Friday night bike ride.
It appeared like a vision,
From an astute commentary by Robert Salisbury, former Leader of the House of Lords. Almost all of the essay applies as well to the USA and other western countries.
Our own country is caught by all this, as it was in the first half of the 19th Century and in the middle decades of the 20th. We were able to adapt to survive: in the 19th by extending the franchise and in the 20th by expanding public services and mass prosperity. As a result British governments regained the authority to govern. They did so by reforming the institutions of representative government the country already had, thereby responding to the demands of an electorate emboldened and liberated by technological change.
Today, governments are once again losing the authority to govern, and for similar reasons. Another major financial crisis might lose them it completely; but a new crisis might not even be needed. Whitehall’s failure to control immigration, its puny efforts to tackle the housing question, the feebleness of our defences, the incompetence of our transport and energy policies might, whether jointly or severally, tip us over.
In the past, the country has been sustained in times of crisis by a solid body of electors who felt they had an interest in the existing structures which kept them, on the whole, safe and relatively prosperous. That body’s support is no longer so solid. The IT revolution is largely responsible. The speed of communications make governments and Parliamentary procedures look flat-footed. Increasingly the public is at least as well-informed as the Whitehall departments who are telling them what to do. It is virtually impossible to keep anything secret and anyone who betrays a confidence is regarded as heroic. The more rules we have, the more the public feels they are used as a means of flouting their spirit.
Worst of all, social media stimulate one issue politics and make the simple solution credible. You and I know that competent administration is boring and usually demands compromises. We also know that effective legislation needs careful preparation, much internal and external debate, a mind-numbing command of detail and a lively warning mechanism against the law of unintended consequences. The same applies to parliamentary scrutiny.
Any sensible electorate would be only too pleased to delegate this necessary day-to-day grunt to a Whitehall and Westminster it trusted and, although interested and argumentative, get on with the rest of its life.
Sadly, that is not where we are.
The candidacies of Trump and Sanders are in large part responses to public concerns about the problems Salisbury describes. They are inadequate responses, likely to fail politically and on their own terms and eventually to be superseded by other responses. The pot will continue to boil at greater or lesser intensity depending on who gets elected and what follows. It seems unlikely that the underlying problems will begin to be solved unless the voters develop a realistic understanding of what needs to be done, and start electing politicians who are both willing and competent to do it. It may be a while.
“Tillman Responding to Washington Post Op-Ed: Gregory L. Diskant–Obama can appoint Merrick Garland to the Supreme Court if the Senate does nothing”
Finally, the same 1869 federal statute which mandated a 9-member Supreme Court has also established a quorum of only 6 members. Thus, there is no rush to fill any Supreme Court vacancy, in spite of the fact that some future cases might end up tied 4-to-4. Given that Congress has set a quorum of 6 members, it stands to reason that Congress expected some Justices: to recuse themselves in specific cases; to take temporary leave to fulfil other government duties; to recuperate for a reasonable time if ill; and to die. The Court, as a functioning institution, goes on, at least, as long as it has 6 members, and surely Congress must have understood that a 6 or 8 member Court can deadlock. Indeed, historically, there have been lengthy periods of time where the Court, by statute, was expressly composed of an even number of members. For example, when Chief Justice John Marshall was appointed to the Supreme Court, its size was set to 6 members by statute. To the extent worries about deadlock are a consideration, it is a political consideration for the American People, not a legal consideration, constitutional or otherwise.
Interesting and worth a look.
My first working years were very interesting as well as being hard-working and, as a man today beyond the sixty mark, I can think of the romance attached to my first job necessitating my calling at some of the most important buildings, firms and institutions in the City. Some are demolished or out of date but just a few remain and I can recount from memory a few of the places and firms.
My old firm was on Ludgate Hill, next St Martin’s Court, which is bordered on one side by the well known City Stationers, W. Straker. While I have him in mind, I must tell you that his first start in life was sitting in a small window in the left hand corner of St Paul’s Church and printing visiting cards at so much per hundred while you wait. In his case, one can quote the old adage, ‘nothing succeeds like success.’ What a character he was, good features, curly grey hair, immaculately dressed. If he ever wore a hat, it was of the sombrero type worn at a rakish angle, with a silk coat, plush waistcoat and very pronounced black and white check trousers. In his spare time, on bright days, he would parade the pavement near or about his premises and people naturally asked, ‘Who’s that?’ He was a city character once seen could never be forgotten.
At the extreme end of St Martin’s Court stood what we boys called the old London Wall – a mass about forty feet by ten and possibly the position of the ancient Lud Gate, one of the many gates protecting the City. I well remember with the tools of those days it took considerable time to demolish it.
“Louise Arbour had one response to Farage and Steyn that, I think, was missed by the audience and by F & S. Arbour said:”
Read the rest of Seth’s new post here.
President Obama got it exactly wrong when he argued in a Washington Post op-ed that “as the only nation ever to use nuclear weapons, the United States has a moral obligation to continue to lead the way in eliminating them.” What he should have written instead was “as the only nation ever to refrain from using nuclear weapons gratuitously when it had the monopoly on such weapons, the United States has the moral authority to lead the way in regulating them.”
