Liberty Law Talk

Now comes the great James Buckley to Liberty Law Talk to discuss his new book Saving Congress from Itself that argues federal grants-in-aid exemplify the obstacles currently posed to constitutional government. The key to our constitutional health must involve, Buckley declares, the elimination of these programs. The issue is more than just the overwhelming spending, which has soared from $24.1 billion in 1970 to approximately $640.8 billion in 2015. Buckley and I also discuss the obvious constitutional problems, namely, that through the so-called spending power Congress can impose laws on states that it otherwise possesses no constitutional authority to enact and enforce. As Michael Greve has consistently noted in this space, state governments find it virtually impossible to leave federal grant money on the table, strings attached notwithstanding. Their loss, ultimately, is the ability of their citizens to freely govern themselves. However, the loss of self government is both local and national, as members of Congress divert their attention from the more pressing objectives of national government. They find it easier and more advantageous to manage the federal government on behalf of local concerns and interests that are served by grant programs. The conceit of federal spending in the form of grants to states and localities is that Congress and federal agencies are better positioned to shape local priorities than the actual authorities elected for that very purpose. In this manner, centralization–the central mistake of the twentieth century–and its belief in experts ruling with and through knowledge continues unabated. Buckley, as the book’s subtitle states, has a plan to emancipate the states. The prescription we discuss is to end federal grants immediately, saving billions of dollars and, most significantly, restoring the Congress to its proper remit of deliberating national problems and issues in place of funding sidewalk construction in Sharon, Connecticut (Mr. Buckley’s hometown) on behalf of a federal anti-obesity initiative for children.

What does it mean to turn politics into an exercise of compassion? That’s the question William Voegeli invites us to consider in his latest book The Pity Party. He bids us to the same conclusion, but in policy and political terms, that our parents once gave us: pity parties are a guilt trip. Of course, the particular politics Voegeli is discussing emerges from the sense of injustice and unfairness that modern liberals everywhere perceive. Their primary motivation, however, is to relieve their own inner discomfort. Their compassion, even more problematically, is disconnected from any real notion of virtue or individual integrity. So the results of policies they champion, and the abilities of programs to uplift those in marginalized economic circumstances, isn’t the first priority or much of a priority at all. What matters is President Bill Clinton telling us that “I feel your pain.” Or his wife exhorting us to a politics of meaning and to be devoted to raising everyone’s children because we’re all part of the collective village. Voegeli and I discuss the policies of compassion ranging from the Great Society, gun control, the welfare state, racial preferences, etc. and what their substance is really about. What matters at the pity party is to do something, anything for the marginalized and oppressed. Measuring if it works is not even secondary, Voegeli notes. In most cases, efficacious results aren’t considered or valued. The protagonist in this drama isn’t the oppressed, it’s the suffering liberal conscience. And that means that we are prohibited from looking too deeply into behavioral and cultural causes and links that might uncover the sources of failures seen in the lives of countless individuals and families. No, that’s part of the oppression, and isn’t compassionate. And on and on it goes. Fortunately, we have Voegeli to shed light on this, unpack the pathologies at work, and, perhaps, point a way forward to the rightful use of compassion.

What if a profound economic downturn occurred and the federal government basically ignored it? Couldn’t happen, right? In his latest book, The Forgotten Depression, James Grant details for us the depression of 1921 and how it was permitted to cure itself. We discuss in this podcast how the Wilson* and Harding administrations let prices and wages fall, balanced the budget, and raised interest rates through the Federal Reserve. The result was a painful and, more importantly, quick depression that righted itself by late 1921, setting the stage for the economic growth of the 1920s. The comparisons are easy and telling. The 1929 crash saw the federal government choose the opposite course by quickly enacting wage floors and ceilings that were designed to keep people employed at current wages and to stabilize prices.  Resulting from this policy, and a host of other unhelpful interventions, was an economic disaster that lasted more than a decade. Our own anemic recovery from the 2008 crisis has been medicated with fiscal stimulus, intense regulatory measures such as the Dodd-Frank Act “so this never happens again,” and the Fed’s quantitative easing making it akin to a sovereign wealth fund. The effect is that prices haven’t cleared and thus can’t accurately prepare and guide the market in a new round of economic growth. Grant details for us that we once took a different path in the wake of economic distress, one that ended the pain faster, and didn’t grow government and diminish freedom. It is a history worth telling. *Woodrow Wilson shouldn’t come off exactly smelling like roses for his benign policies after the decline. He was basically incapacitated at this point in office and relied on others to make policy here.

