By the time this post appears, I will probably be down under. Not under the sod (I hope), but in Australia, for a couple of weeks of work and travel. From down here, though, I want to thank Richard Reinsch for inviting me to guest blog this month; I also want to thank those of you who have read and commented on my meandering musings. As a relative alien in the blogosphere, I have the impression that blogs usually comment on current events, books, etc. Maybe that’s their proper function and best use. I’ve done a bit of that, with some…
Archives for July 2014
I am beaming with delight to announce that Philip Hamburger, the Maurice and Hilda Friedman Professor of Law at the Columbia University School of Law, will be joining Law and Liberty for the month of August as a guest blogger. You might have heard of his latest impressive work of scholarship Is Administrative Law Unlawful? My podcast with Prof. Hamburger earlier this month explores his exposition on the extralegal capacity of the administrative state. Progressives claim that law-making executive agencies are a necessity for organizing a large commercial and urban society, but Hamburger convincingly argues that it really is a…
I have been in the process of describing the evolution of my views on the Iraqi invasion. In my last post, I described how the Bush administration, through blunders, had reduced what could have been enormous net benefits from the invasion into limited net benefits.
Here I want to briefly describe the Obama administration’s blunders in Iraq that finally led me to conclude that the invasion had been a mistake. If the Bush administration was, as I have said, incompetent, the Obama administration has been far worse – grossly negligent, at best.
The Obama administration was unwilling to take the actions in Iraq that were necessary to sustain the benefits produced by the Bush administration. In my view, there were two sets of errors: the administration’s failure to check Iraqi Prime Minister Nouri al-Maliki’s behavior while the United States was still in Iraq and then the U.S withdrawing from Iraq.
Hovering like a stern schoolmarm over much of our political discourse and decision-making is a sort of lurking censor, monitoring political decisions to ensure that they are based on “secular” grounds and purposes. Let us call this regulator “the secularism constraint.”
In many cultural neighborhoods, the secularism constraint seems almost as natural and ineluctable as the law of gravity. Legal scholars and political theorists argue for one or another variant of the constraint (a/k/a “public reason”), or more often just take it for granted. Constitutional doctrine– the so-called Lemon test, from the case of Lemon v. Kurtzman (1971)– provides at least ambiguous validation with its “secular purpose” requirement for government action.
In May some of us were waiting, with apprehension and hope, for the outcome in the Hobby Lobby case; but we were lifted with relief–and with an unexpected delight—by the Supreme Court’s decision in Town of Greece v. Galloway. We would have been grateful if the Court had been willing to do no more than sustain the practice of having invocations to God as the prelude to the town meeting in this small town in New York. As Justice Kennedy noted, the First Congress had moved to appoint chaplains only days after approving the language for the First Amendment. To pronounce those prayers as illegitimate now under the Establishment Clause would have marked a telling moment in driving religion entirely out of the public square. But instead of settling the case on that ground, the Court did far more: Justice Kennedy made it clear that these prayers did not have to be watered down to something so generic, so purged of the possibilities of offending, that they would be scrubbed of any identifiable religious character. They did not have to be submerged in vague “non-sectarian” prayers offered merely to the “divine,” whether that was the God of the Bible or “forces in the universe.”
My last post discussed how John Paul Stevens, late of the Supreme Court, and author Michael Waldman advance a stingy, substantively empty view of the Second Amendment by ignoring the Constitution’s framework of limited, enumerated powers. That critique, of course, only goes to federal authority. The right to arms enforceable against the states rests on the Fourteenth Amendment.
In my last post, I wrote a bit about my changing views on foreign policy prior to the invasion of Saddam Hussein’s Iraq in 2003. Here I want to explain why I supported that invasion, ultimately with an idea to explaining why I now believe I was mistaken to do so.
September 11 made clear that substantial portions of the Middle East presented a danger to the United States and its people. What actions could we take to address that danger?
If the United States could help to establish a relatively free nation in Iraq – one that provided basic freedoms and some kind of democracy – that would not only be good for Iraq, but would help to establish a model for other nations in the region – one that might lead towards greater freedom in the area and greater safety for the United States.
While the concern about WMDs struck me as being plausible, that was never my main reason for supporting the invasion. Instead, it was establishing a more free nation in Iraq. Yes, this was a form of nation-building. But if done right, it would create enormous benefits. I don’t believe this invasion violated the rights of the Iraq people, who after all were being tyrannized by the dictator Saddam.
In a series of decisions on campaign finance legislation, the Roberts Court has made it clear that Congress cannot solve the enduring political issues of undue or unequal influence in politics by restricting speech. Now that legislatures are aware this option is no longer on the table, they are under more pressure to find other solutions. Importantly, Congress could constrain undue influence by legislating through rules of general applicability.
Under a regime of generality, Congress would disable itself from handing out money, lucrative projects, or regulatory relief to designated individuals or small groups. Such strictures would make corruption less likely and indeed eliminate the kind of influence which seems most undue. Decisions that that can be framed in terms of general rules are more likely to be aimed at the public good than at the provision of favors.
In fact, Congress recently moved toward legislating through general rules by eliminating earmarks.
Moral outrage, when it is not fatuous, is politically potent. Vivid examples of politicians and commentators in full-throated, red-faced attacks against malignant motives and vicious political acts come easily to mind for all but the most apolitical. In some cases these outbursts are reactions against assaults on how things are or have been—on the decent order of things as inherited. But any honest observer must acknowledge that the more successful production of moral outrage has issued from those seeking fundamental transformation.
This post is a book notice with a twist. The book is Democracy in Decline: Steps in the Wrong Direction (2014), by James Allan. Professor Allan (can I call him Jim?) is a law professor at the University of Queensland, and his book argues in compelling, commonsensical terms that, as the title suggests, democracy is being quietly but steadily shunted aside, not in marginally democratic countries but in the United States, Canada, England, Australia, and New Zealand. “[M]ost of the blame for that declining trend,” Jim argues, can be laid at the feet of our top judges . . .; at the…