Library of Law & Liberty

The Republican-Guarantee Clause and the Judicial Duty of Deference to the States: a Response to Ramesh Ponnuru

2013-06-18T20:09:01Z

At Bloomberg, Ramesh Ponnuru argues that in deciding the pending marriage and race cases, the Supreme Court should adopt a consistent ethic of judicial deference. Both conservatives and liberals, he explains, generally are inconsistent in their application of deference, with liberals favoring deference in the race, but not the marriage cases, and conservatives advocating the opposite.

Instead, Ponnuru urges the Court to defer to the state and federal governments in all these cases. He concludes that the Court should thus uphold the constitutionality of all the challenged policies, whether marital or racial, whether state or federal, but invalidate state racial preferences simply on statutory grounds–as violative of the federal Civil Rights Act of 1964.

While, as noted below, I agree with all but his last conclusions (I think the Court should hold valid all the challenged laws and policies), I believe his consistent ethic of deference is inconsistent with our Constitution. At least two express provisions of our Constitution indicate that the Supreme Court, and indeed all the federal courts, should treat state and federal governments unequally by deferring to the former but not the latter.

Most notably, the Tenth Amendment strongly suggests a constitutional presumption that is at once favorable to state authority and adverse to federal authority. This Amendment declares that the states and the people retain all powers, save only those that the people, through the Constitution, have granted to the central government or forbidden to the states. Therefore, constitutional silence represents a green light to the states but a red light to the federal government. As Professor Gary Lawson has pointed out, this rule supports a presumption of constitutionality for state laws, but a presumption of unconstitutionality for federal laws, because in the latter case, “the burden of proof initially lies with whoever claims that the federal government has the enumerated power to enact the statute in question.”

But there is another clause, the Republican Guaranty Clause of Article IV, which more affirmatively imposes a judicial duty of deference to the states. That Clause provides that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.”

The Clause surely governs all officers of the United States, including federal judges. After all, the sole power granted to federal courts is the “judicial power of the United States.” The Constitution thus imposes on the judicial officers of the United States the duty to exercise that limited power in a manner that will safeguard the republican government of each state.

By a “republican” form of government, the Framers understood a wholly popular government—one that “derives all its powers directly or indirectly from the great body of the people” and whose officers serve “during pleasure for a limited period, or during good behavior.”[1] The judges’ duty to safeguard the fifty republican governments is for the benefit of the peoples of the respective states—the preservation of their “residuary and inviolable sovereignty.”[2]

How might the Supreme Court (and other federal courts) perform this constitutional duty? First and foremost, the Supreme Court should be wary of dangers from the federal government itself. Both Congress and the federal courts can seriously undermine a state’s republican liberty. Congress can seize power from the peoples of the respective states. The Constitution contemplates at least 51 republics: the national republic and the republics of the 50 states. By usurpatious laws, Congress wrongly undermines the 50.

But judicial usurpations, by the invention of new constitutional prohibitions, represent an even graver offense against republicanism. After all, the people of each state form a part of the national people and have some representation in Congress. But the people of a particular state have, at most, a remote representation in the federal courts. Federal judges are largely unselected by, and unaccountable to, the peoples of the respective states..

The Supreme Court, then, should be vigilant in protecting each state’s republican liberty against usurpations by the federal courts as well as by Congress. Therefore, the courts should presume the constitutionality of democratic state action, but the unconstitutionality of federal action, whether legislative or judicial.

To be sure, other provisions of the Constitution constrain the states’ reserved republican liberty. Some powers are clearly granted to Congress, and some prohibitions are clearly imposed on the states. And to the extent of those enumerated powers and prohibitions, the presumption in favor of residual state authority is overcome, and the Supreme Court should decide accordingly.

In light of these principles—principles fairly derived from the Constitution’s actual text—the Supreme Court should reach the following conclusions, which I list in the order of declining certitude—(at least my certitude).

1. In Hollingsworth v. Perry (the Proposition 8 case), the Supreme Court should defer to the republican authority of the people of California and defend their liberty against the novel rules imposed by the lower federal courts. The presumption of constitutionality is not overcome by any bona-fide constitutional prohibition. No provision of the Constitution, fairly interpreted in light of its actual text, its drafters’ intent, or its consistent interpretation throughout our history, prohibits the states from retaining the traditional definition of marriage.

2. In Shelby County v. Holder, the Supreme Court should presume the unconstitutionality of the federal Voting Rights Act but hold that the presumption is overcome by the fact that the Constitution’s Fifteenth Amendment expressly gives Congress the authority to adopt laws to secure voting rights against state denial or abridgement.

3. In Windsor v. United States, the Supreme Court should presume the unconstitutionality of the federal Defense of Marriage Act (DOMA), but hold that this presumption is overcome by the well-established precedent that Congress’s express power to tax and spend includes the power to promote a great variety of ends, including marriage, and that Congress surely has the power to define the things it wishes to promote. To be sure, according to a Madisonian reading, Congress’s fiscal power may foster only those responsibilities expressly entrusted to the central government, such as the regulation of commerce, the national defense, etc.; and marriage, however defined, is not one of these ends. Still, for at least 75 years, the justices of the Supreme Court have unanimously concurred otherwise; they have adopted Hamilton’s conclusion that the taxing and spending powers may be used to promote other purposes.[3]

Given this long-standing precedent, given that this precedent represents a plausible reading of the actual Constitution, and given that no one in the case has sought to challenge this precedent, the Supreme Court should hold that Congress’s arguable power to tax and spend for the purpose of promoting marriage rebuts the presumption that DOMA is unconstitutional.

4. In Fisher v. University of Texas, the Court should defer to the republican authority of the people of Texas (which includes me) and presume the constitutionality of the state’s policies concerning university admissions. The evidence to rebut this presumption is at best, mixed. Although there is some reason to conclude that the authors of the Fourteenth Amendment meant to require the states to be scrupulously color-blind, neither that Amendment, nor its original understanding, nor its historical interpretation, clearly rebut the presumption of constitutionality to which Texas is entitled. Conversely, the Court should be reluctant to hold, as Mr. Ponnuru advocates, that the Civil Rights Act of 1964 prohibits all state racial preferences, for the following reasons: (1) the Act, as federal law, is presumptively unconstitutional, (2) the Act’s conditional-spending regulations are constitutionally suspect, and (3) for over half a century, the Court has refrained from interpreting the Act so as to restrict the states’ liberty to adopt mild, remedial racial preferences.

Here is my unsolicited advice. I hope that the Justices will give my recommendations careful and sustained consideration.

[1] The Federalist No. 39.

[2] Id.

[3] United States v. Butler, 297 U.S. 1 (1936).

UDC on Balkinization

2013-06-18T13:20:24Z

As previously advertised, the excellent Jack Balkin (Yale) is graciously hosting an online symposium on The Upside Down Constitution. The first two pieces, by Jack and by Gillian Metzger (Columbia), are here and here. Additional participants will include Sandy Levinson (Texas), Neil Siegel (Duke), Michael McConnell (Stanford), Rick Hills (NYU), and Ernie Young (Duke). I’ll write a response to my critics, provided I can think of one.

Thanks again to Jack and to the contributors!

Down and Out in Syria

2013-06-18T11:01:21Z

Who wins and loses in Syria’s civil war is not in our interest and is beyond our control. Because that has been obvious since that war started two years ago, the American people’s consensus has been that the US government should steer clear of it. Now the Obama Administration seems to have decided to help the rebels, conveying its decision to the public indirectly and framing it in generalities: ending the slaughter and asserting America’s role in the region. But since its intervention cannot decide the struggle, it can only diminish America’s influence.

The foolishness of this involvement serves to remind us of what should be the criteria for involving ourselves in foreign situations.

A group of Syrian rebels at prayer.

Speculating on whether Syria’s Assad regime is more or less vicious, more or less an enemy of America than its opponents; whether it is better to help or hurt one side rather than the other, is less useful than asking what good any of that might do for America’s interests. In fact the only sure thing about the Obama Administration’s plans is that they portend no good for us Americans.

The least reason for this is that each of that war’s several sides has its own agenda, its own reasons for fighting, all of which are antagonistic to us and to our interests. In short, the Obama Administration is bringing water to others’ mills. Nor is there any way of forcing, never mind persuading, the several parties to change what they are about. This would not be possible even were Americans to descend on that country in overwhelming force. Recall that a decade of American occupation and some two trillion dollars did not affect the character of the parties that continue to fight each other in Iraq. Much less is there reason to believe that help to the Syrian rebels might make them any less our enemies.

The Syrian civil war’s fundamental reality is twofold.

First, Syria is the main current battlefield in a worldwide, centuries-long struggle between Islam’s sects – Sunni (1.7billion) and Shia (100 million.) The Syrian battlefield is drawing fighters and funds from both sides’ resources around the world, much as the Spanish Civil War of 1936-39 drew from Fascist and Communist sympathizers on four continents. By helping the Syrian rebels, the Obama Administration is enlisting the American people in a sectarian controversy the terms of which are as bizarre as they are irrelevant to us. When, as is inevitable, some of the supporters of the side that suffers casualties as a result of America’s intervention decide to kill Americans in retaliation, what comfort can the victims take in the cause of Sunni Islam that our country has now made its own?

Second, the Syrian civil war is a struggle by Iran (and its ally Russia) for influence in the Mediterranean. Their main adversaries happen to be Sunni Arabs under the leadership of Saudi Arabia and the Gulf sheikdoms (principally Qatar). It is not in the United States’ interest that the Mediterranean be dominated by either. Rather, our interest is in preserving the only solid outpost of Western civilization there, namely Israel, and reinforcing Lebanon, now precarious. In this regard, the Syrian civil war offers America some opportunities – opportunities that can be pursued by means very different from intervention on behalf of the rebels.

In short, the principal obstacle to Lebanon’s existence as a civilized place dominated neither by Sunni nor by Shia, a country that does not threaten Israel nor will ally with America’s enemies, is Hizbullah – the armed terrorist group that is also the most powerful of Lebanon’s factions. But Hizbullah’s bosses in Iran have enlisted that group wholesale as foot soldiers in Syria’s civil war. As Lebanese Hizbullah die in frontal combat there, the groups’s back in Lebanon is exposed. American foreign policy officials worthy of their jobs would be grasping opportunities to stick a deadly knife into that back. Suffice it to note that America’s heretofore flaccid acceptance of Hizbullah had led some of Lebanon’s most powerful Christian factions to enter into an alliance with it. If now America were to focus on undoing Hizbullah – something that is doable – rather than on amorphous help to Syria’s rebels, any number of Lebanese would rally to reclaim their country. In sum the freedom of Lebanon is in our interest, and is achievable.

The Syrian civil war also threatens Russia’s foothold in the Mediterranean. We are helping the rebels under the false assumption that Russia is somehow interested in ending the violence. But it is not. The Russians’ objective is to keep their naval base in Syria. For this they are willing to make any deal with anyone. Our interest is to prevent any such deal between Russia and anyone in the region. Nothing is quite so fatal to a country’s foreign policy like basing it on patently false assumptions and in the willful ignorance of one’s own interests.

The Danger of Constitutionalizing Policy Disputes: A Response to David Upham

2013-06-18T12:13:46Z

David Upham argues with characteristic lucidity that, based on the due-process rights of children, the Constitution might actually prohibit same-sex marriage. The argument is innovative, but it ultimately demonstrates the danger of constitutionalizing policy disputes best left to prudential judgment.

Upham’s argument, if it can be summarized without doing it violence, makes four steps: (1) The Due Process clauses of the Fifth and Fourteenth amendments cover children’s liberty understood as locomotion. (2) Parents are the trustees of that liberty. (3) The traditional “usages and modes of proceeding” guaranteed as part of due process by Murray’s Lessee include—this is Upham’s innovation, and, on my reading, the decisive pivot in the argument—the custody of the biological mother and father, which (4) cannot be surrendered to a third party under conditions that do not conduce to the best interests of the child.

On the general principle that early apologies are sincerer apologies, I offer mine if I have misconstrued the argument. Having so expressed myself, I hereby double down on interpretive license, because several more assumptions seem latent.

First, if I understand correctly, Upham has assumed, or will argue, that adoption proceedings constitute a deprivation of a child’s liberty that triggers the protection of the Due Process clauses of the Fifth and/or Fourteenth amendments. Now, for the record, the idea of children having due-process rights anytime a public act deprives them of locomotion seems pregnant with litigious potential—at least it would be in my house, but that’s another story. The crucial, and related, point—crucial because of the weight it bears in the analysis—is the relevance of Murray’s Lessee as a precedent.

Reading Murray’s Lessee the way Upham recently suggested the Constitution should be—that is, the way professors would want their own papers to be read—its applicability here seems a considerable leap. In Murray’s Lessee, the Court permitted the Executive Branch, acting on a law of Congress, to seize funds from an embezzler without going through a judicial proceeding first. In the course of asking what “process” was “due,” the Court inquired into traditional British “usages and modes of proceeding” that the American colonists had adopted.

Upham, if I correctly understand, would stretch this plainly procedural case—in which, it is important to note, the Court deferred to rather than overruled the political branches, and in which it asked whether the procedure in question conflicted with existing precedents rather than hunting for new ones—to cover a plainly new and, despite his criticism of substantive due process, suspiciously substantive right. (In a thoughtful exchange with commenter Andrew Hyman on his original piece, Upham denies that this position constitutes substantive due process.) Equally important, he would read the precedent in such a way as to freeze at one moment in time elected representatives’ ability to decide the terms of due process of, after all, law. (Note here that the Court in Murray’s Lessee simply assumes it is up to the judiciary to resolve this question.)

Put otherwise, to sustain his analysis, Upham would need to demonstrate that the Court in Murray’s Lessee meant to freeze all “usages and modes of proceeding” in British and colonial law, including those pertaining to the family, forever preventing majorities from changing their minds on those topics—all this in a case pertaining to the recovery of embezzled funds. (In his subsequent exchange with Hyman, Upham invokes the criminal procedure case of Hurtado v. California—but this, like Murray’s Lessee, is a case that plainly implicates the original intent of the Due Process clause and does not justify the key pivot of applying the “usages and modes” precedent to create what still seems to me to be a substantive right of children to the trusteeship of their natural parents, by which I suspect Upham ultimately means “opposite-sex parents.”)

Finally, Upham’s case rests on the tacit—but not too tacit—premise that children of same-sex couples fare poorly. I infer this from Upham’s move from points (3) to (4) above. That is, since all custody cases involve altering the custodial arrangements that arose from conception, the assumption must be that doing so does not conduce to the child’s welfare in this case. (Incidentally, on this reasoning, is no-fault divorce, whose ill effects on children are certainly well documented, unconstitutional too?

I agree with Upham’s fundamental claim that the law should be concerned with the best interests of the child rather than the asserted rights of the parent. My concern here pertaining to the constitutional issues rather than the policy outcome, I would simply note the data asserted on the other side of the question, with which Upham would need to contend.

More important, so would judges. And that raises what is, finally, the problem with the natural-law jurisprudence Upham thoughtfully defended in an earlier post. It inevitably empowers judges with a wide berth of discretion they are neither professionally trained nor institutionally disposed to handle responsibly or efficaciously. Among the general electorate, this escape to judges to resolve disputes neatly, cleanly, expeditiously and without public effort is ultimately a flight from political judgment, a seeking of protectors akin to—distantly, but still sharing political DNA with—the fetishization of the presidency in contemporary politics.

