A scheme by the British government to reduce unemployment benefits of those who refuse to take jobs at a rate of pay equal to their full benefits has been overturned by the courts. The judges did not deny the right of the government to institute such a scheme; the problem with the current one, they said, was that it was instituted by ministerial fiat rather than by direction of parliament and was therefore an exercise of arbitrary power. In this, I think, they were right: a minister should not be able to alter the conditions of life of large numbers of people by the stroke of his pen and without any oversight. But those who seek the unlimited extension of trade union and government power over society regarded the ruling as an absolute triumph: they think that the more people who are dependent on government handouts the better, and this ruling went some way to maintaining, at least temporarily, such dependence.
Archives for February 2013
I’ve griped before (I think) about the Supreme Court’s less-than-stellar record on protecting the commerce of the United States. The Upside-Down Constitution contains an extended riff on the theme. As always, I am entirely right. A pair of Supreme Court case—a lamentable cert denial last week, and a blockbuster argument this week—confirms the analysis and illustrates the justices’ passive-aggressive posture.
As predicted here, another Republican governor has folded his states’ rights tent and consented to Obamacare’s Medicaid expansion in his state. That would be the intrepid Rick Scott of Florida—as it happens, the lead state in the litigation over the ACA. Today’s snarling Wall Street Journal editorial appears here; nro coverage here. One more time: the GOP governors’ Medicaid position, as stated in the Obamacare litigation and embraced by the Supreme Court, has done zero, zilch to fix Medicaid’s insane fiscal incentives. The principal result was a marginal improvement in the states’ bargaining position vis-à-vis the feds. (Law professor Sam Bagenstos has a very fine piece…
Last month, the Center for the Study of Constitutionalism Originalism at the University of San Diego hosted a talk by leading Libertarian scholar Richard Epstein based on his new book The Classical Liberal Constitution. Commentary was provided by Larry Alexander, David McGowan and myself. You can watch the talk here. (You have to scroll down a little.)
Richard’s brand of originalism works as follows. He believes that the constitutional language should be given its original meaning, but that the language is often incomplete or vague. Therefore, he argues that the language must be interpreted in accordance with some background principles, and those are classical liberal principles, because the leading political theory at the time of the Constitution was classical liberalism. As a result, Richard is able to argue that the Constitution’s originalism meaning leads largely to classical liberalism.
McCraw uses the immigrant experience to explain in part the development of a national perspective (see here and here for the 1st 2 installments in this series). Being originally outsiders, immigrants could see the forest for the trees while many, if not most of their native born friends were freighted with the prejudices of particular states. (363) It was this, combined with Hamilton’s and Gallatin’s natural brilliance, McCraw contends “that enabled them to envision and then to execute the responsible deployment of rootless capital in the forging of a new economy.” (326)
Looked at from this perspective, McCraw understandably connects only partially to his subjects pre-American experiences, and then more for Hamilton than Gallatin. Much of the former’s sense of urgency and impatience stemmed, as he notes, from Hamilton’s youth on the island of Nevis: “He knew from his boyhood that things could fall apart on short notice.” (49)
The Caribbean was not the most stable region politically. Hamilton’s own French Huguenot background through his mother, and his father’s origins in Scotland, testify to the imperial seesaw that characterized the geopolitical reality of the islands. Yet for Gallatin, he misses a similar opportunity.
So we need a theory to justify the practices of our constitutional order. We can start with the Declaration of Independence and move forward.
We can accept the Declaration of Independence as providing “a few basic political principles that undergird our constitutional order without having to insist on an orthodoxy of first principles.”[i] As James Stoner argues in his thoughtful essay, “Is There a Political Philosophy in the Declaration of Independence?”
To be true to the spirit of the Declaration means, from my perspective, not that we are bound to the most radical reading of its most abstract truth, but that we ought to recover the spirited aspiration to self-government that gave the American Revolution its force and its justification. Rather than look to an unelected judiciary for the formulation of our ideals—or to the liberal philosophers who want to rule through them—we should neither shy away from free debate on important social questions nor demand that every consensus work out its derivation from first things in order to count.[ii]
The theory required is one that mediates the compromises that allowed a regime of ordered liberty to emerge that was superior to the competing notions that were actually compromised.
President Ronald Reagan refused to sign the omnibus agreement. However, the UN convention refused to die. It was revived by George H.W. Bush and Bill Clinton, backed by George W. Bush, and endorsed by Barack Obama.
LOST is the sort of esoterica which fills Washington. The agreement took three UN conferences over decades to negotiate. It mixed unrelated issues: navigation, seabed mining, environmental protection, fishing. It is long, complex, and counterproductive. Its genesis was a different world: social engineering was the rage in Washington, communism seemed to be on the march, and Third World dictatorships claimed the moral high ground. Indeed, LOST was seen as an important tool to advance what was then called the New International Economic Order (NIEO).
In the New York Review of Books, Cass Sunstein reviews Sarah Conly’s Against Autonomy: Justifying Coercive Paternalism, just out from Cambridge University Press. I haven’t read the book, and I do not intend to do so. I already own two other books, and this one is $95—the equivalent of two cartons Camel Filters.(Not even close, in terms of marginal utility.) In contrast, Professor Sunstein’s laudatory review arrived for free, via internet, and I have read it with great profit.
There have been many discussions of Ronald Dworkin’s work in recent blogs. For some examples, see Jim Fleming, Cass Sunstein, and Richard Epstein. Many people consider Law's Empire to be Dworkin's most important work on law. For those interested in a college level course on the book, I recently listened to this one. It is a 14 lecture course that spends 7 of the lectures discussing Law's Empire. (The first several of the lectures are on legal positivism and H.L.A. Hart, and the last 4 are on Bruce Ackerman’s constitutional theory.) At times, I found the course frustrating, but it is hard…
Thinking about President Obama’s second inaugural address and the ubiquity of egalitarian political rhetoric is enough to make you wonder if anything can be preserved from the reach of government. Even philanthropy itself, the unique American contribution to civil society, made by possible by the overflows from prior gains in trade, might now have to account to government for its independent work. So what does equality mean in the American republic? The inability to speak in a grounded manner about this principle seems to doom attempts to limit the size of government, protect commerce from undue interference, and uphold a robust civil society, among other worthy goals.