What are states, and what are they good for? Brother Rappaport had a very good law review article some years ago, arguing that for constitutional purposes, the word “state” means something close to “sovereign country.” (Of course, the Constitution explicitly strips the states of some of the traditional attributes of sovereignty, such as the power to wage war.) And the Supreme Court periodically swoons over the “dignity” of quasi-sovereign states. However, these and similar tributes to “Our Federalism” are increasingly at odds with reality. For operational purposes, “states” are best understood as undercapitalized health care and pension funds that write speeding tickets on the side.
Archives for August 2012
The news that Cass Sunstein returns to Harvard Law School from his position as policy chief at the Office of Management and Budget provoked a divided response. On his policy legacy, the left and right clashed, with partisans both attacking and praising his policies. For many Beltway leftists Sunstein had done “untold damage” by the number of health and safety rules his office killed. (See Reagan biographer Steven Hayward for his gleeful observations.)
This mirrors the reaction of conservative legal scholars I had asked years ago about his work at OMB, which they faintly praise.
“The bizarre disappearance of the Hebrew Bible from political philosophy and ethics”
One of the more bizarre, intellectual occurrences in the Wissenschaften of the Occident has been the disappearance of the Hebrew Bible from politics, political philosophy, and ethics. There are several reasons for this disappearance: the destruction of the Jewish state by the imperial Romans, made complete by the so-called “Bar Kokhba war” of 132-35 CE, that forced the Jews into communal existence; the hermeneutic approach, already manifest by the mid-second century in the work of Justin Martyr, to the Hebrew Bible as the Old Testament, the deplorable, philosophical consequences of which find expression in Kant’s and Hegel’s dismissive caricatures of both the Old Testament and Judaism; and a conceptually crude, but nonetheless fashionable, contrast between reason (of the university) and revelation (of the Church), between Athens and Jerusalem—a contrast that leaves one incapable of understanding not only the Hebrew Bible and the traditions of Jerusalem, but also religion in general (and reason, too).
At the New Republic, Adrian Vermeule has an excellent essay on precedent. Vermeule makes the following points:
1. “Precedent has limited constraining force, especially in hard cases at the Supreme Court.” And “the Justices are not particularly faithful to their own precedents, let alone to those written by others.”
2. “If the Justices rarely overrule precedents . . . it may be because they rarely need to.” Instead, they can usually, with enough hard work and ingenuity, distinguish precedents.
3. “The health care opinions feature the most useful tool” that the Justices have in distinguishing cases, “which is the introduction of an entirely new conceptual dimension unanticipated by the earlier precedents.” It is true there were precedents involving broad power to regulate economic matters prior to the health care decision, but the health care case involves the regulation of “economic inactivity rather than economic activity, and we’ve never said that was OK.” In other words, the Justices introduce a new legal category that helps them distinguish the earlier cases.
James W. Ceaser, a professor of politics at the University of Virginia, has an excellent essay called “Four Heads and One Heart: The Modern Conservative Movement,” in his recently published Designing a Polity: America’s Constitution in Theory and Practice. I read it for this year’s Miller Summer Institute, sponsored by the Jack Miller Center, in partnership with the University of Virginia’s Program on Constitutionalism and Democracy.
It’s an eye-opening piece: Ceaser helped me understand both the unity and the disunity of the right, its agreements and its squabbles. First, the agreement: It’s found in conservatism’s one heart, a heart that hates liberalism. A common “antipathy to liberalism” unites conservatives, not shared intellectual principles.
Milton Friedman turned 100 on Tuesday. Law and Liberty remembered this free market titan with a symposium on his canonical book, Capitalism and Freedom. Contributions from Todd Zywicki, Don Boudreaux, Gerald O'Driscoll, Brian Domitrovic, and Will Ruger. Arnold Kling on the case for government. An interview with Brian Tamanaha on a failing legal education system. Point of Law reminds us to refrain from Whistling past a humpback whale. Fed Soc blog reports on the use by lawyers for the state of Texas of the Sebelius Medicaid ruling re: EPA's greenhouse gas rules enforcement. The Ministry of Fear stands rebuked. Sectaries chirping and a leadership class with…
The degree to which Man is, can or ought to be rational has long been a favorite question of philosophers, psychologists, sociologists, economists and barflies alike. No one minimally acquainted with the infinite variety of human self-destruction, without at least one or two episodes of which almost no human life seems ever to be got through, can doubt that irrationality is, at the very least, quite common. Man may be the only rational animal, but only sometimes or intermittently.
Rational action can only be that which conduces, on some mixture of evidential and logical grounds, to a desired goal. But goals themselves are not rational, except in so far as they are subordinate in a hierarchy of goals and their fulfillment conduces to that of the highest goal of all, whatever it might be. But what cannot be rational cannot be irrational: so that desires, at least ultimate ones, are not irrational, they are arational.