There has been, moreover, a suspicious tendency—there is no evidence, I would hastily add, with which to accuse Upham, nor do I—among advocates of natural-law jurisprudence for the conclusions they draw from it to align with conspicuous regularity with their policy proclivities. Yet before being seduced by natural-law jurisprudence, conservatives should not presume it will lead to conclusions they would endorse. (Equip a bevy of welfare-rights lawyers from the 1970s with a volume of Aquinas on natural law and charity and see what happens.) Those who sharpen this sword ought not to be surprised when it turns on them. If it is within the Supreme Court’s power to ban same-sex marriage, only the slenderest of reeds would support a complaint should judges require it instead.

The Socialized (Housing) Republic of America

2013-06-17T20:11:40Z

Once again, the Solons collectively known as the U.S. Senate are considering reforms of Fannie and Freddie, the government-sponsored enterprises (“GSE”) that substantially contributed—and on some accounts caused—the housing bubble and subsequent financial collapse lo these few years ago. Nothing will come of it. The predictable failure invites deeper and darker thoughts.

Reform? Nah.

On the upside, the GSE reform effort is led by Senator Bob Corker (R-TN) and Senator Mark Warner (D-VA), who are responsible human beings and actually understand this stuff. Moreover, there is no shortage of sensible reform options, wholesale or piecemeal. On the downside, no one expects any serious action before the next presidential election or financial calamity, whichever comes first.

For one thing, the GSEs are sending billions per year in the Treasury’s direction. They’re making money mostly by financing high debt-to-income loans to people who can’t afford them. (If that sounds familiar and disturbing, it should.) Dodd-Frank was supposed to stop this nonsense, but the intrepid Consumer Financial Protection Board (CFPB) has granted the GSEs (and FHA) and exemption. The politicians are desperate for revenue, however derived; and so away we go again.

For another, more distressing thing, the GSEs are intrinsically hard to unwind. Their mission is to insure private gains and to socialize losses. They and they alone can do that because Congress/taxpayers stand behind them, and so they occupy 90-plus percent of the housing finance market. That market is biggish, and so the potential gains attract tons of interests: realtors, the construction industries, banks, hedge funds, and so on ad nauseam (the GSE’s themselves). Piecemeal reform will either limit the pool of available rents, which all interests will oppose; or else, reshuffle the rents within the pool. The only way to reform the system is to kill it. That ought to be done (economics aside) for reasons of political hygiene. But it can’t be done, either—not only for the pubchoice reasons just alluded to, but also for ideological reasons or rather delusions that transcend all interests and parties.

Around the World

In recent congressional testimony, the incomparable Alex Pollock compared the U.S. housing finance system to other developed countries’. The basic defense of the GSEs, Alex says,

begins with what I think is a valid proposition: that in a democracy it is advantageous to have widespread property ownership among the citizens. The experiences of other countries make it obvious that high home ownership levels can be attained without GSEs—and moreover without tax deductions for mortgage interest; without our very unusual practice of making mortgage loans into non-recourse debt; without government orders to make “creative”—that is riskier—mortgage loans, which were part of being a GSE; and with prepayment fees.

He then presents a table of home ownership in 28 economically advanced countries:

On first impression, the Table shows no discernible pattern. For example, you’d expect city states to have low ownership rates (because they can’t suburbanize). That’s true of Hong Kong; but then, there’s Singapore. You’d expect countries with similar political cultures to travel together; but that’s not true of Scandinavia or of France and its Benelux pilot fish. (Of course you could attribute that to different policy choices; but political culture models say that those are endogenous).

On second impression, two groups of countries do appear to be clustered: the Mediterranean countries (I’ve looked up the rate for Greece—it’s 80 percent); and the English speaking countries. A third pattern, not shown in the Table: homeownership rates in East Europe are huge. Poland is at the low end; Russia, Bulgaria, and Romania top the charts.

On third impression, Germany and Switzerland look like outliers. What else do they have in common? Answer, an addiction to hard money. Maybe that’s why they facilitate saving for homeownership but make sure that people have saved before they buy a home. Maybe they don’t want to create a constituency for easy money. And maybe that’s why they haven’t had a real estate bubble in eons.

What follows?

The notion that ownership—of land, or some form of real property—is a defense against populism and tyranny is deeply engrained in our psyche: yeoman farmers against the proletarian rabble, and all that. Whichever way you slice the cross-country data, though, there’s actually very little support that home ownership correlates with—let alone promotes—democratic stability. If anything, the data suggest that ownership rates are inversely correlated with political stability and the rule of law. All else equal, that actually makes sense. In a corrupt regime, you invest in stuff that’s hard to steal. In a rule-of-law regime with stable money, you invest in what makes sense, and an illiquid piece of real estate may not be your best bet.

Any way you look at it, though, the true outlier is the United States. As Alex Pollock explains, no other country has GSEs: they subsidize or incentivize homeownership outright (or else, don’t do it at all). We, instead, mobilize Jeffersonian tropes to practice socialism, on a scale that is unimaginable even to Danes.

On this view and evidence, America’s exceptionalism is not to have escaped collectivist demands. Au contraire: We are the only developed country without a private housing finance market (except for the filthy rich). We are simply better (1) at lying to ourselves and (2) at dishing out the proceeds of a socialized system to nominally private interests (banks etc), under (3) the pretense of promoting private ownership and independence.

Our pseudo-private system may be the most formidable, impregnable formula for socialism ever invented, and it may support Fannie and Freddie from here to eternity. Only in America.

Originalism, Double Jeopardy, and the Dual Sovereignty Doctrine

2013-06-18T07:05:35Z

Over at the Volokh Conspiracy, Orin Kerr notes the cert petition, coauthored by UCLA legal historian Stuart Banner, arguing that the dual sovereignty doctrine of double jeopardy law – which holds that a prosecution by the state for a crime does not bar the federal government from prosecuting for the same crime, and visa versa — conflicts with the Constitution’s original meaning. This doctrine strikes many, when they first hear of it, as ridiculous but it is always taught as black letter law.

At first glance, the originalist evidence seems pretty strong, but I haven’t examined it closely. Still, it would be interesting to see that this counterintuitive doctrine turns out to be made up by the Supreme Court in the 1850s.

The modern Supreme Court addressed the doctrine in 1959, with the different Justices playing their normal parts. That liberty loving man,* Justice Frankfurter, held that the dual sovereignty doctrine conformed to the original meaning, dismissing all of the English evidence. The originalist Justice Black, by contrast, dissented, claiming that Frankurter had misread the early evidence.

Finally, some might wonder whether long standing precedent should stand in the way of the Court reversing course on this one (assuming the original meaning really supports such reversal). I don’t think it should. There is no significant reliance issue here. It is not even clear that any laws would need to be changed in response to such an overruling.

*Sarcasm

A School of Second Chances

2013-06-17T10:46:57Z

“There was a palpable silence in the class,” a professor writes, “as I talked about the 620,000 people who died, the 4 million slaves who were liberated, the President (in my opinion, our best President) who gave his life for this cause” (134). He continues:

They were really feeling it now, as was I. My voice nearly cracked. M, L, L, and A were moved almost to tears; M actually had to excuse herself from the room to take a breath in the lobby. As she was leaving, P said, “This makes me so sad that they had to go through this.” Then B added, “But thank God they did.” Silent nodding throughout the room. … After something of a moment of silence, we launched into a discussion of Chesnut’s diary. I was stunned by their reaction: they loved it! … I think Chesnut’s diary satisfied some of the curiosity they had about the ‘other’ perspective on slavery, but still, they were struck by the sympathy she had for the slaves she witnessed at auction … . I was struck, over and over, about how active and imaginative their readings were: seizing on suggestive moments in the text—was she unhappy, depressed, longing for liaisons with other men, antislavery, fully on board with secession?—to offer informed (and sometimes quite provocative) readings of Chestnut’s “inner life.” I was also struck by how much sympathy the women in the class—especially the black women—had for Chesnut” (134–135).

“‘Jack,’ E asked. ‘Are we the best class you ever had?’” The professor’s written response: “They are shaping up to be” (132). His comments are all the more moving because, by this point in Earl Shorris’s The Art of Freedom, you know that the professor is working with a ragtag collection of bright and ambitious, but downtrodden, inner city adults—not clever undergraduates at an elite institution. That’s because he’s a professor for the Clemente Course, a program started by Earl Shorris to teach the humanities to the poor. These reports give neither the names of the professors nor their students, presumably to protect their identities. But they are great fun! Given that they teach smart, privileged undergraduates for their day jobs, it’s uplifting to read their assessment of students struggling to pay the rent and read Dante. “I can’t imagine my Tufts students,” a professor comments, “ever having the temerity to ask such a question, to question Dante’s basic architecture of The Inferno” (130).

To his credit, Shorris includes reports that are, shall we say, less rousing. I found these accounts even more enjoyable, as when a teacher recalls her class’s discussion of Augustine’s Confessions: “Augustine tells four conversion stories in these pages, all of them thru books. I tried to get them to think about that, & about the possible fact that his experience mirrors theirs right now, of changing your life thru books. Thud went that idea” (138).

Thud went that idea, indeed. Can you change your life through books? You’d think The Art of Freedom would offer a resounding yes, a barbaric yawp over the ghettos of the world. But this book does not offer a battle cry for freedom. It’s not a bang—though, fortunately, it’s not a whimper, either. In a generous review, the Wall Street Journal embraces Shorris’s account of his efforts to provide quality educational opportunities to the poor. Alexander Nazaryan, in another favorable review, explains why the book was so frustrating for me, but so captivating for him: “I think it is fair to say that you read Shorris—well, I read Shorris—not for the depth of his thought, but the intensity of his convictions.” I tend to think that depth of thought and intensity of convictions are related, but, anyway, Nazaryan’s assessment sounds about about right.

Shorris has interesting stories to tell, occasionally accompanied by fabulous asides. All in all, though, The Art of Freedom has the feel of an aged rock star offering his memoirs to an adoring public. The tour stops are in the poorest parts of town this time, but the booze is still there. Seriously: the book has nine pages that reference beer (36, 37, 90, 95, 97, 98, 148, 221, and 222), but only six that reference Aristotle (37, 39, 67, 91, 105, and 119). To his credit, Shorris is not the only one drinking the beer. Nevertheless, alcohol serves as, shall we say, a leitmotif. I would not have known that a particular area of Alaska is neither wet nor dry but “damp,” that is, you can possess a bottle of beer, but you cannot sell it. I know it now, though, because I have read Earl Shorris’s The Art of Freedom (148).

The result: the book becomes all too predictable. Memories of the tour are consistently breathtaking only if you’re already a fan. If you’re not, or you don’t yet know all the tunes, then the start of the book is wonderful, but the rest of it is simply more of the same. By chapter 13—when Shorris receives a phone call from Sydney—you know in your heart that he’s going to work with aborigines.

And he does. And that’s great. Good for him. I’m glad he did it. But, to use a nice Humanities word, I kept wondering what the telos of the book was supposed to be. At one point, Shorris says that democracy is the telos of the Clemente Course, equating it with freedom, especially political freedom (253). But given that the book is largely anecdotal, it’s hard to say that it makes an empirical case for the course on those grounds. Even worse, his identification of democracy as the telos of the course makes the course sound unnecessary wherever there is democratic government. Fortunately, Shorris’s own practices speak against this unfortunate conclusion.

I thought that perhaps Shorris didn’t make a case for the course in this book because he had done so previously, perhaps in his New American Blues: A Journey through Poverty to Democracy. Apparently not, for that work is criticized by Jo-Ann Mort in “Welfare’s State” as “a piecemeal, insufficient effort to deal seriously with the huge pockets of systemic poverty in the United States.” She complains that it’s “filled with mis-characterizations, some quite gratuitously nasty.”

In The Art of Freedom, Shorris can be blunt and unsympathetic, but perhaps this occasional lack of sympathy is unfairly exaggerated by his overflowing tenderness towards the underprivileged. Viniece Walker, a woman convicted as a conspirator in the murder of her own grandmother, receives a careful, sympathetic portrait (13–14). By contrast, John Marsh, a professor who struggles to implement Shorris’s work, does not. About him, Shorris writes, “I do not know John Marsh, but I think it is best that he no longer teaches a Clemente Course” (68). The sharpness of this assessment surprised me, given the kindness extended to others.

I was unsurprised to learn that John Marsh became a critic of the Clemente Course. In one of his academic articles, available (to their credit) at the Clemente Course website, Marsh critiques Shorris explicitly: “Shorris never stated explicitly how the political life would lead the poor out of poverty. Presumably, the poor were to organize, though against whom or for what Shorris never says. That he arranged for graduates to receive college credit for the course, however, suggests the primary way he imagined the poor would make their way out of poverty—by going to college” (209).

Marsh rejects this view. He writes, “It bears saying, then, even if it risks belaboring the obvious, that the vast majority of the poor and, especially, the working poor are poor not because they are not educated enough, but because they do not work enough (because of either unemployment, disability, or disinclination) or because they are not paid enough for the work that they do” (211). Even worse for Shorris, Marsh suggests that people embrace his approach precisely because it makes them feel better about themselves (211).

I wish that Shorris has considered Marsh’s arguments and responded to them directly. The Art of Freedom, is inspirational and uplifting, and I found myself wanting to teach a Clemente Course. But it’s a surprisingly troubling book, because it suggests that what’s wonderful on the small scale can be replicated throughout the world, without offering a way to do it. It’s hard to imagine finding four or five exceptional professors (19–20) to teach every twenty two students (29) at the cost of $2,000 a student (40).

After considerable thought, I’ve decided that this book can make a case for something. I don’t remember Shorris ever stating it this way, but here it is in a single word: redemption. Redemption is a religious word, but it’s a word taken from the slave market, entirely appropriate for a book titled The Art of Freedom. The Clemente Course offers a kind of secular redemption, and Shorris’s anecdotes show the beauty and grandeur of second chances. People in their late twenties and early thirties who have only recently become ambitious, hardworking, and academically minded do not generally receive second chances. The Clemente Course offers them one. It’s not about democracy; it’s about redemption.

My suggestion is in tension with Shorris’s own beliefs. As he makes clear, he is “a man with little time for religion” (90). There’s a deep and profound irony here, though, because many of the people involved in the work have a connection to religion. Shorris is honest enough to let people speak with their own voices, and it is often a religious one that we hear. While Shorris wants “to spread the gospel of the Clemente Course” (249), many are just as, or even more concerned about, a different gospel, an older one. They understand redemption in a broader, and yes even in a religious, sense.

I don’t see this cooperation with believers as problematic at all. The church offers the language of redemption to justify the work; it can also offer an account of how to do it. The overwhelming cost of expanding the Clemente Course seems more attainable when modeled after, or even connected to, the work of churches throughout the world. Some churches are cathedrals; others are small affairs, taking place in rented spaces or even in the open air. So, too, the name brand Clemente Course will always be an impressive affair, taught by well known professors and offering college credit. But others could be smaller affairs, with people who enjoy Socrates teaching those who have not yet read him, even if the teachers do not have doctoral degrees and the students do not earn college credit. Either kind of course would be a lasting legacy for Earl Shorris, a man who pursued, even at the end of his life, the laudable goal of finding excellent teachers for those who do not have them

Theodore Roosevelt and the American Political Tradition

2013-06-17T11:47:08Z

Who could be more American than former president Theodore Roosevelt? You might be surprised if you listen to the next Liberty Law Talk with Jean Yarbrough on her newest book, Theodore Roosevelt and the American Political Tradition. Winner of the American Political Science Association’s Richard Neustadt Award, Yarbrough’s book is an incredible study of Roosevelt as student at Columbia, as an accomplished historical writer, and as a statesman.

