Tag: Constitutionalism

Bonfire of the Sophisticates (Part 1)


Just a few days before Christmas, National Review’s Rich Lowry — easily one of my favorite writers — penned a sober analysis titled, “The Right’s Post-Constitutional Moment,” in which he laments that, “Trump has captivated a share of the Tea Party with a style of politics utterly alien to the Constitution.” This is especially vexing, Lowry continues, in light of a movement which in 2010 produced “… a class of constitutional obsessives, such as Senators Rand Paul and Mike Lee, who were focused not just on what government shouldn’t do, but on what it couldn’t do, and why.”

Interesting turn of phrase there, using the designation, “constitutional obsessives,” to describe people who took a solemn oath of constitutional fidelity. I suppose I could be described as “matrimonially obsessive,” since I took a solemn and sacred vow of fidelity to my wife, but the term seems a bit quirky somehow, underscoring the Republican view of these upstarts and the voters who sent them, as borderline fanatics. In any event, Lowry goes on to describe Donald Trump in terms that strike this observer as disconcertingly accurate:

Donald Trump exists in a plane where there isn’t a Congress or Constitution. There are no trade-offs or limits. There is only his will and his team of experts who will figure out how to do whatever he wants to do, no matter how seemingly impossible. The thought you can’t do that doesn’t ever occur to him.

Washington State Constitutional Crisis


imageA few months back, I wrote about the crazy battle between Washington State’s supreme court and state legislature over education funding. The short version of the story is that the state constitution imposes the “paramount” duty on the legislature “to make ample provision for the education of all children.” The state has been sued repeatedly over a supposed failure to live up to this duty, and the court has sided against the legislature, demanding it square itself away. Last September, the legislature was found in contempt of the court. Now that the legislative session has ended, the court has evaluated their work and found it wanting:

After the close of the session and following several special sessions, the State has offered no plan for achieving full constitutional compliance by the deadline the legislature itself adopted. Accordingly, this court must take immediate action to enforce its order. Effective today, the court imposes a $100,000 per day penalty on the State for each day it remains in violation of this court’s order…this penalty may be abated in part if a special session is called and results in full compliance.

The state education unions are, of course, pleased:

Christie, Pot, and the Rule of Law


shutterstock_133014050As Ricochet member ShellGamer wrote late last year, Colorado and Washington’s (and now Alaska’s) legalization of marijuana has both created and exposed a constitutional mess. In brief, neighboring states are suing the Obama Administration for its policy of turning a blind eye to federal drug laws. Meanwhile, Congress shrugs its shoulders and acts uninterested in either forcing the president to enforce the law, or in repealing or amending it. If elected president Governor Chris Christie says he’ll have none of it:

“If you’re getting high in Colorado today, enjoy it,” Christie, a Republican campaigning for the 2016 presidential nomination, said Tuesday during a town-hall meeting at the Salt Hill Pub in Newport, New Hampshire. “As of January 2017, I will enforce the federal laws.” […]  “That’s lawlessness,” he said. “If you want to change the marijuana laws, go ahead and change the national marijuana laws.”

Christie certainly has an argument, especially on that last point: when confronted with genuinely bad laws, the proper response should always be to repeal or reform. Keeping laws you don’t plan to enforce on the books encourages lawbreaking in general, and invites caprice on the part of enforcement. If one thing unites the entire spectrum of the right, from anarcho-capitalists to NeoCons, it’s the belief that the rule of law matters.

Happy Dependence Day


const4In what may well become history’s greatest example of missing the forest for the trees, we Americans have been so busy arguing about current political events and issues — the Supreme Court’s decisions on Obamacare and same-sex marriage, the ongoing negotiations about global trade and Iran’s nuclear program, immigration, taxes, gun ownership, and the Confederate flag — we haven’t noticed that our country has just had a revolution.

If you’re reading this essay, it’s very likely that your side lost.

The key to understanding what’s happened to us lies in grasping that a revolution occurs when a country changes not merely its laws or its leaders, but its operating system.

