The Obama administration’s “American Jobs Act”—a token measure forgotten by all but a few—is back in the news. Just over a year ago, I reported on the constitutional defects of President Obama’s “American Jobs Act” (AJA), a bill clearly designed to force Republicans to vote against it, thereby giving the President political “cover” on his poor…Details
By granting certiorari in Fisher v. University of Texas, the Supreme Court has a chance to correct one of the most obnoxious aspects of modern jurisprudence. By that I mean permission given to state universities—in Grutter v. Bollinger(2003)—to use public resources to play racial and ethnic politics.
I worked full time in public higher education for 23 years and part-time for eight years before that. The experience made it clear that (whatever some well-meaning people might believe) university “diversity” policies are not mostly about education, but about indulging ideology and playing ethnic politics.
University “diversity” policies vary in their details. But in their now-prevalent form, they are carefully gerrymandered to skew benefits toward particular groups with left-of-center voting patterns and away from groups without such patterns. For example, the three groups benefited in the Grutter case were African-Americans, Native Americans, and Hispanics—which all just happen to be (surprise!) core constituencies of the National Democratic Party.
Several factors led me to conclude that the correlation between benefits and voting patterns was not merely accidental. They are:
* Those who promote these policies generally have a group-politics-based ideological bent. As a rule, you don’t see the most serious scholars or most rigorous teachers eager to serve on the “diversity” committees.
* There is no effort to address the inconvenient fact some studies show that greater ethnic “diversity” impedes, rather than assists, student achievement (because a class of students with common background has a common vocabulary and cultural platform).
* Groups with histories of discrimination but without the “correct” voting patterns are excluded from benefits. Asian Americans and eastern Europeans are examples.
* The purported benefits of “diversity” don’t induce universities to assure ideological diversity.Details
“But still the people themselves must be the chief support of liberty. While the great body of the freeholders are acquainted with the duties which they owe to their God, to themselves, and to men, they will remain free. But if ignorance and depravity should prevail, they will inevitably lead to slavery and ruin.”
— Oliver Ellsworth (at the Connecticut ratifying convention, 1788)
Few Americans today know of Oliver Ellsworth. This is one product of the “ignorance” against which he warned us.
Ellsworth was one of our greatest Founders. He was Connecticut’s most respected lawyer and judge. He was a key delegate to the Constitutional Convention, and served on the committee that produced the critical first draft. (He may have been the delegate most directly responsible for the Constitution’s scheme of enumerated powers.)
After the convention, Ellsworth helped secure his own state’s ratification. He was influential nationally in the ratification debate as the author of the widely-republished “Landholder” essays.Details
The writings of James Madison still offer useful guidance for states seeking to restrain federal overreaching. Akron Law Review has just published my short article discussing the evolution of Madison’s thought on the subject—from Federalist No. 46, through the Virginia Resolution of 1798 and subsequent writings, to his final recommendation that states unhappy with federal actions…Details
The Montana Supreme Court won praise for its recitation of history in its recent corporate finance case, Western Tradition Partnership v. Attorney General (later called American Tradition Partnership v. Bulloch).
But that was before anyone bothered to check the court’s version of history.
Earlier this year, five of the seven state justices held that Montana’s “unique” history of corporate electoral corruption and domination gave Montana government the “compelling governmental interest” needed to abridge First Amendment rights—a compelling interest not present in other states. The justices therefore refused to apply the U.S. Supreme Court’sCitizens United decision, which normally protects the right of associations to campaign independently for and against candidates. Instead, the Montana court upheld a state statute censoring corporate campaign speech.
But neither the U.S. Supreme Court nor anyone else seem to have questioned the Montana tribunal’s historical claims. A large portion of my professional work is as a legal historian. Earlier this year, I undertook an extensive library fact-check of the court’s claims. I summarized some (although not all) of my conclusions in a published paper. What I learned was that, in the phrase of one writer who reviewed my findings, the Montana Supreme Court had been guilty of promulgating “junk history.”
Here’s a quick summary of my principal findings—some previously unpublished:
First, while claiming that incidents of corporate campaign corruption were once widespread in Montana, the court cited only two events, both over 100 years old. Both turn out to be irrelevant to the claim that Montana has a unique history of corporate electoral corruption. One was the alleged bribery of a pair of district court judges, which had absolutely nothing to do with campaigns or elections. The incident was never proved, and it’s not even clear that corporate money was involved.
The other was a candidate’s bribery of state legislators in a 1899 (!) U.S. Senate election. The U.S. Senate committee report on the incident described only bribery by individuals, not by corporations. The episode did not involve independent expenditures and was not unique to Montana, since similar episodes throughout the country soon led to adoption of the Seventeenth Amendment.Details
I confess to a several personal emotions in reaction to the Elizabeth Warren case.
Elizabeth Warren, if you recall, is the Harvard Law Professor now running for U.S. Senate in Massachusetts who identified herself to her employers and in law school directories as Native American. But it turns out that she has at most 1/32 Indian ancestry, and even that much can’t be verified.
First emotion: “I get it!”
Anyone who has been a law professor (as I was for 25 years) can understand the incentives for this kind of prevarication. Most law professors want to move up the professorial/professional ladder, and it’s a lot easier to do so these days if you can claim minority affiliation. It is very tough for white law professors to jump to higher-ranked schools (particularly males).Details
Very few people know that the Constitutional Convention of 1787 only the last of nearly 20 other conventions in which American colonies, and later states, met to deliberate on specified problems.
In these gatherings, states met as semi-sovereigns; these were essentially diplomatic meetings. The rule for decision was “one state, one vote.”
Those conventions were the model for the “convention for proposing amendments” in Article V of the Constitution.
I have just finished a paper that appears to be the first historical account of the entire series of inter-colonial and interstate conventions. It is called Founding-Era Conventions and the Meaning of the Constitution’s “Convention for Proposing Amendments.” I have posted it on the website of the Social Science Research Network where you can read and download it if you are so inclined.Details
Quite a few people have asked me how President Obama, as a “former constitutional law professor,” could prove so ignorant about the Constitution. This former con law professor suggests two reasons: * Obama was not a “professor” in the sense that most people use the term—that is someone who becomes an expert in the subject…Details
Obamacare’s supporters argue that the individual mandate is justified because the health care market is unique—it’s something that everyone uses, and a great deal of cost-shifting now occurs in health care. The argument is fatuous for two reasons. First, the cost-shifting is, for the most part, created by Congress itself—through, for example, mandates on hospitals…Details
EDITOR’S NOTE: Misrepresenting Budgets is Fraud. Unless you’re in Elected Office. Then it Gets you Re-Elected
“A public office is a public trust”—common saying, but do we really believe it?
The American Founders did. Most of them agreed that public officials should be held at least to the standards imposed on private trustees and other fiduciaries—maybe even higher standards, since government officials can do more damage than private fiduciaries. (A fiduciary—from Latin words meaning “confidence” and “faith”— is someone entrusted with the property or affairs of another.) The Founders often referred to public officials as the “trustees,” “agents,” “guardians,” or “servants” of the public. (In those days the legal term “servant” referred to an employee in a job not involving a lot of discretion.)
But in modern America public officials are not held to anywhere near the legal standards imposed on private trustees and other fiduciaries. The corporate corruption some on the Left justifiably complain about pales by comparison to common political behavior.Details