We might conclude, Yarbrough observes, that it is Roosevelt’s robust American nationalism, his vigorous spirit, and his environmentalism that produced our national parks which marks him as a prominent president. Indeed, his place on Mount Rushmore, where he sits with George Washington, Thomas Jefferson, and Abraham Lincoln, seems strange otherwise. Unless we count his prescient leadership of an emerging American nation departing from its decentralized past as worthy of remembrance, then it becomes difficult to find his great stature.

On this progressive legacy of Roosevelt, Yarbrough focuses much of her scholarly attention. Roosevelt publicly professed admiration for the American Constitution and the ideas of our founding, but departed from them as president, particularly in his second term. He embraced the administrative state before Woodrow Wilson. Roosevelt found no real limits to state power, and believed the federal government indispensable in the active management of the economy. He wanted presidential power to become more, an embodiment of the American people. Redistribution of wealth also had his support. In his New Nationalism speech he stated: “We [the government] should permit it [wealth] to be gained only so long as the gaining represents benefit to the community.” This is the Teddy Roosevelt we need a clearer understanding of, and Yarbrough has certainly provided it.

The Child’s Right to His Father and Mother: the Unconstitutionality of the New Marriage, Part I

2013-06-16T22:21:50Z

In the marriage cases pending before the Supreme Court, the parties and amici defending the validity of California’s Proposition 8 and the Federal Defense of Marriage Act have argued that the Constitution permits the state and federal governments to reserve the status and privileges of marriage to “marriage,” as traditionally defined. To my knowledge, no one in the cases has argued that the Constitution might prohibit the state and federal governments from abandoning this traditional definition.

There is good reason, however, to conclude that in one critical respect, the Constitution prohibits the redefinition of marriage. On this Father’s Day, I will begin by sketching how the Due Process Clause, as strictly construed and originally understood, establishes a presumption in favor of the natural father and mother’s trusteeship over the child’s liberty. In subsequent posts, I will explain how the old marriage has complemented this presumption, and how the new marriage unlawfully undermines it.

The Due Process Clause of the Fifth and Fourteenth Amendments prohibits the federal and state governments from “depriv[ing] any person of life, liberty, or property without due process of law.” The Clause would seem implicated by governmental action restraining a child’s movements. A child is undoubtedly a “person”; indeed, the word “person” has, at least since the Civil War, always encompassed all homo-sapiens (with the glaring exception of prenatal homo-sapiens). Further, the word “liberty” in this provision has always meant primarily, if not exclusively, the bodily power of locomotion.

Less clear is whether (1) a child, given the degree to which he is subject to adult control, has any “liberty” of which he or she may be governmentally “deprived,” and (2) if so, to what extent there is any particular pre-deprivation “process” that is “due”.

But the answer to both questions is probably “yes.” As to the first, the child surely has some “liberty,” for the child possesses the power of locomotion, much as the child can possess property. To be sure, this liberty is subject to lawful parental control; adults may lawfully restrict and regulate the child’s locomotion, much as adults can lawfully regulate and restrict the child’s disposition of property. Yet the child still retains some measure of liberty and property; the child’s rights are regulated but not destroyed.

As to the required process, the Due Process Clause mandates, first and foremost, that governmental authorities follow the procedures established by statutory law. But as the Supreme Court unanimously clarified in 1856 (just a decade before the adoption of the Fourteenth Amendment), the governing procedural “law” includes the traditional, “settled usages and modes of proceeding existing in the statute and common law of England” and the preserved throughout the American colonies.[1] The Clause, then, binds even the legislature to respect these customary procedures.

Some of these traditional “usages and modes of proceeding” are not specifically enumerated in the Constitution. For instance, in criminal cases, due process mandates that defendants enjoy the presumption of innocence.[2]

A similar presumption has prevailed in the context of child-custody litigation: the presumption that the natural father and the natural mother are the appropriate trustees of the child’s liberty. As Justice Story explained, the law respects paternal authority, not “on account of any absolute right of the father, but for the benefit of the infant, the law presuming it to be for his interest to be under the nurture and care of his natural protector, both for maintenance and education.”[3] Story elaborated this presumption in his treatise on equity:

The [equity court] interferes with the ordinary rights of parents, as guardians by nature, or by nurture, in regard to the custody and care of their children. For, although in general parents are entrusted with the custody of the persons and the education of their children; yet this is done upon the natural presumption, that the children will be properly taken care of, and will be brought up with a due education in literature, and morals, and religion; and that they will be treated with kindness and affection. But whenever this presumption is removed; whenever (for example) it is found, that a father…acts in a manner injurious to the morals or interests of his children; in every such case, the Court of Chancery will interfere, and deprive him of the custody of his child.[4]

After the Civil War, state governments assumed greater authority over the custody of children, by, e.g., the establishment of compulsory school-attendance laws, boarding reform schools, etc. In response, courts sometimes invalidated, as violative of due process, governmental actions depriving children of their parents’ custody without respecting this presumption.[5]

This presumption has prevailed not only vis-à-vis the government, but against any third party, even a third party with whom the parent entered a putative agreement to surrender custody. As a leading treatise explained over a century ago,

[T]he courts, recognizing the sacred ties which bind parent and child together, do not favor agreements between parents and strangers whereby the parent attempts to surrender to another the custody and control over the child. And upon this principle it is always with reluctance that a court of competent jurisdiction will take an infant from the custody of its parents and award the custody to a stranger. It must be imperatively necessary for the best interests of the child, and neither the poverty of the parent nor the wealth of the contemplated custodian is sufficient to justify this harsh measure.[6]

In the twentieth century, the Supreme Court frequently affirmed this constitutional presumption. In Meyer v. Nebraska, for instance, the Court vindicated parental educational rights with reference to the parent’s “natural duty to give his children education suitable to their station in life.”[7] Thirty years ago, the Supreme Court likewise concluded that the “law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions,” for the law has long “recognized that natural bonds of affection lead parents to act in the best interests of their children.”[8] Just a decade ago, the Court likewise upheld this presumption in Troxel v. Granville.[9]

Unfortunately in these cases, the Court has done violence to the Constitution’s text by defining the right at issue as parental “liberty” rather than the child’s actual liberty (locomotion), as held in trust to his or her natural parents. In this way, these cases generally are tainted by association with the contra-textual idea of “substantive due process.”

Still, whether by traditional due process or by the judicially-created substantive due process, the Constitution’s Fifth and Fourteenth Amendments include a presumption that a child’s natural father and natural mother are the trustees of the child’s liberty. The Constitution thus mandates a preference for natural-parental custody, control, and education. In subsequent posts, I will explain how by discarding this presumption, the new marriage is not only unknown, but repugnant, to our Constitution.

[1] Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272, 277 (1856).

[2] See, e.g., Greene v. Briggs, 10 F. Cas. 1135, 1140 (C.C.D. R.I. 1852) (No. 5,764); Wynehamer v. the People, 13 N.Y. 378, 446 (1856) (Selden, J., concurring).

[3] United States v. Green, 26 F. Cas. 30, 32 (C.C D.R.I. 1824) (No. 15,256).

[4] 2 Joseph Story, Commentaries on Equity Jurisprudence as Administered in England and America 574–75 § 1341 (1839)

[5] See, e.g., People ex rel. O’Connell v. Turner, 55 Ill. 280, 287–88 (Ill. 1870) (holding that to remove a child from his parent’s care and confine him to a reform school without a finding of criminal liability was a deprivation of liberty without due process of law).

[6] W.C. Rodgers, A Treatise on the Law of Domestic Relations 536 (1899)

[7] 262 U.S. 390, 400 (1923).

[8] Parham v. J.R., 442 U.S. 584, 602 (1979)

[9] 530 U.S. 57 (2000).

Erdogan’s Majority Rule

2013-06-18T10:54:43Z

Recent events in Turkey ought remind us, if we needed reminding, that freedom and parliamentary democracy are not identical, though many people mistake the one for the other. But if by parliamentary democracy we mean merely government legitimated by a majority of the votes every few years, there is no reason why such democracy should not lead to tyranny. Indeed, a democratic tyranny may be among the most insidious, if not necessarily the worst, of tyrannies, for it possesses the simulacrum of a justification for its oppression, namely the will of the majority.

A counter protest in support of Prime Minister Erdogan. euronews.com

No one can doubt the democratic legitimacy of Mr Erdogan, the Turkish Prime Minister. He has won three genuine elections with many more votes than any other candidate (in this respect, his legitimacy is actually far greater than that of most western leaders). And it is probable that if there were elections tomorrow he would win them without difficulty. Moreover, the reasons for this are not difficult to find. Turkey under his government has thrived; and even his worst enemies could not but admit that the country is far better administered under his rule than it was before he came to power. No doubt some of Turkey’s prosperity is attributable to its good fortune in not being permitted to join the European Union; but there is more to success than the avoidance of catastrophic mistakes. Failing to chain yourself to a corpse does not make you an athlete.

Mr Erdogan has also tamed the army, which has more than once intervened to overthrow a democratically-elected government. Ordinarily, this would seem a step in the right direction; but the army was the ultimate guarantor of Kemalist secularism and it may well prove its emasculation was equivocal from the point of view of individual freedom.

The Prime Minister has not hesitated to characterize the demonstrators in Istanbul and elsewhere in a most disparaging, disdainful and insulting way; and surely we know enough about the outcomes of mass demonstrations in several parts of the world not to make the opposite mistake, of considering the participants to be the parfit gentle knights of freedom, especially the freedom of others.

Nevertheless, it is not difficult to see – indeed, it is difficult not to see – the conflict between Mr Erdogan and the demonstrators as that between two quite different conceptions of society, the first religious and the second secular. No one knows quite how far Mr Erdogan wants to go with his Islamism: whether he is a wolf in sheep’s clothing, or rather (as the demonstrators fear) a fanatic with a moderate face, or a true pluralist. It is even possible he does not know himself, that he has no blueprint that he is following, and that, like most politicians, he makes things up as he goes along in an attempt to hang on to power. But the auguries are not good.

At first he might have posed as a man merely trying to redress the balance after years of Kemalist repression of the popular religious sentiment of the Turkish people. But now that the muezzins call people to prayer at a volume and length unprecedented in recent Turkish history, and a considerable proportion of the women dress in a supremely unattractive and inelegant way (a shapeless gabardine coat the color of a sea-fog), it is difficult to believe that further Islamization is a mere redressment of the balance between official policy and popular sentiment.

It is more likely that Mr Erdogan sees parliamentary democracy as the tool by which the will of the majority (incarnated, naturally enough, by himself) is imposed upon the minority. And since in Turkey the majority is clearly Islamic, Islamic mores should prevail. Just as for the communist the New Economic Policy or the Popular Front were regrettable, temporary but necessary stages before the advent of true communism, so for Mr Erdogan living and let live has been a regrettable, temporary but necessary stage before people come to live as they ought: ought, that is, as defined by the majority.

At least, this is one possible interpretation of Mr Erdogan’s intentions, the interpretation no doubt of the demonstrators in Taksim Square. They do not care for his ideology of shopping and sharia, the former being the lure for the latter.

If Mr Erdogan sees democracy only as the means by which the will of the majority is imposed upon the minority, we should not complacently suppose that this is a problem confined to Turkey, a country that we are in the condescending habit of thinking of as the backward man of Europe.

Considerations not only of the wishes but of the welfare of the majority have increasingly trumped considerations of freedom in all western democracies. Almost everywhere (the notable exception being Switzerland) politicians have become drunk not so much with power as with responsibility. Power, however, tends to follow responsibility, which after all is its justification; and where populations look to governors for protection and prosperity, governors are only too willing to oblige. Few people, certainly not members of a modern political class, are able or willing to resist the lure of increased power.

It is hardly surprising in the circumstances that a sense of limitlessness has emerged in our political classes that is not so very different from that of Mr Erdogan. Endowed with infinite responsibility and, at least in their own opinion, with infinitely benevolent intentions, and having come to office by mostly legitimate means, that is to say a majority or plurality of votes as laid down in a constitution, they think they have the right and indeed the duty to remake the world according to their own ideas, or what pass as their own ideas, that led to their election. They know no limits other than practical political ones. Building nations is to them what building a house is to an architect; while populations are children to be trained, deformities to be straightened, teeth to be braced. They are the orthopaedic surgeons of the soul.

The problem is not new, however, and is unlikely to have begun at a definite date such as that of the Battle of Hastings. No trend ever does start in a fashion so convenient for historians as a date. I came unexpectedly across a lucid statement of the problem in a book published ninety years ago by G K Chesterton called Eugenics and Other Evils, in which Chesterton presciently imagined the horrors in which the eugenic attitude would result. ‘Government,’ wrote Chesterton, ‘has become ungovernable; that is, it cannot leave off governing. Law has become lawless; that is, it cannot see where laws should stop.’ No one who has looked at the Labor Code of France, or the regulations governing Medicare, is likely to disagree with these statements.

Chesterton continued, ‘The chief feature of our time is the meekness of the mob and the madness of the government.’ It is unwise, however, to rely on the everlasting meekness of mobs.

Lenin’s Good Servant

2013-06-16T20:48:10Z

This impressive book is not well served by its title. It is not clear what the author means by “Stalin’s curse?” Is it his personality, or his politics? Is it his attempts to promote communism, or the unintended consequences of these efforts? Is this a study of the connections between Stalin’s personality and his policies, or a history of the Soviet Union with special reference to Stalin? It seems to be both with Stalin often receding from the narrative.

For those specializing in the critical study of the Soviet system there are few major revelations here but much of what we already know is resoundingly confirmed and clarified. This is a meticulously researched and well written study that makes extensive use of archival and other primary sources. In addition to the large amount of eye-opening information assembled the strength of the book is bolstered by a bracing critical approach. The author does not mince words and does not shrink from expressing his justifiably negative views of Stalin and the “Soviet experiment” unlike many academic intellectuals who do not wish to appear “judgmental” in such matters.

Aside from the rewarding chronological-factual survey and analysis of Soviet history and foreign policy I found three themes of the book particularly noteworthy and useful. First, the emphasis on the ideological determination of Stalin’s policies – often neglected, deemphasized, or outright denied by many academic specialists. Second, the questioning and demolition of the “revisionist” views of the Cold War and thirdly the light shed on the interaction among Stalin, Churchill, Roosevelt and Truman and especially their assessments and misperceptions of Stalin.