What gives the US moral authority is bias, the improbability of it using nuclear weapons in time of peace. You can be sure the USAF won’t nuke Chicago, or Brussels or Kampala tomorrow, even if it physically could, because of civilizational bias. The reason why Obama’s unilateral reductions in the American nuclear arsenal as gestures to nuclear disarmament are meaningless is because he’s not actually reducing any of the risk. All the danger is on the other side, where the bias goes the other way for aggression, conquest and world domination. That is what he seems unable to reduce.
[. . .]
The reason why statements like “Islam is the religion of peace” or “we will never be at war with Islam” are so dangerous is because they ignore bias and reduce the problem to the mere monitoring of things. They put the most important factor of all into the error term. The result is a world of runaway entropy that is more dangerous to everybody, especially to Muslims.
[. . .]
These Kurdish peasants instinctively remember what the West has forgotten, that man lives not just in a world of things but of angels and demons. Cultures and belief are not optional extras but the bedrock of survival. They know instinctively that for man to survive he must fight Evil which is real with the aid of the Old Ones, who are also real. Only thus can he change his biases; only thus can he get the better of entropy.
President Obama is the anti-confident American. He seems to believe that his country should be taken down a notch or two, should apologize for past wrongs, should stop seeing itself in terms of confident exceptionalism. How’s that working out? Fernandez’s points aren’t new but bear repeating. Belief in cultural and moral equivalence is effectively suicidal. Our elites are too corrupt and incompetent to understand that this is the case or to know what to do about it.
A biting critique of recent public arguments by liberal academics, by Seth Barrett Tillman:
There is a final possibility. Apparently, some non-originalists believe they are part of a victimized, long-suffering, powerless, discrete, insular intellectual minority. As Professor Jack Balkin, a prominent commentator (but not one of the Alliance-for-Justice-350), wrote:
Accepting that opposition as the proper frame for debate just locks liberals into a clever rhetorical strategy created by movement conservatives in the 1980s, who wanted to put themselves on the side of the American constitutional tradition, and liberals on the outside looking in. [here] [here] (emphasis added)
The notion that in order for liberals to believe in a living Constitution they have to reject originalism in all of its forms is the biggest canard ever foisted on them. [here] [here] (emphasis added)
In this intellectual milieu, signing a letter you do not really believe is not hypocrisy: it is virtue. Thus, signing such a letter is the natural and justified response of victims to an unfair world imposed upon them by malevolent intellectual forces which have deformed reasoned, public debate. That’s not hypocrisy: that’s something else entirely. I am going to refrain from characterizing that reason, but I expect the public will take the hint.
Is it any wonder that millions of Americans vote for Trump?
Worth reading in its entirety.
From Seth Barrett Tillman’s new post about western cultural confidence (and the lack thereof):
Our administrative unit’s official motto is: Health, Fairness, Environment, Culture. So it should not surprise you that we chose you among other applicants seeking to immigrate to our (now your) prefecture because you have (as far as we can discover) no strongly held views, on anything. We believe that (former) outsiders like you from distant regions add to our ever-growing cultural diversity, but we seek to do so in a way that guarantees our social cohesion.
In the event that you violate a minor domestic regulation (i.e., under Schedule 1 and its annex) and you are under 18, you will be assigned community service and ordered to apologize to any victims of your wrongdoing (should they remain alive). If you violate a major domestic regulation (i.e., under Schedule 2 and its annex) and you are over 18, you will be sent down for correction, but we cannot send you back to your former prefecture, as it is in political disarray and your human rights may be threatened by your return there. Your statutory right to residence vests after 60 days; your statutory right to vote in municipal elections vests after 6 months; your statutory right to vote in prefecture-wide elections and for an inter-prefecture delegate vests after 1 year…
Below is a list of the books, ebooks, music and videos that Chicago Boyz readers viewed and/or ordered in March 2016 via Amazon links on this blog. (A cumulative list of Chicago Boyz readers’ Amazon purchases is here.)
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Instances of anti-Semitism by this standard are ubiquitous in American academic life. Nearly a dozen academic associations have enacted formal boycotts of Israeli institutions and in some cases Israeli scholars. Student governments at dozens of universities have demanded the divestiture of companies that do business in Israel or the West Bank. Guest speakers and even some faculty in their classrooms compare Israel to Nazi Germany and question its right to continued existence as a Jewish state.
Yet, with very few exceptions, university leaders who are so quick to stand up against microagressions against other groups remain silent in the face of anti-Semitism. Indeed, many major American universities, including Harvard, remain institutional members of associations that are engaged in boycotts of Israel. The idea of divesting Israel is opposed only in the same way that divesting apartheid South Africa was opposed — as an inappropriate intrusion into politics, not as immoral or anti-Semitic.
Martin Kramer goes further:
Larry Summers asks why universities sniff out every trace of prejudice, but look the other way when it comes to anti-Semitism. “University leaders who are so quick to stand up against microagressions against other groups remain silent in the face of anti-Semitism,” he writes, especially when it takes the form of Israel-hatred. My answer: Jews themselves hesitate to use the A-word. Why? It’s not supposed to exist anymore. And if you’re not for yourself, no one will be for you.
