Earlier posts have described Argentina’s fiscal federalism as a real-world picture of what U.S. federalism may look like ten or twenty years hence: escalating federal transfer payments; profligacy and dysfunction at all levels of government; reckless state gambles on federal bailouts; public insolvencies and increasingly desperate central interventions. However, fiscal federalism—that is, central tax authority, coupled with local authority to spend and borrow—is a disaster just about everywhere one looks. Lately, the global bond markets have been looking at Spain.
Archives for April 2012
In the latest debate at the Liberty Forum the great Madison scholar Colleen Sheehan, the author of James Madison and the Spirit of Republican Self-Government, seeks to recover the meaning of the Kentucky and Virginia Resolutions of 1798 for the genius of the American constitutional system and the protections it extends to individual liberty. She argues from the beginning of the essay: In the pages of The Federalist, Publius reassured not only his contemporaries but future generations of Americans, that if there be times in the life of our republic in which one or more branches of the national government should…
Re the American dairy industry, I’m with Monty Python: “Blessed are the cheesemakers.” Still, it’s fair to observe that throughout history, the industry has been responsible for truly horrendous legislative schemes and atrocious “landmark” judicial decisions sustaining those schemes—prohibitive taxes on oleomargarine (McCray v. United States, 1904), price controls (Nebbia v. New York, 1934), de facto prohibitions against filled milk (Carolene Products, 1938). For a bracing account of the gutter politics that passed “rational basis” review in Carolene Products, see Geoffrey Miller’s True Story of that case.
The sordid history is brought to mind by an April 13 D.C. Circuit decision, brought to my attention by Aaron Nielson and Jeff Clark (Kirkland & Ellis), sustaining yet another piece of federal dairy regulation against constitutional challenge.
Over at Cato Unbound this month, Matt Zwolinski and John Tomasi have a piece exploring what they term Bleeding Heart Libertarianism. (Matt founded an excellent blog entitled Bleeding Heart Libertarians. John has a new book out entitled Free Market Fairness.) To get a sense of what Bleeding Heart Libertarianism is, Matt described the common core of the bloggers at the Bleeding Heart Libertarianism blog as follows: What we have in common on this blog is an appreciation for market mechanisms, for voluntary social cooperation, for property rights, and for individual liberty. But we appreciate those things, in large part, because of the…
Coalition government almost invariably makes for bad government. This is because the need for compromise between coalition partners typically results in their adopting such a melange of mutually conflicting policies as precludes any of the more potentially beneficial ones from ever being able to achieve fruition.
Britain’s current coalition between David Cameron’s Conservatives and Nick Clegg’s Liberal Democrats is a case in point.
Essentially, at heart, the Conservatives remain a business-friendly party, favouring small government, low taxes and strong local communities. By contrast, their coalition partners the Liberal Democrats, formed themselves by a merger between a breakaway group of former Labour MPs and the erstwhile Liberal Party, in many ways are now more interventionist and for the redistribution of wealth through fiscal policies than is the present Labour Party.
We might, therefore, have known two summers ago, when at a hastily convened press conference held in the Rose Garden at 10 Downing Street Nick Clegg stood alongside David Cameron to announce their decision to enter into coalition, that some pretty rum policy decisions were on their way.
The latest of these decisions was announced by Chancellor of the Exchequer George Osborne in his House of Commons budget speech last month. As part of a wider clamp-down on tax avoidance by the rich, he declared he was proposing to cap tax relief on charitable donations. From next year on, philanthropists in the UK will have to pay tax on any annual charitable donations they make above £50,000 or 20 per cent of annual income, whichever figure was higher.