Marijuana: The Latest Constitutional Train Wreck


I presume others have seen the WSJ editorial regarding the recent suit by Nebraska and Oklahoma against Colorado’s legalization of marijuana. This led me to read a copy of the states’ brief seeking leave to file the case in the Supreme Court. (The Supreme Court has original jurisdiction over disputes between states, but the complaining states have to establish that they’re entitled to jump over the lower courts). To summarize the states’ argument:

  1. The Controlled Substances Act (the CSA), a federal law, makes it a criminal offense to manufacture, distribute, or possess a schedule I controlled substance, which includes marijuana and tetrahydrocannabinols;
  2. Colorado’s constitution and laws have established a regulated industry for the manufacture and distribution of pot;
  3. The Obama Administration has elected not to enforce the CSA in Colorado or other states that have legalized pot;
  4. Nebraska and Oklahoma still prohibit pot, and the availability of pot in Colorado has made it more difficult and expensive for them to enforce their bans.
  5. The Supremacy Clause of the Constitution provides that “the Laws of the United States … shall be the supreme Law of the Land …, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
  6. Under the Supremacy Clause, Colorado should be enjoined from implementing the provisions of its constitution that would legalize and regulate the manufacture and sale of pot.

The editorial concludes:

Wanted: A Jealous Congress


One of the more depressing aspects of recent constitutional history is the decline in institutional opposition between the branches of our Federal government.

Institutional opposition stems from the separation of powers described in the Constitution, in which the three branches of government exist as separate and co-equal institutions, each with their own prerogatives and responsibilities.  If Congress were, for instance, to negotiate a treaty directly with a foreign power, the President should oppose the action on the grounds that Congress has usurped his rightful authority.  Likewise, if the President attempted to take out a loan on behalf of the country, Congress should should rightly raise Hell.  Whether the president and congress* agree on the substance of these issues should be irrelevant; the point is that each is wrongly poaching on the other’s territory.

