Everybody knows that judicial activism is a bad thing. There was a time when liberals flirted with the idea of reappropriating the term and celebrating their newfound commitment to aggressive judicial action, but that time has passed. The Kennedy brothers thought it was a positive good that a potential nominee (Byron White) was “basically an activist.” Justice Arthur Goldberg thought of himself as a judicial activist. Legal theorist Ronald Dworkin began his career calling for “an activist court.”
Archives for April 2014
The loss of great literature in the schools and its replacement with something that is manifestly not great—and is meant in fact to put an end to the very idea of greatness—is no academic matter. As Plato taught us long ago, whoever controls the stories, what today we call “the narrative,” of any society, will inevitably control the society. If we give up our stories, we lose our surest means of teaching young people what is truly good and true and beautiful; we lose the best way of teaching them how to be human. Should we give that up because self-appointed educational experts apparently don’t know how to talk about a great book when it is put in front of them?
Here and at Volokh, Ilya Somin and Mike Rappaport have been conducting a fruitful exchange over the extent of individuals’ moral obligation to obey the law, but the debate should not obscure the deeper and important philosophical ground on which they apparently agree: a shared assumption that the duty arises from something like an individual utility function. Their dispute seems to pertain to whether the individual should deploy his or her moral calculus at the personal (Somin) or systemic (Rappaport) level. The tougher question is whether any society so conceived and so dedicated—namely, one in which individuals calculate their moral obligation to obey the law as atomized individuals—can long endure.
Ilya Somin has a thoughtful response to my post on the violation of speeding laws. My main point was that speeding laws are a special type of law and that people’s violation of such laws is not a good test of whether people believe that it is immoral to violate the law.
Ilya characterizes my argument as claiming that the “duty to obey the speed limit is a special case because the government usually doesn’t enforce speed limits against moderate violations.” But that only captures part of my point. Let me elaborate.
In San Diego, where I live, the highway speed limit is generally 65 mph. The police generally do not ticket unless one is traveling faster than 75, thereby providing motorists with a 10 mph buffer. It is not merely that the police do not ticket for speeds lower than 75. I believe that the government does not believe sub 75 speeds are wrong nor do most people believe that such speeds are wrong. The reason that the government sets the speed limit at 65 rather than 75 is their belief that, if the speed limit were set at 75, people would drive up to 85 mph. Thus, they set it at 65, expecting and allowing people to drive up to 75.
Linda Greenhouse ‘s column yesterday and my post the day before are in agreement on one thing. As she puts it, “The McCutcheon decision is a powerful testament to the extent to which the free speech claim has, in the hands of the current court, become an engine of deregulation.” But she deplores the results. I applaud them.
My reasons for applause are simple: the First Amendment is an engine for the deregulation of political expression. That’s its essence. It says that “Congress shall make no law . . . abridging the freedom of speech.” The Court has made clear for decades that speech is to be interpreted broadly to include all forms of expression, including burning a flag or dancing in the nude. Like most civil libertarians, Ms. Greenhouse is presumably fine with these decision. Is a contribution to a political candidate less a form of expression than those actions? In McCutcheon the Court is just applying neutral principles in applying strict scrutiny to government attempts to interfere with expression.
The First Amendment is a free, not equal speech provision. It is no respecter of persons. It does not matter that rich people are often engaged in this kind of expression or that it unpopular with some people, particularly the incumbents that passed the law limiting donations and may be unseated by challengers who receive too many of them.
Editor’s Note: Another installation in a series of posts evaluating the question: Has Indiana departed from the Common Core State Standards and its attempt to nationalize education in America?
Having been the first state to leave the Common Core, the final draft of Indiana’s new K-12 content standards has been published and it will be brought to the State Board of Education on April 28 – ten days from now – for the final vote. Some reviews of this draft have been already published (e.g., here, here and here) but they focused mostly on the English and Language Arts (ELA) piece. I will focus on its mathematics and I will start with some general observations.
The drafting was done under a serious time pressure. There were only 12 weeks allocated for the standards-writing process that typically takes many months or even years. The writing panels should be commended for significant improvement of its early drafts, yet – as we shall see shortly — the final result is far from satisfying for Indiana, whose prior (pre Common Core) standards were highly praised as the best in the nation.
Ilya Somin has an interesting post arguing that the fact that illegal immigrants have broken the law should not lead one to conclude that they have engaged in an immoral act. His basic argument is to question the claim that people have a strong obligation to follow the law, based on the argument that most people appear to believe that breaking some laws is acceptable.
The question of whether someone has a moral obligation to follow the law is an important one. Under indirect consequentialist approach that I advocate, I believe that there is a strong argument for following the law under a reasonably desirable legal system.
The laws under such a legal system operate to the benefit – ex ante at least and in most cases ex post – of the great majority of people. If people follow the law, then the government can reduce enforcement costs and people can place trust in the system. These are significant goods that justify at least a relatively weighty argument for following the law. However, exactly how weighty the consideration is, what would outweigh it, and how it applies to illegal immigration, I am not sure.
Indiana’s “new” English Standards indicate that it will remain under the thumb of Common Core.
For four years now, the nation has been told how rigorous the Common Core English Standards are and how they are going to lead to “college and career readiness”: this to be done chiefly by taking great literature out of English classes and replacing it with utterly forgettable “informational texts.” For the past month or so, we in Indiana, having pulled out of Common Core, have been told by the state educational establishment that Indiana’s “new” college-and-career-readiness standards will not be an echo of Common Core but instead will be much more rigorous than Common Core. They will be standards written by Hoosiers for Hoosiers. Well, the new draft standards released just Wednesday are in fact an echo of Common Core as anyone who is able to hold two documents side by side can clearly see.
The Supreme Court’s analysis in McCutcheon v. FEC, its recent campaign finance decision, is even more important than its result. The holding of the case was to strike down so-called aggregate limits on donations to federal candidates. Under the invalidated law there was a ceiling on total contributions of $48, 600 for candidates running for federal office and $74,000 for other political committees. After McCutcheon, candidates are still limited to donating $2, 600 to a candidate but can give to as many candidates as they choose.
But it is the reasoning, not only the result, that is crucial to protecting our liberty, because it portends further deregulation of p0litical expression in elections. From the very first sentence, Chief Justice Roberts makes clear that general First Amendment principles are at stake in the case. Throughout the opinion he refers to cases that have nothing to do with campaign finance regulation but famously protect individual expression against the majority will, like Cohen v. Virginia, the case that protected the ability of a protestor calling for an anatomical impossibility to be performed on the nation’s selective service system. For the Chief Justice, those who want to express themselves are the new dissidents who must be protected from the wrath of legislators egged on by majority passion (and their own interest in protecting their incumbency). People who want to participate in campaigns to support a message or a candidate are not different in kind from those who speak in a vulgar manner or a burn a flag. His is a frontal challenge left-liberals’ support for the regulation of political campaigns, showing that they exercise only high double standards in standing up for free speech rights only when it suits their long-term objectives.
Appealing to ordinary First Amendment principles is essential to winning the debate over campaign finance, because advocates of regulation cannot succeed unless they forsake the neutral principles that are free expression’s best guarantees.
A conference was held at the American Enterprise Institute on March 20, 2014 on the question: Is the Federal Reserve a philosopher king or servant of the treasury? Alex Pollock, a frequent contributor to Law & Liberty and participant in the AEI discussion, offers here in condensed form the arguments and the instructive history presented.