Anyone who has clerked for an appellate judge knows that assisting in writing a dissent is one of the better parts of the job. While a majority opinion, however important it is, almost always involves compromise, a dissenting opinion allows a judge the full range of rhetorical devices, unhindered by the need to cobble together a majority or to convince colleagues to vote the same way.
The budget deal last December was notable for its neglect of any reform to entitlements. The Obama years will likely be remembered for the utter failure to come to grips with our burgeoning unfunded obligations, which remain the greatest threat to our future. But don’t take my word for it. Here is the eloquent economist Caroline Hoxby:
Programs such as Social Security, Medicare and disability have needed reform for many years because they are not fiscally sound. They will predictably impose an increasing burden on the economy. Today’s young Americans will have to be heavily taxed when they are adults to pay for benefits mainly enjoyed by previous generations. This will discourage them from working and upgrading their skills, causing future growth to slow. Most economists have agreed year after year that these programs need attention, yet reforming them always takes a back seat to agonizing about the latest crisis—even when we know that such agonizing cannot help much and that we must let the economy re-equilibrate.
Sadly, reform seems further away than ever, as Republican presidential candidates are largely silent about the issue and Democratic candidates want to add to entitlements by increasing social security benefits. One reason for less serious talk about reform, let alone action, is simple: the baby boomers are either now collecting old-age entitlements or getting ever closer to the day they will do so. Politicians are leery of annoying this massive, aging voting bloc.
This issue highlights a little discussed danger for democracy—its last period problem.
Last week President Obama gave a speech to newly naturalized citizens at the National Archives. His remarks show why immigration, long rightly praised as an essential part of our heritage, has become a source of ever greater controversy. The President failed to acknowledge that it is the principles of limited government and individual rights that make United States a welcoming place for immigrants because they assure that newcomers cannot tip the political balance to make life worse for those already here.
Instead, the President celebrated the raw power of democracy to make “progress,” change that can come at the expense of long time residents.The President did suggest that one of the “binding forces” for America is “loyalty” to “the documents” that surrounded the new citizens at the Archives. But he never identified these documents by name, quoted any language from them, or explained why they have an enduring claim on our loyalty. In particular, President Obama cited almost none of the liberties protected by the Constitution and nothing of the structure of federalism and separation of powers that protects those liberties.
It is hard to believe this was mere oversight. His administration has notably failed to defend both the structure and rights that are actually in the Constitution.
David Brooks is in an angry and spiteful mood. Perhaps he’s even getting to be a bit unhinged, as history is putting his vision of American conservatism onto its rubbish heap.
When I read the preface, I thought: What a great story awaits the reader. The authors of The Constitution: An Introduction, Michael Stokes Paulsen and Luke Paulsen, father and son, spent nine summer vacations together discussing the original Constitution and the Amendments. I wish I could have been privy to the conversations. Did the father ever say to the son, “you changed my mind on this point?” Did the son ever say to the father, “you changed my mind on that point?” After all, I think, the key to introducing America is by way of a dynamic conversation within and between the generations. Their aim is both lofty and restrained: to write an introductory book that is “rigorous, accurate, and scholarly” yet at the same time “brief and readable.” But they fall short.
In both parties’ primaries a real populist is running, the kind of person many of the Framers would have called a demagogue. On the Republican side, the billionaire says we can deport all illegal immigrants and he will persuade Mexico to give the money to build a fence. Although he proclaims himself a conservative, his most substantial complaint about big government appears to be that he is not running it.
On the Democratic side, a self-proclaimed socialist argues that the problem with government is that it is not even bigger. He wants to sharply raise taxes and provide more government jobs. He also wants to criminalize all kinds of voluntary acts, from choosing to work at mutually agreeable wages to trading goods and services with foreigners, including those for whom that trade may mean the difference between subsistence and penury. This tribune of equality would ground down the truly destitute of the world. And, sadly, both these candidates are riding pretty high in the polls.
But these candidacies actually show the relative health of the United States compared to the most comparable democracies—those in Europe. Our populists of right and left are less bad then their populists, less likely to win power, and even in power less likely to do permanent damage.
The first canon of Progressivism is faith in human reason. Politics for the Progressive is a science not in the Aristotelian but in the Baconian sense. Political questions are not prudential complexities to which human judgment approaches better or worse answers but rather moral rigidities with right or wrong solutions wholly within the ambit of the all-powerful human mind. The distance from that schematic to administration by experts is brief. In fairness, that portrayal substantially attenuates the chain. But a recent family visit to Monticello served as a reminder that, however ironically, Thomas Jefferson is one of the chain's first American links.…
For its lay audience City Journal asked me to explain the King v. Burwell decision, which permitted federal exchanges under the Affordable Care Act to receive subsidies. Within its brief compass, I made two points.
First, I suggested, contrary to some conservative commentators, that the majority opinion did not demonstrate that Chief Justice Roberts was unprincipled but that instead the decision followed from a principled purposivist theory of statutory interpretation. I showed why the theory was wrong: like Mike Rappaport, I believe the meaning of the provision was clear and neither purposivist nor intentionalist interpretation should be allowed to defeat a clear meaning. This analysis of Roberts’ opinion comports with my more general view that four justices labeled conservatives are often fractured, because they are more legalists than ideologues, whose different interpretive methods lead to different results that are sound under their principles even when the principles are unsound.
Second, I noted that the effects of purposive interpretation are generally friendly to progressivism because it allows judges to choose overriding purposes that advance progressive goals that were not written into law. But let me be clear that any aid that purposivism gives to progressivism is not a reason to reject purposivism, just an effect of that interpretive method.
Here is an analogy.