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Monday, August 29, 2005


It's a-Living

Dahlia Lithwick offers defenses for the doctrine of a "living constitution":

1. It's alive because I can see it breathing!
2. It's alive: it's just sleeping.
3. It's alive: it's just entered the witness protection program.
4. It's so alive we needn't even defend it.
5. It's alive: It's just kind of indefensible.
6. The framers thought it was alive.
7. If it were truly dead we'd need no judges.
8. Brennan lives, too.

Lithwich also solicits submission of reasons we should "unplug" the living Constitution. Do you like the doctrine of a "living Constitution? Why or why not?


It's Not Just the Spending

Susan Dudley:
"Regulations impose social costs on individuals and businesses beyond the direct tax dollars expended to write and enforce them, and Federal Register pages, agency staffing, and these on-budget costs merely provide insights into the trends in magnitude of the hidden tax. According to the Small Business Administration, the cost of federal regulation on American businesses, workers and consumers is close to $1 billion per year.

But why should the average citizen care about this hidden tax? It's born by big businesses, not us. Not so. Small entrepreneurs, the engine of economic growth in America, bear the greatest burden. For small manufacturers, those employing fewer than 100 workers, the cost-per-employee of complying with workplace regulations is 68 percent higher than for large firms. Unnecessary regulatory burdens increase the cost of hiring U.S. workers, reducing American competitiveness, hindering job growth, and sending jobs overseas.

We also pay the price as consumers. From the moment we wake up in the morning -- flushing the toilet twice, courtesy of the Department of Energy's appliance standards -- to the time we put our children in their Consumer Product Safety Commission-approved pajamas, regulations not only increase the cost of goods and services we buy, but also the choices we can make.

Americans are right to be alarmed by the increase in direct spending authorized by Congress this month. But, they should also be concerned about the hidden tax of regulation, which by all measures, is also growing."

Thursday, August 25, 2005


Making Constitutions

David Brooks offers some thought about constitution making in Iraq:
In the last election each group expressed its authentic identity, the Kurds by voting for autonomy-minded leaders, the Shiites for clerical parties and the Sunnis by not voting.

This constitution gives each group what it wants. It will create a very loose federation in which only things like fiscal and foreign policy are controlled in the center (even tax policy is decentralized). Oil revenues are supposed to be distributed on a per capita basis, and no group will feel inordinately oppressed by the others.

The Kurds and Shiites understand what a good deal this is. The Sunni leaders selected to attend the convention are howling because they are former Baathists who dream of a return to centralized power. But ordinary Sunnis, Galbraith says, will come to realize this deal protects them, too.

Galbraith says he is frustrated with all the American critics who argue that the constitution divides the country. The country is already divided, he says, and drawing up a constitution that would artificially bind three divergent societies together would create only friction, violence and civil war. "It's not a problem if a country breaks up, only if it breaks up violently," Galbraith says. "Iraq wasn't created by God. It was created by Winston Churchill."
It seems to me that Brooks is really exploring the value of a true constitutional setting when deciding on the words of a constitution. What I mean is that a constitutional setting has to require a super-majority to approve the constitution, and not a simply majority. Perhaps the ideal would be unanimous consent, but this is impractical in general. Nonetheless, a super-majority reduces the likelihood that what is written into the constitution regarding the power and role of government will allow a minority in the community to use the power of government to coerce others in the community.

Wednesday, August 24, 2005


Justice Breyer's Active Liberty

Jim Lindgren notes a story in the Wall Street Journal about Justice Steven Breyer's book on interpreting the Constitution:
"Here is the WSJ on Breyer's book:
By contrast [with Justice Scalia's book on interpretation], Justice Breyer's 'Active Liberty' contends that judges can undercut the democratic system the Constitution's Framers sought to build if they adhere too literally to legal text and disregard the 'real world' consequences of the decisions they render.

So whereas Justice Scalia has voted to strike down campaign finance laws, arguing that they restrict free speech, Justice Breyer espouses a much different theory. He has voted to uphold such laws, arguing that they actually support constitutional values — such as the marketplace of free ideas — by limiting the ability of monied factions to overwhelm other points of view. . . .

The 161-page book, set for publication Sept. 13, aims to popularize ideas Justice Breyer has already advanced in academic lectures and articles. A judge's task, he says, is construing the Constitution in a way "that helps a community of individuals democratically find practical solutions to important contemporary social problems." He calls that freedom to participate in government "active liberty," a complement to passive liberties that protect the individual from interference by the government. . . ."
This doesn't really seem the right approach to me. If people in the community see the need to find practical solutions (presumably solutions that are now unconstitutional) to important contemporary problems, then why can't these people start their quest by trying to amend the Constitution according to Article V? It seems to me better to have political discussion in the context of the super majorities required by Article V lead to constitutional change, than to have 9 Supreme Court Justices discuss and decide on constitutional change behind closed doors, especially when constitutional change by Justices can be accomplished with only 5 people being in agreement.

What do you think?

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