Positions taken about the ideological roots of Stalin’s policies have always reflected and paralleled corresponding views of the part played by ideology in the shaping of the Soviet system as a whole and of various specific Soviet policies, domestic and foreign. More often than not Stalin has been seen – by academic authors, public opinion-makers and the educated public at large – not as an ideologue, or aspiring philosopher-king but a crude, amoral brute whose thirst for power was insatiable and whose ruthless policies were single-mindedly guided by the pursuit and maximization of his personal power. By contrast, as Gellately writes:

…the ‘traditionalist’ focus on international power politics misrepresents Stalin’s ambitions… Marxist-Leninist teachings informed everything in his life… He saw himself as anything but an updated version of an old-style Russian tsar… in 1936…Stalin described his ‘job’ as ‘professional revolutionary and party organizer.’ [9]… No one in the Soviet hierarchy, certainly not Stalin…ever gave up on achieving Lenin’s dream of bringing their great truth to the rest of the world. [7]

A Soviet witness to a speech of Stalin thought that “It was as if…each word was a ‘lofty revelation, great Marxist truth, a pearl of wisdom about the present and a prediction for the future.’” [366]

The author offers a plausible psychological explanation of Stalin’s preoccupation with ideology: “bereft of anyone with whom he could share human warmth, Stalin became all the more committed to the ideas that gave his life meanings.” [32] This may, of course also apply to other dictators who considered themselves great thinkers and had difficulties to establish and maintain close and sustaining apolitical relationships with other human beings.

Stalin’s ideological convictions in combination with his personality best explain both the nature of the political system he created and presided over and his expansionist policies after World War II. It was the possession of ideologically derived certainties that nurtured Stalin’s intolerance of any dissent or disagreement and motivated him to create the institutions of totalitarian repression. As Gellately puts it “What generated so many millions of arrests and sentences…? The motor was Stalin’s ideology, part of which asserted that ‘the country was full of covert enemies posing as loyal citizens- assassins, saboteurs and traitors – who were conspiring to destroy the Soviet system and betray the nation to foreign powers.’” [389-387] Definitions of treacherousness, of who were the enemies, and their ruthless treatment were legitimated by the lofty ideals Stalin and his system sought to realize. The more ambitious these goals had been the more wholehearted were the effort to destroy those supposedly obstructing their attainment.

The same beliefs help to explain why after World War II Stalin aspired not merely to obtain a secure buffer zone along the Eastern borders of his country but sought to export each and every major Soviet social, political, economic and cultural institution and policy to the East European countries which came under his control due to the presence of Soviet troops. His idea of security required total conformity and uniformity on the part of the subject nations and their governments. Stalin also believed, at least initially, that these people “‘liberated from the yoke of landlords, capitalists…and other scoundrels’” will rejoice upon the arrival and presence of the Red Army. As the author further argues “What he wanted in all the occupied territories was to make good on the Bolshevik mission that had failed after the Russian Revolution, that is,‘to substitute [for] the pluralistic texture of the borderlands…an ideological uniformity.’” [51-52]

Among the most remarkable aspects of Soviet-Western relations during World War II were the widespread Western misconceptions of Soviet leaders, policies, and social-political arrangements entertained not only by favorably disposed intellectuals and some journalists but also by otherwise hard-nosed politicians like Churchill, Roosevelt and Truman. The latter was all the more remarkable since these statesmen had access to the best available information about the Soviet system and Stalin and could also have benefitted from their face-to- face meetings with him. But contrary to widely held American beliefs these face-to-face summit meetings did not produce deeper understanding or genuine rapprochement. Gellately observes:

FDR did not sound at all like the image of him in revisionist literature: a cold warrior out to make the world safe for capitalism. His concern instead was his legacy, and he mistakenly concluded that he could secure it by forging a link with Stalin. The Soviet Boss was an utterly different creature…His modus operandi at the big Three conferences was to speak of his country’s sacrifices in the war…His mischievousness and (mostly) pleasant manner stood in sharp contrast to his fierce and bloody reputation, to the point that Roosevelt and Churchill convinced themselves it was fine to call him ‘Uncle Joe’… Stalin knew very well that Communism …aroused their deepest forebodings, so he routinely told the story that, in everything he did, national security was the only real aim. [96]

Gellately also notes that “Roosevelt consistently sought to understand and sympathize with the Soviet position and he bent over backwards to ignore or downplay Stalin’s horrendous methods of rule and obvious ambitions. Charles Bohlen, a Roosevelt translator, wrote that the president suffered from the ‘conviction that the other fellow is a ‘good guy’ who will respond properly and decently if you treat him right.’” [10] If so, Roosevelt apparently shared widely held American cultural beliefs and attitudes which were also apparent during the Cold War animating the peace and anti-nuclear movements and their supporters who believed in the basic goodness of human beings and the wonders of face-to-face communications.

Neither was Truman invulnerable to illusions about Stalin notwithstanding his realistic worldview and commonsense: “He [Truman] was guided by a faith that most people saw life and politics much the way he did and that such problems as arose generally came down to misunderstandings. Once people got to know one another…they would see that even the most complicated issues cold be solved. In this way Truman’s belief in personal diplomacy was every bit as firm, and perhaps as misplaced, as Roosevelt’s had been.” [157] In his letters to his wife Truman characterized Stalin as “honest” and “straightforward.” [159,165] With the passage of time he moderated these beliefs.

Contrary to widely held impressions even Churchill misread Stalin. Gellately argues:

Churchill had once opposed appeasing Hitler but he became noticeably soft on Stalin. In his defense it could be said that Britain was no longer the power it once was and that he was not in a position to be more forceful. However, that explanation can not account for the affection and respect he apparently came to have for the Soviet leader. By the late 1944 the otherwise sagacious prime minister indulged in the fantasy that, on a personal level, he had a good relationship with Stalin and that their mutual respect…boded well for their talks. He wrote his wife…’I like him [Stalin] the more I see him…’ The British leader believed even when he wrote his memoirs…that Stalin had been ‘sincere’ and that the two of them ‘talked with an ease, freedom and cordiality never before attained between our two countries.’ [94]

While these misperceptions and illusions influenced the discourse between Stalin and the Western leaders and the agreements reached during the summit meetings, it is hard to say what difference more realistic views might have made to the fate of Eastern Europe given the Soviet military preponderance in the region following World War II.

Examples of interesting factual information the book provides include the conviction during World War II of almost one million Soviet soldiers by military tribunals for disobeying orders and other alleged derelictions. These tribunals pronounced 158,000 death sentences “at times carried out in front of assembled troops” [114]. To be taken prisoner was treated as desertion and former prisoners of war served time in the Gulag upon repatriation after the war. Similarly unknown, and a revealing reflection of how Stalin ruled Eastern Europe, that between 1944 and 1952 he had 140 meetings with East European leaders. [313] Further light is shed on Stalin’s personality as we learn that in the course of editing his own Short Biography published in 1947 he inserted the following sentence: “‘Although he performed his task as leader of the party and the people wth consummate skills and enjoyed the unreserved support of the entire Soviet people, Stalin never allowed his work to be marred by the slightest hint of vanity, conceit or self-adulation.’” [221]

There is one factual error I came across, by no means central to the major threads of the narrative. Gellately writes that “on October 18 [1944] Horthy [leader of Hungary] accepted asylum in Germany after having resigned in favor of Ferenc Szalasi, leader of the fascist Iron Cross.” [85] Elsewhere he writes “On October 11 [1944] Hitler pushed Horthy out in favor of Ferenc Szalasi, leader of the fascist Iron Cross…” [255] Szalasi was the leader of the Arrow Cross, not Iron Cross. There was no movement or organization in Hungary called Iron Cross but there was a similar extremist movement called Iron Guard in Romania. Describing Horthy as resigning and accepting asylum in Germany fails to do justice to what actually happened. On October 15th Horthy made a public announcement of his intention to take Hungary out of the Axis alliance and to seek armistice with the Allies. The German troops with the help of the Hungarian Arrow Cross storm troopers promptly removed him and his government from power, kidnapped his son and put Horthy under house arrest in Germany. His resignation in favor of Szalasi was a pure formality performed under duress.

This minor error notwithstanding I strongly recommend this book to anyone who seeks better understanding and information of Stalin’s impact on the Soviet system, the causes and manifestations of the Cold War, Soviet policies in Eastern Europe and their ideological determinants.

Friday Roundup, June 14th

2013-06-14T11:39:12Z

In our Books section this week, Alan Tarr, master scholar of state supreme courts, reviews James Gibson’s book Electing Judges. An excerpt:

Many of those concerned about the effects of campaign activity on judicial legitimacy have assumed that citizens share the legal profession’s view that politics undermines judicial independence and hence judicial legitimacy. Gibson’s research suggests, however, that public attitudes are more diverse and more complex. While some respondents shared the legal profession’s strong concern about judicial independence, many others favored judicial independence from the executive but were skeptical of judicial independence from the community and its values. . . . Many respondents believed that mechanical jurisprudence was either undesirable or unattainable, and there was strong support for a relatively politicized model of judging. . . . Moreover, although they valued judicial efforts to act impartially, they also believed that judges should in some sense reflect the views of their constituents.

Made-to-Order Embryos, an essay by Glenn Cohen and Eli Adashi in the New England Journal of Medicine.

Getting down to business: David Henderson reports on a cost/benefit analysis of the NSA surveillance program.

Who taught you how to do this stuff? I learned it from your theories, practices, and illiberal condemnations while on campus. That’s what Peter Berkowitz tells us in this piece that connects the causal dots between the regnant liberalism of higher education and the Benghazi and IRS scandals.

Leon Wieseltier gives us the truth about the humanities.

Glenn Arbery writes at First Things on our souls and the surveillance state.

John Taylor’s dismal thoughts on jobs and population.

The Fourth Amendment in the 21st Century

2013-06-18T10:56:06Z

Over at NRO, Andrew McCarthy criticizes Rand Paul’s new legislation that provides that:

1. The collection of citizen’s phone records is a violation of the natural rights of every man and woman in the United States, and a clear violation of the explicit language of the highest law of the land.

2. The Fourth Amendment to the Constitution shall not be construed to allow any agency of the United States Government to search the phone records of Americans without a warrant based on probable cause.

McCarthy first questions sarcastically whether people have natural rights to privacy as to their phone records (“A citizen’s “natural right” to telephone-usage records that are actually the property of third-party service providers? I wonder what Saint Augustine would have made of that.”) I am skeptical of natural rights, but putting that to the side I think McCarthy is on weak ground here. There is no reason to believe that natural rights would not apply to modern technology. That the records are the property of third party service providers is a better point. But in a world where it mattered who owned the records, perhaps people would insist on a contractual right to privacy in their records, which might change things.

My main focus here, however, is the issue concerning the Constitution. McCarthy writes that the original text does not protect such phone records, because the 4th Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects.” I am not an expert in the original meaning of the Amendment but McCarthy has a point. The records are unlikely to be persons, houses, or papers, and probably not effects as well, which Webster’s 1828 dictionary defines effects as “goods; movables; personal estate.”

If this analysis is correct, then this suggests that the original meaning of the 4th Amendment does not provide protection. What should an originalist say about this?

One possible answer is to say that it is time – and it has long been time – for an updating of the Amendment. Not by the Courts, but by the American people. A recognition that the Amendment does not cover any of these matters in the slightest – nor wiretapping and other matters covered by the Courts in the 1960s and before – would lead to a discussion of what a newer Amendment should cover. Balancing privacy and security involves difficult issues and debating them, in the context of modern technology, would be desirable. More desirable, I would add, them having the Supreme Court decide these matters as they wished.

So, if Rand Paul’s legislation does not enforce the original meaning of the 4th Amendment, does that mean it is unjustified? Absolutely not. In fact, if we are to have a debate about privacy in the modern world, debating legislation of this kind is essential. What is more, if Paul’s legislation became popular and were enacted, that would be useful as well, because it would help us understand how such principles operate in the modern world. We might reasonably want to observe a rule before enacting it into the Constitution without some understanding of how it operates in the real world.

In the end, then, McCarthy and Paul might both be right. The original meaning of the 4th Amendment probably does not cover these actions, but Paul’s legislation (or some other legislation) might make sense.

What is Our War?

2013-06-18T10:57:16Z

The PRISM/NSA program of collecting call records of millions upon millions of Americans will surely dominate our national political conversation for the foreseeable future. The issue obviously touches privacy concerns we all have while hitting other uncomfortable spots. Release of the PRISM program obviously builds on the anxiety of the current scandals that have come to light in the Benghazi, IRS, AP and James Rosen surveillance fiascos, among others. Americans, it seems, are on a rendezvous with destiny of losing faith in the federal government as a whole because of the failures of its current leadership class found at the top of the administrative, diplomatic, and security departments and agencies. It can’t happen soon enough.

Going beyond the NSA surveillance dragnet, which seems to belie the very notion of a warrant and its function of accessing narrow, specific, targeted information, we might ask why we are still fighting a surveillance war that diminishes our liberties, over a decade after 9/11. We’ve been fighting in Afghanistan and Iraq since 2002 and 2003, respectively. But have we attempted to achieve the basic aim of statecraft since 2001, i.e., victory and peace? Or have we, are we, doing something else of which the NSA surveillance program is a part, that is, diminishing ourselves to find a certain protection from Islamic terror, if not other enemies that are undefined but always lurking?

An older essay from Angelo Codevilla, “Why We Don’t Win” reminds that statecraft finds its true measure in effecting peace. In America, this means ensuring that our experiment in constitutional republican government moves forward without threats from abroad impeding that project. However, Codevilla asserts, our problem is that we have a leadership class that does not take seriously the need to restore peace. Instead, our leadership

promoted the notion that 9/11 would “change everything, forever”—in America. They accepted terrorism as a fact of modern life and told Americans to get used to finding public spaces turned into fortresses, to showing documents and being frisked. The slogan “united we stand” did not tell Americans to eliminate our enemies, but to stand still, to commemorate our dead, to believe and obey Washington. There would be no victory, much less peace. Demands for either would be deemed extremism. The terror threat would remain “orange” indefinitely, and the bloodletting would have no end. It’s a wonder that Americans’ spirits held up as long as they did.

But what would victory look like, what would it entail? Codevilla notes that “Our ruling class’s persistent denial of the fact that war arbitrates human differences, and its belief that “victory” is a dangerous relic from a less enlightened age, explain why terrorists have confounded it so easily.” It seems obvious that victory did not and does not include the imposition of a modern nation state design on subject populations. But that is precisely what we chose.

The failure Codevilla documents is refusing to make ends/means calculations in the need to restore peace. So, he argues, we missed something amidst the endless prosecution of stability in Iraq and Afghanistan. America took to arms, but did so ineffectually. We avoided thinking about whom to kill, up and down the chain, including numerous other power centers that were never strangled. Indeed, some of these we still give tacit support to. Instead, our leadership has relied on models, alternating paradigms of the internationalist, neoconservative, and realist varieties and their depictions of what stability should look like. But the aim of war is victory, dominance, and the dictation of terms to a vanquished enemy. If the strategy you pursue does not even let you define victory, coherently pursue it, then, its sheer ambiguity guarantees its failure over and over again.

Codevilla argues that instead we invested in a massive domestic security apparatus, tried to implant democracy as an exemplary form in the Middle East, and left unchallenged the numerous fertile sources of Islamic terror. We believed, we mirror-imaged the notion that populations of Middle Eastern states would identify with American values as these were displayed in Iraq and Afghanistan. As Codevilla notes, the Shia and Sunni in Iraq always “knew their war.” Did America?

