In a New York Times op-ed a week ago, Senator John McCain (R-Ariz.) lauded the recently deceased Delmer Berg and other Americans who volunteered to fight on the Loyalist side during the Spanish Civil War, which began 80 years ago. Berg was thought to be the last living veteran of the Abraham Lincoln Brigade, a unit of American volunteers who fought in that storied but oft-mischaracterized conflict that took place from 1936 to 1939.
Archives for March 2016
The Supreme Court yesterday suggested a compromise solution to the contraceptive mandate for religiously oriented service organizations that object to contraception, and required the parties to comment on whether it met their needs. This order, made after oral argument, is very unusual. It likely reflects the fact that the Court was divided 4-4 on the question of whether the Obama’s administration previous accommodation violated the Religious Freedom Restoration Act.
Some initial responses suggest that the compromise might be welcomed by both sides. It should make us reconsider whether a Supreme Court with an equal number of justices is a bad development for the nation. A Court with nine justices would likely have come down on one side or another, embittering the side that lost in the culture wars. And when the culture war divide follows the partisan divide on the Supreme Court, the decision would only increase partisan distrust of the institution.
Greater efforts at compromise would be a hallmark of 4-4 court with such divides. Justices like to render decisions as matter of craft and institutional obligation and would tend to avoid deadlock, where possible.
The world is full of little ironies. Last week, for example, I was in the Netherlands, discussing round the breakfast table the latest developments in euthanasia in Holland and Belgium (now the world leader in the field), and today I read in my newspaper the difficulties that the state of Ohio has in executing one Romell Broom.
No other major figure in 20th century American social and political life has deserved study more than Russell Amos Kirk (1918-1994). The existing studies of Kirk are excellent, but the latest effort, by Professor Brad Birzer, surpasses all previous attempts to appreciate the magnitude of Kirk’s personal mission and scholarly opus. Birzer has a command of the primary sources that is truly amazing, and his archival labors evince the work of a superior scholar and world-class historian. In other words, a significant advance in scholarly knowledge is upon us, as well as an advance in evaluating Kirk as a political thinker.
At The Huffington Post, Evan Bernick has offered a thoughtful reply to my suggestion that judicial deference to Congress differs categorically from judicial deference to the administrative state, arguing instead that the real problem is deference simply: “Judicial deference of any kind sees judges elevating will over the reasoned judgment that judges who draw their power from Article III must exercise.”
This usefully identifies the core of the issue. If federal judges actually possessed all the power Bernick says Article III assigns them, there would be less constitutional basis for constraining their authority. If they do not, the issue is whether they can commandeer it.
The trip to Hawaii I wrote about in my previous post yielded some interesting Ricardian, Schumpeterian, and Hayekian lessons, as I noted. It was also enlightening in terms of how prevailing conceptions of our 50th state compare to its actual history.
The reader of James L. Haley’s excellent 2014 book, Captive Paradise: A History of Hawaii, will see sobering disparities that match a larger trend in our society: the tendency to distort the historical record so as to exaggerate the vices of the early European settlers while exaggerating the virtues of pre-contact indigenous cultures. This revisionism has the (desired?) effect of minimizing the benefits of Western influence, and even—in the case of Hawaii—calling into question the legitimacy of its statehood.
One of the Carter administration’s great achievements was deregulation, and in no sector was the success greater than in the airlines industry. The result was more competition and lower fares that democratized travel. It is a troubling sign of America’s lurch from liberty and free markets that Democratic legislators are trying to re-regulate the airlines and that the Obama administration is dampening competition.
The most egregious offender is Chuck Schumer, the incoming Democratic leader of the Senate (he will be majority leader if the prediction markets are right). He wants to regulate the width and leg room of airline seats. This is hardly a safety issue: the FAA has not expressed concern, and airline travel has never been safer with no fatalities on domestic commercial passenger flights last year.
Airlines already offer more room in first class and economy-plus for additional money. Are consumers not capable of choosing how much leg room they want to pay for? What other decisions does Schumer want to make for us?
The Argentine writer and poet Jorge Luis Borges was once invited to deliver a lecture at Peru’s most respected university. It was 1965. By then he was elderly and blind, and Peru was under a military dictatorship that was considered “Progressive.” Borges, a classical liberal, was outspoken against the regime’s military authoritarianism.
He was accosted on the campus by student supporters of the regime harshly protesting his presence. When the students’ militant chants finally died down, Borges was asked by one of them: “Mr. Borges, how is it possible for an intelligent person like you to hold unpopular positions that go against the course of history?”
He calmly replied: “Listen, young man, don’t you know that gentlemen only defend causes that are lost?”
Mother Loraine Marie Maguire, (C), of the Little Sisters of the Poor, walks down the steps of the US Supreme Court.(Photo by Mark Wilson/Getty Images)
Scenes from an Argument
I’ve perused the argument transcript in Zubik v. Burwell (better known as Little Sisters of the Poor v. Burwell) and some of the press coverage. I’ve also looked at the press pictures and noodled over whose side I’m on—the grim-faced harridans demanding free contraceptives now, or the cheerful Little Sisters.
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 this and my previous post, I argue that the constraints imposed by several liberal positivist theories do not operate to place significant limits on Supreme Court decisions. Thus, the suggestion of these theorists that the law requires judges to take actions turns out to be largely illusory. While the law under these theories does place some limits on the justices, those limits are relevatively weak. To make this argument, I attempt to show how these theories (or at least one of them in this post) would allow a libertarian Supreme Court justice to reach significantly libertarian results. Since these theorists argue that these theories allow liberal results, it seems clear that the constraints they impose are not substantial.
In my previous post, I briefly described Dick Fallon’s Constructivists Coherence Theory of constitutional law, which requires the justices to decide cases based on five types of constitutional arguments: text, intent, theory, precedent, and values. Here I will show how a libertarian could use these arguments to reach libertarian results.
Let me start with the text. While the text might seem like a significant constraint, Fallon’s theory renders it much less substantial because he allows the interpreter to rely on either the original or the contemporary meaning. Based on either the original or contemporary meaning, the text of the Takings Clause, the Privileges or Immunities Clause, the Contracts Clause, the Ninth Amendment, and the Due Process Clause could strongly support libertarian results. (Other clauses might also be important, such as a First Amendment protection of commercial speech.)