Judge Robert Bork was an outstanding legal scholar and jurist. It is often forgotten that he first became prominent thanks to his path-breaking work on antitrust law and economics in the 1960s and ’70s. In this area, he made major advances that have become conventional wisdom for scholars across the political spectrum….
Bork’s theories on constitutional law are far more controversial. Nonetheless, he undeniably made a major contribution to the defense of originalism. He played a key role in bringing it from the margins of legal thought to the center….
In his later years, Bork ran into two contradictions that bedevil conservative legal and political thought more generally. The first is the tension between originalism and judicial deference to the democratic process. In many cases, enforcing the original meaning of the Constitution requires imposing tight constraints on legislative and executive power…. Second, Bork advocated extensive government regulation and “censorship” (his word) of the culture, without considering the possibility that this form of government intervention is often prone to the same pitfalls that he had earlier identified in government economic regulation.
The controversy over his 1987 Supreme Court nomination and the continuing ideological divide over judicial review make it difficult to objectively assess Judge Bork’s legacy. In the long run, however, I think he will be remembered for his important contributions to legal thought — even by those who, like myself, disagreed with many of his conclusions.
Six states have marijuana legalization referendum questions on the ballot in this year’s election. Philip Smith has a good summary of them on the Stop the Drug War website [HT: Tom Angell]. Colorado, Oregon, and Washington will vote on initiatives to legalize marijuana generally, though all three would impose fairly extensive regulation on the new marijuana market. I wrote about Colorado’s Question 64 in this post. Arkansas, Massachusetts, and Montana will be voting on the legalization of medical marijuana only.
None of these six initiatives go as far as I and many other opponents of the War on Drugs would ideally want. But, if they pass, all would be noteworthy improvements over the status quo, especially the three that would legalize marijuana generally.
State-level initiatives obviously cannot repeal federal laws banning marijuana. But they can make enforcement of federal law more difficult by withdrawing state support for it, and also help create political momentum that could eventually lead to repeal of the federal law. Both public and elite support for drug legalization has grown in recent years, with support for the legalization of marijuana hitting 50% for the first time last year. If all or most of these initiatives prevail, it could strengthen the political momentum of legalization and help promote additional reform at both the state and federal level.
Much of the remaining political opposition to drug legalization comes from political conservatives, who polls show are far more likely to support the War on Drugs than liberals and moderates. I summarized the conservative case for legalization here. Skeptical conservatives may also want to check out William F. Buckley’s important 1996 article on the subject. [...]
NYU law professor Richard Epstein has an excellent short summary of F.A. Hayek’s thought and its continuing relevance today. Along the way, Epstein explodes various claims that Hayek’s thought had little intellectual merit and little influence until Tea Partiers and Republicans like Paul Ryan popularized it over the last few years. In reality, as I summarized here, Hayek was one of the most widely cited economists of the last century, influencing not only other economists but also scholars in many other disciplines.
In this 2008 post, I explained why many of Hayek’s ideas remain relevant today. However, it is somewhat ironic that conservative Republicans have embraced his ideas in recent years. Hayek was highly critical of conservatism for reasons that also remain relevant today. He outlined that critique in a famous 1960 essay appropriately entitled “Why I Am not A Conservative.” That doesn’t mean that conservatives are somehow barred from adopting Hayek’s ideas. But they should give greater attention to his critique of their ideology, which is in many ways a natural extension of the Hayekian critique of left-wing statism that many conservatives admire.
Various commentators, such as co-blogger Orin Kerr and Joel Alicea argue that the individual mandate case represents a sea change in conservative attitudes to judicial review. Whereas before conservatives supposedly opposed most judicial invalidation of statutes, now they emphasize the need to strike down laws that can’t be justified on originalist grounds. Orin also suggests that the battle over the mandate has led liberals to change position and embrace “judicial restraint,” which they were reluctant to do before.
There is something to these claims. But I think there is a lot more continuity in both liberal and conservative attitudes towards judicial review than these commentators suggest. As I pointed out at the very beginning of the individual mandate battle, conservative scholars and jurists have been arguing for stronger judicial enforcement of constitutional limits on federal power for many years now. The issue long predates Obamacare.
