Political Philosophy

Seth Barrett Tillman: Some Personal Reflections on the Recent Litigation involving Section 3 of the Fourteenth Amendment

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Some Personal Reflections on the Recent Litigation involving Section 3 of the Fourteenth Amendment

From the Introduction:

What follows is not specifically an attempt to reargue the merits of disputes between my interlocutors and myself [which were debated during the recent Section 3 ballot-access Trump-related cases], but an attempt to explain my personal experience in attempting to debate a set of intellectual points—points which I had developed since circa 2007 and refined in cooperation with Professor Blackman since 2017. Although I make no claim to objectivity among competing views, I hope to show that traditional academic and professional norms remain worthy aspirational goals, even where unmet.

Looking back, this paper is not so much about Section 3 of Amendment XIV and recent ballot-access Trump-related litigation. Rather, it is more about the decline in civility and aspirational standards within the polity, the courts, and legal academia.

And From the Conclusion:

It is said that at the negotiations at Appomattox Courthouse—Lee and Grant were both frank and civil during the course of discussing the surrender of Lee’s Army of Northern Virginia. Afterwards, Grant sent food to Lee to feed his (and, then, their) nation’s former enemy soldiers. Celebrations for Grant’s soldiers came only later—not while Lee’s soldiers remained present. Again, in ending active hostilities, the first step towards national reconciliation was frank and civil discourse.

I do not think our present and future is or will be as difficult as was Grant and Lee’s. But we too have to think about national reconciliation. It seems to me that the first steps in that direction involve frank and civil discussion, absent hyperbole, and absent name calling. If federal judges, state judges, and legal academics are not up to that task, then that is just another institutional and cultural problem crying out for reform and renewal.

Likewise, our domestic law schools are supported by taxes, tuition, and donations. If universities and academics only further burden American society by casting aside our free speech traditions and actively engage in just another front in our culture wars, then wider society might very well choose to withhold support. Perhaps this process has already begun?

 

An important topic.

Supply, Demand, and Policy

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Back in the 1980s one of the political phrases that came into vogue was “supply-side economics.” It was demagogued by the left on two fronts. First, critics insinuated that only the rich got tax cuts; in reality, Kemp-Roth tax reduction was across-the-board. Second, they misrepresented the supply-side concept as “trickle-down economics” – wealth transfer to the rich intended to spur business activity that will “trickle down” to lower income brackets.

One problem with the slur is that it regards tax cuts as a subsidy, basically the same as funding stadiums with tax dollars. In reality, tax cuts are the opposite of wealth transfer. Quoting Rush Limbaugh from memory, “It ain’t yer [the government’s] money.” Another is that it equates supply with the rich. Many businesses are not run by the rich. There are rich people (e.g. Randi Weingarten) who may invest in producers but do not produce anything directly; their direct economic activity is limited to consumption and/or rent-seeking.

The greater problem is that the “trickle-down” canard treats tax policy as the only factor relevant to spurring or hindering supply. Even as a political novice who had yet to hear the name Thomas Sowell I was able to figure out that supply-side economics concerned all such factors, and that demand-side economics revolved around all obstacles to consumption. Taxation is an impediment to both. The other great factor that government must address is its own laws. Regulations prohibit some or all parties from entering certain industries, or (more relevant to this discussion) they impose compliance costs on producers.

Likewise, demand-side economics should also address all barriers to consumption and not just tax rates (or resort to subsidy). If some regulations can depress supply, what other regulations depress demand?

The Long Haul of Woke

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I came across this essay by N.S. Lyons and it took me a minute to realize that it was a reprint from three years ago on his Substack. Yet after all that time and all that has happened (and is happening) it remains as timely as ever.

Why?

As Lyons writes in his editor’s note to the reprint:

Today, with the second Trump administration in power, we have seen a sledgehammer taken to those DEI programs, as well as other manifestations of wokeness such as transgender mania. Again, many observers are pronouncing the demise of the revolution. It is always dangerous to declare victory prematurely, while the enemy can yet strike back.

