administrative Law  the authors take aim at the insurgent fundamental assault on the legitimacy of the administrative state, under the banner of “the separation of powers.” The challenge is playing a growing role in separate [Supreme Court] opinions, and on occasion, it finds its way into majority opinions as well. Justice Clarence Thomas is the principal advocate, but he has been joined, on prominent occasions, by Justice Antonin Scalia and  sometimes by Justices Samuel Alito and Chief…

Read More

The Guilty and the Oppressed

brady

Growing up the son of a criminal defense lawyer who represented all sorts of unsavory people led to many strange experiences in my youth. I accepted collect phone calls from imprisoned felons, many of whom insisted, even to me—a kid answering the call—that they had been “wrongfully convicted.” I listened to my father rail against the abuses of unchecked executive branch power, as well as the ethical corner-cutting and sometimes flat out lying by the police. And I learned to balance the moral conflict—we could live in a world in which law enforcement did break rules and abuse power, while at the same time people who looked guilty, and were probably guilty, still deserved their legal rights. Innocence, my father always said, went out with Adam and Eve, but not guilty is a different kettle of fish.

Read More