Where does this leave us? Codevilla observes that one sure fact is that we are left with a “burgeoning security apparatus” and its belief

that any person is neither more nor less likely to be a terrorist than any other, and that focusing on Muslims (especially of a certain age, etc.) is some kind of crime. That logic mandates bothersome but impotent surveillance of the general population. Whenever terrorist incidents spotlight that impotence, this logic prescribes ever-greater doses of the same. On Christmas Day 2009, a young Nigerian whose prominent father had warned the U.S. embassy of his son’s Muslim anti-Americanism almost blew up an airliner over Detroit with a bag of high-explosive powder attached to his underwear—having been let on board without even showing his passport. Republicans and Democrats rushed to enhance security by forcing all air travelers through scanners that would show us naked (with faces obscured) to security officers. (Inevitably, these officers’ cubicles will be tagged “Peeping Toms’ Cabins.”) What can be said of a ruling class that pursues security through universal nakedness?

These truths are hard to deny. What it means for America’s political future can either be played out as it currently is, or failures, over and over, might lead to that most difficult of tasks in a democracy, replacing not merely parties, but the selection, promotion, and practice of those in power.

The Progressives’ Creative, Parasitic, and Unsustainable Constitutional Jurisprudence

2013-06-12T20:31:48Z

Today, Professor Rappaport posted the aptly-titled “Originalism for Me, but not for Thee,” concerning Professor Peter Jaworski’s fascinating new article, Originalism All the Way Down: Or, the Explosion of Progressivism.

The article reminded me of the approach to constitutional interpretation that Professor Robert Scigliano at Boston College taught in his class on the American Judiciary: Judges should interpret the Constitution the way they would like their own writings to be interpreted.

Professor Scigliano’s maxim, however, is unworkable for the judge who undertakes to “creatively interpret” the Constitution, an approach expressly celebrated by future Justice Ruth Bader Ginsburg.

As Professor Jaworski points out, a creative judge requires the cooperation of many uncreative persons. Judges, after all, have very little proximate power. They’re not very scary. They wear impressive robes, but they’re typically rather old, with only gavels for immediate weapons. They have a limited budget and at most, a tiny coercive force at their immediate direction. As Hamilton noted, the judiciary is the least dangerous branch, for judges depend, for the execution of their judgments, on the cooperation of others, especially the executive. And in establishing effective precedents, appellate judges also rely on the cooperation of the judges of the lower courts.

In order for their creative rulings to be effective, judges need the cooperation of at least some Dudley-Do-Rights.

Judicial creativity thus involves an implied but essential rule. “Do as I say, not as I do. Obey my rulings with fidelity, while I interpret the law with creativity.”

Human nature poses a problem with this ethic. The Dudley-Do-Rights won’t always be content with their assigned task. At the extreme, they will say, “Why should five Supreme Court justices have all the fun? Why should those five have the exclusive right to don not only the robe, but also the beret?”

As I suggested in a prior post, it was probably this persistent human phenomenon of self-love or pride that led progressive jurists to abandon judicial restraint in favor of judicial activism. Especially in the second and third generation, progressive jurists were not content with the subordinate and largely irrelevant role of getting out of the way, of not obstructing the movements of the democratic zeitgeist, and its scientific implementation by administrative experts. The judges wanted to the right to wear the robe, the beret, and the labcoat, all at the same time.

Such progressive, creative jurisprudence has a parasitic character. Every time the courts, especially the Supreme Court, engage in a manifest, even deliberate, abandonment of fidelity to law in favor of creativity, there is a parasitic effect on the culture of the rule of law. The enforcement of the creative, unfaithful judicial decision depends upon a faithful, and thus uncreative, implementation. But with each such ruling, the Court teaches, by prominent, authoritative example, a disregard for such fidelity and obedience.

And insofar as it is parasitic, creative jurisprudence is also unsustainable.

While the culture of obedience continues, the Supreme Court can wield enormous power. But at some point, judicial activism may consume so much of that virtue that the judiciary will become not only the least-dangerous but the impotent branch. At some point, the Dudley-Do-Rights will do otherwise; they will stop doing as the judge says, and start doing as the judge does.

Imagine, say, a President, in a time of national crisis, who will be popular both with the people and with military officers. How would the courts—and the rule of law—fare if such a President should undertake his own creative interpretation of the law, whether the Constitution, treaties, statutes, or judicial rulings? My bet is on the one guy with the Marine Corp instead of the nine, or even nine-thousand, with the gavels.

Originalism for Me But Not for Thee

2013-06-12T07:09:29Z

Peter Martin Jaworski (Georgetown University) has posted Originalism All the Way Down: Or, the Explosion of Progressivism (Canadian Journal of Law and Jurisprudence, Forthcoming) on SSRN.

Here is the abstract:

At least on its face the very same problems of interpretation apply to the written judgments of the Supreme Court as apply to written constitutions and statutes. Whenever the meaning of a ruling, or some part of it, is not immediately apparent — maybe because the still-standing precedent is decades old and written in a manner that would now be anachronistic, or because the Justice writing the opinion was laconic — should we try to discern what the Justices intended or meant to say? Should the guide, instead, be what a reasonable person would understand by the text at the time of the promulgation of the relevant ruling? If the ruling still stands, but is decades old, shall we breathe life into it by reading it in accordance with contemporary values? Shall we make use of records of oral argument, or what Justices may have said extra-judicially, or will we restrict ourselves to the text of the ruling alone?

In this essay, I assess the question of what is an appropriate doctrine of ruling interpretation by applying the arguments of the living constitutionalists to Supreme Court rulings. Contemporary proponents of a progressive doctrine of interpretation for constitutions — variously called the ‘living tree,’ ‘living force,’ or ‘living constitution’ doctrines of interpretation — appear to embrace two theses. The first thesis, which we can call the ‘progressive thesis,’ is the view that the Supreme Court ought to ensure that our highest laws are in compliance with contemporary values. The second thesis is the ‘doctrine of judicial supremacy’ which maintains that all lower judicial and non-judicial actors are to accept and adhere to the rulings of the Supreme Court.

I argue that these two theses—the progressive thesis and the doctrine of judicial supremacy — are in tension with one another. Embracing the second thesis requires abandoning the first, while embracing the first thesis requires abandoning the second. Contemporary living constitutionalism, as defended by prominent advocates like Chief Justice Beverly McLachlin, Justice Ian Binnie, Australian Justice Michael Kirby, legal scholar Peter Hogg, and others, is incoherent.

In the end, those who embrace the progressive thesis must rely on the claim that the Supreme Court ought to have a monopoly on the use of progressive interpretation, and that lower courts and non-judicial actors must use originalist methods for interpreting the text of Supreme Court rulings. To make this argument, the advocates of progressive constitutional interpretation must be advocates of originalism — not half-hearted supporters, but enthusiastic, full-on supporters, however much they may, elsewhere in their writings, condemn originalism as a practically-flawed, unworkable, or unenlightened method of interpretation.

Through the PRISM Glass

2013-06-16T19:57:02Z

In the last several years, a U.S. citizen has had an infinitely higher chance of being killed by a Mexican drug cartel than by either a foreign- or domestic-bred terrorist. These cartels are sophisticated networks that depend on high-tech communications. Their roots run deep into American society. They are international in scope. They target civilians indiscriminately. Surely programs like PRISM could help to identify their communications, suppliers and customers and generally disrupt their operations. Why not—on the general theory that PRISM is justifiable because it saves American lives—turn the NSA loose on them?

The answer—one hopes, since we do not know this has not already occurred—is that there are costs we are not willing to pay in liberty and privacy despite their payoff in protection. But the cartel case illustrates the difficulty of separating terrorism in kind from other causes of mayhem, and it shows therefore why programs like PRISM and the NSA’s vacuum operation on mobile phone calls are properly to be regarded with suspicion: the slope on which they reside is very slippery indeed.

To be sure, terrorism is easily classifiable by motive: politics rather than profit. What is less clear is why the motive alone justifies more of an intrusion into civil liberties than, say, drug trafficking if the latter is more of a threat to the ordinary citizen.

Despite then-Senator Obama’s rejection of a “false choice” between liberty and security, the choice is unavoidable, for the two stand in inherent tension. We routinely accept less of one to gain more of the other. The tradeoff depends on the degree of the danger. The information currently available to us suggests narco-gangs are more of a danger than radical Islamists today. If the sole justification for programs like PRISM is that they save lives, it seems difficult to justify limiting their scope to less serious dangers—and, incidentally, drug cartels may prove to be the least of these. If we are in fact willing to trade infinite privacy for infinite security—as a pathetically partisan margin of Americans apparently is—then the proper response to the threat of drunk drivers, which vastly trumps terrorists of both the Islamo- and narco- varieties, is a breathalyzer in every car.

No one wants that. One presumes. One hopes. One wonders. The reason is that there are tradeoffs we are unwilling to make even, crucially, if they save lives. By contrast, as long as “saving lives” forms a sufficient warrant for any intrusion, we ought to expect every intrusion.

The fundamental problem in the case of terrorism is irrationality pertaining to risk. The word “terrorism” distorts our thinking. It conjures images that cause us to inflate actual risk by fixating on macabre scenarios. Perhaps the public reaction is understandable. But policymakers are supposed to react more calmly. It may be that, in their cooler moments, they have a better justification for PRISM and the NSA phone-vacuuming program than that they save lives. Unless they do, perhaps they can explain why, on their own slippery reasoning, they are not utilizing these tools against a range of lethal problems other than terrorism. Unless, of course, they already are.

Politics is the Mind Killer: Rational Reasons for Being a Political Hack

2013-06-14T20:11:35Z

Politics is the Mind Killer. This is the title of one of my favorite posts on the web. In this post, Eliezer Yudkowsky talks about how people seem to be so irrational when it comes to politics. In two posts, I hope to talk a bit about this.

One way that we exhibit irrationality about politics is by behaving inconsistently. We often come across as partisan hacks. How can we distinguish between a principled person and a partisan hack? This is a tough question. But at least one way is to determine whether one is switching one’s position when the other party is doing the thing one dislikes. Many Republicans opposed large government, but still supported George Bush’s expansion of Medicare drugs. Many Democrats opposed George Bush’s wars in Iraq and Afganistan, but do not criticize Obama’s actions in Afganistan. This makes one look like a partisan hack.

My guess is that these people do not perceive themselves as partisan hacks. If one confronted them with the evidence, how might they respond? One possible justification is that the liberal trusts the liberal President more. And therefore he gives the liberal President the benefit of the doubt. If President Obama is ordering these national security activities, he must have a good reason for it.

Another justification might be that the conservative is less inclined to criticize the conservative President, because he wants the conservative President to remain in office. While President Bush behaved in a liberal way by exanding Medicare concerning prescription drugs, this compromise might have been thought to have been necessary for the President to maintain popularity and stay in office – and therefore to secure other conservative programs.

Thus, there were rational reasons for these people to support their President, even though they might otherwise have disagreed with his actions on policy grounds.

Libertarians are known as being especially principled. While there are many possible explanations for this aspect of libertarianism, one possibility raised by this post is simply that libertarians are rarely in power. Thus, they do not give their leaders the benefit of the doubt and they do not make compromises to stay in power.

In my next post on this subject, I want to think a bit about some of the nonrational or preference based reasons for acting like a hack.

Is the European Central Bank Constitutional?

2013-06-18T10:53:28Z

Today (Tuesday) and tomorrow, Germany’s Federal Constitutional Court (FCC) will hear argument in yet another case over yet another innovation adopted by the EU in the wake of the continuing sovereign debt crisis. Cases of this sort have become annual events. In 2011, the FCC dealt with the Greece bailout; in 2012, with the European Stability Mechanism (ESM). The key issue this time around is the European Central Bank (ECB) and more precisely, the permissible scope of its “outright monetary transactions” (OMT)—that is, bond purchases or sales in secondary markets, or what we call “Open Market” transactions. No dramatic decision is to be expected—certainly not before September, when Germany goes to the polls. (By uniform consensus among the European elites, the EU project is too important to be injected into national electoral politics.) Still, the case is worth watching, both because the financial markets have the usual jitters and because the case highlights, yet again, increasingly disturbing features of the European project.

As in the earlier FCC cases, two questions run together. One question is whether the European Treaties permit the institutions or practices at issue, or whether they lack a legal basis in the treaties Germany signed. The other question is whether the German Constitution permits Germany’s participation in this, that, or the other EU scheme. The Constitution, as understood by the FCC, is pro-EU integration, but it does not permit a wholesale transfer, willy-nilly, of popular sovereignty to EU institutions. A step of that nature would require a constitutional amendment by the sovereign itself—the German people, speaking directly by referendum. (The Second Reich was cobbled together by princes purporting to act on behalf of the people. The EU can’t be created that way, so far as the FCC is concerned.) Moreover, steps that threaten to erode basic principles of parliamentary democracy and the Rechtsstaat are permissible only under certain conditions. Foremost, the FCC has ruled, Germany cannot agree to open-ended debt guarantees and obligations; the Bundestag has to maintain its full budgetary authority.

Apply those basic guidelines to an ECB whose president, Mario Draghi, famously promised that the ECB would do “whatever it takes” to prop up markets for Spanish, Greek, Italian, etc. debt: you see the problem. Under the EU system, much of the garbage purchased by the ECB will wind up with the German Bundesbank, and the German legislature will have to take the hit if and when the debts go bad. That looks suspiciously like the kind of open-ended, no-one-voted-for-it system that has in the past raised eyebrows at the FCC.

The argument before the FCC brings an unusual spectacle: two of Chancellor Merkel’s closest economic advisers will appear on opposite sides. Bundesbank President Jens Weidmann is expected to highlight the risks of the ECB’s “whatever it takes” commitment. He has a lot of ammunition. For example, he might note that between the ESM and the interbank transfer system (the so-called “Target 2” balances), the Bundesbank has already racked up 530 billion Euros worth of obligations, much and perhaps most owed by folks whose ability to pay is open to serious doubt. How much is too much?

Appearing for the ECB will be Joerg Asmussen, Germany’s representative on the ECB. He’ll have to make enough reassuring noises to assuage the justices’ concerns, by saying things like: “These aren’t bailouts, just short-term measures to stabilize the Euro.” Or: “We’re lending only to countries that fall under the ESM, and therefore under strict commands to shape up.” Or: “Don’t worry, it’s only short-term paper.” Say too much in that vein, though, and the markets may come to think that Mr. Asmussen and his institution actually mean it—in which event “whatever it takes” will be called into doubt and the markets might freak out. It’s like an FOMC meeting in real time, in a courtroom.

While the EU’s long-running opera has a certain entertainment value, it also has a deeply corrupting effect. In the entire theater, it’s hard to find an institution with an ounce of integrity and legitimacy. By design, central banks and courts lack democratic legitimacy: we make them “independent” to tie ourselves to the mast, so to speak. That enterprise, however, is plausible only so long as those institutions remain true to their masts: price stability and the law, respectively.

And yet, and alas: regardless of the ECB’s assurances that “whatever it takes” is consistent with and conducive to price stability and the integrity of the Euro, everyone knows that monetary policy is being subordinated to political demands. Everyone also knows that those political demands entail draconian austerity programs for debtor countries that might fare much better with a rip-roaring devaluation. And so the ECB becomes part of a political game in which multiple actors “network” to align fiscal, monetary, and social policy in some fashion. Good luck with that.

Former FCC justice Udo Di Fabio has forcefully described the dilemma and its legal implications in a recent, much-noted essay. (Warning to those inclined to follow the link: it’s in German, and not “May I have a bratwurst” German.) What he does not say explicitly is that the FCC now confronts the same dilemma between institutional commitment and political demands. The Court could pull the trigger and hold that Germany must either leave the Eurozone or else, change its Constitution. But that is not going to happen: it’s too convulsive for a court to contemplate. So the justices will punt.

