"If all values are equal, then cannibalism is just a matter of taste."--Leo Strauss

Friday, July 29, 2016

Comment: Tillman on Baude on Tillman on "Office" and "Officer" as used in the Constitution of 1788



I thank Professor Baude for his many very kind words. I have only a few clarifications and comments by way of response: some general, some technical.

First, it was never my intent to lead a crusade. Indeed, I like to write about, and do write about, legal topics—other than Office and Officer—from time to time. Unfortunately, every time I try to extricate myself from the Office and Officer issue, I find myself again and again painfully saying: “Just when I thought I was out, they pull me back in.” Moreover, I would be pleased, very pleased, if others—including students looking for research topics—would join me in this project (even if only to critique and challenge what I have written to date). There is still so much to be done. Because I now live abroad—in Ireland—I find myself immersed more and more in the law and policy of this jurisdiction. As such, in the future, I must expect to have less time to devote to this line of research. If this line of inquiry is to prosper, then others will have to join in the project. I cannot be more plain: this is an invitation to one and all.

Second, my position is that Office ... under the United States is meaningfully distinguishable from other Office terminology used in the Constitution. However, Office ... under the United States has several variations. These include: (i) Office under the United States, (ii) Office of Trust or Profit under the United States, (iii) Office of Profit or Trust under [the United States], and (iv) Office of honor, Trust or Profit under the United States. As a purely theoretical exercise, it is possible to imagine a congressionally-created position that might be in one of these categories, but not in others. But, as a practical matter, I believe that each position Congress has created (or authorized), or is likely to create (or authorize), is either in all of these categories, or it is in none of them. As a practical matter, I believe the Constitution’s variants on Office ... under the United States are coextensive. Why that is so is a matter of considerable interest (at least to me), but it is far too complex to address in these comments.

Third, as to Washington’s two diplomatic gifts ... only one of them was made in full public view. LaFayette, then a French official, gave President Washington the key (actually one of many extant keys) to the Bastille. The gift was widely reported at the time in American newspapers. The other gift—a full-length framed portrait of Louis XVI—was made by the French ambassador via private correspondence. However, many must have known about the gift of the portrait: it was on display in Washington’s anteroom, beyond which he entertained official visitors. I would characterize Washington’s actions here as reasonable disclosure by a faithful fiduciary. But even if my characterization is too generous, it cannot be doubted that Washington received, acknowledged, and kept the portrait: all absent congressional consent per the Foreign Emoluments Clause. For all these reasons, I conclude that Washington and his contemporaries did not believe that this clause, and the clause’s Office ... under the United States language, applied to the President.

Fourth and finally, Professor Baude writes: “So if ‘Officer’ and ‘Officer of the United States’ are the same thing, the presidential succession statute is unconstitutional ... an argument made by James Madison ....” My own view is that this statement is incorrect. It is a legal and historical meme or myth. Madison never “made” any such argument. The original source involved indicates only that Madison was relaying news from the capital to Pendleton in Virginia—in private correspondence. These arguments were “made” not by Madison, but by others on the House floor during debate on the Presidential Succession Act of 1792. I have no reason to believe that Madison agreed with this particular argument—and there is no record (as far as I know) of Madison’s having “made” this argument in House debate or in any other public forum. There are those today who wish to impugn the constitutional bona fides of the modern Presidential Succession Act of 1948, which like its 1792 predecessor, permits legislative officer succession. There are policy grounds for objecting to the 1948 Act, but rooting a modern constitutional objection in Madison’s voice is ahistorical. I would ask all those (and there are many) who have supported their position by arguing that Madison was one of their number to take another good hard look at the full documentary record.

Seth
Lecturer, Maynooth University Department of Law



Twitter: https://twitter.com/SethBTillman (@SethBTillman) 






Thursday, July 28, 2016

A Fun Journal: Jotwell--Journal of Things We Like Lots

Jotwell is a fun journal. And here is a fun article--just published today.

Professor William Baude, Constitutional Officers: A Very Close Reading, Journal of Things We Like Lots (July 28, 2016) (reviewing Seth Barrett Tillman’s scholarship) http://conlaw.jotwell.com/constitutional-officers-a-very-close-reading

I hope to submit a short, snappy response soon.

Seth

Twitter: https://twitter.com/SethBTillman (@SethBTillman)


Here is my prior post: Seth Barrett Tillman, As A Legal Matter, MacArthur Was Right And Truman Was Wrong, The New Reform Club (July 21, 2016, 12:08 PM)


Tuesday, July 26, 2016

Separation of Church and State

Separation of Church and state is a heresy.
The two can be distinguished, but never separated.

