Earlier in the week, Mike Greve attempted to explain why the Republicans have been able to stay together and avoid a conservative crack-up, despite their conflicting factions: The atrocious Bush 43 years left conservatism spent, exhausted, and discredited. Under a focused, level-headed, first-things-first Democratic administration, conservatives would have been destined to spend many years in opposition, either to do what opposition forces are supposed to do (regenerate themselves) or else in mutual recrimination. But there was never any time for that: it was pedal-to-the-metal debt, Obamacare, and Elizabeth Warren from day one. Under those conditions you don’t need “bricolage” or jazzed-up…
Archives for September 2012
As the Democratic convention rhetoric solidifies into cigarette ash and economic performance figures assail us, one line from President Obama’s speech should continue to intrigue and horrify us. Dealing with what he describes as decades-old challenges “will require common effort, shared responsibility, and the kind of bold, persistent experimentation that Franklin Roosevelt pursued during the only crisis worse than this one.”
Experimentation? Did Obamacare grant him a medical license? Did he at least obtain a human subject release form? All he knows is that he must be the total (“bold, persistent”) master of the situation. Whether we are the subjects of behavioral economics or of happiness commissions or rats in a maze is of no matter.
But there is far more here than Obama’s apparent admission of ignorance—it is his vision of a scientific controlled experiment that most alarms. Such “bold, persistent experimentation” requires a tyranny. The subjects of experiments, no more than inmates in a prison, may not control their treatment. Scientific utopias demand elimination of freedom, as we know from dystopian speculations from Plato through Bacon to Skinner.
Among the biggest cases to occupy the Supreme Court in the upcoming Term is Fisher v. University of Texas, posing (yet again) the question of whether and to what extent institutions of what still passes for higher learning may adopt more or less overtly race-conscious policies in the pursuit of “diversity.” Last week, Michael Rosman of the Center for Individual Rights had a characteristically clear-headed scotusblog post on an important aspect of the case, and of the Court’s Equal Protection analysis more broadly.
The next edition of Liberty Law Talk is a conversation with Charles Kesler on his new book, I am the Change: Barack Obama and the Crisis of Liberalism. Professor Kesler's book argues that the intellectual world of modern liberalism is built on philosophical contradictions about the nature of liberty and the requirements of law and government to protect it. A more basic flaw is its continuing inability to limit itself when it comes to state power and welfare entitlements. This "never enough" mentality translates into the overwhelming and barely governable size of the modern democratic state. Our current President, Barack…
The unremittingly grim August labor market report contained, in addition to the stubbornly high measured unemployment rate, a more ominous piece of (old) news: continued erosion of the labor force participation rate. Here it is:
“What Jefferson was saying was, Hey! You know, we left this England place ‘cause it was bogus; so if we don’t get some cool rules ourselves – pronto – we’ll just be bogus too! Get it?”
— Jeff Spicoli, Fast Times at Ridgemont High (1982)
This fall, the D.C. and Fourth Circuits will hear two parallel challenges to a union-notice rule promulgated by the National Labor Relations Board. The NLRB’s rule would require virtually every private company in the country to post a Notice advising employees of their right to organize a union and to strike. In justifying the rule, the NLRB explained that most employees do not know about their labor rights … as evidenced by surveys of high school students in the 1980s. The NLRB also relied on anecdotal evidence from “West Germany” and a remarkably contorted statutory analysis. If the circuit courts split, as the district courts split below, the cases could easily wind up in the Supreme Court.
The NLRB finalized its notice-posting rule in August, 2011, over a vigorous dissent from the NLRB’s lone Republican member. Not surprisingly, the rule was seen by many observers as a political move designed to reward President Obama’s union allies. In its 76-year history, the NLRB had never before asserted the broad authority to require employers to post such a Notice, or indeed to take any affirmative act outside the context of a union election or alleged misconduct. The NLRB received 7,000 comments on the proposed rule. Most opposed it. Employer groups complained that “the notice reads more like a union manifesto than an unbiased explanation,” and that “the Notice makes no pretense about the poster’s primary purpose – the promotion of union organizing.”
While Judge Posner’s review of the Scalia/Garner book has received a great deal of attention, my posts have focused on issues different than other posts have (link no longer available). So I plan to continue this series for a little while longer.
Posner next criticizes originalism based on the problems that arise from relying on history:
The decisive objection to the quest for original meaning, even when the quest is conducted in good faith, is that judicial historiography rarely dispels ambiguity. Judges are not competent historians. Even real historiography is frequently indeterminate, as real historians acknowledge. To put to a judge a question that he cannot answer is to evoke “motivated thinking,” the form of cognitive delusion that consists of credulously accepting the evidence that supports a preconception and of peremptorily rejecting the evidence that contradicts it.
Judge Posner would have judges decide cases based in part on their own policy views. As Posner’s essay reveals, judges often feel strongly about such matters, and if allowed to take them into account will certainly do so.
Posner thinks that originalist judges will read their policy views into the history. That is certainly a risk. But when judges engage in “motivated” history, they can be criticized and sometimes it will be clear that they got the history wrong. Moreover, even if judges are motivated by policy, it is not clear why that is worse than having judges consider policy directly. In addition, I am confident that having judges consider history will lead them to consider policy less often than judges who are instructed to consider it as part of the adjudicative process.
Over at balkinization, my buddy Ken Kersch has a post on the punditocracy’s talk, apparently rampant this election season, about the contradictions within American conservatism—e.g. Congressman Ryan’s fondness for Ayn Rand and Roman Catholicism (not to mention headbanging music). A political movement that contains such disparate intellectual traditions and forces—plus neocons, business folks, etc.—can’t possibly hold together, thumb suckers surmise. As Ken notes, though, predictions of this sort have proven wrong for quite some time now. In 1995, political scientist Theodore J. Lowi predicted The End of the Republican Era and the disintegration of conservative politics.
Don't miss this discussion at Law and Liberty's Forum on Michael Oakeshott's rule of law as the key principle of freedom. David Henderson at EconLog critiques Northwestern economist Robert Gordon's paper "Is U.S. Economic Growth Over? Faltering Innovation Confronts the Six Headwinds." With the NFIB v. Sebelius decision shaping our politics this podcast from the Federalist Society Faculty Book Podcast featuring Professor Scott Gerber’s new book, A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787 is worth considering. Walter Olson has a great roundup of coverage on asset forfeiture practices by local governments around the country. Re: Class Action lawsuit abuse: Ted…