They could say, one, that the ECB’s authority is really a question for the European Court of Justice. The justices have made noises to that effect in past decisions. But they have never referred a case to the ECJ, for the excellent reason that they know the outcome: whatever furthers EU integration, the ECJ would rule, is therefore legal. The justices could say, two, that the politicians and especially the Bundestag must be mindful of their constitutional obligations, and that there is a red line of self-abdication that they must not cross. The FCC’s problem is that its red lines, drawn in previous cases, look like President Obama’s make-believe red lines across Syria.

In real life, the lines are haggled out in calls between the Chancellor and the Court: let’s find a ruling that saves the Court’s face, gives Mrs. Merkel some leverage for more austerity elsewhere, allows Europe to carry on, and doesn’t spook the bond markets. In short, the FCC, too, has been politically networked.

That may tide over the EU and the bankers in London and New York. As for the rule of law, yikes.

The Propriety and Necessity of Natural Law to Originalism

2013-06-18T10:52:34Z

It is frequently alleged or assumed that a tension exists between natural-law theory and constitutional originalism. The tension is undeniable if originalism is a naked form of democratic positivism—that, e.g., law is simply the expressed will of the sovereign, and the sovereign people have expressed their supreme will through the written Constitution. In such a case, the tension may even represent a contradiction. Originalism, thus understood, would indicate simple obedience to the Constitution’s text, as understood by its authors, while natural “law” would encourage judicial entrepreneurship: to go beyond, outside, or even against that text, in the name of some law that is allegedly prior or higher.

The American Founders, however, seemed largely unaware of this opposition. American jurists in the Founding era frequently invoked both natural-law concepts and an “originalist” interpretive method. The latter method was so widely accepted that there was no need to designate it as a peculiar “ism.” Originalism’s coexistence with natural law seemed uncontroversial and even peaceful.

Perhaps this non-opposition, this coexistence, was not mere historic accident. Perhaps there is something complementary. Indeed, in some respects, natural-law theory might be both proper and necessary to constitutional originalism.

In one important, but limited respect, commentators generally acknowledge that natural-law considerations belong to, and are thus proper to, the originalist inquiry. The originalist seeks to know what the authors of a constitutional provision understood, meant, or intended by that provision; and some provisions of the Constitution were understood to (partly) instantiate and secure certain principles of natural right. Therefore, to understand these provisions, the originalist must understand these principles, even if he deems those principles erroneous or even ridiculous. So, for instance, whether he was a Lockean or not, Justice Benjamin Curtis was probably correct in Dred Scott to interpret the word “property” in the Due Process Clause to not encompass any “property” prohibited by the Founders’ natural-right principles; that is, the alleged property in human beings.

But besides this occasional role, natural law may be necessary, in a broader sense, to the entire originalist enterprise. For a century now, judicial fidelity to the Framers’ intent/meaning/understanding has been subject to withering, sustained criticism by progressive jurisprudence. Perhaps not coincidentally, the rejection of originalism happened roughly contemporaneously with the American academy’s nearly unanimous repudiation of natural law. In the face of the progressive critique, a plausible natural-law theory may be necessary (in the Hamiltonian sense of expedient, not absolutely necessary) to bolster the theoretical justification of originalism.

To apprehend this necessity, it should be recalled that natural-law theory affirms not only that the existence of certain universal norms, but also the capacity of human beings, by natural reason, to apprehend these norms (to some extent). Natural law is a theory of recognition as well as validity. For all their differences, Aquinas, Locke, and Blackstone each agreed on this point.

As a theory of recognition, natural-law theory helps rebut three of the leading progressive arguments against originalism. First, against the claim that the Constitution’s original understanding is unintelligible, natural law indicates the following: (1) that human beings, even across a large population and an extended territory, can understand one another’s moral purposes sufficiently to establish a bona-fide popular consensus, a consensus commonly known by the people and promulgated in a written constitution; (2) that this shared understanding can span not only a large republic, but also across time, so later generations can indeed know the meaning of prior generations; and (3) that judges, no less than other citizens, can know the content of this law.

Second, against the claim that originalism frustrates progress—that improvement that “naturally” comes with time–natural law answers that novelties are to be mistrusted. Although recognizing the possibility of progress in moral knowledge, natural-law theory asserts that regress is just as likely. To cite one prominent example, Aquinas insisted that human beings generally apprehended that theft was unlawful, but that at times reason can be “distorted by passion, or by evil habits, or by bad natural relations” such that individuals or communities can “fail to recognize theft as contrary to natural justice.” This caution hinders judicial entrepreneurship, including disregard for long-established interpretation of the Constitution’s text.

Third, against the claim that judicial obedience to the original understanding is unreasonable, natural law indicates that this consensus not only is knowable, but obedience to it is reasonable. Natural-law theory identifies this common apprehension of moral truths as not merely as a general sense or feeling, but as something pertaining to reason. The existence of this common rational faculty suggests (1) that the people’s consensus reflects genuine knowledge (and not mere opinion or raw will—so-called “policy preferences”); and (2) that therefore the people, though uncredentialed, have a politically relevant knowledge to which judges, no matter how credentialed, can reasonably defer. The people have the right to rule in part because they have some reason. They have some capacity to write a constitution that is worthy of obedience.

Moreover, as a theory of validity as well as recognition, natural law helps to answer an argument that is frequently implied in progressive jurisprudence: that the obedience of the originalist judge is dishonorable. Naked democratic positivism tends to reduce the judge to a mere discerner and follower of popular will; his simple and unattractive virtues are accuracy and humility before the masses. Although the masses may embody the zeitgeist—a subrational will popular “reason” is not reason at all, and cannot compare with the genuine reason of the expert. Why should the judge, with all his education and credentials, defer to the laws written by the subrational many?

Progressives offer the judge a far more glamorous role: Consider, for instance, Justice Cardozo’s criticism of Justice Story: despite Story’s “vast erudition,” he lacked a “creative imagination.” Rather, Cardozo argued, progressive judges should facilitate progress “with insight into social values and suppleness of need;” they should be “molders of policy instead of impersonal vehicles of revealed truth,” for “constitutional adjudication has always been statecraft.”^{^[1]} As Cardozo asserted in a famous dissent, judges should read the Constitution not with “pedantic rigor”—that is, simple obedience—but with “elasticity of adjustment, in response to the practical necessities of government.” [2]

Consider also the words Justice Frankfurter, the alleged friend of “judicial restraint”:

“[D]ue process” cannot be imprisoned within the treacherous limits of any formula. Representing a profound attitude of fairness between man and man, and more particularly between the individual and government, “due process” is compounded of history, reason, the past course of decisions, and stout confidence in the strength of the democratic faith which we profess. Due process is not a mechanical instrument. It is not a yardstick. It is a process. It is a delicate process of adjustment inescapably involving the exercise of judgment by those whom the Constitution entrusted with the unfolding of the process.[3]

The progressive jurist can thus be the bold entrepreneur, the skilled scientist, the creative artist, and even the revaluer of values—all rolled into one.

Frankfurter’s one-time adversary, Justice Brennan, said as much decades later: The Constitution consists in “majestic generalities and ennobling pronouncements” that are “both luminous and obscure.” In the face of all this impressive light and darkness, the judge becomes both suffering servant and supreme ruler: he must accept the “lonely, troubling” task: to “resolve public controversies” so that “the present society change in a fundamental aspect.” The progressive judge is not to obey the written record of the people’s own resolution of their controversies—that is, the Constitution and other law—but to resolve, and continuously re-resolve, the people’s controversies for them.

In contrast, Publius, in Federalist 78, assigned the judge a humble, even boring role. The judge would be “inflexible and uniform” in interpreting the Constitution, and “bound down by strict rules and precedents.” Fidelity, not creativity, would be the judicial virtue.

Natural law theory, if true, affords nobility to such uncreative fidelity. According to the theory, the will of the many, as defined in law, can represent a participation, albeit imperfect, in Divine reason. Judicial fidelity to a popular Constitution, then demands not humility before the masses, but piety before nature’s Author. The piety of the faithful originalist might thus represent a virtue that can rival the glamorous creativity of the judicial artist.

[1] See, e.g., Felix Frankfurter, Twenty Years of Mr. Justice Holmes’s Constitutional Opinions, in Felix Frankfurter on the Supreme Court: Extrajudicial Essays on the Court and the Constitution 112, at 119–21 (Philip B. Kurland ed. 1970).

[2] Panama Refining Co. v. Ryan, 293 U.S. 388, 440 (1935).

[3] Joint Anti-Fascist Refugee Comm. v. McGrath, 341 US 123, 162-63 (1951).

Pensions, Property, and Contracts

2013-06-13T15:49:23Z

Amy Monahan (University of Minnesota Law School) has written a concise, non-technical, informative report on the legal limits on public pension reform. It is available here. Several observations are of note.

First, state law (of contract or property) imposes severe constraints on pension reforms, especially reforms that would retroactively revise present or future employees’ entitlements. State constitutional protections, as well as the Contract Clause of the U.S. Constitution, also limit legislatures’ maneuvering room. Second, and perhaps for that reason (as well as sheer fear of employee unions), pension reforms to date have been decidedly Mickey Mouse (e.g., downward revisions of COLAs). A few seek to curtail pension obligations for future employees; none deal with legacy costs in any serious fashion. Third, even the most modest pension reform will become the stuff of litigation. And because the legal tests are murky, no one knows what the law will permit until the courts have ruled.

Sensible people will be torn. On the one hand, it seems way harsh, and constitutionally problematic, to abrogate bargained-for and vested entitlements. On the other hand, you’re talking about unfunded obligations of several trillion dollars. And you’re talking about a massive generational transfer: the debts owed to past state and local employees can be paid, if at all, only by imposing the costs on current citizens and taxpayers—by taxing them more, or by withholding the stuff that their taxes are supposed to buy: education, roads, prisons, police protection. Or maybe we can expropriate someone else: bondholders, for example.

In Wall Street parlance, we know the screwers: politicians and public sector unions, who colluded to create all those obligations without regard to long-term costs. The game that’s on now revolves around the question, who’ll be the screwee?

Just How Green are Germany’s Values?

2013-06-16T19:55:57Z

Germany’s renewables energy sector is busy cleaning up these days, commercially-speaking that is, not in terms of environmental impact. So far as that goes, Germany’s much vaunted green revolution has been nothing short of disastrous.

As its heavily subsidized wind-farms and solar panels mushroom, so Germany’s ancient forests are increasingly being felled to make way for the open mining of lignite (brown coal) of which Germany has copious reserves beneath its soil and which is the most unhealthy fossil fuel of all.

Germany’s air is increasingly being polluted by particulates from the burning of lignite to which that country has increasingly turned in recent times to meet the short-fall in fuel for electricity generation there caused by its ludicrous environmental policies.

To appreciate how Germany’s supposedly environmentally friendly policies have come to wreak such environmental damage there, one must first recall the disaster that befell the Japanese island of Fukushima in March 2011. A tsunami resulting from a nearby earthquake caused three nuclear reactors on that island to go into meltdown.

Chancellor Merkel demonstrates wind power

Germany’s Chancellor Angela Merkel immediately responded by ordering closure of her country’s seven oldest nuclear reactors and then announcing that all of them would be phased out by 2022. An energy vacuum was immediately created that renewable sources were simply incapable of filling.

Despite an EU wide cap on carbon emissions, Germany was easily able to, and did, fill that vacuum by increasing the mining and burning of lignite, with very damaging environmental effect. Any inhibiting effect on lignite use that the carbon emissions cap was supposed to have was easily circumvented, since the market in permits for such emissions had long since tanked, rendering the extra price of purchasing them easily affordable.

Germany could have sought to fill the gap between its energy needs and supplies by recourse to fracking for shale gas, just as the US has recently done, since, like it, Germany too is blessed with copious gas reserves exploitable by this means.

Gas is a much better complement than coal to solar and wind generated electricity because the electricity that it generates can more easily be turned off and on than that generated by coal, whilst that generated by wind and the sun is subject to the vagaries of the weather, as well as non-storable. Moreover, for the same quantity of electricity generated, gas emits far less carbon dioxide than coal, lignite being the worst offender in this respect.

Despite all this, Germany turned its back on its shale gas reserves in favor of extracting and burning lignite. It did so out of concern that fracking for gas might have environmentally adverse consequences on the purity of its water.

This is hardly the way to run a business, let alone a country. But then when a country has invested in a sector as heavily as Germany has in solar and wind energy, and when, down the line, it might be possible for it to impose similar daft requirements on the rest of the EU and thereby recoup its investment with dividends because of its market lead in the technology, there may yet be method in its apparent current ecological madness.

Meanwhile, ordinary German citizens are suffering badly as a result of their country’s environmental policies. Not least they are suffering from its exorbitant energy prices, since it is households only, and not corporations, that must pay the vast subsidy that alone makes solar and wind generated electricity at all economic in the first place.

The German government generously subsidizes all who wish to install renewable sources of energy in their homes or business premises. It then allows them to sell all their surplus electricity to German energy companies who are obliged by law to purchase all of it at a fixed price set by the government. Energy companies simply pass on these extra costs to individual consumers, but not business corporations, in the form of a so-called ‘Umlage’, a charge that has resulted in electricity prices in Germany quadrupling in the last four years.

Apart from those who will contract fatal illnesses from the pollution caused by the vast quantities of lignite Germany is currently burning as a result of its perverse environmental policies, their worst victims, however, are those who have been or who are currently in process of being forced from their homes to make way for the open mining of lignite.

One such victim is police officer Stephan Putz, resident of the small village of Immerath in the Rhineland region in the west of Germany. Earlier this week, Putz took a German mining to his country’s supreme Constitutional Court to fight for his right to remain in his home after that company had received state approval to compulsorily purchase all land and property within a vast 42 square mile area in which Putz’s village falls and on which the company had set its sights for the open mining of lignite.

Putz is invoking his right under Article 11 of Germany’s Basic Law to be able to reside freely where he has moved to in that country. Strictly, the Article in question confers upon German citizens only a right to freedom of movement, but that right has widely been construed by lawyers there as according German citizens a right not to be forcibly resettled. One such lawyer, who construed that right so back in 1997, sits on the Court hearing Putz’s case.

I doubt he will win. Too much is at stake commercially should he do so. The fault will lie, however, not with the Court or even the mining company but with Germany’s crazy — or, as I earlier intimated, maybe not so crazy — environmental policies, which gives rise to the following question: Just how green are Germany’s values?

The Popular Legitimacy of Judicial Elections

2013-06-16T19:22:01Z

Almost ninety percent of state judges must seek the support of voters either to win a seat on the bench or to retain that seat. During recent decades, state judicial elections have become more fiercely contested—“nastier, noisier, and costlier” in the view of their critics–particularly when seats on the state supreme court are at stake. The cost of judicial campaigns has skyrocketed, as have independent expenditures by interest groups. Reliance on TV ads in judicial races has increased dramatically, and the harshness of campaign rhetoric has escalated. In 2002, the U.S. Supreme Court in Republican Party of Minnesota v. White ruled that states could not prohibit candidates for judicial office from making statements on contested issues that might come before them in litigation. Rejecting claims that such statements would fatally undermine popular trust in judicial impartiality, a five-member majority held that judicial candidates, like those for other offices, could make policy statements in running for office, because voters might otherwise be deprived of the very information they need to make informed choices. As a result of these developments, judicial elections increasingly resemble races for other political offices.

