It does seem strange to introduce Greg Weiner as Law and Liberty's guest blogger for the month of July. He is, after all, a regular on this site, where his posts brim with cheekiness. If you haven't listened to this podcast I did with Greg on his award-winning book on James Madison, then by all means download it now. Other items of interest: Greg loves Willmoore Kendall, so we know right away that he can recognize greatness. Some stats: Weiner is an assistant professor of political science at Assumption College in Worcester, MA. He is currently working on another book, also…
Archives for June 2013
DOMA, the Hyde Amendment, and the Missouri Compromise: Windsor as the Reversal of Harris v. McRae and Renewal of Dred-Scott Federalism
Some conservative commentators have decried the Windsor case as the new Roe v. Wade. As to legal doctrine, however, the case looks more like a reversal of Harris v. McRae, the Supreme Court decision (barely) upholding the constitutionality of the Hyde Amendment. Further, the case looks like a vindication of the concurring federalist arguments once offered by Justices Catron and Campbell in Dred Scott.
Both Harris and Windsor involved a constitutional challenge, under the Fifth Amendment, to a federal law that affected a due-process right the Court had recently created: the right to abortion, created in Roe v. Wade, and the right to consensual acts of “intimacy,” created in Lawrence v. Texas. Both of those cases were the alleged progeny of the prior due-process cases supporting certain unenumerated, non-economic rights: from Meyer v. Nebraska to Pierce v. Society of Sisters to Griswold v. Connecticut.
In both cases, the federal law involved not criminal prohibition but the distribution of federal benefits in a selective manner that arguably disfavored the exercise of these rights. Moreover, in both cases, the laws were proposed by Republicans, many of whom denied there was any such “right,” for such rights were actually wrongs. In both cases, then, there was some moral disapprobation involved (though probably far more in the case of the Hyde Amendment, for inflammatory words like “murder” were used). In both cases, conversely, the laws were signed by Democratic presidents who affirmed the existence of the alleged constitutional rights, but who believed the federal government did not need to subsidize these rights equally with alternatives.
Illegal Immigration is an Artifact of Our Corporatist State
Full disclosure: I emigrated to America as a teenager, and became a US citizen in 1962.
While America once grew greater and better by assimilating the world’s most disparate peoples, during the past generation immigration has troubled America deeply. The US Senate’s immigration bill, far from “fixing” anything that is “broken” leaves intact the troubles’ sources. Indeed it gives the US government new powers to slice, dice, and dissimilate the American people into categories the more easily to rule us. Herewith an account of why immigration turned from an engine of strength to one of destruction.
Early America was all about immigration. Here immigrants would find more food, and more of the wherewithal of prosperity than anywhere. But they would have to pay for it by accepting unprecedented insecurity and unremitting work. Benjamin Franklin warned prospective immigrants that America is “the land of labor.” This peculiar bittersweet mixture drew self-selected millions to these shores.
Evolutionary Psychology and the Male Preference for New Sexual Partners
As I have said in the past, I find evolutionary psychology an extremely interesting and important area for understanding human nature. A new study (link no longer available) provides additional evidence for the claim that evolutionary considerations have influenced the different sexual preferences of males and females: Psychologists have found that while women find men they are familiar with more attractive, men are more drawn to strangers. They say this may be due to a relic in our evolutionary past, where our male ancestors would have tried to mate with as many females as possible. This would have increased the chances of them…
Corey Robin on Hayek
Over at Crooked Timber, Corey Robin has been criticizing Friedrich Hayek for supporting Chilean dictator Augusto Pinochet. I don’t know much about the Hayek-Pinochet connection, nor to be honest have I read all the way through Robin’s various posts on the subject. Some significant libertarians, such as Mario Rizzo, have criticized Hayek for his mistake in this connection.
