Nicholas Confessore’s long front-page article in Monday’s New York Times, “Rauner and his Wealthy Friends Are Remaking Illinois,” raises concerns about the power of rich individuals to influence elections. The article both subtly and overtly argues that rich people are using their money to overturn the kind of government citizens of Illinois want. But it actually shows the importance of preserving the First Amendment right to push back against the ingrained biases of the government and the media, like the New York Times itself.
Archives for November 2015
Delegation and Polarization
Then Professor, now Judge Stephanos Bibas giving a lecture at The King's College in New York City, September 29, 2016 (Image: The King's College).
In a recent post, I wrote about how allowing the President to initiate war-making did not merely promote more wars, but also caused the Congress to become infantilized, not having an incentive to take responsibility for decisions about war. This problem results from not following the Constitution’s original meaning in the separation of powers area.
A distinct, but similar problem occurs in the area of Congress’s delegation of legislative authority to the executive branch – where once again departures from the original meaning concerning the separation of powers have problematic consequences. Here Congress actually takes the action of delegating legislative authority to the executive, in large part because this allows Congress to avoid political responsibility for the regulatory decisions that the agencies take. These delegations, however, violate the Constitution’s requirement that the Congress make the basic policy decisions.
Film the Legend
On publicity junkets for Trumbo, star Bryan Cranston has repeated the line, “Everyone has the right to be wrong.” Cranston claims this quote came from Dalton Trumbo himself, and shows that the blacklisted screenwriter supported and defended everyone’s right to free speech.
The real Trumbo didn’t. The movie is frank about his membership in the American Communist Party, but its makers (director Jay Roach, screenwriter John McNamara) give us not a hint of what that entailed, or how roundly contradicted is Trumbo-the-free-speech-avatar by Trumbo the actual person.
The Crisis of Our Universities Is a Crisis of Left-Liberalism
The threat to free inquiry and free speech at our universities today flows from the ideology of left-liberalism. As measured by campaign donations and other indicators, the faculty and administrators are almost entirely on the left wing of the Democratic party. It is hard even to imagine that anyone but a left-liberal today could be appointed the head of any one of our top twenty universities.
Leftism and liberalism are in tension, because the former prioritizes equality while the latter prioritizes liberty. Leftists focus on equality of result as opposed to equality before the law. They are also enthusiastic about many forms of social engineering to reach a vision of substantive equality that is every changing. Unlike those on the wholly collectivist left, left-liberals have traditionally been committed to preserving many of the tenets of liberalism– freedom of speech, belief, and the rule of law. But these liberal commitments often stand in the way of achieving their equality goals. Freedom of speech and belief empowers individuals to resist programs of greater substantive equality. The rule of law protects what leftists may regard as entrenched concentrations of power.
These tensions are playing out in the new wave of political correctness that is threatening our universities.
Playing with Fire
One of the greatest plays of the 20th century, at least of those known to me, is Max Frisch’s The Fire Raisers (1953). Written in the aftermath of the Second World War as an attempt to explain (and to warn) how a patent evil like Nazism can triumph in a civilized society, this play does what only great literature can do: suggest the universal while using the particular.
Its protagonist, Biedermann, is a comfortable bourgeois living in a town that is beset by several mysterious acts of arson. He is visited at home by Schmitz, a hawker, who half-persuades, half-intimidates his way into an invitation to lodge in Biedermann’s attic, and who soon brings a second hawker, Eisenring, to stay in the house.
The Chicago Shooting
Then Professor, now Judge Stephanos Bibas giving a lecture at The King's College in New York City, September 29, 2016 (Image: The King's College).
What an awful incident. To my mind, a cold blooded murder. While many of the cases being protested do not seem to involve misconduct, like the Ferguson case, this video shows to my mind a clear example of wrongful behavior. The 17 year old victim, Laquan McDonald, who was holding a knife, was walking away from the police. Officer Jason Van Dyke shot him 16 times. 16 times! Van Dyke fired for 14 seconds, and for 13 of those seconds, his victim was already on the ground. Think about all of the outrageous aspects of this case. Citizens had made 18 complaints…
Millennial Country Music Bodes Ill for Civic Virtue
We’ve come a long way from Merle Haggard’s 1969 anthem to Middle America, “Okie from Muskogee.”
As John McGinnis explained in his recent series of posts regarding the Constitution’s design for creating civic virtue (here, here, and here), a free society depends on a responsible citizenry, strong families, and thriving civic associations that foster social cohesion. According to McGinnis, the success of the Republic depends, not necessarily on religion per se, but on the presence of informal discipline (self-control, deferred gratification, thrift, etc.) and a “morality of self-restraint.”
That, of course, leads to the subject of country music (or it does if you live where I do—Austin, Texas, with one of the nation’s most vibrant music scenes, where I moved after I retired as a lawyer).
Making Americans
The Early Puritans of New England Going to Church, George Henry Boughton (1867).English settlers in America might have intended to transmit the traditions of the mother country to subsequent generations. This didn’t exactly happen—partly because the settlers disagreed amongst themselves about which of those traditions deserved preservation, and partly because the experience of life in North America challenged many of the traditions they did want to preserve. The disagreement and the adaptation together led, eventually, to a political revolution.
The Farewell Address Reflects Federalist Party Policy Rather than the Constitution
Then Professor, now Judge Stephanos Bibas giving a lecture at The King's College in New York City, September 29, 2016 (Image: The King's College).
The Rosenkranz Debate concerned the truth of John Adams’ quotation: The Constitution is designed for a moral and religious people and it’s wholly unfitted for the government any other. My friend, Professor Robert George, relied primarily on George Washington’s Farewell Address for historical evidence. There Washington, like Adams, claimed religion was important, if not essential, to sustaining the Republic. For instance, Washington famously said, “Let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.”
But Washington’s Farewell Address provides an uncertain guide as to whether the Framers of the Constitution thought widespread religious belief necessary to sustain it. As I noted in my opening remarks at the debate, the text of the Constitution does not support this view. It does not establish any particular religion or even require belief in a religion of one’s choice. It instead expressly prohibits all religious tests for offices under the United State Constitution.
Moreover, it is dangerous to rely too much on the words of politicians in political strife to establish much about the Constitution. And as great as George Washington was he was still a politician, and as powerfully stated is his Farewell address, it is in large measure a document reflecting the principles of the Federalist party. His remarks on religion parallel one of key attacks of the Federalists on the Democratic Republicans–that they were deists, like the dreaded French Revolutionaries, or at least no friends of traditional religion.
The Consequences of Allowing Presidents to Ignore the Declare War Clause
Then Professor, now Judge Stephanos Bibas giving a lecture at The King's College in New York City, September 29, 2016 (Image: The King's College).
While most criticisms of nonoriginalism focus on the creation of constitutional rights that do not exist in the document, the failure to follow the original meaning concerning the separation of powers should receive more attention. In particular, the failure of the courts and, in areas where the courts do not typically decide matters, the political branches to enforce the original meaning has had serious harm.
Consider the requirement under the Constitution’s original meaning that Congress authorize American wars (except where the U.S. is attacked). There is a strong case to be made that Constitution’s original meaning imposes this rule. Despite claims of presidents who seek to engage in hostilities without congressional authorization, the Constitution’s original meaning would work well. By contrast, under our existing “constitutional practice,” presidents are usually able to engage in war without congressional authorization, as President Obama did in Libya. And this not only allows presidents to fight wars that the country is not behind, but also undermines the entire system of responsibility that the Constitution establishes in this area.
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