The first day of teaching undergraduate constitutional law, I (not a lawyer) would take a well-regarded law school casebook, and I would ask a student to find the Dred Scott case in it. It was only referred to. Law schools have practical purposes, so why teach a case that is (mistakenly) regarded as completely irrelevant to contemporary law? Yet, unless one knows what the Reconstruction Amendments were presumably repudiating, how can one know what they stand for?
Archives for August 2013
Richard Samuelson’s timely Claremont Review of Books essay, “The Genius of American Citizenship,” presents the Founders’ argument for the citizenship of American exceptionalism, as opposed to the cultural and economic arguments that have dominated today’s debate over immigration. As Jefferson feared then, citizen identity without a sense of political duty will produce a “heterogeneous, incoherent, distracted mass”—the conditions for centralized bureaucracy we are seeing ever more realized today.
Ted Frank, founder of the Center for Class Action Fairness, comes to Liberty Law Talk to discuss class action abuse and the need for reform of much of the current system. The Fallacies of States' Rights or the problems created by John Marshall's nationalism? Adam Tate considers both notions in this week's review essay, "The Fallacies of Marshallian Nationalism." Getting education right in America: Russ Roberts talks with Eric Hanushek of Stanford on the costs of having a mediocre education system. JP Morgan's 4 parts: investment banking, traditional banking, asset management, and private equity are worth more separately than their present combination: So…
The Manhattan Institute’s Steven Malanga is for my money the nation’s best expert on state and local finances, which in these days means mostly debt. His latest piece on the subject, in MI’s must-read City Journal, is here. Yes, Virginia (ok, maybe not Virginia but certainly Illinois and New Jersey) there is a debt crisis. It’s vastly more serious than state and local governments’ fraudulent numbers suggest. State courts have been complicit in the deception, and in the evisceration of constitutional limits on unsustainable obligations.
Over the years, three different approaches have been developed for grounding originalism.
1. The first approach involves a normative argument for originalism. Under this approach, one argues that originalism is the normatively best way to interpret the Constitution. There are various versions of this approach. Justice Scalia argues that only originalism leads to clear rules to guide judges and the public. Judge Bork contended that originalism is the only approach compatible with democracy. Keith Whittington maintains that originalism is justified by popular sovereignty.
2. The second approach is an interpretive argument for originalism. Under this approach, one argues that the actual meaning of the document that is the Constitution is the original meaning. To determine the actual meaning, one must give it the meaning it would have had at the time of its enactment. This approach is adopted by both original public meaning advocates, such as Gary Lawson, and original intent defenders, such as Larry Alexander.
My own approach (with John McGinnis) makes both kinds of arguments. We argue originalism is the normatively best way of interpreting a good constitution and there is a strong reason to believe that a constitution enacted pursuant to strict supermajority rules will be a good one. We also argue the actual meaning is best determined through original methods originalism, which interprets the meaning of the Constitution based on the interpretive rules that would have been deemed applicable to the Constitution at the time of its enactment.
Much of President Obama’s speech commemorating the 1963 civil rights March on Washington deserves praise–or at least admiration. Speaking from the Lincoln Memorial, he began by reciting the most famous lines from the Declaration of Independence. He reminded his cynical audience that the cause of civil rights comes from the heart of our national existence. And he reinforced that principle by later quoting Lincoln, in his brief speech on the meaning of the Declaration, that “the weights should be lifted from the shoulders of all men, and that all should have an equal chance.”
George W. Bush’s presidency had its problems, but Bush’s “Trumanesque,” plain-speaking style provided a certain clarity to American foreign policy. Granted, Bush had a propensity to mangle the English language, but generally speaking the American public and foreign leaders knew where he stood. His penchant for plain speaking occasionally got him into trouble, for in as much as Bush’s macho swagger turned off the more sensitive among us, his boasting about “bring ’em on” (regarding attacks on American forces in Iraq) or “there’s an old poster out West… that said, ‘Wanted, Dead or Alive’” (regarding the fate of Osama Bin Laden), was seen as positively imbecilic.
Mimicking the antics of George Costanza, the Obama team seems to think that by doing the opposite of George Bush they will usher in an era of universal peace and happiness.
Steven Eagle, George Mason University law school professor, appeared today on C-SPAN’s morning show (39 mins @ 34:50) discussing the origins of eminent domain and its drastic expansion prior to and following the 2005 Kelo decision. Eagle gave a superb introduction to the abuse of the eminent domain power and the failure of congress to address it. In fact, governments continue to delegate their eminent domain powers to utilities and railroad companies. The callers were eloquent in relating their own abuses from government. Eagle’s Cato Institute monograph on property rights and eminent domain can be found here; his vita listing books and links to articles is here.
On and off, I’ve obsessed over public pensions and retirement costs, and about the menace posed by unfunded liabilities to state and local governments. Now, I’ve come across the Arnold Foundation’s website, which publishes a periodic Pension Litigation Update (link no longer available). It’s very competently done, and supremely useful: there’s no other way to keep track of pending or even adjudicated cases (they’re often unpublished). If you eyeball the cases, there’s stuff you won’t believe. E.g., the State of Illinois (Illinois!) bestirred itself to pass a law that limits the ability of state employees to take a leave of absence to…
President Obama’s proposal to address the rising costs and other problems of higher education has occasioned a fair bit of commentary. (See for example this interview with Richard Vedder.)
Relatively little commentary, however, has been directed towards an actual program that was finalized last year. Here is a summary:
[T]he government issued the final regulations for the new Pay As You Earn student loan repayment plan, an initiative of the Obama administration. 77 Fed. Reg. 66088….Although the regs are quite complex, the bottom line is this:
Graduates currently in school or who graduated last May who DO NOT do public service work need not repay more than about 7% of their income toward their federal (that is, federally guaranteed or federally-issued) student loans, for 20 years. After 20 years, all remaining principal and interest is forgiven.
Graduates who perform 120 months of public service (at least 30 hours a week for any federal, state, or local government, or any 501(c)(3) organization) get forgiveness after 10 years instead of 20 years.
There is quite a bit that is questionable about this, but let me just mention two aspects. First, it is not clear why there should be further subsidies of students who have borrowed money. Yes, the loans are large, but should the government really be subsidizing students who tend to come from higher income families and who will be earning more than the average person?