But a review of Robin’s description of Hayek’s academic writing on the subject of emergencies does not provide much credibility to Robin. He writes:
Hayek complied with the dictator’s request. He had his secretary send a draft of what eventually became chapter 17—“A Model Constitution”—of the third volume of Law, Legislation and Liberty. That chapter includes a section on “Emergency Powers,” which defends temporary dictatorships when “the long-run preservation” of a free society is threatened. “Long run” is an elastic phrase, and by free society Hayek doesn’t mean liberal democracy. He has something more particular and peculiar in mind: “that the coercive powers of government are restricted to the enforcement of universal rules of just conduct, and cannot be used for the achievement of particular purposes.” That last phrase is doing a lot of the work here: Hayek believed, for example, that the effort to secure a specific distribution of wealth constituted the pursuit of a particular purpose. So the threats to a free society might not simply come from international or civil war. Nor must they be imminent. As other parts of the text make clear, those threats could just as likely come from creeping social democracy at home. If the visions of Gunnar Myrdal and John Kenneth Galbraith were realized, Hayek writes, it would produce “a wholly rigid economic structure which…only the force of some dictatorial power could break.”
Perhaps Robin has quite a bit more support for his conclusions elsewhere, but the evidence he is presenting here is weak and misleading.
In the section on Emergency Powers in Chapter 17, Hayek makes clear that the legislature should control the granting of emergency powers and should retain the power to restrict or eliminate them at any time. So the emergency powers are to be controlled by legislature, not by the executive.
Friday Roundup, June 28th
Arbitration has obviously been in the news lately with the Court recently upholding in America Express v. Italian Colors that arbitration clause class action waivers are enforceable despite the high costs of bringing an individual claim in many instances. In our Books section this week, Jim Chen's essay "Arbitration as an Article of Constitutional Faith" reviews Peter Rutledge's Arbitration and the Constitution. Chen focuses on the tension between the procedural rights of the Constitution and arbitration itself. David Henderson at Econ Lib provides an interesting review of prison sentencing reform in unlikely places. Roundup of Windsor analysis: Randy Barnett, Sandy Levinson, Michael…
Windsor: A Dia-Tribe
Windsor is too transparently absurd, insufferably pc, and duplicitous for words. Justice Scalia’s dissent says so. It is contemptuous, vituperative, and whatever other tsk-tsk adjective the guardians of our public discourse will heap on it. But somebody—somebody with a megaphone—had to say it.
Prof. Dr. Tribe is appalled, and has issued his demarche and media instructions here. “Justice Scalia,” he laments, “couldn’t resist the temptation to use the occasion to insult the Court’s majority, and Justice Kennedy in particular, in essentially ad hominem (and ad feminem) terms.” (Regardless of what you think of LT’s legal scholarship, never trust his Latin.) The good professor’s critique tells us more about his mindset than Justice Scalia’s.
Plutocrat Protection Act
Hot on the heels of the latest annual Bilderberg get-together (link no longer available) in Berkshire, England, political leaders at the just-concluded G8 summit in Lough Erne, Northern Ireland, announced that the EU and US intend to broker a free-trade agreement between them by the end of next year, with talks towards one due to begin next month.
How should supporters of free-markets respond to the news of such an agreement – with jubilation, indifference, or dismay? Prima facie, such a deal can only be good news. The removal or lowering of tariffs fosters trade and thereby supposedly facilitates mutually beneficial international division of labour which in turn, by fostering a greater interdependency between nations, reduces the chances of war between them.
In reality, however, the prospect of such an agreement is anything but a cause for celebration for freedom lovers.
How the West was Won
So I’ve been deep in the bowels of the Georgia Historical Society archives the past week laying the groundwork for a new project on slavery and the law. Of course, as far as bowels go, the Georgia Historical Society is mighty fine, located in wonderful Savannah and adjacent to beautiful Forsyth Park. Repeated trips to Elizabeth’s restore the soul and the body after a long day with the super efficient archivists who continually fed me pamphlets and speeches on slavery and the Constitution, and the Bible, and science, and the progress of civilization.
Of interest to me, although by no means core to my project, is the civilizational confidence both Northern and Southern speakers evinced about their political, social, and cultural orders. It is a confidence, I think, almost absent from any state in the West today.
In Contempt of the Citizenry: From Plessy to Windsor
As Richard Reinsch notes, Justice Scalia's dissent in Windsor is a powerful response to Justice Kennedy's majority opinion, which "put the stigma of implicit bigotry around anyone who disagrees with his emancipated individualism." It occurred to me that the Supreme Court has rarely expressed such comprehensive and prominent disdain for whole classes of citizens. True, Justice Kennedy had leveled a similar accusation in Roemer and Lawrence. But the law at issue in Roemer resulted from a discrete act of the people of Colorado, and Lawrence involved a largely unenforced statute. In those cases, the target of his disdain was selective, involving citizens…
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