This next podcast is with the Danish journalist Flemming Rose, foreign news editor at Jyllands-Posten, on the controversy he ignited in 2005 when he published cartoons satirizing the prophet Mohammed. His new book, The Tyranny of Silence, offers his reflections on the conflagration that ensued, including a jihadist’s attempt to murder one of the cartoonists with an axe. Rose received the protection of Danish security services after threats were made on his life. Not bowing to intimidation, Rose has spent the last decade highlighting the dangers of foregoing a commitment to freedom of speech. Our interview delves into these experiences and also the lessons that Rose believes are a warning for individual and political liberties in Europe. He commissioned the cartoons, he tells Liberty Law Talk, because he was taken aback by the self-censorship in Denmark, and throughout Europe, on the subject of Islam and its status in European democracies. And this self-censorship now frequently melds with legal prohibitions in certain European countries that vaguely hover over “incorrect” speech. The effect, Rose notes, is to drive controversial ideas or arguments out of the public sphere. One surprise stemming from the Muhammad cartoons crisis, Rose observes, was the European elites’ retreat from defending free speech in favor of granting group rights and preferences. We discuss the new model of interaction exercised by political leaders in Europe, which is to deal with individuals within minority groups solely as members of those groups, religions, or ethnicities rather than as individuals. The consequences, Rose reports, are that “leaders” of Islamic communities are the only ones empowered to speak for Muslims, and they have great latitude to govern their communities separately, in many cases, from the legal and cultural norms of the country. On the basis of his interviews with young Muslim women in Copenhagen, Rose believes these women might be living with less freedom than they had in their (or their families’) countries of origin. There is no doubt that Rose is a tremendous journalist who demonstrated his commitment to the basic truths of a free society. This interview is an opportunity to hear from someone who has ventured much in the defense of freedom.

Presidential power scholar Stephen Knott discusses in this latest edition of Liberty Law Talk his book Rush to Judgment: George W. Bush, the War on Terror, and His Critics, recently released in paperback form by University Press of Kansas. Knott has a point in this book. He argues convincingly that the vituperative critics of George W. Bush’s use of executive power, in many instances, were willfully ignorant of the historical use of these powers. Past presidents, ranging from George Washington, Thomas Jefferson, James Madison, Abraham Lincoln and certain presidents in the twentieth century, defended and exercised powers similar to those employed by the Bush administration. But that, of course, raises deeper questions about the use of executive power in a republic that is governed by a written constitution. A portion of this interview looks into those historical claims, but we also compare this use of power with the expectations of the Founders regarding executive power. In particular, their experience with crown prerogative shaped how they sought to limit such powers in the new Constitution. How does such an understanding square with much of our contemporary constitutional thinking and the precedents set by past presidential administrations? Finally, we consider the arguments made by Jack Goldsmith while he was head of the Office of Legal Counsel (October 2003 to June 2004), who contended some of the most striking actions taken by the Bush administration in the War on Terror were unconstitutional.

The market for consumer credit has been subjected to an ever increasing amount of federal regulation since the 2008 crisis. The Dodd-Frank Act created the Consumer Financial Protection Bureau to intervene in consumer credit markets and protect us from the rapacious lenders who devour household income and place consumers in unmanageable levels of debt through stealth and manipulative business practices. The predictable results have been a marginal increase in the cost of credit and its decreasing availability to lower income consumers as the CFPB’s rules price them out of this market. Todd Zywicki, co-author of Consumer Credit and the American Economy, discusses in this podcast that the jejune view of this market articulated by Elizabeth Warren and other progressives isn’t supported by wide-ranging data. What the evidence tells us, Zywicki argues, is that when debt is measured and analyzed on a flow basis, meaning it is paired with consumer’s income streams, it is quite manageable for most households. Simply tallying up levels of consumer debt or overall credit card debt doesn’t give us a true understanding of how consumers are using it. Frequently, however, this stock to stock comparison is used in journalistic and media accounts to support the view that these markets are out of control. What are the alternatives here? Well, loan-sharking used to be a brisk mafia business, often being their most profitable operation, Zywicki notes. Consider that Richard Nixon at the 1968 Republican National Convention explicitly called for its curtailment. Why? Under a former regime of strict credit controls and usury laws, consumers, many of a low income nature, couldn’t get the credit they needed. They did what they had to do, and that frequently meant turning to less transparent and accountable sources of capital. And of course, while loan sharks frequently stepped-in in former times, many consumers now turn to payday lenders as a needed source of credit in tough circumstances. Is this option somehow superior to credit cards? What we might consider as a more significant challenge to the widespread use of consumer credit is that even if consumers are managing their debt, are they also building wealth? That is, is debt too easily resorted to instead of saving and investing through a more ascetic consumer lifestyle with the bigger, future payoff one of increased independence from both government and the vagaries of the market?

The attempt by the media and the political elites of the three major political parties in the United Kingdom to heap contempt on Euroskepticism no longer possesses the same power. With the victory of the United Kingdom Independence Party in local and European Parliamentary elections, the prospect of the UK leaving the European Union is a live one. Indeed, Prime Minister David Cameron has agreed to a public referendum on this question in 2017 should the Conservatives be returned to power in 2015. I recently discussed the case for a UK exit with David Conway, a frequent contributor to this space, and author of the recent book With Friends Like These… Why Britain should leave the EU­­–and how. This interview explores the major aspects of how an exit would impact the UK’s economy through potentially lost trade opportunities on the continent, but also what the country might gain by once again having control of its borders, its laws and regulatory apparatus, and no longer needing to align its defense forces with the EU. In general, Conway notes, the UK is coming to the proverbial fork in the road on a number of issues, that will force it to become either a full-fledged member of the EU or its own country. One thing is for sure, the time for straddling the fence on EU membership is coming to an end.

