Mike Rappaport had an interesting post the other day about the Pacific Legal Foundation’s Origination Clause challenge to the Affordable Care Act. I’m looking forward to his legal analysis in promised future posts. Herewith a few words on my friend Jack Balkin’s riff, here and here, on the political context. “Off the wall” ideas, Jack’s general theory goes, may become “on the wall” and even binding constitutional law if their advocates can build enough political steam. Law has nothing to do with it: see the lunatic Commerce Clause theory of NFIB v. Sebelius, which prevailed (and now has to be taught…
Archives for September 2012
Progressives use laws and regulations as a means of narrowing the social space in which individuals and groups make choices. The objective is moral in nature and Progressives take freedom, of a certain sort, very seriously. The highest liberty is to do what is right and good and therefore they believe that an extensive, detailed, objective, and rational, legal (and regulatory) system is a necessary component in nudging people to their freedom. Working in tandem with a national media that presents a vision of a redeemed community, and a progressive educational system in which children internalize the moral vision of the national community (a subject I explored here), a comprehensive legal structure guides, shapes, and reminds citizens about virtuous living.
Much about the Progressive version of moralized politics is deeply American.
Over at the New York Review of Books, Justice Stevens writes an interesting review of Sandy Levinson’s new book Framed. Stevens writes a balanced review, but he disagrees with Sandy’s recommendation in favor of a constitutional convention.
Interestingly, Stevens also disagrees with Sandy’s attack on the compromises that produced the Constitution — compromises that allowed slavery to continue and permitted an equality of state power in the Senate.
The new challenge to Obamacare (ACA) – on the grounds that it does not conform to the Origination Clause – has been discussed by Randy Barnett and Jack Balkin among others. Sadly, irrespective of the merits of the challenge, I don’t see the Supreme Court taking this seriously. The Supreme Court like other politically powerful institutions, once having decided the matter and taken the political heat, are unlikely to revisit the issue. Unless, of course, circumstances require them to do so. Perhaps the Republican Party getting behind the lawsuit (as Balkin mentions) would be one of those circumstances, but I would be surprised if it does so.
The question, though, that I am interested in here is what is the original meaning. Not having fully studied the issue, I don’t have a firm position, but I do have some contributions to make to the debate.
The Origination Clause provides that “All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.”
The American Enterprise Institute’s John Makin—“Dr. Doom,” to his numerous friends—has a piece on the Federal Reserve Board’s recently instigated “QE3” program that is bone-chilling even to regular Makin followers (including yours truly). In essence, QE3 is a “whatever it takes” program to goose the economy with easy money. It may work if the Fed can stay ahead of inflation expectations—that is, if bondholders are stupid and labor markets sticky. The sooner people catch on, the faster the Fed will have to double down. Eventually, it will have to close the spigot—manageable, perhaps, if the economy at that time shows robust growth; disastrous, if it is still in the doldrums. The Fed is making this fantastic gamble because (1) nothing else seems sufficient to revive sluggish growth and employment and (2) a much-noted article by an economist says that this might work.
The closing of the XXX Olympic Games, in both French and English, reminds me of Charles Dickens who in the nineteenth century wrote famously about the Tale of Two Cities—Paris and London–separated by a channel of water. Paris was experiencing in 1789 the fervor of what Karl Marx was to later call “revolution in permanence,” and London was, following Edmund Burke, muddling through with reforms here and there. But the 2012 Olympics confirm that London, and not Paris, is the city of Europe. There are no longer two competing European tales.
But it would be wrong to conclude that the more sober tale of London has triumphed over the more intoxicating tale of Paris. It would be more accurate to say that the victory of London is the result of the ascendency of Parisian intoxication over the sobriety of the Londoner. What we witnessed at the closing of these games was not the display of good old-fashioned pomp and circumstance, or simply good old-fashioned British fun in the performance of Eric Idle’s famous Look on the Bright Side of Life skit. This was revolution in permanence. Or more delicately stated, Paris and London are now two cities with One Tale: democratic perfectionism.
At Econ Log, Brian Caplan asks “Do Indians Rightfully Own America?” Caplan’s post wades into the thicket of libertarian property rights arguments as the method of adjudicating justice. I’ll refrain from engaging the rights scenarios given by high libertarians Robert Nozick and John Locke that are mentioned in Caplan’s piece, and instead draw from the first Liberty Law Talk podcast I did, which was with Walter Olson on his recent book, Schools for Misrule. Olson spends significant time in the book on the Indian land reclamation suits launched in the 1970s by various tribes, in conjunction with activist lawyers, accusing mostly middle class and, in some cases, wealthy homeowners of unjustly possessing the land their homes rest on. One suit even wanted to repossess the land that Syracuse University occupies and the current homes on Cape Cod. Chicago, somewhat humorously, was also in their sights.
In this post at Volokh, Ilya Somin challenges Justice Clarence Thomas' recent remarks that "We the People" in the Preamble of the Constitution did not include African-Americans when it was ratified in 1787. The history is much more complex and interesting than many know, obscured as it has been owing to Chief Justice Roger Taney's majority opinion in Dred Scott, which articulated that both the Declaration of Independence and the Constitution never recognized the rights of blacks who, in Taney's formulation, “had no rights which the white man was bound to respect.” Part of his conclusive proof was that the…
Like most people, I hate telemarketing calls and therefore I welcomed the Do Not Call List. But I also hate calls from political organizations, charities, and telephone surveyors, which are not covered by the list. And I get so many of these calls that I feel I have lost control over my phone. I get far more calls from such unwanted organizations than I do from people who I know. The best that I can do to guard against these calls is to have caller ID and then refuse to pick up from phone numbers that I don’t recognize. But that is a hassle.
Should people have the right to put their name on a Do Not Call List? If one assumes a deontological libertarian view, I am not sure whether they should. If memory serves as to Murray Rothbard’s view, it might depend on whether someone calling you represents an invasion onto your private property. That might depend on who owns the phone and phone lines – or on your arrangement with the phone company that provides you with service.
I don’t adopt that type of view. I believe that rights of this sort turn on the consequences, but I believe that the need for a private sphere – traditionally protected by private property – should inform the inquiry into consequences. Under this view, someone calling your phone is a limited invasion of your private sphere. Allowing someone to do this after an individual has indicated that he does not want to be called is extremely problematic. One might override that preference in an emergency, but it is hard to argue that calls for telephone surveys, for charities, and for political organizations are at that level of importance. It is true that including these calls under the Do Not Call List would make it harder to poll the public, but there are so many polls now and there are alternative ways to poll people that no exception seems necessary.