Alicea contrasts the four conservative justices’ position on the mandate with Chief Justice Rehnquist’s endorsement of “restraint.” In reality, however, Rehnquist led the federalism “revolution” of the 1990s and dissented in Gonzales v. Raich. Moreover, he was advocating stronger enforcement of federalism as far back as the 1976 case of National League of Cities v. Usery . When that decision was overruled in 1985, both he and Sandra Day O’Connor bitterly dissented and forcefully rejected the dominant liberal view that federalism issues should be left to the political process. Thus, there is at least a 35 year history of leading conservative jurists urging strong judicial enforcement of limits on federal power.
For at least 30 years, many conservative scholars and jurists have also been urging strong judicial enforcement of constitutional property rights. Rehnquist was a leader on that issue too, notably in his dissent in the key 1978 Penn Central case, which [...]
Conservative writer Michael Fumento explains his discomfort with the “extreme right” in Salon. While I think portions of his essay are overstated, I generally agree. Further, like Professor Bainbridge, I found this passage worth repeating:
Civility and respect for order – nay, demand for order – have always been tenets of conservatism. The most prominent work of history’s most prominent conservative, Edmund Burke, was a reaction to the anger and hatred that swept France during the revolution. It would eventually rip the country apart and plunge all of Europe into decades of war. Such is the rotted fruit of mass-produced hate and rage. Burke, not incidentally, was a true Tea Party supporter, risking everything as a member of Parliament to support the rebellion in the United States.
All of today’s right-wing darlings got there by mastering what Burke feared most: screaming “J’accuse! J’accuse!” Turning people against each other. Taking seeds of fear, anger and hatred and planting them to grow a new crop.
That the other side may or may not have done it first is no excuse. If civility and tolerance are virtues — and I believe they are — than one should be civil and tolerant, without regard to what one’s opponents do. More Fumento:
Incivility is hardly the domain of the new right. American society grows ever coarser. But this is cold comfort. Conservative ideology demands civility of conservatives; demands, yes, self-policing. Let others act as they will, bearing evidence of the shallowness of their positions. It also demands respect for official offices, such as the presidency. When our guy is in office, you give him that modicum of respect – and when your guy is in office, we do the same. The other party is to be referred to as “the loyal opposition,”
Both sides in the individual mandate litigation have developed a wide range of legal arguments to support their position. Some defenders of the mandate have also emphasized several nonlegal reasons why they believe the Court should uphold the law. These arguments have gotten more emphasis since the Supreme Court oral argument seemed to go badly for the pro-mandate side. The most common are claims that a decision striking down the mandate would damage the Court’s “legitimacy,” that a 5-4 decision striking down the mandate would be impermissibly “partisan,” and that it would be inconsistent with judicial “conservatism.”
Even if correct, none of these arguments actually prove that the Court should uphold the mandate as a legal matter. A decision that is perceived as “illegitimate,” partisan, and unconservative can still be legally correct. Conversely, one that is widely accepted, enjoys bipartisan support, and is consistent with conservatism can still be wrong. Plessy v. Ferguson and Korematsu are well-known examples of terrible rulings that fit all three criteria at the time they were decided.
In addition, all three arguments are flawed even on their own terms.
I. A Decision Striking Down the Mandate is Likely to Enhance the Court’s Legitimacy More than it Undermines it.
Claims that a decision striking down the mandate will undermine the Court’s “legitimacy” founder on the simple reality that an overwhelmingly majority of the public wants the law to be invalidated. Even a slight 48-44 plurality of Democrats agree, according to a Washington Post/ABC poll. Decisions that damage the Court’s legitimacy tend to be ones that run contrary to majority opinion, such as some of the cases striking down New Deal laws in the 1930s. By contrast, a decision failing to strike down a law that large majorities believe to be unconstitutional can actually damage [...]