In today’s America, there are two conventional ways of understanding Leo Strauss’s ideas. These two perspectives, predictably, reflect the opposite poles of the established political spectrum. On the Left, critics have portrayed Strauss, a German-Jewish émigré who escaped the rising tide of Nazism in Germany, as an enemy of liberal democracy who built a vast intellectual movement in the United States in order to foster a right-wing agenda that is devoted to sexism, class hierarchy, and fascist wars of conquest. Shadia Drury’s The Political Ideas of Leo Strauss (1988) was only the first volley that leftist opponents have leveled against Strauss. Leftists like Stephen Holmes, Nicholas Xenos, and William Altman have continued to portray Strauss as an evil elitist bent on creating a Platonic regime that would feed “noble lies” to the ignorant masses in order to cajole them into embracing perpetual war against the forces of social progress.
On the Right, Strauss’s numerous disciples and neoconservative fellow travelers insist that their master was a sincere defender of the democratic regime and the liberal ideals of freedom and equality. These supporters, who are usually either his students or students of his students, contend that Strauss was a supporter of a classical liberal tradition that is now facing deadly threats from the Left. This kinder, gentler version of Strauss can be easily found in the writings of Thomas Pangle, Michael and Catherine Zuckert, Harry Jaffa, and Peter Minowitz, all of whom insist that this quiet, reserved teacher of the “Great Works” of political philosophy sincerely admired Anglo-American democracy, celebrated Lincoln and Churchill as stalwart defenders of liberty, and viscerally opposed Nazism and Communism as grave threats to western civilization. In their view, the best evidence for Strauss’s democratic credentials comes from his lifelong opposition to noxious ideas like “historicism” and “relativism” that fail to distinguish the virtues of democracy from the vices of tyranny.
In my prior post, I described Jonathan Mitchell’s analysis of precedent, which he attempts to derive from the text of the Supremacy Clause. Here, I want to draw out one implication of his analysis: one that concerns whether the Constitution takes priority over federal statutes.
A key premise for Mitchell is that neither the Supremacy Clause nor the Constitution gives priority to any of the three sources of supreme law. The Supremacy Clause provides in part that “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.” He believes the Constitution is silent as to the hierarchy between the Constitution, federal statutes, and treaties.
Notice that, under his analysis, this means that the priority of the Constitution over federal statutes – and judicial review of federal statutes – is not required by the Constitution. Rather, he believes it is discretionary with the courts.
In my view, however, Mitchell is clearly mistaken here for one reason and possibly mistaken for another. First, I strongly believe that the priority of the Constitution over federal statutes follows from the meaning of the term “Constitution” when the Constitution was enacted. Part of what a written constitution meant was a fundamental law that took priority over ordinary federal statutes. (It is worth noting that Chief Justice Marshall placed significant reliance on this argument in Marbury.) Thus, it is not optional for the courts to treat the Constitution as taking priority over federal statutes.
Second, there is a reasonable argument (also mentioned by Marshall) that the Supremacy Clause’s language indicates the superiority of the Constitution in another way. The Clause says that “the Laws of the United States which shall be made in pursuance [of the Constitution]” are supreme. This might be thought to say that only constitutional federal statutes are supreme and therefore imply that unconstitutional federal statutes are not binding.
This argument, however, involves significant complications. First, the language here is ambiguous. It might mean, as I have said, that only federal statutes that conform to the Constitution are binding. But it might also mean simply that laws passed under the United States Constitution (“made in pursuance of” the Constitution) are binding (as opposed to laws passed previously under the Articles of Confederation).
Second, the interpretation that views the “made in pursuance” language as requiring that the statute conform to the Constitution may create other problems. If the “made in pursuance” language implies the supremacy of the Constitution, then what about treaties? The Supremacy Clause states that only treaties “which shall be made, under the authority of the United States” are supreme law. Since the Constitution does not say “made in pursuance of the Constitution” for treaties, that might seem to mean that treaties need not conform to the Constitution.
The response often given to this argument about treaties is that “the made in pursuance” language was intended to refer to statutes passed under the Constitution (beginning in 1789). By contrast, the “made under the authority of the United States” language was intended to refer to treaties made both under the prior regime (beginning in 1776) and under the Constitution. Thus, under this response, “the made in pursuance” language has little to say about the priority of the Constitution. It was really just about identifying statutes passed under the Constitution.