Man is made in the image and likeness of God. For this reason, man will always try to replicate his relationship to God in his dealings with other men. Thus, no man can actually succeed in separating his theology from his politics. It isn't possible.

In a democracy, where politicians are selected and elected, politics is necessarily a reflection of the theology that dominates the electorate. When a Protestant Congress outlawed contraceptives, that political body was merely reflecting 2000 years of Christian tradition. From the 1930s onward, when judges began to overturn the Comstock laws, we saw the United States move away from its Christian roots towards a eugenically-minded agnosticism.

Today, with Hillary Clinton and Donald Trump as the representatives of our major political parties, we see an inchoate paganism. It is not the paganism of the Norse, the ancient Greeks or the ancient Romans, all societies which celebrated martial values and delighted in constant war. Rather, it is a paganism that denigrates warfare but delights in sensuality.

Our desires have become our god, and now that god drives our politics.
Our theology will always be reflected in our politics - it cannot be avoided.

With this election, many of us are shocked to discover that Obama is correct - we are no longer a Christian nation.

"Historians Against Trump" vs. Dart-Throwing Monkeys

“The facts are really not at all like fish on the fishmonger’s slab. They are like fish swimming about in a vast and sometimes inaccessible ocean; and what the historian catches will depend partly on chance but mainly on what part of the ocean he chooses to fish in and what tackle he chooses to use – these two factors being of course determined by the kind of fish he wants to catch. By and large, the historian will get the kind of facts he wants.”--E. H. Carr

You may have heard from our friend John Fea about a group of academics calling themselves "Historians Against Trump." Philosopher Stanley Fish took to The New York Times to question the validity of such an enterprise in an essay called "Professors, Stop Opining About Trump." and I think historian/historiographer E.C. Carr would quite agree.



From the liner notes:
Historiography consists partly of the study of historians and partly of the study of historical method, the study of the study of history. Many eminent historians have turned their hand to it, reflecting on the nature of the work they undertake and its relationship both to the reader and to the past. Carr was a well-known authority on the history of Soviet Russia, with which he was in ideological sympathy. Invited to deliver the 1961 George Macaulay Trevelyan lectures, Carr chose as his theme the question ‘What is History?’ and sought to undermine the idea, then very much current, that historians enjoy a sort of objectivity and authority over the history they study. At one point he pictured the past as a long procession of people and events, twisting and turning so that different ages might look at each other with greater or lesser clarity.

He warned, however, against the idea that the historian was in any sort of commanding position, like a general taking the salute; instead the historian is in the procession with everyone else, commenting on events as they appear from there, with no detachment from them nor, of course, any idea of what events might lie in the future.

In short, historians are entitled to their opinion, but it's not necessarily any better than normal people's. And although some individuals are quite brilliant in forecasting the future, social psychologist Phillip Tetlock's famous study proved that when grouped together [say, as "Historians Against Trump"], experts' predictions were worse than those of dart-throwing monkeys!

In the end, there's really no difference between a consensus and a mob; the wise individual speaks only for himself.

Saturday, July 23, 2016

Why the North Carolina "anti-LGBT law" controversy is a complete lie


For one thing, despite the NBA's misleading blather about "legal protections for the LGBT community," North Carolina's HB2 law has absolutely nothing to do with Lesbians, Gays, or Bisexuals. The law is about men using ladies rooms and vice versa.

Not only that, but if you get a sex change, the state of North Carolina permits you to change your birth certificate retroactively. Actual "Transsexuals" are NOT discriminated against.



Clip'n'save this handy guide to North Carolina:

  1. get the sex change
  2. file the form
  3. use the bathroom

As for those "living" as the opposite sex, there is no clinical evidence that "gender dysphoria" is anything more than a psychological condition, and indeed one that most young people grow out of. We may be doing great harm by encouraging a phenomenon about which we know so little. Let's be clear: the multi-billion dollar NBA is strongarming American society with a social-sexual agenda with no hard science or logic behind it.

O'Sullivan's Law takes another scalp.

Friday, July 22, 2016

Why Ted Cruz Supported Donald Trump

Cruz supported Trump. He didn't formally endorse Trump, but then, he never promised to formally endorse Trump.

But Cruz's support for Trump was a lot greater than anyone could have expected.
Ted Cruz told everyone to vote for the principled conservative who supports the constitution.
We deserve leaders who stand for principle. Unite us all behind shared values. Cast aside anger for love. That is the standard we should expect, from everybody.
And to those listening, please, don't stay home in November. Stand, and speak, and vote your conscience, vote for candidates up and down the ticket who you trust to defend our freedom and to be faithful to the Constitution.
That perfectly describes Trump, right?

