From afar, the defeat of the Republicans in Congress on the matter of the debt ceiling seemed fore-ordained and the inevitable consequence of political ineptitude on an almost heroic scale. Perhaps (and this is the best that might be said) they were staking their future claim to be able to say ‘I told you so’ when the financial catastrophe wrought by the western world’s addiction to spending money it has neither saved nor earns nor strikes not in the comparatively muted fashion that we have experienced hitherto, but in its full and terrible force.
Archives for November 2013
Democracy has no cure for a corrupt demos. Politicians’ misdeeds taint them alone, so long as their supporters do not embrace them. But when substantial constituencies continue to support their leaders despite their having broken faith, they turn democracy’s process of mutual persuasion into partisan war.
In a pending case, Schuette v. Coalition to Defend Affirmative Action, the Supreme Court faces the claim that the Fourteenth Amendment prohibits Michigan and every other state from including, within its constitution, a prohibition on any state racial discrimination, even if such discrimination might favor a racial minority. Several briefs, including a brief filed by 76 professional historians, present evidence allegedly supporting this contention.
Communism killed some 94 million people in the 20th century. It ranks alongside any other evil of that period, which is saying something. Consequently, no less than Nazism, it is not a word to be casually used or a charge to be lightly made. Both happened in response to Richard Reinsch’s eminently sensible observation in this space that Barack Obama is “not a socialist”—a clause followed hard on by another stating that Obama’s policies were incompatible with the genius of the American regime. Despite the latter clause, this set off a range of posted comments that placed “progressive,” “socialist” and “communist” on the same slippery continuum, with one commentator remarking that they were separated only by meaningless degrees, another claiming that Obama was not a socialist, he was a “radical socialist,” and still another clarifiyng that, no, he was a “fascist” instead.
It is difficult to see what purpose is served by these excesses other than to trivialize charges conservatives ought to take seriously while deflecting punches that might actually land. Certainly no converts are going to be made by forcing choices to falsely stark extremes—either a state scaled back beyond what anyone in the mainstream of politics, Republican or Democrat, today supports on the one hand or the specter of socialism on the other—that, not incidentally, crowd 62 million Americans who voted for Obama into the same pejorative category. A charge of communism is a charge of totalitarianism that conjures the Gulag, the collectivization of farms and the deaths by starvation or slaughter of tens of millions. It is not the same thing as socialism, and socialism is not the same thing as progressivism.
Comes now a discussion of an originalism that can sing! This month's Liberty Forum considers Mike Rappaport and John McGinnis's new book, Originalism and the Good Constitution. Rappaport and McGinnis offer their thoughts in a lead essay with responses from Richard Epstein and Ralph Rossum. The current Liberty Law Talk is with Mark Helprin on his latest novel In Sunlight and In Shadow. We also talk politics, war, and what's right and wrong in Mad Men. Walking The Wire and learning criminal procedure and constitutional law in the process. Tony Freyer and Andy Morriss: The structure and strategy of the Caymans as an…
Quick update on this week’s class action docket, including two cases discussed earlier: In Martin v. Blessing, the justices have requested the record below. (This is the case where the judge below certified a class and handed the case to counsel who promised to staff the case in accordance with a race and gender diversity “matrix.”) While waiting, the Court has held the case over. Sadly, the Court denied cert in Marek v. Lane, a challenge to a collusive class action settlement that produced nothing but meaningless cy pres relief for the class. Chief Justice Roberts filed a four-page statement, recounting the…
Yesterday, the Supreme Court heard oral argument in Bond v. United States. Mrs. Bond had smeared a toxic chemical on a romantic rival’s doorknob and mailbox, resulting in a thumb burn. She was federally prosecuted for violating a federal statute that implements the international Chemical Weapons Convention. The statute is broad indeed; as Justice Alito noted in an earlier round of litigation, it makes poisoning a goldfish with vinegar a federal crime. Earlier coverage is here.
After the argument, it’s possible that the case may decide some very large constitutional questions, thanks in no small part to the government’s breathtakingly aggressive stance. The key question is whether the feds can mow constitutional federalism barriers by treaty and implementing legislation. Solicitor General Verrilli’s answer was an emphatic “yes.” Not a good idea: excerpts from the transcript (which is here) convey the justices’ incredulity.
Cass Sunstein recently published two short essays-here and here-on the current political struggles between “tea-party” conservatives and progressives. In the first essay, Sunstein attempts to link our current political fracturing with the famous standoff between Whittaker Chambers and Alger Hiss. His second essay, which compares Whittaker Chambers and Ayn Rand’s divergent philosophies and then links their disagreements to various tendencies within present-day conservatism, is much better.
Last week’s awful tragedy at Los Angeles International Airport, which by all accounts involved a lone and troubled individual, was notable for the commendable calmness surrounding it. There were no calls for military detention, no cries of “act of war,” no demands that the President intervene to prevent the accused, Paul Ciancia, from “lawyering up” such as were heard in the aftermath of the Boston Marathon bombing. But the act itself is difficult to distinguish from what, in other cases, is described as terrorism that supposedly exceeds the competence or jurisdiction of civilian authorities. It was politically motivated: Ciancia’s writings were laced with anti-government sentiment. It was an explicit attack on government agents in the performance of their duties. It terrorized civilians.
The central concern of Radley Balko’s new book is what he calls “the militarization of America’s police forces.” The main symptoms of this disease are specialized SWAT teams that were formed to deal with violent emergencies but which now frequently turn “no knock” home invasions in pursuit of drug offenders and evidence into violent and frequently injurious confrontations. The blame for this overkill is shared in Balko’s account by (1) drug warriors creating legislative licenses for no-knock entry, (2) the SWAT team innovation of Daryl Gates in Los Angeles that is now a status symbol in police departments nationwide, (3) the permissive trust of constitutional courts in the motives and veracity of the cops, and (4) public willingness to tolerate excessive force as a law enforcement style against criminals. All of this is encouraged as well by federal programs to share military equipment and provide financial incentives for drug policing.