Archives for November 2012
I am yet again behinder on blogging than I’d like to be on account of yesterday’s trip to New York City, for a Manhattan Institute event and discussion on the above-captioned topic with Nicholas Quinn Rosenkranz, Adam Freedman, yours truly, and the one and only Richard Epstein. MI’s James Copland moderated a fun-filled debate. If you go to the tape (link no longer available), you’ll learn (somewhere in the Q&A session) why we should go back to a Constitution we’ve never had. Or something of the sort. On a serious note: the event is an early sign of what I believe will…
Asking the hard questions at Econ Lib: Is FDA approval superfluous to the actual safety of drugs? The Sebelius decision throws a ticking time bomb of federalism (link no longer available) into the lap of Obamacare. The Claremont Center for Constitutional Jurisprudence challenges (link no longer available) Depression era milk regulations in Hettinga v. United States. The accused has been charged with the unspeakable crime of trying to sell milk to Costco below the prices of its competitors. For shame! Of course, Law and Liberty's Michael Greve provides the full treatment of cartel regulation and the jettisoning of the original nationalist logic of commerce that…
Over the past years, I have been asking the students taking my modern political thought class to write an essay imagining what Tocqueville might have said if he visited America today. This open-ended assignment invites them to select a few major concepts from Democracy in America and apply them to our contemporary context. Since there are no fixed answers, my main goal is to stir their imagination and make them think for a moment “like” and “with” Tocqueville. When explaining the assignment, I always remind them that the young Frenchman was only a few years older than them (he was twenty-six year old when he arrived in New York!) and had a great intellectual ambition but almost no first-hand political experience. Tocqueville tried to create a new political science for a new world, as he famously put it in the introduction to Volume One of Democracy in America (1835). He offered a new way of analyzing social and political phenomena, one that went beyond the method used by his contemporaries (including Marx). If Tocqueville came to America with several preconceptions about the fundamental nature and the direction of modern society (which he acquired in part by attending Guizot’s lectures on civilization in Europe and France), he was, however, open to new experiences and willingly embraced new conceptual challenges. America taught him a few unexpected lessons about the equality of conditions, civil society, pluralism, religion, centralization, participatory democracy, the democratic mind, and the limits of affluence.
In the Books section today Melanie Randolph Miller reviews Liberty Fund's latest book, To Secure the Blessings of Liberty: Selected Writings of Gouverneur Morris. Asked by Miller in "The Ingenious Gouverneur Morris": Yet what sort of man was this revolutionary nay-sayer who had been, on the other side of the Atlantic, a significant actor in the American Revolutionary War effort and had played a vital role in the design of the American Constitution? . . . . Morris has long been dismissed as a “lightweight” (the comment of a former editor of the Papers of Thomas Jefferson), a producer of “solipsisms” (Jack…
For some reason Supreme Court cases seem to come in packs, when this or that issue captures the justices’ attention. On deck this Term: civil rights cases (over affirmative action and the Voting Rights Act, among other issues); and cases involving Fifth Amendment “takings” of private property. So far, the justices have granted cert in three cases. They involve water; more water; and raisins.
In Nineteen Eighty-Four, the Ministry of Love promoted nothing but hatred and the Ministry of Truth spread nothing but lies. Although totalitarianism of the kind described and analyzed by Orwell has all but disappeared from the face of the earth, give or take a country or two, totalitarianism of another, softer kind is marching its slow way through the institutions. In the name of diversity and tolerance, it enforces uniformity and bigotry: and there is no vice as insidious as that which, in the search for power, takes itself for virtue.
In England, this degeneration has gone further than almost anywhere else in the western world. In northern town of Rotherham recently a perfectly decent couple who fostered children in need of care and attention had their foster-children removed from them because they were members of UKIP, the United Kingdom Independence Party, which was deemed by the local council, controlled by the Labour Party, to be racist. There were no allegations that they couple had maltreated any children; indeed, to all appearances they were exemplary foster parents (of children of non-British background, incidentally). Their only ‘crime’ was to hold the ‘wrong’ opinions.
In my last post, I discussed how the check of midterm elections prevented the Obama Administration and the Democrats from effecting fundamental institutional change. In this post, I want to turn to the most important change that the Obama Administration passed – Obamacare.
While the election of a strong Republican majority in the House was important, by itself it was insufficient to repeal Obamacare. Had the Republicans won the presidency and the Senate, that probably would have been enough to repeal significant portions of the statute through mechanisms such as reconciliation that could not be filibustered. Even if the Republicans had simply won the presidency, the executive could have used its regulatory authority to significantly cut back on Obamacare.
But unfortunately the Republicans neither won the presidency nor the Senate. At this point, the question arises whether Obamacare has passed enough electoral tests that the nation will be stuck with it.
No longer exactly news but still noteworthy and worth noodling over: on November 19, U.S. District Judge Paul A. Engelmeyer (Southern District, NY) dismissed Starr International’s lawsuit against the Federal Reserve Bank of New York (“FRBNY”), arising over the 2008 bailout of AIG. The ruling is right, but it raises very troublesome questions about both the financial system and the rule of law.
Recall the 2008 rescue: in the wake of Lehmann’s collapse, the FRBNY lent AIG close to $182 billion (in several tranches), on draconian conditions. In the course of the operation, Starr’s lawsuit alleges, the FRBNY repeatedly violated fiduciary duties owed to AIG shareholders (prominently including Starr) under the law of Delaware, where AIG is incorporated. Judge Englemeyer’s 89-page opinion dismisses these allegations in terms that are gently described as firm and conclusive.
Director Steven Spielberg and screenwriter Tony Kushner’s Lincoln opens with a chaotic battle in a river, black and white soldiers struggling to kill each other in hand-to-hand combat. We then see pairs of black and white soldiers reciting from memory the Gettysburg Address back to the President.
Lincoln concludes the movie by delivering the Second Inaugural. Most of the time in between is an elaboration of his wartime and Reconstruction strategy and thus a commentary on the purposes of the First Inaugural and the Emancipation Proclamation. These occasions are the rhetorical high points of Lincoln’s presidency, though most of the movie is focused on events in early 1865.