Politico’s Arena site recently asked contributors to weigh in on whether the GOP is likely to be “wounded” by its support for severe restrictions on immigration. My answer is available here:
The real tragedy here is not that the GOP might suffer politically, but that so many conservative Republicans have turned against immigration in the first place. Conservatives claim to support free markets, yet many of them also wish to use massive government intervention to close off an international free market in labor. They extol the virtues of self-help, economic opportunity, and individual achievement. Yet many of them also want to build a wall to keep out immigrants who come seeking greater freedom and opportunity than they could hope for in their native lands.
Had the restrictive immigration policies favored by some of today’s conservatives been in force a century ago, the ancestors of most of those conservatives would never have been able to come to America in the first place….
Ronald Reagan said that America should be “a tall, proud city… teeming with people of all kinds living in harmony and peace.. and … doors …. open to anyone with the will and the heart to get here.” More recently, former Florida governor Jeb Bush urged Republicans to rethink their views on immigration. Conservative Republicans should heed their call.
In this post, I explained why conservatives (and some libertarians) are wrong to worry that increased immigration will lead to a larger welfare state. Evidence from many countries suggests that increased immigration and ethnic diversity actually reduces support for welfare state policies.
For this reason, among others, Jeb Bush is right to urge a change in the GOP position on this issue:
Republicans should reengage on this issue and reframe it. Start by recognizing that new Americans strengthen
A one-size-fits-all policy imposed at the national level has the potential to make very large numbers of citizens unhappy, even if it was arrived at democratically…..
Pushing government decisions down to the lowest democratic level possible — while protecting basic civil rights — guarantees that more people will have a say in how they live their lives. Not only does that mean more people will be happy, but the moral legitimacy of political decisions will be greater.
The problem for conservative and libertarian federalists is that whenever we talk about federalism, the Left hears “states’ rights” — which is then immediately, and unfairly, translated into, “Bring back Bull Connor.”
But that may be changing. In an essay for the spring issue of Democracy: A Journal of Ideas, Yale law professor Heather K. Gerken offers the case for “A New Progressive Federalism.”
Gerken’s chief concern is how to empower “minorities and dissenters.” Not surprisingly, she defines such people in almost purely left-wing terms of race and sexual orientation. Still, she makes the very compelling point that the current understanding of diversity — having minority members as tokens of inclusion — pretty much guarantees that racial minorities will always be political minorities as well…
Allowing local majorities to have their way, Gerken continues, “turns the tables. It allows the usual winners to lose and the usual losers to win. It gives racial minorities the chance to shed the role of influencer or gadfly and stand in the shoes of the majority.”
She’s right, and not just about her favored groups. For instance, Mormons (not a group Gerken highlights) are a national minority. But they are a Utah
John Samples of the Cato Institute has an interesting recent piece on the conflict between Cato and the Kochs [via Gene Healy]:
The politically engaged have offered much commentary on the conflict over the future of the Cato Institute. Some prominent people on the left have spoken of their respect for the current Cato. In today’s polarized political world, an endorsement from the left often serves as a negative signal to conservatives. That reaction would be a mistake. Conservatives have something at stake in the continuation of Cato.
What is the issue here? Each reader will reach his or her own conclusions based on the evidence we have about the Kochs’ intentions in this takeover attempt. I would suggest that we look at the big picture about the recent development of think tanks. A few years ago a number of wealthy liberals including George Soros decided to contribute considerable sums to a new think tank. They deemed the old liberal think tanks (e.g. Brookings) ineffective and too removed from politics. They sought instead a think tank engaged with daily partisanship, grassroots mobilization, and electoral politics….
[T]he conservative will immediately recognize that the Kochs are proposing a “new model” think tank to replace the “old school” Cato. Of course, the conservative will not oppose all innovations though he will always insist on repair rather than reconstruction. But the conservative will ask, “What exactly needs repair here? What reasons counsel innovation at Cato?” Under Ed Crane, the Cato Institute has built a strong reputation for principled engagement in public policy….
[A] more partisan Cato wouldn’t necessarily further conservative ends of principled limits to government power. I am particularly concerned about an issue area I have worked in for over a decade: campaign finance regulation. It is true that the Republican party
In this recent Washington Post op ed on how the GOP can increase its appeal to Hispanic voters, former Florida Governor Jeb Bush says the following about immigration:
The American immigrant experience is the most aspirational story ever told. Immigrants left all that was familiar to them to come here and make a better life for their families. That they believe this is possible only in America is the best expression of American exceptionalism I know. And on this score, Republicans have a winning message and record as the party of the entrepreneur….
