One of the best disruptions of Donald Trump has been his decision to nominate many officials to the Cabinet who have been enormously successful in business. Such appointees have run major organizations and thus can use their substantial management experience to impose order on the sprawling government bureaucracy. They also bring the perspective of business into the heart of government. A commercial republic can thrive only if, from time to time, officials set about lifting off the dead weights that democratic practices tend to place on the economy.
It is thus disheartening, if not surprising, that many Democrats in the Senate now want to eliminate most of the tax law that facilitates the transition of business people to government. This law permits appointees to an administration to defer their capital gains on the stock they must sell to avoid conflict of interest. It thus encourages wealthy individuals to take government posts, because otherwise they would face an unpalatable choice: Pay a huge capital gains bill or hold on to stock that would create conflicts of interest in their new positions. The legislation greatly aids in eliminating conflicts of interest, because in exchange for the tax deferral, appointees must put their money in treasuries or index funds.
Thus, it is not an interest in good government, but in insular government that is behind the push to change this law.
At a splendid conference at the University of the South last weekend, the most important underlying theme turned out to be the question of the continuity of the 14th Amendment with the rest of the constitution. Some scholars—indeed most– argued that the Reconstruction Amendments represented a second founding and a radical break with the past.
In contrast, I believe that there is substantial continuity between these two essential parts of our charter of liberty. The 14th Amendment advanced and opened to all the commercial republic that was at the heart of the original Constitution. By their secession and actions leading up to succession, the South showed that it recognized that commercial dynamism and freedoms of the original founding would doom slavery. The Civil War just accelerated the realization of guarantees that flowed from principles implicit in the original Constitution.
For instance, before the War Southern states tried to gag discussion of petitions on slavery on the House floor and banish criticism of the peculiar institution from the federal mails, in obvious violation of constitutional guarantees. Slavery supporters also burned down abolition newspapers. They tried to ban books that argued that the wages of Southerners who did not own slaves were decreased by the institution of slavery. As Michael Kent Curtis noted, these acts allowed the North to reframe the debate about slavery as one about established constitutional liberties and the freedom of labor generally.