It was 25 years ago that HarperCollins published what is today considered something of a conservative classic, Hollywood vs. America: Popular Culture and the War on Traditional Values. The irony is that the book was written by a liberal who avoided being drafted to serve in the Vietnam war.
Archives for September 2017
In a recent post Mark Pulliam has nicely observed that the amendment process itself makes the Constitution a living document, capable of responding to new circumstances. But defenders of living constitutionalism as an interpretive theory do have a response to this position. They have argued that the amendment process is just too stringent and must be supplemented by judicial updating. Mike Rappaport and I have provided two interrelated arguments about why these theorists are wrong, thus bolstering Mark’s position.
First, the amendment process does not seem too hard, if we look at the six amendments that came closest to becoming law—those that obtained passage in Congress by 2/3 majorities but foundered in the state ratification process. Most of these amendments were not good ones and the most consequential would have made slavery legal and even entrenched that position against subsequent constitutional amendment.
It is true that most people today would favor the amendment banning child labor which passed Congress, but did not succeed at the ratification stage. But we argue that the amendment ultimately failed because Franklin Roosevelt decided not to push it: the amendment was too narrow an expansion of federal power for his purposes of centralized economic control.
To read mainstream economics reporting regularly is to encounter one blood pressure-raising falsehood after another.
This article explores the tensions between Justice Scalia’s originalism and his lenient approach to the nondelegation doctrine. While I have only skimmed the piece, it appears to tell a story similar to the one that I would.
Justice Scalia wrote two significant opinions on the nondelegation doctrine – the doctrine that places limits on Congress’s power to delegate legislative power to executive branch agencies. One was his concurring opinion in Mistretta v. United States. In Mistretta, Scalia held that the delegation to the Sentencing Commission of the power to announce binding Sentencing Guidelines was unconstitutional. While Scalia was the only Justice who would have struck down the delegation, his argument was almost entirely focused on the unusual powers of the Sentencing Commission. Unlike other agencies, it did nothing else besides promulgating these guidelines. Thus, it was a junior varsity Congress.
Mike Rappaport and I have defended the proposition that the Constitution is written in the language of the law. We recently noted in a post that much of modern originalist scholarship by academics relies on this language in interpreting provisions of the Constitution.
Another important indication of this legal turn in originalism is Reading Law: The Interpretation of Legal Texts by the late Antonin Scalia and Bryan Garner. There they suggest that interpretation of law must be guided by canons of interpretation and offer an analysis of fifty seven such rules. While some of these canons might be considered purely linguistic, many others are clearly legal such as the rule of lenity, the absurdity rule, and the rule that implied repeals are disfavored.
The renewed attention to legal interpretive rules also reflects the rise of legal formalism after its eclipse by legal realism.
Kwame Nkrumah, the first president of independent Ghana, was known to have said, “Seek ye first the political kingdom.” Nkrumah sought and found it, and within a few years his formerly prospering country was bankrupt, obliged to spend several decades trying to recover from his short reign.
Within quite a range of circumstances, purely political action, however necessary it might sometimes be, does not produce the happy economic results expected of it. Prosperity for whole nations or large groups of people cannot simply be conjured by political fiat from a total economic product that already exists. The people themselves must have the attributes necessary to prosper; and no amount of political posturing by their leaders, whether they be self-appointed or democratically elected, will give them those attributes.
It is the thesis of Jason L. Riley’s short, bracing and eloquent polemic False Black Power? that America’s black political leaders, and their white liberal allies, have hindered rather than advanced the progress of America’s black population.
In antebellum America, the U.S. underwent what historians call “the market revolution.” This is a movement analogous to the “Great Transformation” Karl Polanyi sketched in England and Europe. (Interestingly, Polanyi himself excepts the American experience from the process he outlines given the availability of land for the taking in the U.S. relative to Europe.) The penetration of the market and market forces into the everyday lives of everyday people separates the period of the market revolution and afterward from the time before it. The rise of wage labor and production for markets, rather than production largely for one’s self and one’s family, created different rhythms and risks in life relative to agrarian life prior to the rise of that system.
Proponents of “living constitutionalism” or other non-originalist theories of constitutional law sometimes argue that our now 230-year-old Constitution wasn’t designed for current social conditions. Prevailing attitudes on a variety of subjects have changed dramatically since 1787, critics of originalism say. Judges must be allowed to augment or update the Constitution to keep it “relevant.”
But the Framers themselves anticipated the need for periodic revision of our national charter, providing, in Article V, a mechanism for its amendment. That mechanism has been invoked 27 times, so far.
Donald Trump’s judicial nominations have been the most successful part of a presidency that has often misfired. The nominees are not only a tribute to the President but to an idea and to an organization. The idea is originalism—the notion that the Constitution’s provisions should be interpreted according the meaning they had at the time they were enacted. They should not become vessels for judges to update their meaning.
The organization is the Federalist Society. It is established around the ideal of originalism, and enlists thousands of lawyers around the nation in defending it. Now more than thirty years old, it has gained in strength over the decades. And some of its best and most articulate members have become Trump’s nominees for the federal district and appellate courts.
The combination of a powerful idea and a far flung organization has made it easy for Republicans to unite behind the President’s nominees, as they have not yet been able to unite behind any other policy of importance. And the result has also been to make the Democrats look foolish and extreme, because originalism has a common sense appeal that is difficult to attack and the nominees have qualifications and abilities that are difficult to assail.
The hearing of Joan Larsen and Amy Coney Barrett for positions on the federal appellate courts showed that the Democratic Senators, unable to attack originalism frontally, resorted to assaults that were either ineffective or harmed their cause.