Wait... what?!?! 

Trumpkins argue it does NOT describe Trump?

Oh....

Oh... Wow.....

Time for the David Option?

Some Christian writers, reeling under the shifts in the culture and legal system that have only accelerated under the Obama administration, have been advocating a strategic withdrawal by Christians from the overall culture and public square. This proposal has come to be known as "the Benedict Option," a phrase coined by Rod Dreher, one of the preeminent Christian bloggers currently writing. Dreher's conception of the Benedict Option can be found here, and some critique of that concept by yours truly can be found here. Today, Rod Dreher issued a rousing call for the embrace of the Benedict Option, declaring it to be the only path forward.

Over at Crux, Fr. Jeffery F. Kirby has proposed an alternative to the Benedict Option that takes its inspiration from the story about the young David from the Hebrew Bible. Fr. Kirby's point is that rather than withdrawing from the culture & from engagement in the public square, Christians need to engage more powerfully with the strongest tools they have: the moral witness to justice grounded in the dignity of the human person made in the image of God. Rather than secluding themselves as a remnant, Christians should reach out in witness. As Fr. Kirby writes:
The young King David did not succumb to fear and did not seclude himself in the Israelite camp. He engaged the Philistine. David was dressed simply, without armor or regular weaponry. He was empowered by a sense of righteousness and justice, and artfully struck the head of Goliath with simple stones from the earth claiming victory over the giant. 
This example is applied to the modern context by calling the Christian Church to engage not with the weapons of the world but the tools of argument & moral persuasion:
Drawing from this example of the Israelite leader, the David Option is a challenge and opportunity for the Church in the contemporary world. In imitation of the shepherd-king, it calls the Church to simplicity, having neither ornate, royal attire or defensive armor. 
It summons the Church to stay focused on holiness and to engage the world with a genuine spirit of justice and goodness, not ideology, power lust, or political agenda.  
Symbolically, the David Option compels the Church to use “stones” in the “head” of the goliaths of our age; namely, to use reason and respectful arguments as a means for the intellectual conversion of culture. 
As they say, read the whole thing. Fr. Kirby isn't proposing the David Option as the only viable path forward for Christians to take in the face of an increasingly hostile culture & legal order, but an additional strategy to consider. As the Christian Church faces a situation where it is increasingly marginalized from elite public opinion, it is a good idea to look at a strategy where the Church embraces that marginalization & builds off its relative powerlessness in a worldly sense to remain engaged in the political and social issues of the day. As Fr. Kirby puts it in another piece over at Crux:
The David Option is a willful, spiritual removal of power and prestige, so that the Church is unencumbered, gains some moral credibility by its authentic simplicity, and seeks to argue and fight for justice and goodness in the world today.
One thing about changing conditions is that a variety of approaches are needed to deal with a variety of circumstances. Different problems require different tools to reach a solution. The David Option, along with other approaches, is a worthwhile addition to the tool box for Christians to consider.

Thursday, July 21, 2016

Ted Cruz and the value of loyalty in a conservative party

Edmund Burke, the grandfather of conservatism, wrote much on the nature of responsible party, as the topic relates to both to government and to the loyal opposition. While Burke was among those who held that party loyalty was not an absolute value, he did hold party loyalty in high regard. It should be no surprise that the Republican Party, as the conservative party in American politics, holds party loyalty in high regard as well. In previous election years with contested primaries, one sees the GOP unifying around its nominee, with the defeated main contenders for the nomination rallying around the man who has won the nomination. So it was when Reagan issued a rallying cry for Gerald Ford in 1976. 




And so it was in 1992 when after a bitter primary battle Pat Buchanan stood before the Republican National Convention and gave his support to the man who had defeated him, George H.W. Bush.


This election season, things have worked out differently for the GOP, as the defeated standard-bearers of that party’s Establishment have withheld their endorsements of the party’s nominee, Donald Trump. First, Jeb Bush refused to support Trump in the coming general election, and now in a speech to the Republican National Convention yesterday, Ted Cruz refused to endorse Trump, earning him the boos of a vocal contingent of the assembled delegates. And so their actions raise the question, wither loyalty?

For a conservative, party is more than simply a collection of ideological points or material interests. Party, for the conservative, is about fellow-feeling, it is about a shared commitment to the country, to being a band of happy warriors fighting to conserve the best of our civilization while advocating prudent efforts at reform to adjust the application of those principles to the changing conditions that exist for all things under the sun. Within responsible party there are disagreements and there are disputes. But at the end of the day, the party exists to bring together men and women into community — into a polis, to use the ancient Greek word — where their fortunes and futures are bound together in the common vocation of preserving the patrimony of our nation to hand on, in identifiable form, to the next generation. 