 

Much, it is true, has changed; but much remains the same. The original essay lists twenty different reasons to be skeptical of the sudden demise of wokeness. Of those, several, including the observation that woke racial bookkeeping was effectively required by law (#15), that it maintained control of all the levers of power within government (#19), and that government was intent on leveraging the ideology to expand its bureaucratic power (#20), have perhaps now been largely overturned. But others, such as the observation that wokeness functions as a pseudo-religion that fills a spiritual and communal void in our culture, or that the “overproduction” of college-educated elites makes our society particularly susceptible to radicalization, seem as relevant as ever.

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Brennan, JD Vance, and the Spirit of 1776

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I’m sure most of you by now have heard of Margaret Brennan’s comment during her exchange with Secretary of State Rubio on “Face the Nation.”

“Well he was standing in a country where free speech was weaponized to conduct a genocide…”

Brennan got raked over the coals by the Right for that comment, since she seemed to imply that the Nazis 1) were in favor of free speech and 2) were using free speech to conduct the Holocaust in the same way they used gas chambers and bullets. Her point, that words are violent (I thought it was silence that was violence), was reinforced by the fact that Vance’s speech brought the chairman of the Munich Security Conference to tears.

Mr. Heusgen is obviously a man who doesn’t think about the Roman Empire every day.

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DOGE is an Oxymoron: Unchecked “Democracy” is the Problem

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Unlike the private sector, where operational efficiency is necessary to survive, the public sector is and always has been inherently inefficient. But that’s not the main problem. Think of federal public polices justified as being in the “public interest” as a building. On the upper floors are the best of them, the merely inefficient. At the mezzanine level are those suffering from extensive waste, fraud and abuse. On the ground floor are policies and programs rife with self-dealing and crony capitalism. Down in the basement is the “temple of virtue” where taxpayers are sacrificed to multiple ideological isms.

DOGE is peeking inside the locked doors on all four levels. As DOGE exposes “Dirty Deeds, Done Dirt Cheap,” politicians cry foul, as “they were implemented (by us) democratically. To paraphrase Churchill, “democracy is less bad than totalitarianism,” but, he might have added “generally worse than competitive private markets.” At this stage in US democracy, DOGE revelations have lost some of their shock value as commonplace, and politicians emphasize their good intent. DOGE needs to demonstrate that “good intentions” often lead to bad outcomes, and do not justify corruption in any case.

DOGE alone can only win a few skirmishes against Congress and its massive army of rent-seekers feeding off their largess. With public understanding and support, the Trump Administration could bring about more permanent structural changes that provide greater voter control.

Life is a Competition

Americans love sports, from 5 & 6-year-old soccer leagues through high school, college and pro teams, where the competition to succeed is intense. Pro sports is a business, as the recent Luka Donic trade to the Lakers reminds us, with winners and losers. It is incredibly “democratic” as millions of fans choose what players to follow, games to attend or stream at the posted price, and owners respond continuously to fan expectations. The competition is subject to a massive set of complicated rules and limitations enforced by referees and judges whose integrity is subjected to coaches’ challenge, instant replay and fan fury. That reflects the system of checks and balances that a competitive private market incorporates.

Now imagine a pro sports league designed and governed by the most honest and altruistic national politicians. They would deem it unfair to pay some athletes more than others, or to exclude the weak or physically impaired from the competition. Winners would be determined by political deal making in smoke-filled back rooms. Prices would be determined according to “ability to pay” and ticket purchases would be mandatory whether or not attending the games, with revenues first flowing through party coffers. Fans would be told who to root for and losing teams and cities would be declared winners so as not to result in hurt feelings. Voting against this system would result in your team being designated the loser but you would still be required to buy the tickets. That’s a metaphor for our current “altruistic” federal democracy.

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