The American Bar Association, the American Judicature Society, and other groups have long decried what they see as the “politicization” of judicial selection. They insist that if judicial campaigns come to resemble those for other offices, this will suggest that courts are no different than other political institutions, and this will erode public confidence in the courts. Yet as James Gibson observes in Electing Judges, there is little evidence supporting this claim. To test it, Gibson conducted a rigorous study of how citizens form their ideas about judicial impartiality and the legitimacy of courts, focusing on how political campaigns affect such judgments. Because his findings call into question many of the assertions made by critics of judicial elections, it is useful at the outset to describe how he arrived at his results.

Gibson’s study involved a panel survey of citizens in a single state (Kentucky), which elects its judges in non-partisan elections. Gibson conducted the survey via telephone interviews before, during, and after the election campaign of 2006. This multi-stage approach permitted consideration both of how attitudes about state courts were formed and how they shifted as a result of exposure to judicial campaigns. A distinctive feature of Gibson’s study was his use of experiments embedded within the surveys. Interviewees were presented with short vignettes about the campaign activities of a candidate for public office and then questioned about whether such a person could serve as a fair and impartial office-holder and whether the candidates’ activities affected their confidence in political institutions. The study varied the stories by changing the election race (a candidate for a judgeship versus a candidate for the state legislature) and by changing the character of the campaign activity (accepting campaign contributions, attacking one’s political opponent, or announcing one’s own policy positions). By doing so, Gibson was able to compare popular attitudes toward judicial campaigns with attitudes toward campaigns for another low-salience state office and to assess the effects of various types of campaign activities on voter confidence in candidates and in the institutions in which they would serve. Finally, to achieve a broader perspective, Gibson compared his findings with those of previous researchers, in particular relating them to a nationwide survey in 2001 conducted by Justice at Stake, a prominent NGO opposed to judicial elections.

Gibson’s findings are often surprising and always provocative. He found that judicial elections do not necessarily undermine the legitimacy of the judiciary. Thus support for and confidence in the Kentucky Supreme Court rivaled the support for the United States Supreme Court, despite the fact that the Kentucky justices were elected. Moreover, respondents’ confidence in the Kentucky court did not vary depending on the self-described partisan or ideological identity of respondents. Many of those concerned about the effects of campaign activity on judicial legitimacy have assumed that citizens share the legal profession’s view that politics undermines judicial independence and hence judicial legitimacy. Gibson’s research suggests, however, that public attitudes are more diverse and more complex. While some respondents shared the legal profession’s strong concern about judicial independence, many others favored judicial independence from the executive but were skeptical of judicial independence from the community and its values. These differing expectations regarding judges affected how citizens evaluated the judiciary and judicial campaigning. Many respondents believed that mechanical jurisprudence was either undesirable or unattainable, and there was strong support for a relatively politicized model of judging. Unsurprisingly, those who endorsed this political understanding of the courts wanted more information on the views of those they might elevate to the bench, since those views would affect their performance. Moreover, although they valued judicial efforts to act impartially, they also believed that judges should in some sense reflect the views of their constituents.

Two novel aspects of Gibson’s analysis of political campaigns deserve particular attention. First, Gibson compared popular attitudes toward judicial campaigns with attitudes toward campaigns for the state legislature. This comparison revealed, quite surprisingly, that voters have similar expectations about the selection of judges and legislators rather than sharply distinguishing between political and judicial actors. Second, rather than merely assessing popular attitudes toward judicial election campaigns, Gibson differentiated various types of campaign activity—from candidates stating their own policy preferences to criticizing their political opponents to accepting campaign contributions—and assessed the effects of each on the legitimacy of the courts.

He found strong popular disapproval of judges or candidates for judicial office receiving campaign contributions. Whatever effect such contributions might have on judicial decisions, Gibson’s poll data suggested that most respondents were convinced that contributions influenced judicial rulings, and the conclusion that contributions affected judicial impartiality undermined popular support for the courts. Yet Gibson reported similar results when respondents were questioned about campaign contributions to state legislators, that is, they believed that legislators’ votes were likewise influenced by contributions. So it was a distrust of money in politics, not the distinctiveness of the judicial office, that was decisive. Moreover, although popular concerns about the corrupting influence of contributions might lead one to expect popular support for campaign finance reform, poll data revealed little support for the public financing of judicial elections.

Although respondents disapprove of judicial fund-raising, their view of other types of campaign activity, such as presenting one’s policy views and attacking one’s political opponent, was decidedly more positive. Gibson’s poll data showed that policy statements by candidates for the bench were not viewed as rendering a judge incapable of fair and impartial decisions on the bench and, in fact, had no impact whatsoever on the legitimacy of the state supreme court. This approval of policy talk by candidates may reflect a recognition that voters need such information if they are to assess how candidates for judicial office will perform on the bench. It may also be that harsh attack ads have little effect on the institutional legitimacy of the courts, because experience with such ads has led to acceptance of them. Ultimately, whatever negative effect may be produced by exposure to disagreeable ads is outweighed by the positive effect of being able to elect one’s judges. Gibson thus concluded that judicial elections enhance support for the courts “because citizens learn (or remember) from elections that political institutions are accountable to them.”(110)

Gibson’s analysis, of course, focuses on only one criterion (legitimacy) that might be used in choosing a system of judicial selection. One might also consider how a particular mode of selection affects the quality of those elevated to the bench, the sorts of decisions they render, the level of judicial independence they enjoy, and other factors as well. Further, Gibson’s analysis focuses on process (how judges are chosen) rather than on substance (what decisions the judges reach). It may well be that popular support for judges ultimately depends on whether the judges’ rulings are consistent with popular attitudes. Gibson himself recognizes this, noting that survey respondents were far more attached to judicial independence from the executive branch or interest groups than they were to a judicial independence from majority sentiment. Nonetheless, this careful study dispels a number of myths about popular attitudes toward the courts and is a major contribution to the debate over state judicial selection. A number of states—Kansas, Missouri, North Carolina, and Tennessee—are currently reconsidering how they select their judges. Gibson’s careful study can—and should–make a significant contribution to those deliberations.

American Exceptionalism: Response

2013-06-08T01:02:03Z

We are all patriots first, philosophers second. And that is just as it should be. Still, the patriotic American must admit that his country’s constitution was not made for export, and that parliamentary countries enjoy more political freedom. That’s not to say that America is anything other than free. Still, as he surveys the shipwreck of presidential regimes in other countries, the American patriot should ask himself why America is exceptional in this respect, and whether it will continue to remain so.

It’s not as though the recent concentration of power in the Executive Branch in the Age of Obama has been seen as wholly benign. Or that one cannot imagine a still greater concentration of power 20 or 40 years hence.

I address these issues in much greater detail in The Once and Future King, a book from which this essay is taken. The book will be published by Encounter Books in Spring 2014

The book’s empirical appendix may be found at http://buckleysmix.com/rex-futurus/.

Methodological Comments

James Rogers expresses a concern about the variables in my model. “Buckley does not include a variable that controls for the policy preferences of the people in the different countries from which he draws data,” he says. That sort of thing can’t easily be done in an econometric study, however, unless one employs the broadest of variables. This I did, however, employing British, Latin and African independent variables, and discarding a Catholic variable only because it did nothing (as Carlos Boix has shown in his regressions, in Democracy and Redistribution, Cambridge U.P., 2003)). I also employed independent variables for the age of the country and the literacy level.

He also wonders about country-specific factors. I did in fact correct for country-specific effects, however, with a panel-corrected standard error model.

Roger’s final suggestion raises the problem of causality. He suggests that dictators impose a presidential regime to solidify their power, so that dictatorship causes presidential regimes rather than the other way around. That’s a sophisticated suggestion, though it lies ill in the mouth of one who professes to admire the presidential system. If he’s right, he might want to explain why people like Assad and Putin like the constitutional regime he defends. In any event, I agree with Cheibub that, on losing power, dictators seldom have much say in the matter. For the most part, constitutions are written by those who overthrow dictators, and not by dictators themselves.

The Framers

I thank John Yoo for linking me to George Mason. For his principled and intelligent defense of executive power, John is the Hamiltonian of our day. (I mean politically, of course.) John and I disagree, however, about whether Mason’s chief concern was an Imperial Congress. One can’t read his speeches at the Convention without being impressed by his prescient fear of an overly strong executive. On this, his interventions on impeachment are instructive, as was his belief that Congress (like parliament) would appoint the president. Then there was Mason’s motion (Farrand II.542), at the very end of the Convention, that the president’s authority be fettered by an executive council appointed by the states.

The Constitution that the delegates thought they were giving the country was one in which state legislatures would appoint Senators; and the House of Representatives, voting by state, would elect the president. The locus of political power would be at the state level, and the federal government would more closely resemble a parliamentary than a modern presidential government. One doesn’t understand anything about the Framers unless one realizes that what they meant by the separation of powers was something very different from what we know of it today.

The Future

The Constitution, which Rogers and Yoo prize, vests enormous discretion in a president who seeks to expand his powers. He may embark on a war to distract attention from domestic problems (watch your step, Assad!). He can send in the IRS, the EPA, OSHA and a host of regulatory agencies to bedevil his opponents. He can even suggest that his opponents are criminals.

I know what you’re saying. It could never happen here. But let’s suppose that it might. Congress might hold hearings, if one of its branches is in the hands of the other party. Impeachment is off the table, however. Ultimately, the only brake on a power-seeking president is the voting public. American exceptionalism comes down to the belief that Americans are exceptional.

James Rogers wonders if countries become dictatorial because its citizens like dictators. That’s a question which Americans might usefully ask of themselves. It’s been suggested that Americans are too educated, too wealthy and too able to move up the income ladder to succumb to the kind of populist appeal that helped elect a charismatic president in 2008 and 2012. Now, I do think America is exceptional (after all it’s both presidential and free), but it requires a certain hubris to boast about American education, when its children are compared to those of other first world countries. America is also one of the wealthiest countries in the world, but one would like to know how its citizens would handle the kind of economic malaise we’ve seen in the last few years, were it to become the new normal. Then there’s income mobility. Turns out, however, that there’s less of that here than in almost any other first world country.

Finally, there are the changes in the country’s demographics as a consequence of changes in immigration law. Before the 1965 Immigration Act, 70 percent of immigrants came from first world countries. Today, however, about 70 percent of immigrants arrive under “family preferences,” mostly from third world countries. They might have admirable cultural values and work habits and still have different beliefs about the proper role of government. Many came simply to be with their families, presumably, and brought with them whatever thoughts about government they may have had before emigrating. It wasn’t that they had read The Federalist Papers, in short. It should not be surprising, therefore, if they tended to nudge American politics further along the road to the strong presidential rule with which most had been familiar in the countries they had left.

There is a way of measuring this, by looking at the Freedom House rankings of the countries Americans leave, and doing so one finds that immigrants in the 1950s came from freer countries than immigrants did 50 years later. For the 1950s, an emigration country’s weighted Freedom House ranking was 1.58. For arrivals over 2000-09, however, that number had dropped to 3.26. The 1950s score was halfway between the U.S. and Brazil, while the score 50 years later had dropped to somewhere between 3 (Mexico and Columbia) and 4 (Pakistan and Nigeria).

So what will happen, then? Stay tuned.

Halbig, et.al. v. Sebelius, et al.: Brief Update

2013-06-07T17:20:59Z

The above-captioned case is the lawsuit challenging an IRS rule to the effect that Obamacare’s mandates and subsidies apply in states that have declined to establish a “health care exchange.” An earlier post on the case, with links to the complaint and other good stuff, is here. While the defendants’ response isn’t due until early July, plaintiffs have already filed a motion for summary judgment, which is here. Whence the urgency? Why, the exchanges are supposed to go online by the end of the year, and the plaintiffs—individuals and firms in non-cooperating states—will want to plan their conduct depending on whether or not the IRS rule is good law. Which it isn’t.

What We Teach

2013-06-08T19:08:39Z

This story is sadly, I think, more than an isolated incident.

A seventh grader from Calgary who stopped a bully from stabbing a classmate was reprimanded by the school for his act of bravery and sent home. Briar MacLean told the National Post he was sitting in study class last Tuesday, when the bully began “poking and prodding” his victim. Briar recalled seeing the bully putting his classmate in a headlock, and hearing the unmistakable “flick” of a pocket knife.

“I heard them say there was a knife,” said the 13-year-old, who instinctively tackled the bully, prompting the teacher, who was on the opposite side of the room at the time, to take notice. Briar thought he had done the right thing until three periods later when he was called into the vice principal’s office to be reprimanded.

The boy’s mother, Leah O’Donnell, was called and told that her son had been involved in an incident and was trying to “play hero.” She was further informed that Sir John A. Macdonald junior high school does not “condone heroics,” and her son should have sought out a teacher instead.

“In the time it would have taken him to go get a teacher, could that kid’s throat have been slit?” O’Donnell recalled asking the vice principal. “She said yes, but that’s beside the point. That we ‘don’t condone heroics in this school.’” In the aftermath of the incident, the bully was suspended and Briar was sent home.

In a statement released after the story appeared on the front page of The Calgary Sun, the school’s principal Michael Bester insisted Briar was not disciplined, but reiterated that he should have asked a teacher for help and that “it s not recommended that students intervene in incidents such as this to ensure their own safety.”

There are two possible bases for the principal’s apparent position – a happy story and a cynical one. The happy, public interest story is that, while this case turned out ok, allowing “heroes” might lead to more children being harmed – whether the bullies, the victims, or the heroes. The cynical, public choice story is that the principal does not want “heroes” intervening because it creates problems for the school administration and lessens their control. Obviously, there is a close analogy here to disputes about private self defense and gun control/police issues.

What the public interest story misses is how this policy treats people without respect. The teachers cannot always be where they need to be to protect children. What’s more, children don’t always feel comfortable “telling on” other children, and we should not necessarily encourage them to do so. In a world where bullying is a concern, it seems problematic to discourage a child from helping to deal with a bully.

Some might respond, while it is wrong to treat people like children, these are, after all, children. While a fair point, there is a strong counterargument: in a school setting, we are teaching children how to behave and what virtues – yes virtues – to exhibit. If we criticize or punish children for attempting to protect someone in peril, we are teaching them to behave like cowards or incompetents. That is probably the worst part of this scheme – it teaches children the wrong message.

This whole incident reminded me of an experience with one of my sons. In 5th grade, another boy had hit him and my son defended himself by hitting him back. The school sent my son home for fighting. While he was waiting in the principal’s office, my son was scared that his parents would be angry with him. After all, we had always been demanding and strict about school. But he was shocked that we were not mad at him at all. We explained that it was wrong to prevent someone from defending himself and that the school rule was a bad one. We did warn him, however, that he needed to consider what the consequences were for violating a rule, but that was largely a matter of prudence.

Friday Roundup, June 7th

2013-06-06T12:42:30Z

June’s Liberty Forum is an exotic one that evaluates the deficiencies of the presidential system and separation of powers in the protection of liberty. Frank Buckley’s lead essay, “A New Critique of American Exceptionalism” posits that

These findings will come as no surprise to anyone who has examined the empirical literature on liberty and constitutional design. Parliamentary governments, which lack a separation of powers, rank significantly higher on measures of political freedom. That’s not to deny that America is one of the freest countries in the world. It’s simply to assert that it wasn’t the presidential system that made the difference. What makes America exceptional is that it has for more than 200 years remained free while yet presidential.