Roscoe Pound and the Progressive Path Less Traveled
Given his significance in 20th century American legal thought, it is stunning that Roscoe Pound is not more widely recognized by contemporary legal scholars. He was the Dean of Harvard Law School, one of the foremost legal intellectuals of the 20th century, and his advocacy of “sociological jurisprudence” had a profound effect on the course of American jurisprudence. Yet he is not widely studied in law schools today. One important reason for his neglect is that Pound’s views are extraordinarily difficult to discern. He was not always a clear writer, and the subtleties of his thought are often difficult to decipher.
Scholars have long been perplexed about Pound’s legacy. Most have simply concluded that Pound’s political views changed over time – that he moved from his early progressivism to the right, a tendency which became especially pronounced after the New Deal.
Eric Claeys has a very interesting piece (link no longer available) at NRO arguing that Obamacare is unconstitutional and that opponents of Obamacare should continue to make the argument that it is unconstitutional, despite the Supreme Court’s decision.
Here is Eric on the unconstitutionality of Obamacare:
To justify the mandate as a tax, Roberts made two major legal errors. First, he misread § 5000A when he classified it as a tax, and not a regulatory “requirement” backed up by a “penalty.” This misinterpretation was deliberate. Roberts expressly refused to say whether the tax reading was the “most natural interpretation” of § 5000A; he only said that the tax reading was “fairly possible.” Roberts applied such a weak interpretation of § 5000A because he wanted to avoid striking down the mandate if he could. Here, however, Roberts did not live up to a promise he had made during his confirmation hearings: to decide cases like an umpire. A good umpire would not apply one strike zone for batters from a small-market team and another for the New York Yankees. By the same token, the constitutional “judicial power” isn’t exercised as it ought to be when a judge departs from ordinary principles of statutory interpretation in order to conserve powers that the U.S. government has claimed for itself.
Even if the mandate had been drafted as a “tax,” it still should have been declared unconstitutional. The Constitution sorts taxes into income taxes, “indirect” taxes (like a duty on imports), and “direct” taxes (like a tax on real estate or a head tax). A tax on not doing something — here, not buying insurance — is best classified as a fancy variation on a head tax — a direct tax. But under Article I, a direct tax is unconstitutional unless levied state by state, in proportion to each state’s population at the most recent census. Since the $750 penalty isn’t apportioned on such a basis, it couldn’t have been constitutional even if it had been a tax. Roberts addressed this argument, but extremely quickly and unpersuasively.
Eric makes these points persuasively. His criticism of Chief Justice Roberts as not calling balls and strikes fairly, because he puts his thumb on the scale for one of the sides, is quite clever. Of course, Roberts might respond that the traditional interpretive rule that favors construing statutes to be constitutional is part of the strike zone. But even if one accepts that rule, in my view Roberts goes beyond any legitimate application of this rule.
Eric also argues that limited constitutionalists and other opponents of Obamacare should not accept the Supreme Court’s ruling as deciding the matter and should continue to argue that Obamacare is unconstitutional and therefore should be repealed. I think there is much to be said for Eric’s point here. I am neither a judicial supremacist nor a departmentalist, but I think Abraham Lincoln’s point about Dred Scott is correct:
the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.
(emphasis added). Simply because the Supreme Court has said, in a single decision by a 5 to 4 vote, that the mandate is constitutional, does not prevent the Congress and the President from arguing that it is unconstitutional and acting upon that belief. Certainly liberals argued consistently from the time when Bowers v. Hardwick first came down until Lawrence v. Texas was decided that laws against homosexual sodomy were unconstitutional. And that made it more likely that Lawrence was decided the way it was.
Of course, one must be careful about the nature of the argument here. I don’t think it would be legitimate or effective to argue that the Supreme Court decision should be ignored or disobeyed. But it is perfectly legitimate in my view for the political branches to say that they disagree with the Court and to act on that view in a way that does not conflict with the Supreme Court’s judgment. Repealing the Act on the ground that they believe it is unconstitutional would not conflict with the Court’s decision.
Senator James DeMint (R-SC) has a very fine op-ed in today’s Wall Street Journal, opposing pending federal legislation that would permit state and local governments to impose sales tax collection obligations on internet sellers even if those firms have no physical “nexus” (such as a store or warehouse) in the taxing jurisdiction. The legislation would compel sellers to calculate and remit taxes for customers in thousands of jurisdictions with differing tax rates, bases, holidays, exemptions, etc. As the Senator rightly notes (and as I’ve argued here), we don’t impose such obligations on local sellers: the transaction at your supermarket or…