You don’t choose your family, goes the old saying, but you do choose your friends. The same goes for quarrels: you choose when and where to have them, and what to have them about. Needless to say, friends and quarrels should be chosen with some care.
Archives for September 2016
There’s some historical elegance to the fact that the Fed’s annual symposium in Jackson Hole, Wyoming, is roughly as old as the modern Fed itself. The symposium, hosted by the Federal Reserve Bank of Kansas City, started in 1978.
President Obama weighed in recently on the controversy created by a football player refusing to standing during the playing of the national anthem at the beginning of a game. Colin Kaepernick, a San Francisco 49er’s quarterback, wants to call attention to his view that people of color are oppressed. The President supported him, saying Kaepernick was exercising his constitutional right under the First Amendment. A few days ago Jeffrey Toobin more specifically analogized this issue to a case in which the Supreme Court struck down a law requiring school children to salute the flag, because it violated their beliefs as Jehovah’s Witnesses.
The President’s and Toobin’s comments represent a characteristic bit of Progressive misdirection, failing to distinguish between legal and social norms. It is absolutely correct that the government has no right to penalize Kaepernick for his action. Expressive conduct up to burning the American flag should indeed be immune to criminal penalties. But no government official is threatening Kaepernick with official sanctions, although some politicians are exercising their own First Amendment rights to criticize his behavior.
The real question is whether Kaepernick is right to use the time for the national anthem for protest. A directly related question is whether his team or the NFL should tell him to desist and penalize him if he does not. That is an issue to be decided in light of his contract with his team and his team’s contractual relation to the NFL. It is one of private ordering about which the Constitution has nothing to say.
The optimal content of social norms cannot be decided by First Amendment case law.
The Light Between Oceans is fascinating and even important film. Directed by Derek Cianfrance and based on the novel by M.L. Stedman, it’s a gorgeous if overly long examination of mercy, passion, and the slow working of the conscience.
We have seen many examples of an “engaged judiciary” at the state court level, and it isn’t always pretty.
Earlier this month Jack Balkin (Yale Law School) and I found ourselves on an APSA/Claremont Panel on “The Legacy of Justice Antonin Scalia,” alongside Hadley Arkes and Ralph Rossum. We couldn’t find anything to disagree about.
Fed Governor Lael Brainard declared yesterday that the Federal Reserve “is designed to ensure that independence from the executive branch is absolutely the focus of the deliberations of the Federal Open Market Committee.” It is clear that her comments were a response to Donald Trump’s criticisms that the Federal Reserve was keeping interest rates artificially low to help the election of the President’s preferred candidate—Hillary Clinton.
One does not have to endorse Trump’s claims fully to believe that the degree of independence touted by Brainard is a serious overstatement. As Peter Conti-Brown has shown, the practical independence of the Fed falls far short of its design.
The seven members of the Federal Reserve Board of Governors are nominated by the President and confirmed by the U.S. Senate. It is true that the full term of a governor is fourteen years and appointments are staggered so that one term expires in each even-numbered year The lengthy terms and staggered appointments are indeed intended to contribute to the insulation of the Board—and the Federal Reserve System as a whole—from day to day political pressures.
But governors almost never serve anything close to their fourteen year terms. The outside options are simply so lucrative that almost everyone resigns after terms far short of that. As a result, today every Governor of the Federal Reserve was appointed by President Obama. Brainard herself is Obama’s former Undersecretary of the Treasury, not to mention a candidate for Secretary of that department in the Clinton administration. Would we think a Supreme Court was independent of the President if all its members were appointed by him?
Thomas Hobbes (1588-1679), the great philosopher of the authoritarian state, in a famous metaphor portrayed the government as a dominating giant or Leviathan, animated by absolute sovereignty, and passing out rewards and punishments as it saw fit. It alone could control the unruly passions of the people and create stability and safety.
Today’s “administrative state”—or government bureaucracy, acting simultaneously as sovereign legislator, executive, and judge—brings Hobbes’ image of the giant vividly to mind.
Socrates roamed the streets of Athens offending. The youth of Athens, who were intoxicated by his bristling brilliance, and drawn to the spectacles he created as he unmasked his fellow Athenians’ claims to knowledge, trailed behind to watch and later imitate him.