To conserve. To preserve. To reform. To bequeath. Those are the practical and prudential tasks of a conservative party that seeks to defend the Permanent Things in a broadly liberal order. 

For a conservative party to carry out this vocation there must be loyalty within the party. Petty ambition (the bane of democratic politics!) must be subsumed to the goals and leadership that the party puts forward to the voters as it seeks to to assume the mantle of responsible government. Loyalty and disciple are at the core of any party that claims the mantle of conservatism. 

Sadly, Jeb Bush and Ted Cruz seem not to have learned that lesson. To read deeply in Aristotle and Burke would do both those men some good. Bush’s political career was over, of course, when his campaign self-destructed after his catastrophic showing early in the primary season, burning through over $100 million worth of donor money before finally accepting reality & bowing out of the contest. Cruz, however, has had a promising future before him, both as a senator & as a candidate who commanded considerable support during the Republican primary this season. Yet, it appears that Cruz  chose to damage his position within the party by refusing to support the man who prevailed during the Republican primary process. Cruz & Trump disagree on a good many things. But do they disagree more than Taft & Eisenhower in 1952? More than Reagan & George H.W. Bush in 1980? In each of those cases, as well as the ones mentioned previously, bitter rivals put aside their disagreements and united in defense of the party & its nominee. Cruz decided not to follow those examples, and instead set out to defend his own place in the party, rather than the party’s choice for the nomination. 



Time will tell how much harm Cruz has done to his future political ambitions with his speech. But he can only harm the Republican Party if that party decides to follow his example and fails to reaffirm its nature as a community brought together to accomplish the practical and prudential task of conservative political action in a representative democracy. To conserve. To preserve. To reform. To bequeath.

Update # 1: over at PJ Media, Roger Simon writes about the effect of Cruz's speech on his political future. Read it all: Pence 1, Crux 0. As Simon observes: 
Ironically, it was Pence, not Cruz, who put himself on the map for the presidency Wednesday night. Though it's an eternity away, if Trump fails, it would not startle me at all to see Mike Pence in the surprising position of GOP frontrunner for 2020.
In politics, particularly on the conservative side, loyalty tends to be rewarded.

Update #2: Michael Reagan, President Reagan's oldest son (and not fan of Trump), states the case for party loyalty to the nominee quite well: 
He reinforces that point in a Tweet from the Friday after the close of the GOP convention:

Madame President

Before Trump ran for President, he pulled a Loretta Lynch and asked Bill Clinton's permission to run against Hillary. His own staffers admit Trump never intended to be President, he just wanted free publicity. During the campaign itself, Trump reneged on his promise to support the eventual GOP nominee. Last month, June 2016, Trump hinted that he had no intention of being President. As for electoral support, Trump has no coat-tails  and provides no support for down-ticket candidates - the only candidate he has endorsed has been a pro-abort who lost by 30 points.

And then there are the polls. Notice how George W. Bush beat Kerry? George was frequently in the lead, in the run-up to July, and dominated the election from September onward.

McCain was ahead of Obama at least a few times prior to July, but was not able to beat Obama at all in the polls between April and July. He got a short-lived bounce only because of his Palin pick for VP, but predictably ended up losing.


Romney didn't even do as well as McCain. Apart from a couple of very short-lived blips immediately prior to the election, Romney NEVER beat Obama in the year of polling leading up to the conventions. Not once.

Like Romney, Trump has NEVER beaten Clinton in the polling. Not once. Not ever. Trump is doing worse against Clinton than McCain did against Obama. Trump is arguably doing at least as badly or worse against Clinton than Romney did against Obama.

From the beginning, all the evidence tells us Trump intended to at least use the presidential run as a personal publicity campaign and at best divide the field by destroying the Republican's best candidate(s) while handing the election to his friends, the Clintons. Trump crowned his achievements by deliberately destroying Ted Cruz' convention speech, permanently undermining the natural Republican leader and thereby assuring downstream chaos among Republicans for years to come. In fact, Trump arguably and deliberately sabotaged the entire Republican convention.

Those who believe any of Donald Trump's lies, or who still believe Donald can win, have been Trumpwinked. A person is Trumpwinked when they believe a con man/politician, e.g., Donald Trump.

The facts are quite clear.
A vote for Trump has always been a vote for Hillary.
The destruction is complete.
Hillary Clinton is our next president.

As A Legal Matter, MacArthur Was Right And Truman Was Wrong


My goal here is to convince you that nearly everything you have been taught about this subject is incorrect. As a legal matter, MacArthur was entirely justified in regard to the course of conduct he took during the Korean conflict. It was Truman who acted without good legal authority.