[W]e need to think of immigration reform as an economic issue, not just a border security issue…..
Republicans should reengage on this issue and reframe it. Start by recognizing that new Americans strengthen our economy. We need more people to come to this country, ready to work and to contribute their creativity to our economy. U.S. immigration policies should reflect that principle. Just as Republicans believe in free trade of goods, we should support the freer flow of human talent.
These points are not new. That immigration “strengthen[s] our economy” is the longstanding consensus view of most economists. Others have previously noted that there is a deep contradiction between anti-immigration conservatives’ support for free markets and their opposition to the free flow of labor across national borders. Ronald Reagan recognized this many years ago, and supported freer immigration throughout most of his political career, even touting an America whose “doors were open to anyone with the will and the heart to get here” in his 1989 farewell address to the nation. The importance of Bush’s op ed is not that it says anything new, but that the person saying it is a prominent Republican whom many conservatives see as a preferable alternative to the party’s [...]
This year’s election was supposed to be something new and different. However, Rick Santorum, the big winner in this year’s Iowa GOP primary is remarkably similar to the big GOP Iowa winner of 2008: Mike Huckabee. Like Huckabee, Santorum is a hard-core social conservative whose big government proclivities extend far beyond social issues. I covered Huckabee’s record in this December 2007 post. Santorum is remarkably similar, perhaps even worse. For the details on Santorum, see this post by David Boaz [HT: co-blogger David Bernstein], and Jonathan Rauch’s thorough review of Santorum’s 2005 book laying out his political philosophy. As Rauch noted, Santorum rejects what he once dismissed as “this whole idea of personal autonomy,” not to mention “the idea that people should be left alone.” He doesn’t just think that freedom should be heavily regulated; he’s against “the whole idea” on principle.
Santorum does have chutzpah. Despite his record, he just gave a victory speech where he emphasized that the main issue in this campaign is “freedom.” If that’s really what it’s about, Santorum’s campaign will end up the same way as Huckabee’s did. I’m no great fan of any of the other remaining GOP candidates. But none of them is as much a big government conservative as Santorum is.
UPDATE: There is one important difference between Huckabee’s success in 2008 and Santorum’s today. In 2008, Huckabee’s win seriously hurt Mitt Romney by preventing him from emerging as the main “conservative” alternative to John McCain until it was too late to stop McCain from winning the nomination. This year, Santorum’s success actually helps Romney by ensuring that his most prominent rival in the next few states will be a candidate who many Republicans see as unserious and unelectable against Obama.
UPDATE #2: Michael Tanner has more on Santorum’s [...]
This Wednesday, I will be giving a talk at NYU Law School on the Tea Party Movement and Popular Constitutionalism. The talk will be at 11 AM in Vanderbilt Hall, Room 202. NYU Professor Roderick Hills will comment on my presentation, and there will also be questions from the audience until around 12:30 or so.
I previously wrote about the Tea Party as a popular constitutionalist movement in this article. In my talk, I will explain why the Tea Party qualifies a popular constitutionalist movement despite the fact that that concept has previously been used mostly to describe movements on the political left and assess its main strengths and weaknesses. Like previous popular constitutionalist movements, the Tea Party has not avoided such problems as the impact of widespread political ignorance.
I will also suggest why its impact is likely to be a net positive on balance – including from the standpoint of the mostly left of center advocates of popular constitutionalism, a point I first developed in the article linked above. Given that it was inevitable that the combination of Obama’s policies and a deep recession would produce a right-wing populist reaction, it is far better that it has produced a movement primarily focused on limiting federal power and spending than one focused on racial resentment or xenophobia, as was often the case in previous American history and in many European countries today. In addition, the movement’s emphasis on limiting federal power could potentially increase democratic accountability in government – a central objective of many advocates of popular constitutionalism.
