Ganesh Sitaraman has written an oped in the New York Times arguing that our Constitution was not built for a society as unequal as our has become. Even leaving aside the claim that our society is becoming substantially more unequal—one I have contested, the essay is mistaken. First, the Constitution as amended today empowers the federal government to engage in regulatory redistribution and progressive taxation to reduce economic inequality. Second, the Constitution of 1789 on which Professor Sitaraman principally focuses was consciously built to protect against legislative attempts to mandate more equality. The populist demagogues with whom the Framers were mainly concerned were those who would bamboozle the populous into debtor relief legislation and other wealth destroying schemes that could be sold, just as in our day, as aids to poor and retribution to the rich. Sitaraman misunderstands both our contemporary Constitution and our original Constitution.
After the 16th amendment and the New Deal Court’s interpretation of the Commerce Clause, the federal government has plenary powers of income taxation and regulation. There is nothing to prevent the left wing of the Democratic party from making our income tax code even more progressive than it already is.
The Senate has often been referred to as the World’s Greatest Deliberative Body, most frequently by the Senators themselves. But the confirmation hearings on President Trump’s nominations have been marked by an absence of deliberation and responsive argument. They reveal a nation in the grip of polarization and interest group power.
The Democrats have been making a show of holding up the President’s nominees with late night sessions. And in these sessions they did make some arguments against the nominees. The Republicans almost never responded substantively. It is not as if they cannot respond. For instance, many of the arguments against Betsey DeVos were very weak based on distortions of her record of promoting charters schools in Detroit and on the inaccurate premise more competition in K-12 would harm rather than help children. But Republicans recognized that few people were paying attention other than the Democratic base. More dramatic debate would just draw more attention to the Democratic resistance. And what would please the Republican base were not arguments, but the actual confirmations for which Republicans had the votes.
And lest one think the Democrats were interested in actually persuading their colleagues, they boycotted at least three committee hearings where nominees were going to be debated. Walking out made a great show of anger to please their own base, but made a mockery of deliberation. Woodrow Wilson famously said Congress in action is Congress in committee. During these confirmations congressional inaction was Congress in committee.
The only time that I saw floor debate come alive was about the question of whether Elizabeth Warren violated Senate Rule 19.
Among the current body of U.S. Senators, Elizabeth Warren (D-Mass.) is certainly the intellectual favorite of many liberals in the country, and she is already being spoken of as a potential Democratic presidential candidate in 2020. The former Harvard law school professor and consumer protection advocate has a great command of the issues, but her ideological commitments undermine her abilities, making her less effective as a legislator, and an often insufficiently decorous member of the U.S. Senate. Now that she has become a cause célèbre in the matter of Senator Jeff Sessions’ nomination to be Attorney General, the rebukes she is receiving from Republicans will come back to haunt them.
In a very fine investigative article in the Washington Examiner, Sean Higgins reports on “Obama’s Big Bank Slush Fund.” As part of their “settlements” with the feds over alleged misdeeds, big banks routinely agree to make donations to various “fair housing” outfits, to the tune of several hundred millions of dollars.
This past week, a unanimous panel of the D.C. Circuit (Judges Kavanaugh, Pillard, and Rogers—Judge Kavanaugh writing) held that State National Bank of Big Spring, Texas (“SNB”) may proceed with its lawsuit challenging the federal Consumer Financial Protection Bureau’s authority on various constitutional grounds.
Some time ago in these pages I’ve expressed my grudging admiration for my native country’s Weberian, bureaucratic legalism. The years I spent under that system should give me an advantage in a bureaucratizing America that’s still trying to domesticate latter-day cowboys. Nope. American-style bureaucracy is way more suffocating, stupid, and sinister.
The market for consumer credit has been subjected to an ever increasing amount of federal regulation since the 2008 crisis. The Dodd-Frank Act created the Consumer Financial Protection Bureau to intervene in consumer credit markets and protect us from the rapacious lenders who devour household income and place consumers in unmanageable levels of debt through stealth and manipulative business practices. The predictable results have been a marginal increase in the cost of credit and its decreasing availability to lower income consumers as the CFPB’s rules price them out of this market. Todd Zywicki, co-author of Consumer Credit and the American…
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.
Over the weekend Elizabeth Warren, the Senator from Massachusetts and a former professor at Harvard Law School, outlined eleven propositions, dubbed by the National Journal as “eleven commandments” for progressives. Warren is a very bright leader of today’s progressivism. Her propositions provide a window on the future trajectory of the Democratic party and its approach to law, three aspects of which seem particularly notable:
1.Opposition to crony capitalism. Warren wants government to make sure the banking system and Internet are run for the benefit of the people not big corporations.
2.Use of the regulatory system rather than tax system. Nowhere does Warren expressly call for higher taxes. But she does endorse a slew of regulatory interventions—a higher minimum wage, stronger protections for unions and “equal pay” provisions for women.
3. A relentless focus on equality. In marriage, in pay, and in access to higher education and contraceptives paid for by the government.
If these are the tenets of future progressivism, friends of liberty need to sharpen their critique.
1. They need to co-opt the attack on crony capitalism.