To convince you, I will use a hypothetical: 


The position of U.N. Secretary General becomes vacant. The President of the United States, Harry S. Tompkins, nominates an American for the post: Commodore Dora “Old Mac” MacIntyre. Old Mac garners sufficient votes among U.N. member states, and she becomes Secretary General. (Yes, I know—an American Secretary General is very unlikely—but cut me some slack—this is a hypothetical.) Mac is a busy woman, and for whatever reason, she fails to take herself off the list of actively serving U.S. naval officers.

A year into Old Mac’s term (as Secretary General), and three years into Tompkins first term (as President), the U.N. Security Council authorizes a war peacekeeping mission to separate the competing populations, political factions, and regular and irregular armies and militias in Ranzibar. U.N. forces are composed of units on loan from member states: e.g., Fiji, Ireland, U.K., and the U.S. Not surprisingly, the U.S. provides just over 50% of the U.N.’s forces and war materiel. Furthermore, in a surprising show of confidence in Old Mac, the Security Council formally grants Old Mac operational control over the U.N.’s mission: Road to Ranzibar. Old Mac decides which operational units go where, and she sends the largest American contingent to Port Kelvin: the most dangerous theatre in the peacekeeping mission.


President Harry Tompkins is running for reelection. He does not want a high American body count (at least not quite yet), but at the same time he had directed the U.S. ambassador to the U.N. to vote for the U.N. Security Council resolution authorizing the mission. So he cannot withdraw U.S. forces either. What to do? The legal advisor to the Joint Chiefs in the Pentagon sends President Tompkins a memorandum reminding the President that Old Mac is still very much on the U.S. Navy’s active duty list. The legal advisor says, Just order Old Mac to take U.S. troops out of Port Kelvin. The President issues his “order”—marked “Top Secret: for your eyes only”—and sends it to Old Mac through the Joint Chiefs, and then via special messenger. The Security Council was not in the loop; indeed, Old Mac felt duty bound to disclose the “order” to the Security Council, which proceeded to disclose the order to the world.

Once the order was disclosed by the Security Council to the world, Old Mac went on television—twice. She gave two speeches. One speech was directed to the world; the second speech was specifically aimed at her American audience. This is what she said to her fellow countrymen:
                   
My fellow Americans—I was born an American, I am an American, and I will remain a loyal American until I die. I am also—for a short time—Secretary General of the United Nations.
I have this position only because during World War II, the United States lawfully ratified the U.N. Charter, making that treaty part of the supreme law of our land. I have this position only because President Tompkins nominated me to this post, to be held by me while on loan from my regular duties in the United States Navy, to which I hope to return one day. I am only here because the General Assembly elected me to this post. And, I am only here because the U.N. Security Council authorized this mission and also gave me personal operational control over Road to Ranzibar. As long as I hold the position of Secretary General, and in regard to my responsibilities relating to this or any other U.N. authorized mission, I am not amenable to so-called orders issued by the President and/or the Joint Chiefs. I say that with respect and with regret. Today, I stand before you not as a Commodore in the U.S. Navy; instead, I stand before you as an international civil servant and the military commander of an international peacekeeping force. During this time, I am answerable exclusively to the Security Council, and I am obligated to obey its orders, and not the President’s.

When the President’s purported order reached me, I was duty bound to turn that document over to the Security Council. Again, I say all this with considerable respect and with regret. The President’s legal advisers have given him poor advice. The reality is that a functioning United Nations, as embodied by the Charter, and the conventions of customary international law, positively mandate that U.N. officers are answerable to the U.N. and the Security Council, and not to the member state governments from which they came.

The President may have put me here, but I am not answerable to him. Indeed, other nations are only willing to participate in U.N. actions because they believe that U.N. officers are acting independently of instructions from member state governments. We all know this. Strict obedience to the President’s order would be the very death knell of the U.N. It is the President’s so-called order which threatens the rule of law, not my failure to obey it.
As a legal matter, the President’s order is void, but I acknowledge that as a practical matter I cannot successfully pursue my duties, and Road to Ranzibar cannot succeed, without the active support of the President. Too many lives may be lost, too much treasure will be wasted, if I allow this mission’s success to be hindered by personalities, stubbornness, and error—from whatever source it may have sprung. For all these reasons, I choose to resign from my position as Secretary General, and I will continue to stay out of politics, as I have in the past, and as I have up until and including this very day.
Having now resigned all international offices and responsibilities, I close with: May God bless and keep our armed forces in safety, everywhere.

