This past weekend (October 23-24), George Mason Law School’s Law and Economics Center, in cooperation with the Council on Public Policy (a German think tank) and the Federalist Society, concucted a Transatlantic Law Forum on “The Administrative State and its Law.” Excerpts: Scholars, pundits, politicians, and even Supreme Court Justices have come to lament that the administrative state—ill suited to the country’s constitutional culture in any event—appears increasingly beyond effective political and judicial control. Among the proposed remedies, perplexingly, is a quintessentially “European” product: bureaucratic legalism, either through more specific legislation or more aggressive judicial controls (or both). All the while,…
Archives for October 2015
My good friend Matthew Franck has turned his considerable wit to the task of gleaning the meaning of due process from the history of our jurisprudence, English and American. And the account he published recently in American Political Thought—entitled “What Happened to the Due Process Clause in the Dred Scott Case? The Continuing Confusion over ‘Substance’ versus ‘Process’”—must surely stand as one of the most searching and thoughtful in recent memory.
The lawyers and writers most concerned about “substantive due process” have also been the most reserved about natural law and natural rights. They have regarded as a high judicial offense the willingness of judges to import into their decisions notions of rights, or natural justice, that are not contained in the text of the Constitution. They tend to hold fiercely to a law composed of “procedures,” and to the strict terms of the positive law.
But as the question is opened to a closer, more probing view—and opened by Franck’s piece—I think it becomes all the clearer that the difference between “substantive” and “procedural” due process fades away: that the issue simply cannot claim the moral import that has been attached to it, or be as portentous in our constitutional law as the critics of “substantive due process” have long thought it to be.
Alexis de Tocqueville arrived in the United States in the late spring of 1831. His official business was an investigation of American prison reforms as a potential model for France, but his gaze was considerably broader and deeper. Tocqueville’s nine-month visit resulted in Democracy in America, a towering achievement that looms even larger in a time like ours, when political attention spans seem to last no longer than the latest trending topic.
The classical liberal order has a paradox at its heart. It provides everyone the liberty to pursue their own happiness. Yet it needs enough public spiritedness and virtue to maintain the order that permits the pursuit of liberty. Many internal institutions in the liberal state try to address this paradox, including the Constitution, but external factors play a role as well and one of the most important is the presence of children.
One problem for the liberal order is that individuals and groups so often consult their own interest rather than the public interest in the public sphere. At the federal level, the mild supermajority rule created by tricameralism (the two houses and the President) and stronger supermajority rule for constitutional amendments try to address this by making enactments hard to repeal. This legislative stickiness creates something of a veil of ignorance. People are not as sure where they will be in the future and thus are more likely to consider the public interest rather than their private interest in deciding whether to approve them. Children help thicken the veil of ignorance. The position of one’s children is even more uncertain than one’s own.
Classical liberal democracies also have an innate tendency to overspend and over borrow.
What makes for the stability of a constitution? In the United States, we take stability for granted, but “the median country faces violent political change about once every eight years.” So what promotes constitutional stability? Over the past several years, Barry Weingast has argued (along with some other authors, especially Sonia Mittal) that there are three basic conditions that are needed for constitutional stability. Satisfying these conditions operates to promote a self stabilizing constitution. 1. The Limit Condition. The first condition concerns the fact that citizens are fearful of governments that pose a threat to their assets and well being. When a…
Muhammad was a great man, at least as history traditionally defines greatness. Sure, there are revisionist academics who suggest that he was, more or less, a created figure who arose out of the politics and culture of northern Arabia, but we can, and perforce must as a practical matter, accept the received picture of him as affirmed by Islamic history. As such, he reformed, rechanneled, and revolutionized the ancient and primitive culture of Arabia to set it on course to become one of the world’s great civilizations.
This plebian reviewer read Professor Sir Anthony Barnes Atkinson’s Inequality: What Can Be Done? so you wouldn’t have to. Inequality inadvertently persuaded me that its topic is even less important than I’d thought it was when I began. But make no mistake, Atkinson’s a celebrated lion of the Left—the economist whom Thomas Piketty called “the Godfather of historical studies on income and wealth.” If he can’t persuade us inequality is a problem, no one can.
One of the great advances in human history has been the discovery of our collective ignorance (link no longer available). We now understand that there is so much that we do know about the world and need to discover. Unfortunately, many politicians and policymakers miss out on this truth. Much of our politics consists of ideologues and policy makers making claims about the wonderful effects of their own policies and the bad effects of their opponents’ proposals. Our politics would improve if we held these entrepreneurs more responsible for their claims.
Philip Tetlock and Peter Scoblic recently wrote a fine New York Times oped arguing that policymakers should be asked to provide specific predictions about what their policies will accomplish—specific enough to assess whether their objectives have been achieved. Tetlock and Scoblic show that when they have done this experimentally both conservatives and liberals modify their predictions to make them more modest and realistic. This kind of tournament of predictions makes experts across the ideological spectrum more responsible, because they will be held accountable. Most people do not want to look foolish.
Their proposal could would benefit from one additional component. As I argue in Accelerating Democracy, we should put up these measurable policy predictions on information markets where people can bet on whether they will occur.
Before I was waylaid to discuss the Speaker of the House issue, I had been writing a series of posts on a nonoriginalist interpretation against birthright citizenship. See here (and for two earlier posts here and here. My point has been to show that there is a strong nonoriginalist argument against birthright citizenship (even though the original meaning cuts the other away). Since nonoriginalism is accepted by many as the proper way to interpret the Constitution, these nonoriginalists cannot reject this interpretation as illegitimate.
In a prior post, I set forth an interpretation of “subject to the jurisdiction” of the United States that is different than what I regard as the original meaning. Under this nonoriginalist view, the phrase means subject to the exclusive jurisdiction of the United States. Since the children of parents who are citizens of another country, including illegal immigrants, are subject to the jurisdiction of those countries, those parents and children would not be subject to the jurisdiction of the United States. Interestingly, this interpretation is very similar to those who claim that the term only covers those who do not have allegiance to another nation.
Here I want to offer three nonoriginalists arguments for this interpretation – the type of arguments that are typically made by nonoriginalists. First, there are strong nonoriginalist reasons for not following the original meaning as to birthright citizenship for the children of illegal immigrants. At the time of the 14th Amendment, there was not an illegal immigrant issue, since there were essentially no federal laws restricting immigration. Thus, the Framers of the Amendment were unlikely to have had that issue in mind. Nonoriginalists typically argue that the decisions made by the Framers are more relevant when they addressed the actual issue and less relevant when they failed to anticipate a matter. Thus, the original meaning is not weighty.
The debate over who will be the next Speaker of the U.S. House of Representatives is really a debate about the structure of power in our political system. Members of the House’s Freedom Caucus argue that power has become too centralized and reforms must open up the legislative process to more members. They allege that the Speaker has become too powerful and that the House is being run as a top-down institution.