If you haven’t, then someone else’s kid may do it for you. That most distinguished Marylander, anti-slavery orator and author Frederick Douglass, would be disgusted at newly-approved Maryland State school discipline policies that forbid measures having a “disproportionate impact on minorities.” The State Board of Education promotes instead a “rehabilitative discipline philosophy” that would supposedly enable more students to stay in school and graduate.
Archives for July 2012
My friend and faculty colleague Eric Claeys has just published a very fine piece (link no longer available) on the appropriate (conservative) response to NFIB v. Sebelius. He rejects, as do I, a "the Court has spoken and therefore" theory of the Constitution, in this as in any other case and context. In the terms of the ConLaw trade, we are "departmentalists." Grrr. We may have funny names but we are not French. The moniker is just shorthand for the contention that constitutional interpretation/construction/development is not a judicial monopoly; other "departments," also known as branches of government, have a legitimate role. The danger in insisting on the…
The new Liberty Forum exchange is now available. Jonathan Jacobs, Stephen Smith, and Erin Sheley consider the merits of William Stuntz's ideas for a criminal justice system more accountable to a liberal order of democratic citizenship. Here is a brief excerpt from Jacobs' lead essay: In a liberal polity it is crucial that the law should be widely endorsed. It is important that citizens should regard the law—allowing for some measure of disagreement and for the inevitability of disputed issues concerning criminalization—as reflecting a widely shared conception of what is acceptable and what is intolerably wrong. The ‘industrial’ character of a…
Modern liberal democracies are awash in rights, enforced by powerful (constitutional) courts. Paradoxically, though, it’s an open and serious question whether constitutional structure still constrains nominally democratic but poorly monitored institutions and whether courts can still enforce the groundrules of liberal, democratic politics. NFIB v. Sebelius raised that central question in one form. The ESM/Fiscal Pact case(earlier post here) pending before Germany’s Bundesverfassungsgericht (“FCC”) raises it in a somewhat different form: does the German Constitution pose any limit to the political branches’ power to delegate authority to the European Union and its various institutions? That is the central question of German politics and of European politics: barring further German transfers of money and authority, the Euro will fall apart. Hence, all eyes in Europe are on the FCC.
A while back I wrote a couple of posts about the statist bias of behavioral economics. While its central assumption was that decisionmakers often did not behave rationally, it almost never applied its insights to the government agencies it sought to have regulate the economy. Now, via Tyler Cowen, is the report of a paper on the subject which states: The findings [of the paper] reveal that 20.7% of the studied articles in behavioral economics propose paternalist policy action and that 95.5% of these do not contain any analysis of the cognitive ability of policymakers. Not surprising, but it is good to…
In the hope that not everyone has become bored with the debate about President Obama’s statement that “If you’ve got a business — you didn’t build that,” I thought I would add my own two cents. From the perspective of politics, I believe it is perfectly legitimate to focus on this one line because it captures in a quick and simple way Obama’s government-first approach to the economy.
But there is so much more here. For now, let me just focus on what I believe are some of the most important aspects of Obama’s argument.
1. Obama’s point about the business creator not building his business is that he was benefited by other people – not just any people, but government people. This, of course, is amazingly statist, since it leaves out all the good that people do in the nongovernmental, civil society. But let’s just put that to the side.
2. Obama claims that the creator of the business was helped by others. Well, of course, he was. Who could possibly deny it? We live in a society – in a social network – because we are benefited by others in that society. Obama’s making this the basis of his argument shows that he is attacking a straw man. When someone says they built something – or accomplished something – they don’t mean that no one helped them in their entire life or even with respect to the accomplishment.
3. From my perspective as a consequentialist, the key point is not whether the government (or someone else) helped a business creator, but whether the additional taxes on the business creator that Obama seeks to justify would promote the economy and people generally. The problem with Obama’s approach is that the taxes and government he favors would be harmful and not beneficial.
Even if the help that business creators received from the government people did allow it to tax and regulate them freely, that does not mean the government should take harmful actions. As Tom Smith says, the higher taxes on business creators (not to mention the excessive regulations he favors) will result in less wealth (and of course less liberty) for the nation. How do we “thank” these government actors? Certainly not by giving them more taxes.
4. There is another problem with Obama’s argument. He says that people gain from the government’s provisions of bridges and teachers. True enough, at least sometimes. But notice that most people pay taxes for these services and so have already paid for the benefits conferred. Why is that enough to end any debt that they have to the government? Well, perhaps Obama would argue that people benefit more from the government services than they pay in taxes – that is, as the economists say, they derive consumer surplus from the benefits provided.
In Law and Liberty's Books section, Jay Bruce asks what's so modern about John Calvin? Anthony de Jasay on the choices Europe faces. Eugene Volokh on the chicken little controversy. Carter Wood at Point of Law notes that trial lawyers are joining their forces against state Voter ID laws with the American Association for Justice offering training sessions at its annual convention this weekend. Who really invented the internet? Gordon Crovitz corrects the record. So begins What So Proudly We Hail, a blog about American Exceptionalism. 28 of the top 50 law schools are still accepting 1L applications for the class entering this August. When will…
The number of contradictory positions associated with the words “liberal” and “liberalism” have led some to conclude that such expressions are now so unstable in their meaning that they lack sufficient descriptive power of any lasting significance. Of course, the same could be said of terms used to describe most modern political positions, including “conservatism” and “socialism.” Liberalism, however, seems particularly amorphous inasmuch as the phrase is associated with figures as apparently different in their starting points and conclusions such as Friedrich Hayek and John Rawls, but also David Hume and Immanuel Kant.
Or is it? In his new book Free Market Fairness, the political philosopher John Tomasi challenges and seeks to overcome some of the internal divisions among those who ascribe to the liberal nomenclature. Rather than attempting a synthesis of competing schools of liberal thought, Tomasi outlines what he is very careful to specify as a “hybrid” (87) political theory that draws upon classical liberalism and libertarianism on the one hand, and what he calls high or left liberalism on the other. Tomasi does not seek to somehow ground classical liberal institutions on the basis of left liberal moral imperatives, or vice-versa. Instead he argues for what he calls market democracy as a “justificatory hybrid . . . which combines insights from the classical and liberal traditions at the level of moral foundations” (95).
Much of the recent rhetoric surrounding the supposed need to “create jobs” as a core goal of public policy has focused on the way in which government can, by promoting job creation in particular industries through subsidies and the like, also promote “sustainability” in both the economy and the environment. One need only consider how much political energy has been spent arguing for “green jobs” as part of the stimulus program as well as the longer term policy and budget goals of the Obama Administration.
Unfortunately, as the recent example of Solyndra demonstrates, these sorts of subsidy programs, and related public-private partnerships, have shown themselves to be failures at both job creation and economic growth. As I shall discuss below, the failure of Solyndra, after being given a $527 million government loan and being touted by the President as the exemplar of the “new economy,” “green jobs,” and the future of public-private partnerships, is a point-by-point example of what’s wrong with this approach.