So here is my question:

Under what authority could Truman order MacArthur to do anything during the Korean conflict?

Seth

Tuesday, July 19, 2016

"Is the Party Over for Bushism?"

Commentator and general firebrand Pat Buchanan asks that question in a recent op-ed, available here. As the former Reagan communications director and three-time candidate for the presidency writes:
Neither George W. Bush, the Republican Party nominee in 2000 and 2004, nor Jeb, the dethroned Prince of Wales, will be in Cleveland. Nor will John McCain or Mitt Romney, the last two nominees.

These former leaders would like it thought that high principle keeps them away from a GOP convention that would nominate Donald Trump. Petulance, however, must surely play a part. Bush Republicans feel unappreciated, and understandably so.  
For Trump’s nomination represents not only a rejection of their legacy but a repudiation of much of post-Cold War party dogma.  
America crossed a historic divide and entered a new era. Even should Trump lose, there is likely no going back.
Buchanan is gloating a bit in this piece, which is understandable given his political career in the 1990's, presenting an anti-war, anti-illegal immigration & anti-free trade platform in his primary battles for the GOP presidential nomination in 1992 and 1996, and in his Reform Party run for the White House in 2000. In the 1992 GOP primary & the 2000 electoral campaigns, he ran first against George Bush the Elder and then George Bush the Younger, presenting precisely the economically nationalist agenda that has been echoed by Trump's campaign thus far.

In that sense, Trump's victory over the Republican Party's entrenched elite represents the fulfillment of perspectives first championed by Buchanan (and also Ross Perot in his independent runs for the presidency in 1992 and 1996) now almost a quarter of a century ago. Buchanan's whole piece is worth a read, to understand what is motivating much of the Establishment GOP's hostility to Trump's candidacy. Of course, as this piece over at the Law & Liberty blog points out, the national Elite has a good deal of hostility to the vast bulk of the citizens of our nation. This animosity is leading to significant problems for the Elite's effectiveness.

Update: of course, for those in the GOP less than enthralled with Trump's Buchananite leanings, there are other reasons they might want to cast their vote for Trump, principally, he isn't HRC.

The Libertarian/Popperian Case for Brexit: A Response to Professors Somin, Levy, Norberg et al.


The so-called libertarian case against Brexit works like this. Nations do bad things--e.g., tariffs. And the European Union (“EU”) blocks some (perhaps many of) those bad things. Indeed, the EU has set up a tariff-free free trade zone. That’s a good thing. Therefore EU-good & Brexit-bad. This position is not entirely wrong, but it is only half the story.

First, the EU (and EFTA) free trade zone extends to EU (and EFTA) member states and their dependencies, and also to a few nearby non-member political entities (e.g., San Marino, Andorra, etc). This tariff-free free trade zone does not extend to the world. So when foreign goods are imported into the “tariff-free free trade zone” across the EU’s external borders, EU law mandates a “Common Customs Tariff”. In other words, hand-in-hand with the absence of tariffs among member states is an EU-imposed tariff against non-members’ exports. Whether this situation is a net gain for the people of Europe is a complex empirical question. That question is not answered merely by parroting the EU’s line: we promote tariff-free free trade. No, that question is not so easily answered because although the EU promotes some free trade, it positively discriminates against non-members’ exports.

Second, the EU tariff-free free trade zone among member states is not an EU tax free zone. The EU does not collect revenue via tariffs in relation to intra- and inter-member states’ trade, but it does collect revenue in regard to such trade by other means. EU law imposes a 15% value added tax (“VAT”) floor or minimum, which is collected by the member states’ revenue officials. Member states remit a share of those funds to the EU, and this revenue stream is a major (if not the primary) source of funding for EU institutions. So the absence of tariffs (imposed against U.S. and other non-EU goods and services) should not be confused with an absence of coercive taxation. Whether the use of a VAT rather than a tariff in relation to intra- and inter-member state trade is a net gain for the people of Europe is a complex empirical question. I add that in two ways a VAT is worse (perhaps, far worse) than a tariff. First, tariffs apply only to trade crossing national frontiers, but the EU-mandated VAT applies to pure intra-state trade, even when not crossing national borders. Second, a tariff is one-time tax, but the VAT applies at every stage of production. So the question about which regime is better for the people of Europe—a regime of competing national tariffs, or an EU-imposed EU-wide VAT—is not answered merely by parroting the EU’s line: we stop coercive taxation in relation to trade. No, that question is not so easily answered because the EU prohibits some forms of taxation (i.e., tariffs among member states), but it imposes others (e.g., VAT among member states).