Criticisms follow from Jim Rogers and John Yoo who each question Buckley’s use of empirical findings and his more theoretical arguments on the weaknesses of presidential and separation of powers governments v. parliamentary democracies in protecting freedom.

Looking for a humorous, spiteful, and deeply critical read of fiscal and monetary policy over the past 40 years? Then go to our Books section and read this week’s featured review by Financing Failure author Vern McKinley of David Stockman’s The Great Deformation.

Renewing and deepening Frank Meyer’s fusionist project is the subject of the current podcast at Liberty Law Talk. I discuss with Hoover Institution fellow Peter Berkowitz his newest book, Constitutional Conservatism.

“Those Selfish Germans:” Anthony de Jasay’s latest essay is now available at Econ Lib.

Legal Theory Blog posts Lisa Heinzerling’s “Inside EPA: A Former Insider’s Reflection on the Relationship between the Obama EPA and the Obama White House.” From the abstract:

As I explain in this article, OIRA’s actual practice in reviewing agency rules departs considerably from the structure created by the executive orders governing OIRA’s process of regulatory review. The distribution of decision-making authority is ad hoc and chaotic rather than predictable and ordered; the rules reviewed are mostly not economically significant but rather, in many cases, are merely of special interest to OIRA staffers; rules fail OIRA review for a variety of reasons, some extra-legal and some simply mysterious; there are no longer any meaningful deadlines for OIRA review; and OIRA does not follow – or allow agencies to follow – most of the transparency requirements of the relevant executive order.

A blooded Becky Gerritson of the Wetumpka Tea Party: “I am not here as a serf . . . I am not begging my lords for mercy.” John Eastman’s testimony, however, is a tour de force.

Verizon and the NSA: Orin Kerr at Volokh provides analysis and context on this incredible story of Verizon turning over its call records to the NSA.

The Security State as Security Blanket

2013-06-11T12:12:56Z

What Burke said of the revolutionary French can be said of the National Security Agency’s sweeping collection of information on mobile telephone calls too: “They who destroy every thing certainly will remove some grievance. They who make every thing new, have a chance that they may establish something beneficial.” They who sweep every telephone call into a dragnet hardly worthy of the name—dragnets, after all, imply some discretion—certainly will catch some malfeasance. And here we arrive at the problem. Snooping on this scale is almost surely neither wholly unnecessary nor wholly unproductive—so long as the standard to which we hold our leaders is that they must prevent all bad things at all times. Hence, such outrage as is currently—and appropriately—being directed toward Washington ought also be bent inward. The security state is our security blanket. They won’t give it up until we do.

Your correspondent was not at the meeting—his invitation having been misrouted—and his sources are not as good as the indispensable Glenn Greenwald’s, but when the Obama Administration first met to review the NSA snooping program, it almost certainly went down like this: “Mr. President, this program has ensnared the following plots. Without it, they would have gone forward. Do you want to be responsible for the attacks that proceed because this program was canceled?”

Setting aside the question of whether the plots could have been otherwise foiled, any president is going to feel placed in an impossible position by the challenge—except, that is, a president willing to treat the public like adults. Since we seem bent on treating presidents like father figures anyway, why not look to one for a teachable moment, as in: “The world is big and scary, and the only way I can protect you against every eventuality is to limit your liberty to a degree that ought to be unacceptable to us both. So let’s strike a grown-up bargain: I don’t attempt to invade your lives and you don’t hold me responsible for that which I can’t control without invading your lives.”

That is a conversation our blame-obsessed—which is to say childish—political culture cannot tolerate. We cannot entertain the possibility that bad things happen to good people, so once one does, guilt must be visited upon the unfortunate head of some discrete political actor—“unfortunate,” that is, except insofar as such an actor is entitled to all the power that resides on the converse of responsibility.

To the extent one can predict the behavior of political actors by what maximizes their power—and that extent would appear to be considerable—we ought to expect the White House to defend the surveillance program in full-throated terms: It prevents terrorist attacks. To be sure, one suspects the sheer volume of information collected is, at some point, an impediment to its effective use, but here is the larger difficulty: They may be right. It would be entirely unsurprising to learn that, in the course of collecting this volume of information on cellular calls, the authorities stumbled across one made by a terrorist.

The unavoidable issue is whether we want attacks prevented at all costs. Cost-benefit analysis is an art especially lost where costs are measured in liberty. Yet given our endless proclivity to moralize the “Global War on Terror”—our troops are fighting not merely to protect our security but to advance the cause of freedom and, in President Bush’s phrase, “rid the world of evil”—this seems like a difficult analysis to avoid.

It is a question for policymakers, including those in Congress who will howl in outrage but who voted to authorize the law under which this warrant was issued. But it is also a question for the rest of us: How much risk are we willing to tolerate in exchange for our liberty? That is decidedly the tradeoff, the current standard is “none,” and the cost in liberty and privacy is predictably high.

To say the public’s childish attitudes toward risk share the blame for the NSA’s snooping program does not in the slightest sense alleviate the Administration’s responsibility for it. The point, rather, is that the president and public are much in the position of gunfighters in the Old West, each needing to trust the other to holster his weapon—that is, the president’s power and the public’s blame—without firing. It would be nice if the party officially designated as a leader went first. If he won’t, we still can.

Liberty and the Youth Vote

2013-06-14T20:09:20Z

Friends of liberty, especially economic liberty, cannot be very happy with the voting data from the last election. The campaign focused not only on economic issues but on economic independence. One candidate celebrated the private sector and emphasized that true liberty encompassed only the freedom of the mind and the “freedom to build a life,“ but also the “freedom to build a business.”

The second candidate, the incumbent President, objected: “no, you didn’t build that.”

The first candidate lost in a landslide of Mondalesque proportions. Among young people, 60% of voters, 18-29 years old, cast their vote for the incumbent. Indeed, the last incumbent President to be so popular among young voters was Ronald Reagan.

Confirmation that the young had grown weary of economic liberty was found in a contemporaneous Pew poll. While the general public had a largely negative opinion of “socialism” (60%-31%), young people favored it by a margin on 49% to 43%.

If there’s any consolation, perhaps it’s in the same poll’s finding that young people also favored the word “libertarian” by a wide margin, 50%-26%. How to explain this seeming contradiction? It is possible that many young libertarians simply have a mistaken notion of “socialism,” e.g., that it implicates merely voluntary sharing. One suspects, however, that many consider libertarianism and socialism as complementary: the first gives you the freedom to do what you feel, and the latter provides the freedom from worry about the resulting consequences, like unemployment, healthcare costs, etc. If so, the wave of the future may very well be marijuana—legalized, subsidized, and socialized.

Still, looking more closely at the 2012 exit-poll data, one finds some reason for optimism. A clear majority of young whites supported Romney. Obama won only 44% of that vote, down from 54% in 2012. Given that non-whites were a larger proportion of the youth vote, it was seemingly the race of the youth, then, and not their age, that largely explained the apparent generation gap. Across all age groups, Obama won over 90% among African-Americans, and over 70% among Asian-Americans and Hispanic-Americans.

Still, looking more closely at the 2012 exit-poll data, one finds some reason for optimism. A clear majority of young whites supported Romney; Obama won only 44% of that vote, down from 54% in 2012. It was the race of the youth, then, and not their age, that largely explained the apparent generation gap. Obama won over 90% among African-Americans, and over 70% among Asian-Americans and Hispanic-Americans—across all age groups.

If so, then the challenge to the friends of liberty is find a way to appeal to young voters of all races. The polling data suggests the difficulties may not be all that daunting. For instance, the relative socio-economic status of minorities may not pose an insuperable obstacle. After all, among young whites, Obama’s performance dropped most dramatically among those without a college degree, plummeting from 51% to 38%.

In fact, Romney’s relative, but surprising success among one set of young people may suggest a substantial opportunity. Among African-American young men, Romney’s performance, relative to McCain’s, nearly tripled; Romney received 19% to McCain’s 6%. This result reflects a striking age and gender gap. Black men overall gave Romney only 11% of their vote. And young African-American women supported Obama with near unanimity (98%).

How did Romney attract so many more votes among poorer whites and African-American men? Romney did not make any special appeal to these constituencies. Perhaps there is something about the Age of Obama that is less than friendly to the aspirations of young people, and young men in particular. What would happen, say in 2016, if a pro-liberty candidate undertook a targeted appeal to young people, and especially young men of all races? It’s worth a shot.

Mass Destruction

2013-06-13T15:47:51Z

As previously discussed here, here, here, and here, Massachusetts v. EPA (2007) created a greenhouse gas exception to every known principle of Administrative Law. It also prompted an improvised EPA climate change regime, which is shaping up as the most convoluted and expensive regulatory regime in history. The Supremes will get another look at this disaster-in-the-making, and not a moment too soon.

In the wake of Mass v. EPA, EPA unleashed a cascade of regulations. First, it made an “endangerment finding” to the effect that GHGs “cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.” Under the Clean Air Act (Section 202(a)), that finding mandated the issuance of vehicle tailpipe emissions of CO2. This “Auto Rule,” in turn, triggered—under EPA’s reading of the Clean Air Act—the regulation of stationary sources, a consequence never considered in Mass v. EPA. The CAA subjects sources with emission above certain numerical thresholds to permitting requirements. With respect to conventional pollutants, the thresholds entail permitting requirements for a few hundred major sources, such as power plants or refineries. With respect to CO2, the same thresholds would mean permitting for millions of sources, including hospitals, apartment buildings, and even some really big private homes (Al Gore’s?). To deal with that absurd consequence, EPA re-wrote the numerical statutory thresholds. This “Tailoring Rule” would exempt most climate “polluters”—for the time being.

The D.C. Circuit dismissed a raft of challenges to these rules, first in a unanimous panel decision and then en banc (Judges Brown and Kavanaugh dissenting). The inevitable cert petitions are now pending. They are most conveniently accessible here (the website of the Chamber of Commerce, one of the petitioners). Petitioners include practically every major U.S. industry, countless trade associations and coalitions, several states, and public interest firms. With the exception of the Auto Rule (which has no real purpose except to get EPA from an endangerment finding to the regulation of stationary sources), the petitioners take issue with virtually every aspect of EPA’s regulatory venture and the D.C. Circuit’s disposition—including the endangerment finding, the agency’s interpretation of the Clean Air Act, and the D.C. Circuit’s startling ruling that neither states nor industry petitioners had standing to challenge the Tailoring Rule.

Hunch: the Supreme Court will grant cert—it almost has to. And if the Court’s recent practice is any indication, the Court will make room for more than a single petitioner and grant more than the usual one hour of argument. Particularly potent reasons appear in an amicus brief in support of cert, penned by the excellent Ashley Parrish (King & Spalding) on behalf of several law profs who have written and taught widely on this stuff (Jonathan Adler, Chris DeMuth, Richard Epstein, James Huffman, Andrew Morris, Jeremy Rabkin).

The brief unabashedly urges the justices to revisit and, ideally, to overrule Mass v. EPA. Obviously, these gentlemen have tenure or don’t need it. Theirs the right position—and, given the academic climate, a very gutsy one. (Same for their lawyer. What else do you want us to overrule, Mr. Parrish—Erie Railroad?) The Court probably won’t heed the call (though individual justices may): Mass v. EPA screams “political correctness,” and despite all the havoc wreaked by the decision, “oops” and “sorry” aren’t in the Court’s dictionary. But the argument has to be kept alive, and this brief does a very effective job of it. Moreover, it highlights two under-appreciated but especially disturbing aspects of the regulatory landscape, post-Mass.

Here’s the first point:

Massachusetts gives rise to a highly unorthodox consequence: climate change regulation on demand. The language of section 201(a)(1) (“in his judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare”) is sprinkled liberally throughout the Clean Air Act. E.g., 42 U.S.C. § 7408(a)(1)(A); id. § 7411(b)(1)(A). Almost always, the language serves as a mandatory trigger for regulation. One endangerment finding having been made, it is hard to see — on the theory of EPA and the court below—how EPA could decline to regulate in response to pending petitions for greenhouse gas controls from sea to shining sea. See, e.g., Center for Biological Diversity [CBD], Petition to Establish National Pollution Limits for Greenhouse Gases (filed Dec. 2, 2009); Institute for Policy Integrity, Petition for Rulemakings (filed Feb. 19, 2013). Those petitions, of course, are not before the Court. But they are matters of public record, and they are “not before the Court” in the same way in which the PSD program and Title V were “not before the Court” in Massachusetts: they are dominoes yet to be arrayed and tipped over. (Footnote omitted.)

Translation: enviro petitioners effectively get to dictate the pace and the contours of EPA climate rulemaking. And this m.o. isn’t adversarial; it’s collusive. The CBD’s petition has been pending for well over three years, and EPA’s failure to act on it is by now the stuff of an “agency action unreasonably withheld” case that CBD would very probably win. If CBD hasn’t filed that case yet, that’s because it wouldn’t be prudent, at this juncture: it would impress upon all concerned, including the Supreme Court, that the enterprise of regulating GHGs under the Clean Air Act is even more absurd than is already apparent. But there will come a time when EPA will want CBD to file and win, to break down congressional and industry opposition: sorry, we’re under court orders to regulate.

Here’s the second point:

Massachusetts appeared to require no action at all — no regulation, and not even an endangerment finding. And yet, EPA can say (as it has already said) that its greenhouse gas rulemaking cascade is compelled by the inexorable commands of the statute, as interpreted by this Court. Congress, for its part, cannot stop the momentum — not because the constitutional impediments have broken down but, paradoxically, because they are working as intended. In short, barring this Court’s timely intervention, a regulatory elephant will march forward — and nobody will know whence it came.

If “accountability” means anything, it means citizens’ ability to ask, who is responsible — and, at the end of the day, to get a tolerably clear answer. To the considerable extent that Massachusetts threatens that bedrock foundation of our government, it should be overruled.

Translation, again: with some effort, one can read Mass v. EPA as an accountability-forcing decision. Nobody thought you could actually regulate global warming under a Clean Air Act that’s designed for local pollution problems. The majority justices’ pretense that you could was just an attempt at judicial-legislative “dialogue”—a way of cramming the issue into Congress. Congress did consider a “cap and trade” bill, but for better or worse rejected it. And so EPA marches on without a legislative mandate, but armed with a judicial decision that it (the agency) interprets as an affirmative command—yet a command for which the principal (the Court) can disclaim any responsibility: we never meant that.

We’ve accumulated quite an inventory of convoluted regulatory regimes in that fashion. They tend to be regimes that are highly valued among elites, yet sufficiently crazed to invite a flight from responsibility: school busing, affirmative action, sexual harassment law, “vote dilution” under the Voting Rights Act, pervasive land use controls under the Endangered Species Act and the Clean Water Act, Lawrence v. Texas. While the Supreme Court decisions that unleashed these enterprises all teem with high-toned rhetoric, they all have a deeply cynical and, frankly, sinister undertone: if this goes wrong, we reserve the right to say that we didn’t mean it quite that way, while further reserving the right to say that we did mean it that way when the spirit moves You the People to catch up with Us the Justices.

At the end of the day, every AdLaw case is a constitutional, separation-of-powers case. And in the end, that’s the real question to the justices in this case: is this your role?