With this post I bid a very fond farewell to Law and Liberty, its brilliant mastermind Richard Reinsch, and readers and commentators, faithful and occasional, over the past near-five years. I’ll continue to contribute as the spirit and Richard’s impetuous demands may move me. But my more-or-less regular contributions end with this post. That is as it should be, and it comes at the right moment. My engagement here has been like most of my career: wholly fortuitous, and undeservedly rewarding. Richard recruited me for the launch in the hope of giving air to a fresh, heterodox voice in a vibrant…
Archives for October 2016
In my last post, I praised the D.C. Circuit’s opinion in PHH Corp. v. CFPB holding that the restriction on the President’s authority to remove the Director of the Consumer Financial Protection Bureau was unconstitutional. In this post, I want to discuss the most important precedent.
In PHH, the D.C. Circuit held that precedent and practice allowed removal restrictions on agencies headed by commissions, but not by agencies headed by a single individual. In reaching this decision, the court had to distinguish the Supreme Court’s decision in Morrison v. Olson. Some commentators have argued that Morrison governed this case, but I do not think so.
In Morrison, the Supreme Court approved the independent counsel statute, which had placed a similar removal restriction on the Attorney General’s authority to remove the independent counsel. If the independent counsel could be protected from executive removal, why could not the Direction of the CFPB?
The warm weather hasn’t stopped the wind from blowing or the foliage from turning gold and red and orange. As the leaves fall, and the trick-or-treaters prepare to make their rounds, here in Baltimore it’s also “Pumpkin Papers” season. Recalling this fascinating chapter of the Cold War is as much a part of an anticommunist’s autumn as little kids dressed like ghosts or storefronts decorated with dried cornstalks and hay bales.
The last several weeks have seen extraordinary developments in the climate-change investigation of ExxonMobil. What once was an investigation of ExxonMobil by states attorneys general has become an inquiry into the misconduct of the attorneys general. First came a mid-September order from Judge Ed Kinkeade, of the U.S. District Court for Northern Texas. Exxon had received a subpoena requiring massive disclosure—a subpoena (or “Civil Investigative Demand”) signed not by a judge but merely by the Attorney General of Massachusetts, Maura Healey—and the company responded by suing to enjoin its enforcement. Ordinarily (under the Younger abstention doctrine) a federal court would hesitate…
In A Culture of Growth: The Origins of the Modern Economy Joel Mokyr has located the source of the industrial revolution in the culture of the Enlightenment. The Enlightenment prioritized the idea of human progress. As a result, people began to think constantly of finding material in the world to make new technologies for human betterment. The Enlightenment also replaced more scholastic modes of thought with scientific method. As a result, people began intensively to test both new theories to see if they explained the world and new mechanisms to see how they would move the world. As a consequence, the Western economy began to grow at a rate never before seen in history.
A Culture for Growth is a wonderful book to which I cannot do justice in a short post. Mokyr is in equal measures a great intellectual historian and a great economist. He sees the cultural change of the Enlightenment as transforming the incentives for economic and intellectual activity. It removed taboos that impeded progress and created a market where the best new ideas rapidly gained a large market share of elite approval. This book is welcome for many reasons, but not least because it is a blow to tedious, tendentious, and false political correctness about the roots our our prosperity. The Enlightenment was indeed key to material progress that helped the least well off, first in the West and now more broadly throughout the globe. And yes, it was the product almost entirely of dead white men, and relatively wealthy ones at that.
Although this is not his focus, I believe Mokyr’s book also establishes the crucial link between the levers of the Enlightenment and the growth of liberty.
To those of us in the universities, the Left’s animus to Catholicism revealed by Wikileaks this past week is not news. What Podesta and the Clinton circle said might have been exposed, but such slights about Catholicism are heard around universities all the time. As the Wall Street Journal points out, if such things were said about Islam they would be denounced as bigotry.
A political movement’s success must be judged ultimately by how much change it causes, or prevents, in society. The Right has been greatly frustrated in this respect by the fact that the presidency seems unattainable by any serious conservative not named Ronald Reagan.
Last week, I had the pleasure of participating in the Tradition Project run by Mark Movsesian and Marc DeGirolami of St. John’s Law School. The subject of this year’s conference was tradition in law and politics. One of the high points for me was the opportunity to read Harry Jaffa. He turned out to be a very interesting thinker. But I found that his famous claim that the Declaration of Independence has a constitutional status weakly defended. In particular, he fails to distinguish between positive constitutional law and constitutive traditions—a distinction that I think central to political life in a constitutional republic.
The Declaration of Independence is not positive law. It is instead a declaration of the reasons that the colonies were breaking with Great Britain. Courts do not enforce it as law. While other officials reference the Declaration on occasion, they do not generally do so in a way that suggests that it represents a binding legal obligation. It would be hard to make it so, because while the Declaration announces general truths of politics, it does not impose specific legal norms. And, unlike the Constitution, it was not ratified by the people and is not the product of a process that Mike Rappaport and I have described elsewhere as conducive to good constitutions.
While it does not create positive law, the Declaration of Independence is an important source—the most importance source— of our constitutive traditions.
What could be more amusing, quaint really, in the minds of many than meeting in New York City for two days to discuss tradition and law?
The best way to avoid disappointment is to have low expectations—they can almost always be met. In that sense, the Clinton-Trump debates did not disappoint. No one really expected them to be an intellectual feast. Their interest, such as it was, could be said to be more in the realm of psychology, or even of pathology, than that of ideas.