An article tucked away on the back page of my local newspaper caught my attention: the Library of Congress has become the latest federal agency to acquire a SWAT team. The Library of Congress? We know that only members of Congress and high level executive department officials have check-out privileges, so it is unlikely that SWAT teams will be used to recall overdue books. What then? Is there evidence of a planned terrorist plot to destroy the Madison papers and thereby our memory of constitutional government? Perhaps an assault by Taliban negotiators on some of the still-secret Kissinger papers to learn how Le Duc Tho outwitted the U.S. in the Paris Peace accords?
Archives for October 2013
Richard Epstein has a terrific piece on the various investigations and prosecutions of J.P. Morgan here. “The Department of Justice,” he writes, “ is bringing to heel a bank that came into two major mistakes. First, the bank did business with the federal government. Second, it was regulated by it.” That just about sums it up. The piece is a wonderful expose of the sordid, extortionate practices that have come to characterize “law enforcement” in the financial sector.
You begin to wonder whether there can still be a legal practice called “white collar defense.” Given the hammers the government wields over the targeted entities, there is no viable defense; it’s more like begging for mercy, which is best conducted by people who are good at waving white flags and have personal friends at the various government agencies. This may help to explain the fantastic sums that are now flowing in the direction of federal agencies, Fannie, and Freddie. The targeted companies have to settle at almost any price.
(This post is written jointly by John McGinnis and Mike Rappaport) Ed Whalen objects to the treatment of precedent in our book Originalism and the Good Constitution. First, he questions our conclusion that Article III’s grant of judicial power provides authority for judges to apply precedent rules in constitutional decisionmaking. While he does not dispute our evidence that at the time of the Framing judges routinely applied rules of precedent in decisions interpreting legal texts, he says that this is no reason to suggest that this power encompasses constitutional precedents, because the legislature cannot overrule erroneous constitutional precedents, as it can…
(This post is written jointly by John McGinnis and Mike Rappaport)
Ed Whelan has read our book and is kind enough to describe it as “an impressive work, rich with interesting and intelligent arguments.” And he writes, “Their book will surely play a prominent role in the ongoing debate over originalism.”
Ed does, however, offer some criticisms in his two posts on our book. In this and the next post, we will respond to some of his arguments.
First, Ed questions whether our consequentialist defense of originalism – as involving a good Constitution that should be enforced – is really the best normative defense of originalism. He first notes that we reject the notion that following the law is the best defense of originalism. He then states:
To state my point more affirmatively: I find much more appealing the normative argument for originalism that law professor Lawrence B. Solum makes in his long law-review article “Semantic Originalism” (pp. 149-160). That argument, at its essence, is that in a “reasonably just society” like ours, it’s wrong to lie about the meaning of the Constitution. . . . Even in the collapsing state of our culture, the proposition that it’s generally wrong to lie seems to me to retain broad appeal.
We are not exactly sure what Ed is proposing as the best normative defense of originalism. On the one hand, he might be arguing that we should follow the original meaning, because it is the law. If that is his argument, then we would point to Mike Rappaport’s earlier post rejecting this argument. In particular,
another problem with the argument that the original meaning of the Constitution is the law that it is not clear that it is true. What does it mean to say that the Constitution’s original meaning is the law? Certainly, people are in jail in the U.S. – lots of them – for violating laws that are inconsistent with the Constitution’s original meaning. More generally, nonoriginalist Supreme Court decisions are enforced without a second thought by most people all the time.
But perhaps Ed means something else – perhaps he is basing his argument simply on the obligation not to lie. We have a couple of concerns about this.
Editor’s note: With apologies to Jonathan Edwards. Take heed, friend.
“Their polls shall slide in due time.”
In this verse is threatened the vengeance of God on the wicked and unbelieving politicians, who are surely not God’s visible people, and who live under the grace of the voters; but who, notwithstanding the offices they receive from people, remain void of counsel, having no understanding in them. Under all the cultivations of democracy, they bring forth bitter and poisonous fruit. . . .
Ilya Somin and Jeffrey Friedman have been having a dispute about what is the cause of the low level of information that voters possess. Is it rational ignorance, based on the fact that voters know that their votes are unlikely to decide an election? Or is it inadvertent ignorance in the sense that the voters believe they know enough to make a wise decision, even though they are mistaken?
Friedman appears to make a strong criticism of the rational ignorance theory:
Rational ignorance theory is falsified by the fact that 70 percent of voters say that they think their individual votes are “really important,” as I noted in my earlier post. Moreover, as I noted, 89 percent say that influencing government policy is an important reason for their vote. If these findings do not falsify rational ignorance theory, what would?
In other words, since people do not know that their votes are extremely unlikely to influence an election, rational ignorance theory appears to be mistaken.
Somin, however, also makes a strong point:
Friedman’s theory implies that the average voter would not bother to acquire significantly more information about politics if he suddenly learned that he would be part of a small committee tasked with picking the next president of the United States. I think the vast majority of people would take the decision a lot more seriously if that were the case, and would spend a lot more time learning and evaluating political information. Jurors who make decisions in small groups where each vote matters greatly perform better than voters in part for this very reason.
I have a possible resolution of this apparent inconsistency. It draws on the fact that people’s behavior – and their practices – do not always conform to their verbal accounts of what they are doing. So people believe in some significant sense that their votes influence elections and government behavior. But they do not really act as if that was the case. Sure they are willing to incur the minimal effort in order to vote, but they are not willing to incur greater effort to inform themselves in order make a knowledgable decision.
Nathaniel Peters’ review of Robert George’s Conscience and Its Enemies is an insightful introduction to the Princeton scholar the New York Times Magazine resident anthropologist of conservatives, David Kirkpatrick, described as “this country’s most influential conservative Christian thinker.” Aptly titled, “The Dynamic Unity of Conscience,” the essay was almost entirely devoted to George’s understanding of marriage and the philosophic analysis that supported it. In summarizing George, Peters elegantly illustrates how conscience is the first pillar of a decent society, followed by marriage, justice, education, and wealth. Conscience is the central philosophic issue to be sure, but a broader audience might appreciate how George’s understanding of the conscience influences his public policy choices.
Increasingly, the US government’s many police forces (often state and local ones as well) operate militarily and are trained to treat ordinary citizens as enemies. At the same time, the people from whom the government personnel take their cues routinely describe those who differ from them socially and politically as illegitimate, criminal, even terrorists. Though these developments have separate roots, the post-9/11 state of no-win war against anonymous enemies has given them momentum. The longer it goes on, the more they converge and set in motion a spiral of civil strife all too well known in history, a spiral ever more difficult to stop short of civil war.
Twilight of the American Republic: The new Liberty Law Talk presents a different way of thinking about American Exceptionalism. This discussion with author Justin Litke considers how the twentieth century emergence of an expansive American Exceptionalism relates to the frayed constitutional consensus of the American founding. What did Michael Oakeshott think of the American founding? That's the question taken up by Elizabeth Corey in this week's feature review essay on Gene Callahan's book Oakeshott on Rome and America. Alberto Mingardi @ Econ Lib on Germany trading its political stability for economic stupidity. Then again, there's much of that going on these days. The…