He’s right too. Western leftists who don’t hesitate to make reckless, ignorant statements about supposed apartheid in Israel, an open society with gay pride parades and anti-Israel Muslims in the legislature, are circumspect about the commonplace human-rights horrors of Iran and the Arab world.
The unwillingness of liberal American Jews to call out anti-Semitism on the Left reminds me of the unwillingness of self-described liberals/progressives to acknowledge the effectiveness or moral justification of armed self-defense in response to criminal violence.
I link to Seth’s posts because he is a friend and his ideas are generally worth paying attention to.
Non-originalists communicate in two different discourses.
One discourse is the mode of truth: it is the mode they reserve for their sophisticated clients and legal briefs, for their colleagues and students. In this discourse, non-originalists critique originalism as …
1. Wrongheaded or false because the Constitution is not prolix, it is only an outline, and the gaps must be filled in by each generation;
2. Wrongheaded because the Framers’ and Ratifiers’ intent is not discoverable;
3. Wrongheaded because different Framers’ and Ratifiers’ intent, although discoverable, was not unified;
4. Wrongheaded because original public meaning is not (now) discoverable (e.g., the Constitution is too old);
5. Wrongheaded because during the framing era and during ratification there were a multiplicity of original public meanings;
6. Wrongheaded because judicial rulings and precedent are the superior means through which to determine the meaning of the Constitution;
7. Wrongheaded because judges, academic lawyers, and lawyers are not good historians;
8. Wrongheaded because the Framing-era and ratification lacked democratic bona fidés by modern standards;
9. Wrongheaded because we should not be ruled by the moral norms or the dead hand of the past; and,
10. Wrongheaded because originalism gets the wrong (e.g., conservative or libertarian) results.
The problem is that non-originalists have an entirely different discourse, a second discourse, when they communicate with the public. When non-originalists communicate with the public … non-originalists transform themselves and their discourse into naked, unabashed originalism. It is really quite astounding.
Lexington Green adds:
You are restrained in your condemnation of this despicable dishonesty.
The public has very little understanding of law, the Constitution, the legal system, lawyers, courts or anything else that people like us think about all day long.
There is nonetheless a vague, inchoate sense that there something called a constitution, and it is in writing, and most people who think they know anything about it mistakenly believe that it says that all men are created equal, and that it protects our rights, whatever those happen to be, and that the government has to do what The Constitution says.
If you were to tell these people, well, actually, we law professors and judges and lawyers have figured out that you don’t actually have to do what the Constitution says, because … it won’t matter what the “because” is. The typical American will respond with something along the lines of “are you fucking kidding me?”
My seat of the pants guess is that between between 1% and 5% of the people in this country have any idea what has been going on with the U.S. Constitution in the courts in the last 50 years.
These guys are being smart not publicizing the reality. If Joe and Jane American voter knew what was going on they would cut the funding for these people.
Read the whole thing.
(See also this post by Lex from 2008.)
“Part II: The Appointments Clause Imposes No Duty on the President To Nominate Supreme Court Justices, Other Article III Judges, and/or Executive Branch Officers. The Appointments Clause Imposes No Duty on the Senate To Confirm Candidates.”
It depends on what the meaning of the word shall is, says Seth Barrett Tillman:
Now the people who have opined that President and/or Senate have a constitutional duty (per the Appointments Clause) to nominate a successor to AS are distinguished commentators, whose opinions deserve fair consideration. However, there are people who have taken the opposite position. These include, for example, Professors Lawson and Seidman, Adam J. White, a well-published D.C. practitioner, and Daniel Koffsky, a senior Department of Justice attorney. See, e.g., Gary Lawson & Guy Seidman, Downsizing the Right to Petition, 93 Nw. U. L. Rev. 739, 762 n.123 (1999) (“[T]he Appointments Clause is best read as a grant of power rather than an affirmative duty.”); Adam J. White, Toward the Framers’ Understanding of “Advice and Consent”: A Historical and Textual Inquiry, 29 Harv. J.L. & Pub. Pol’y 103, 147 n.235 (2005) (“[T]he President is under no duty to nominate someone to fill a vacant office—despite the Constitution’s instruction that he ‘shall’ so nominate . . . .”); cf., e.g., Appointment of a Senate-Confirmed Nominee, Op. Off. Legal Counsel 232, 232 (Oct. 12, 1999) (Koffsky, Acting Deputy Asst. Att’y Gen.) (“The Constitution thus calls for three steps before a presidential appointment is complete: first, the President’s submission of a nomination to the Senate; second, the Senate’s advice and consent; third, the President’s appointment of the officer, evidenced by the signing of the commission. All three of these steps are discretionary.”), http://tinyurl.com/gljnnv8. These people are also distinguished commentators, whose opinions deserve fair consideration.
Here we are faced with what are essentially conflicting intuitions in regard to the original public meaning of an 18th century text. Both sides cannot be correct. What to do? We should look for evidence, and fortunately, some good evidence is at hand.
Read the whole thing.