Where the Right is Wrong — Salvatore Padula


Like Friedrich Hayek, I am a man of the Right. Though I do not adhere down the line to the contemporary orthodoxy of the Right, I firmly believe that personal liberty and personal responsibility are the cornerstones of both human fulfilment and a healthy society. I am utterly convinced that for our society to remain strong it is imperative that conservative and libertarian policy be implemented. In order for this to happen, it is necessary for those of us on the Right to win the argument and sway public opinion. Happily, this appears to be happening, both because of the inherent merits of our positions and because of the manifest failures of progressive statism.
While I am optimistic about the prospects of the American Right and I am heartened by the increasing effectiveness of our persuasive efforts, I believe that there are always areas for improvement. Specifically, I frequently encounter arguments put forward by some on the Right that are counterproductive in persuading the unconvinced — as well positions held by segments of the Right that are simply incorrect. To that end, I have compiled a list (not meant to be comprehensive) of arguments and opinions which those who desire the implementation of good policy may want to reconsider, or at least raise more sparingly.
Tax Cuts Pay for Themselves
This is a common argument put forward by many on the Right and it is not without merit. Some tax cuts do, in fact, pay for themselves. It is not, however, always (or even usually) the case. While it is absolutely true that punitively high income and capital gains tax rates disincentivize economic activity and slow economic growth, it is not necessarily true that losses in revenue will be made up by the overall increase in the size of the economy.
Whether or not that is the case is primarily a function of the applicable multiplier. Macroeconomics is far from a science and predicting what a particular multiplier will be is largely a theoretical crap shoot (as evidenced by the failure of the 2009 Stimulus, which assumed a much higher Keynesian multiplier than that which actually occurred). It is common on the Right to invoke the Laffer Curve to support the notion that cutting taxes will increase revenue. Laffer was certainly on to something and the Laffer Curve does apply under certain circumstances, but these circumstances occur when marginal tax rates are exorbitantly high. There is strong evidence to support Laffer at marginal rates of 60% and higher. The evidence for lower rates (including our current top rates) is much more equivocal.
I am not saying that we should abandon calls for lower taxes. We should, however, be circumspect about this particular claim.
More Guns, Less Crime
I like guns. I own several. I believe the Second Amendment recognizes an individual’s right to keep and bear arms. I find many claims advanced by those opposed to guns to be risible, particularly concerning assault rifles. That said, I think that gun advocates often make arguments which have the effect of shooting themselves in the foot.
While my title for this topic alludes to John Lott’s book of the same name, I’m less opposed to general claims about the effect of gun ownership and carrying on crime reduction (though the data cited to support such claims are far from compelling) than I am on individual instances where increased firearm distribution is suggested as a solution to a problem. For example, after the Sandy Hook massacre it was common to hear gun advocates call for arming elementary school teachers. This response is just as disproportionate and ineffective as were calls from the left to ban assault rifles and large capacity magazines. What’s worse, they overshadowed the sensible calls to reform our mental health system and allowed an unsympathetic media to caricature supporters of gun rights as quacks in the mold of Alex Jones. Similarly, when we object to sensible policies, such as prohibitions on carrying weapons in bars, we do much to discredit ourselves with the mass of our fellow citizens who think that alcohol and firearms are a bad combination.
Supporters of gun rights would also do well to admit that guns make certain crimes more likely. Mass killings are certainly more likely due to firearms. It’s difficult to have a mass stabbing, for example. (Though there apparently was one in in China recently, there were a large number of perpetrators and the casualties were relatively few when compared to something like the massacre perpetrated by assault rifle-armed Anders Brevik in Norway a few years ago.), and physical altercations involving firearms more easily escalate into fatalities. Conceding these fairly obvious truths doesn’t weaken our case (since nobody takes the denials seriously) and it allows us to make the reasonable argument that, given the facts that guns exist and that criminals will possess them, prohibiting legal gun ownership deprives law abiding citizens of their right to self-defense.
State Nullification and Secession
Much to my dismay, both nullification and secession seem to be increasing in popularity among segments of the Right. I’m not going to dwell upon why this poses a problem for the Right in terms of public perception. I think the reasons are self-evident. What I would like to address is why both nullification and secession are unconstitutional.
I will start with noting the social contractarian basis of our Constitution. The United States Constitution begins with “We the People of the United States.” It is not an agreement between the states; it is a compact between the people. While it is true that sovereignty under the Constitution is divided between the federal and state governments, federal sovereignty is not derived from the states, but from the people. Because our Constitution is a compact between the people of all the states, it is not within the power of individual states to unilaterally secede. While there is a natural right to revolt against an oppressive or tyrannical regime, that right is possessed by the people, not the states, and is, in any event, extraconstitutional.
Beyond that basic principle, nullification is squarely contradicted by the Supremacy Clause (Article VI, Clause 2 of the Constitution, which states that federal law is the supreme law of the land and overrides state statutory and constitutional law) and Article III, Section 2, which grants the federal courts jurisdiction over, amongst other things, cases arising under the Constitution and the laws of the United States.
The Federalist Papers also contradict the legitimacy of state nullification. Federalist No. 33 declares federal laws supreme to state laws. No. 39 explains that, under the Constitution, conflicts over jurisdiction between state and federal power are to be resolved by the federal courts. No. 44 discusses the role of the states in checking federal overreach, specifically stating that the election of new representatives is the recourse available to states. It does not mention nullification. No. 78 states that federal courts have the power to void legislative acts that are contrary to the Constitution. It does not grant a similar power to the states. No. 80 specifically denies that states have the power to invalidate federal law.
We Should Return to the Gold Standard
I deplore out-of-control spending and the profligate printing of money. Inflation is a terrible thing. I’m very critical of the policies of the Federal Reserve. That said, I think that a return to gold-backed currency is a terrible idea and is frequently advocated by people who don’t really understand what they are talking about. (Note: many advocates of the gold standard are highly informed. If you are one of them, much of what I have to say here is not directed toward you. I still think you’re mistaken though.)
There are undoubtedly good arguments in favor of having a gold-backed currency. They include long-term price stability, reduced risk of significant inflation, and the near impossibility of hyperinflation. Gold standards also make it more difficult for a government to engage in sustained deficit spending. More debatable is the assertion that a gold-backed currency has objective value in contrast to the ephemeral nature of fiat currency.
On to why the gold standard is a bad idea. First, despite claims to the contrary, gold has very little objective value. Gold certainly has industrial applications and people think it’s pretty, but there really is no such thing as objective worth. Something is only worth as much as someone is willing to pay for it. In any case, if you are looking for a stable store of objective value linking your currency to any single commodity (gold included) is inferior to a basket of goods. Second, while excessive inflation can be a serious problem, deflation is often disastrous. Fixing the money supply to gold reduces the risk of inflation at the cost of increasing the risk of deflation. As a general matter, moderate inflation (around 2%) is widely considered by economists to be desirable. Third, while a gold standard usually leads to long-term price stability, it is prone to short-term extreme volatility as the value of money is dependent upon the supply of gold.  
In any case, fiat currency is often unfairly maligned. A well-managed and politically independent central bank should have no problem responsibly managing the currency in a way that encourages growth and avoids inflation. While it is true that the Fed has pursued a dangerous policy of quantitative easing (though I’m slightly less concerned than are many about the prospects of mass inflation, I think it a real danger), this is not an inherent weakness of fiat currency. It is a consequence of the politically imposed dual mandate under which the Federal Reserve is tasked with limiting inflation and maximizing employment. These are often contradictory aims and the proper role of a central bank should be limited to curbing inflation.
Representative Peter King
The man is an ass.
Anyway, these are a few areas where I think the Right should reconsider. I’d love to know what you think and if you have anything you’d like to add to the list.