Third, another bad thing nations (and other levels of sub-national governments) do is the subsidizing of failing industries (sometimes in the form of outright nationalization). It is true: that is generally a bad thing. The EU has regulations prohibiting some of this conduct by EU member states. That’s a good thing. But again, that is only half the story. The EU has its own EU-wide industrial policies and subsidies. The most famous and wasteful is the Common Agricultural Policy. There are also EU mandates, policies, and subsidies in relation to global warming. And of course, sometimes the EU looks the other way (if not encouraging) member states to subsidize particular industries. Have you heard of Airbus? So the question about which regime is better for the people of Europe—one of competing state industrial policies, or EU-wide industrial policies—cannot be answered by merely parroting the EU’s line: we stop member states’ wasteful industrial policy. That question is not so easily answered because although the EU prohibits some such policies at the national and subnational levels, it imposes many such policies of its own, and, of course, EU-wide policies embrace a far grander opportunity or scale for the misallocation of resources and for corruption. The Euro has impoverished Greece and much of southern Europe, and when Greece considered returning to a national currency, the EU threatened Greece with a forcible Grexit.

Part of the answer to these questions involves your beliefs about which set of institutions is more likely to get to the right answers—i.e., the administrative agencies of the member states or the EU’s administrative agencies. Another part of the answer will involve competition. Where member states choose policy, there is an opportunity for competition (or at least a geographic limitation in regard to the most immediate and pronounced effects of bad policy), but where the EU mandates EU-wide policy, and that policy is wrong, one and all are locked in. You cannot vote with your feet, unless your feet take you out of your country, and also entirely out of the EU.

Then there is immigration, along with common EU policies relating to asylum, border control, human trafficking, etc. The libertarian idea/ideal (according to some) is that nations are crimes and border-enforcement is tyrannical. But among those who look to more pragmatic defences for open (or more open) borders, the argument is that immigration makes the host nation (and its extant inhabitants) better off (or, at least, leaves them no worse off). Likewise, pro-open borders libertarians frequently claim that crime caused by migrants is not any worse than that caused by the extant inhabitants of most countries. This sort of pragmatic defence requires an assessment of complex longitudinal factual claims. Such assessments were possible, and perhaps remain so, as long as government agencies, NGOs, charities, academics, journalists, etc reported the world around them as they knew it. But if the government actively suppresses reports of crime by migrants and if speech involving such incidents is punished or suppressed by the government, the migrants, or otherwise, then whether we realistically remain able to make such pragmatic assessments is hardly clear. After Cologne, we have to ask ourselves what sort of world we now live in.

Professor Somin writes: “Free market advocates on both sides of the Atlantic would do well to work to improve the EU rather than try to get rid of it.” But Somin gives us no indication in regard to what he would consider a meaningful “improvement,” or even whether improvement is to be sought in regard to reforms to EU governance institutions or in terms of reforming the substantive policy goals pursued by EU institutions and policymakers. Somin also writes that: “At the very least, it would be unwise to junk the EU at a time when the alternative is likely to be statist nationalism, often with authoritarian tendencies of the sort evident in many anti-EU parties, such as France’s National Front.” Id. I happen to believe that these two issues are closely linked: it is precisely EU institutions’ democratic deficit which has engendered the rise of authoritarian parties in the member states. Thus, it may be that the most efficient way to end the success of such parties (in a manner consistent with democratic norms and the rule of law) is to stop further European territorial expansion, to stop further integration among member states, to stop the deepening and expansion of EU powers, and, maybe, to stop the EU project in its tracks through legal and peaceful exit. E.g., Brexit. I don’t deny that that is a difficult pragmatic question. Why Somin et al think it clear that the right path is to continue zombie-like in the expectation of long-sought-after-but-never-to-finally-emerge EU reform seems undertheorized. Is there a history of successful EU reform in the past? They do not say. Is there a reasonably clear set of beneficial reforms of EU institutions that are likely to garner sufficient political support to be enacted? Again, they do not say. So why do they offer this particular or, even, any advice? I know this might sound horribly old fashioned and naive, but is not a democratic choice put to the people a peculiarly appropriate way to resolve such an issue—an issue fraught with highly complex imponderables along with multiple contentious normative claims about what is desirable? Why would Somin et al offer advice to foreigners: who have lived under these institutions and have directly experienced their effects, and who are likely to have far more knowledge on such issues if only because their most essential interests are at stake. Political ignorance?

There was a time when libertarians understood that the virtue of Western institutions, per Karl Popper, was that rulers who chose bad policies could be peacefully replaced through democratic means. That was not the whole of the rule of law and the open society, but it was an essential precondition for both. 

