More and more, our administrative state looks like something dreamt up in a late-night meeting between Carl Schmitt and Evita Peron. I’m teaching something called, fraudulently, administrative “law.” Believe you me: nothing in that corpus juris poses any meaningful constraint on government. E.g., I’m supposed to teach and therefore do teach that judges must bow to any bureaucrat’s take on the law (unless it’s completely nuts) because otherwise the D.C. Circuit might end up running the country and good sense and lawful government might break out.
Archives for January 2013
So who, exactly, are the Founding Fathers? A new book by Mark David Hall on Roger Sherman makes a significant case that the sage from Connecticut should be on the list. Don't miss Jay Bruce's review of it in our Books section, "Roger Sherman's Reformed Founding". Garett Jones at Econ Log blogs about 2 new papers finding BIG, really BIG multipliers (1.5 on average) from stimulus spending within the states of a currency union. Jones' summary: My view: 1.5 and 1.4 are not big multipliers. If a dollar of government spending or tax cuts genuinely boosted the short run economy by two…
Recently, Lino Graglia published a review of Akhil Amar’s new book that made some claims about the basis for judicial review in the Constitution. Lino wrote:
Constitutional law is the product of judicial review, the power of judges to invalidate policy choices made by other officials of government on the ground that they are prohibited by the Constitution. Although the power obviously creates the danger of making the judiciary — more specifically, the Supreme Court — superior to the legislature and the ultimate lawgiver, it is not explicably provided for in the Constitution. [MR note: does Graglia mean explicitly or explicably?] It was established and defended by Chief Justice John Marshall in the famous case of Marbury v. Madison, however, on the ground that it is inherent in a written constitution. This was not correct in that other nations had and have written constitutions without judicial review. Limiting judicial review to enforcement of a written Constitution does, however, serve the purpose of making it a tool of constitutionalism rather than simply a transference of policymaking power to judges.
Lino’s claim is not entirely clear, but it can be interpreted as asserting that judicial review is not really in the Constitution. While Lino may or may not mean this, this claim about the lack of basis for judicial review used to be very common. It obviously supports nonoriginalism. If the power of judicial review is just made up, then one might argue that there can be little objection to judges exercising that power by making things up as well.
But judicial review is not just made up. In recent years, scholars have argued persuasively that the Framers expected judicial review of the Constitution. But, even more importantly, judicial review has a strong basis in the constitutional text. While I cannot go review all of the arguments, I will try to hit the high points.
On Tuesday January 15, the European Court of Human Rights delivered a long awaited judgement. Four British citizens had sought from it a ruling that, on account of their religion, legal rights belonging to them under the European Convention (EC) had been breached. They claimed they had been breached first by their employers and subsequently by employment tribunals and the national appeal courts who ratified the treatment of the employees by their employers.
Smokers, I have found, are inclined to disbelieve just how unpleasant others find their habit. Since they themselves can’t or don’t detect the lingering smell of stale smoke in rooms, in corridors, on clothes, even in books (my second-hand copy of Father Coplestone’s study of Nietzsche is a smoke-filled room in itself), they think that non-smokers exaggerate when they complain of it. They don’t believe that the smoke that gets in your eyes stings, or that it rasps the throat, or that it destroys pleasure in food. The late Christopher Hitchens, an inveterate smoker, told a self-congratulatory anecdote about how he was bravely determined to strike a blow for freedom by breaking the law in New York. Determined to smoke a cigarette in a restaurant, he asked the people at the next table whether they minded if he lit up. It was characteristic of smokers’ egotism, and perhaps that of the author also, that he thought his question a neutral one, such that a reply to the effect that they did not mind meant that they really did not mind.
Barack Obama’s life is an open book—he wrote two autobiographies whose principal themes of constant self-renewal reinforce each other, the earlier book more philosophical and radical, the later book political and “pragmatic.” Both are equally honest accounts. Yet he continually surprises his allies, opponents, the media, and academia. With the notable exception of Charles Kesler (I Am the Change), his conservative and Republican detractors seem never to have paid his books serious heed. Obama is comparable to Abraham Lincoln in that observers constantly underestimate him. This is the context in which his Second Inaugural is to be read.
The speech’s sharp partisanship is immediately evident, though a conservative would have uttered many of its lines with pleasure (as with his 2004 Democratic convention speech). In this view, timidity, not excessive ambition, has undermined presidents in their second terms. What doesn’t destroy his second term will make him stronger.
Abraham Lincoln is in the news again. That means that our politicians are comparing themselves to President Lincoln. This is an old pattern. After David McCullough’s Truman became a bestseller, the political class was busy drawing Truman comparisons. Now they are busy drawing Lincoln analogies. (Perhaps because he is from Illinois, President Obama has been comparing himself to Lincoln for years.) This pattern should not surprise us. John Adams noted that the most fundamental passion in the breast of politicians is the desire to be seen, to be noticed, to be loved: “The desire of the esteem of others is as real a want of nature as hunger; and the neglect and contempt of the world as severe a pain as the gout or stone.” Politicians hope to turn America’s affection to their own benefit by associating themselves with Lincoln, or Washington, or Truman, etc.
Herewith, Bond v. United States is making its fourth appearance on this blog (prior entries here, here, and here.) But we’re pikers: having already ruled on the case once (on a jurisdictional question), the Supreme Court looked at the case eight times before finally granting cert this past Friday. No Court watcher can recall anything like it. The justices occasionally “relist” a case for cert consideration; if it gets relisted again, that usually means that the case was rejected and one or more justices asked for time to write a dissent from the denial. Seven relists, and then a grant? The perplexing trajectory suggests that this case may be a very big deal indeed—for federalism, treaty law, and the U.S. Constitution. Not to mention sanity.
New mortgage rules released by the CFPB show why heightened oversight is necessary.
The Consumer Financial Protection Bureau is one of the most powerful and least accountable regulatory agencies in American history. Immune from budgetary oversight by Congress and headed by a single director who cannot be removed by the President, the agency wields unconstrained, vaguely-defined powers to regulate virtually every consumer and small business credit product in America. The Bureau has defended its extraordinary independence by claiming that its regulations will be “evidence-based” on unbiased, unimpeachable economic evidence, and thus is above the usual political concerns that justify bipartisan commissions and engaged congressional oversight.
Last week’s issuance of its new rules on residential mortgages (summarized here), however, shows why the new regulator can’t be trusted to regulate itself. The rules impose new burdens on lenders to ensure borrowers’ “ability to pay” their loans and create a safe harbor for so-called “qualified mortgages” that are perceived as especially safe by regulators, such as fixed rate mortgages and—don’t laugh—loans issued according to Fannie Mae and Freddie Mac’s underwriting criteria.
Roe v. Wade remains, for us, the most contentious decision of our Supreme Court. Here’s the advice of our Supreme Court: The opponents of Roe should get over it. In its opinion in Planned Parenthood v. Casey (1992), the Court explained:
Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.
The rare, comparable case that the Court highlights in Casey is Brown v. Board of Education. Reversing Brown and restoring the constitutionality of segregation would throw the nation into confusion and chaos. And that means that Brown has “rare precedential force.” The burden of proof that could lead to its reversal is more severe than other precedents. It would require “the most convincing justification.” The Court claimed to authoritatively resolve the controversy that produced a national division by binding the country together through a common constitutional mandate.