In a blogworld where economists noodle over cooking recipes, a tone-deaf lawyer may be forgiven for peddling the works of an artist who hardly needs any further promotion. However, Mr. Springsteen unconscionably yanked the attached song (studio version here, live version here) from his repertoire decades ago. It’s unknown even to serious fans. To my knowledge, the Boss performed it only twice, 1983 or so. Mr. Nils Lofgren, who has kept the song alive, considers it the Boss’s best ever. I’m inclined to agree.
When the Constitution is ambiguous or silent on a particular issue, this Court has often relied on notions of a constitutional plan- the implicit ordering of relationships within the federal system necessary to make the Constitution a workable governing charter and give each provision within that document the full effect intended by the Framers. The tacit postulates yielded by that ordering are as much engrained in the fabric of the document as its express provisions, because, without them, the Constitution is denied force, and often meaning.- William H. Rehnquist
Nevada v. Hall, 440 U.S. 410, 433 (1979) (Rehnquist, J., dissenting).
Today, as threatened in an earlier post, a few more words on competition, the Founders, and the Constitution and its federalism. What warrant do we have to read modern-day competitive federalism theory back into the Constitution?
Editor’s note: Stephen Schuker, a first-time contributor to Law and Liberty, assesses in this post the lengthy volume Freedom Betrayed: Herbert Hoover’s Secret History of the Second World War. Published in 2011, the book contains Herbert Hoover’s arguments that America’s commitments to individual and economic liberty and restrained foreign policy were betrayed by the Roosevelt administration and in subsequent postwar domestic and foreign policies. For a conversation with George Nash, editor of Freedom Betrayed and author of the book’s excellent introduction, about Hoover’s political and humanitarian career and his motivations in writing this grand book see this Liberty Law Talk podcast.
On 4 March 1933 Herbert Hoover accompanied his successor to the Capitol for the swearing-in ceremony. The two men maintained a frosty silence. As the economy spiraled down during the presidential interregnum, Franklin Roosevelt had refused to cooperate with the outgoing chief executive in any way. Hoover then left for Union Station, rejected by the American people, seemingly a broken man. Worse was to come. When Hoover boarded the train, his secret service detail melted away. A mob assailed him when he reached New York. Taking up residence at the Waldorf-Astoria, he found his phones tapped, his mail opened. Several members of his administration would shortly receive unwelcome scrutiny from the IRS. Even more galling, Roosevelt adopted some of Hoover’s policies, but accorded him no credit. The Republican Treasury secretary stayed on sub rosa and reopened the banks, but no one appeared to notice who had expertise and who did not. A lesser man than Hoover would have collapsed. Instead, Hoover rallied, sustained by his indomitable spirit and iron self-discipline. Over the next thirty-one years, he published more than thirty books. When Roosevelt’s biographer inquired about the secret of his productivity, Hoover replied simply: “I outlived the bastards.”
Except when giving speeches or supervising the growing collections of the Hoover Institution at Stanford, the ex-president sat tethered to his desk twelve or thirteen hours a day. After his wife died, he often rose in the middle of the night to labor two more hours. He kept six secretaries and a Ph.D. research assistant fully employed. Having caught the spirit of the age in his 1922 volume, American Individualism, a paean to the country’s exceptionalism and voluntarist tradition, Hoover followed in 1934 and 1936 with trenchant analyses of what he called New Deal collectivism. As Hoover saw it, the intrusion of the Leviathan state into every corner of American life would lead sooner rather than later to a curtailment of personal liberties and economic freedom. He thus anticipated the critique of central planning that Friedrich Hayek in The Road to Serfdom would later embed in a formal methodology. Hoover also churned out three thick volumes of memoirs, a four-volume chronicle of his efforts to provide food relief during and following the world wars, two studies of Woodrow Wilson, innumerable collections of speeches, and even a book on fishing.