Archives for August 2016
In his 1936 short story “The Verger,” W. Somerset Maugham provides a parable for how economic liberty rewards the canny, intrepid owner of a small business no matter how humble his origins.
Greg Weiner, in a characteristically thoughtful post, suggests that libertarian constitutionalism wrongly eliminates democratic politics from the polity in favor creating a republic of reason where rationality is judicially determined. While I am not a libertarian, but a classical liberal, I think that the correct reading of the U.S. Constitution does impose important constraints on the politics of rent-seeking. But it does not suppress politics so much as redirect it.
Professor Weiner correctly observes that many libertarians want to use the Constitution to prevent rent-seeking. The provision commonly referenced for this purpose is the Fourteenth Amendment. Note first, however, that the Fourteenth Amendment’s provisions apply only to the states. Thus, under a proper reading of our Constitution, the federal government may countenance rent-seeking within the scope of its enumerated powers. The difference between the strictures on states and on the nation may comport with the greater confidence that the extended republic will not be dominated by particular factions.
Moreover, at least under the appropriate reading of the Fourteenth Amendment, the restrictions on state legislation are relatively modest.
In my last post, I discussed Justice Clarence Thomas’s criticism of the Supreme Court’s tiers of scrutiny jurisprudence. Given Thomas’s criticism of the tiers as both made up and inconsistently applied, one might wonder why the Supreme Court follows this approach. My explanation is one that relies on a public choice theory of the justices. The Supreme Court follows this approach because it enhances – perhaps maximizes – its power. One might question that the Supreme Court’s power is enhanced by the tiers of scrutiny jurisprudence. After all, the tiers seem to involve rules of a sort that would arguably limit…
Beginning pre-Brexit and ending post-Turkey coup, the Frankfurter Allgemeine Zeitung published a series of articles under the heading, Zerfaellt Europa? (Is Europe Crumbling?). Interesting stuff. Naturally it’s all in German and that be difficult speak. I’ll supply links upon request but you’ll have to trust my summaries and translations. Or ignore this and the next post.
Jointly and severally, the articles—authored for the most part by past and present politicians—suggest several conclusions. First, the idea that there might be something wrong with the EU that can’t be fixed with the demand for “more Europe” and “ever closer union” has begun to occur to responsible politicians. Good.
Like unruly schoolchildren using the presence of a substitute teacher as an opportunity to misbehave, in Veasey v. Abbott, the U.S. Court of Appeals for the Fifth Circuit, sitting en banc, has sent the jurisprudential equivalent of a spitball at the U.S. Supreme Court knowing that the deadlocked Court would probably take no corrective action.
On July 20, the Fifth Circuit, by a vote of 9 to 6, declared Texas’s voter-identification law unlawful even though the Supreme Court upheld a similar law eight years ago. The ruling was quite remarkable, coming as it does from a court of appeals generally regarded as the nation’s most conservative.
In these days when capitalism is under renewed attack and appears particularly unpopular among many of the young, defenders of classical liberalism need to tell stories as well as recite statistics. One of the great fables of capitalism in general and free trade in particular is I, Pencil. This short essay shows how markets create a delusively simple implement only by facilitating complex cooperation among far flung peoples. It is also important to dramatize the wonder of consumer surplus, showing how goods give more value to most consumers than the amount they pay. Economists rightly stress that consumer surplus tends to…
In a prior post, I noted Jeffrey Toobin’s criticism of Justice Clarence Thomas for Thomas’s claim that since the New Deal, the Supreme Court’s constitutional doctrine has become an ‘unworkable morass of special exceptions and arbitrary applications.’” Interestingly, Toobin never argues that Thomas’s claim is mistaken. Toobin seems to feel that voicing the criticism of the Court is itself worthy of censure, whether or not it is true. But in my view, Thomas’s claim is both true and damning.
In his dissent in the Court’s most recent abortion case, Whole Woman’s Health v. Hellerstedt, Justice Thomas offers two basic criticisms of the Court’s tiers of scrutiny jurisprudence: the tiers are not in the Constitution and that they are followed only inconsistently by the Court.
1. The Supreme Court generally employs three tiers of scrutiny: rational basis, intermediate, and strict scrutiny. Thomas first argues that these tiers are not in the Constitution. He claims that the Court has made them up, which Thomas focusing his criticism on the famous case of Carolene Products. Thomas argues that the Court, in a footnote that was “pure dicta,” attempted to justify its special treatment of certain personal liberties like the First Amendment and the right against discrimination on the basis of race.
Summer is the time for big dumb action movies, but fans of intelligent and compelling filmmaking also have alternatives to superheroes, gross-out comedies, and Jason Bourne. Two newly released documentaries—Liberating a Continent: John Paul II and the Fall of Communism, and also Going Clear: Scientology and the Prison of Belief—are expertly crafted and explore the deepest questions about human belief and the nature of truth.