Simply put, EU institutions do not meet that standard. The European Union is not a meaningfully democratic body. The President of the EU Commission and individual EU commissioners—who collectively compose the EU’s powerful executive arm—are not elected by EU (i.e., member state) citizens and they are not appointed by simple majority action in the European Parliament; likewise, the President of the EU Commission and individual EU commissioners are not removable by simple majority action in the European Parliament.** Had the UK’s Remain Camp and the EU’s leadership put forward a real programme to make the President and the Commission subject to normal, parliamentary democratic controls, then a majority of the U.K. electorate might very well have voted to continue with and in the wider European project. But the EU has proven time and again to be incapable of substantial reform along democratic lines. It is the lack of meaningful democratic controls over EU institutions which has engineered the rise of authoritarian politics in Europe.

Leaving the EU was and is a risk, but so is sticking in the unreformed (and, perhaps, unreformable) EU. There were good reasons to support and object to Brexit. But I think one thing is sure: a libertarian promoting continuing participation in EU institutions cannot claim the mantle of Popper and the open society.

Seth

**Compare Professor Laurent Pech & Professor Steve Peers, Referendum Briefing 3: Does the EU have a ‘democratic deficit’?, EU Law Analysis: Expert insight into EU law developments (June 15, 2016, 01:40 AM) (“Furthermore, it’s possible for the Commission [as a whole] to be dismissed by the European Parliament—just like the UK’s House of Commons can pass a vote of non-confidence in a government.”), with id. (failing to mention that dismissal of the Commission as a whole, which has never happened, requires an absolute majority of all members of the European Parliament AND two-thirds of those voting, preconditions which are hardly in line with common parliamentary practice).



Twitter: https://twitter.com/SethBTillman (@SethBTillman)


A response from Professor Somin here: Ilya Somin, More on Brexit, libertarianism, and the European Union [updated with a response to Seth Barrett Tillman], The Washington PostThe Volokh Conspiracy (July 14, 2016)

My prior post: Seth Barrett Tillman, British Museum Exhibit titled: “Islam and Europe,” The New Reform Club (July 17, 2016, 10:24 AM)

Sunday, July 17, 2016

British Museum Exhibit titled: “Islam and Europe”

This is a picture of an exhibit at the British Museum. It is titled: “Islam and Europe”. 





It says: Following the revelation of Islam to the Prophet Muhammad ....

Seth 

Welcome Instapundit and Chicago Boyz readers. 



Twitter: https://twitter.com/SethBTillman ( @SethBTillman )  

Friday, July 15, 2016

Professor Tushnet's Remarkably Judge-centric Balkinzation Post

Over at Balkinization, Professor Mark Tushnet wrote:
"To the extent that the current flap tells us something interesting about contemporary norms regarding the Court, it is that many people think there's something important about maintaining the facade that the Justices are above politics, at least when they are considering actual cases. I think that's why the question of Justice Ginsburg's recusal in a hypothetical Trump v. Clinton case resonates. But I have a  bridge to sell you if you think that the Justices (any of them) were above politics in the real Bush v. Gore, or in many recent cases. (Neil Seigel has a nice piece forthcoming on Justice Alito as a movement conservative, for example.)
What's interesting is why people who acknowledge that that Justices have political views that do influence their legal decision-making nonetheless think that there's something important about maintaining the facade that they don't."

The Flap Over Justice Ginsburg's Interviews, Balkinization (July 12, 2016)

I think Tushnet is wrong about this, both historically (e.g., the impeachment of Supreme Court Justice Samuel Chase in 1804) and on policy grounds.

The reason many of us want federal judges to abstain from public partisan politics is not in order to promote fair (and the appearance of fair) decision-making by judges. Of course, judges have political views. We all know they do. It is unavoidable. 

So why does Canon 5 demand nonpartisanship by judges? Canon 5 protects wider society's decision-making from intervention by an unaccountable and unelected judiciary. It is that simple. When the rest of society chooses our (temporary) holders of public power via democratic means, we want to make that decision without being told what to do by people who are entirely (or nearly entirely) insulated from the consequences of a wrong decision. If taking political advice from a person with life tenure and constitutionally protected compensation makes sense, then 1689 and 1776 were mistakes. Unlike our Article III judges, even George III had to get his emoluments through regular parliamentary grants.

The question here is not how we can "Tak[e] the Constitution away from the [federal] Courts" (to use Tushnet's well-chosen title phrase), but whether as part of the regular competition for democratic power we should allow those to participate who cannot be held to account for their bad advice. That Professor Tushnet does not see all (or even any of) this is the most remarkable modern example of the judge-centric world-view which so infuses the American academic legal elite.

Seth

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