This interesting Slate article on Match.com notes that Match’s statistical data base finds that conservatives are more willing to date liberals on the site than vice versa:
Indeed, says [Match.com's Amarnath] Thombre, “the politics one is quite interesting. Conservatives are far more open to reaching out to someone with a different point of view than a liberal is.” That is, when it comes to looking for love, conservatives are more open-minded than liberals.
I don’t rule out the possibility that conservatives are genuinely more ideologically tolerant in their dating lives than liberals. But it’s also possible that the conservatives on Match are unrepresentative. Some of the most hard-core social conservatives might either reject online dating on principle or utilize sites like E-Harmony, which are geared to their specific needs.
Back in 2007, I wrote a post arguing that people tend to overestimate the dangers of cross-ideological dating. And in my single days, I practiced what I preached. About a year after I wrote that post, however, I met my future wife, who is not only a fellow libertarian, but is libertarian to almost the exact same degree as I am. We have nearly identical scores on Bryan Caplan’s Libertarian Purity Test. Regardless, I think what I wrote back in 2007 is still valid. Single people who take a rigid stance against cross-ideological dating are probably doing themselves a disservice. [...]
In a recent interview, Paul Krugman argued that liberals generally understand conservative arguments better than vice versa:
A liberal can talk coherently about what the conservative view is because people like me actually do listen. We don’t think it’s right, but we pay enough attention to see what the other person is trying to get at. The reverse is not true. You try to get someone who is fiercely anti-Keynesian to even explain what a Keynesian economic argument is, they can’t do it. They can’t get it remotely right. Or if you ask a conservative, “What do liberals want?” You get this bizarre stuff – for example, that liberals want everybody to ride trains, because it makes people more susceptible to collectivism. You just have to look at the realities of the way each side talks and what they know. One side of the picture is open-minded and sceptical. We have views that are different, but they’re arrived at through paying attention. The other side has dogmatic views.
Bryan Caplan responds:
In a Turing Test, a computer tries to pass for human….
According to Krugman, liberals have the ability to simulate conservatives, but conservatives lack the ability to simulate liberals….
It’s not a perfect criterion, of course, especially for highly idiosyncratic views. But the ability to pass ideological Turing tests – to state opposing views as clearly and persuasively as their proponents – is a genuine symptom of objectivity and wisdom….
There are important caveats….. we should compare liberal intellectuals to non-liberal intellectuals, and liberal entertainers to non-liberal entertainers, not say Krugman to Beck….
If we limit our sample to Ph.D.s from top-10 social science programs, I don’t see how Krugman could be right. You can’t get a Ph.D. from Princeton econ without acquiring basic familiarity with market
My article, “The Tea Party Movement and Popular Constitutionalism,” is now available on SSRN. It is part of a recent Northwestern University Law Review Colloquy symposium on the Constitutional Politics of the Tea Party Movement. Here is the abstract:
The rise of the Tea Party movement follows a period during which many scholars have focused on “popular constitutionalism”: the involvement of public opinion and popular movements in influencing constitutional interpretation. Most of the previous scholarship on popular constitutionalism analyzed movements identified with the political left. Although the Tea Party movement is primarily composed of conservatives and libertarians, it has much in common with previous popular constitutional movements.
Part I of this Essay describes some of these similarities, focusing on the ways in which popular constitutional movements have arisen in response to social or economic crises, or major policy initiatives instituted by their opponents. Part II explains how the Tea Party movement shares key strengths and weaknesses of other popular movements. Public opinion on constitutional and policy issues is often influenced by widespread political ignorance and irrationality. The Tea Party is no exception to these trends. The evidence suggests, however, that Tea Party supporters are no more likely to be ignorant than public opinion generally, or their opponents on the political left.
Part III explains two possible advantages of one unusual feature of the Tea Party: the fact that it is the first popular constitutionalist movement in many years whose main focus is the need to limit federal power. The enormous size and scope of modern government undercuts meaningful democratic control over government policy because “rationally ignorant” voters cannot keep track of more than a small fraction of government activity. Strengthening democratic accountability is one of the main objectives of advocates of popular constitutionalism. The imposition of stricter limits on