Comes now the great Daniel J. Mahoney, author of penetrating intellectual biographies of Bertrand de Jouvenel, Raymond Aron, and Charles de Gaulle, among other books, to discuss his latest work, The Other Solzhenitsyn. Mahoney, coeditor of The Solzhenitsyn Reader, offers in this discussion a tremendous introduction to the Russian dissident writer’s oeuvre and a rebuttal to his many critics. We might say that some Western writers who, from their position of faux outrage, frequently critique their governments, societies, and cultures have Solzhenitsyn envy, earnestly wishing their work had even a fraction of the impact of the Russian anticommunist’s corpus of writings. Not that they admire Solzhenitsyn’s political or moral philosophy, or his belief that freedom is ultimately born of spiritual commitment. They only yearn to have it said that their words put a “sliver in the throat of power.” Such was the praise given Solzhenitsyn in 1962 after the publication of One Day in the Live of Ivan Denisovich. (more…)

This latest podcast is with Joel Kotkin, America’s Demographer-in-Chief, on his recently released book, The New Class Conflict. Kotkin and I discuss his grave warning of an American future that no longer contains the promises of democratic capitalism. Two groups, in Kotkin’s telling, have converged and share a vision of America that is unconcerned with economic growth, shared prosperity, and the need to rein in state power. The book’s opening argues that this class of tech entrepreneurs and the “Clerisy” pose a fundamental challenge to America’s self-understanding as a nation of economic mobility: In the coming decades, the greatest existential threat facing America lies with the rise of a new class order that leaves diminished prospects for the vast majority. In this emergent society, wealth and power are concentrated in ever fewer hands and threaten to erode much of the traditional appeal of America, its institutions, and sense of promise. Instead, Kotkin argues that class divisions promise to harden underneath the influence of a newly-minted ruling class who, unlike its predecessors, is relatively unconcerned with upward prosperity and middle class abundance. The middle class is a diminishing category and those who compose its ranks are increasingly anxious about their future. Kotkin’s term for this disposition is the “Proleterianization of the Middle Class.” One massive barrier they face, according to Kotkin, is the indifference of the “Valley of the Oligarchs,” or that group of tech investors and moguls, software engineers, and other information technology denizens of Silicon Valley and Seattle who are increasingly able to shape the flow of information and media in America. These digital mavens are the new elites. However, said oligarchs don’t depend on a large middle class workforce to buy their products, nor do they create one with their labor needs. Their business incentives are unlike those that led the production and manufacturing kings of another period to promote a broad-based capitalism of mass employment, mass production and consumption. After all, affording a smartphone isn’t that difficult, but owning a new Ford required a good job. So they show little concern with ensuring that needs like energy, housing, education, and other costs remain affordable for most Americans. The past conditions for upward prosperity that even many progressives once favored don’t register their approval. Instead, they find progressive solutions superior because they purportedly promote a clean-environment and lessen inequality through redistribution. This brings us to another key aspect of the ruling class which Kotkin labels the Clerisy, or those academics, members of the administrative state, journalists, and related symbol-manipulators who believe they hold an authoritative role to proclaim the true ideals that will guide America’s future. While not directly aligned with the Valley Oligarchs, the two groups share basic goals of clean energy, diversity, sustainable growth, highly-dense urban planning, and the gnostic belief that science can authoritatively answer political questions. It follows that there are sheep and goats on every issue, and the Clerisy per scientific knowledge knows the difference. Together, this ruling class, Kotkin argues, poses a unique challenge to the American Dream.

This conversation with Shep Melnick looks into the enforcement practices of the Office for Civil Rights in the Department of Education, one of the most powerful and secretive agencies in the administrative state. This agency caught the attention of many in 2011 when Russlynn Ali, Assistant Secretary for Civil Rights, sent a “Dear Colleague” letter to colleges and universities lowering the standard of guilt in a sexual harassment or sexual violence proceeding from guilt beyond a reasonable doubt to preponderance of the evidence (i.e., it is more likely than not that sexual harassment or violence occurred). Topping it off was the letter’s statement that double jeopardy is permitted against an accused person should that person appeal an initial ruling by a campus judicial process. The letter stated that the failure to use this lower standard of evidence for a conviction will mean that a school’s grievance procedures are inconsistent with Title IX. In short, “Dear Colleague,” you lose your federal money and will be the recipient of an embarrassing federal investigation, but thanks for playing. In the wake of this severe deprivation of due process by Obama’s Office for Civil Rights, many have been puzzled about how this could happen. How a federal agency could use a “Dear Colleague” letter to enforce Title IX of the Civil Rights Act to begin with, not to mention using an informal method to diminish the constitutional rights accorded the accused of sexual violence charges, is a question that can only be answered by digging into the troubling, if not unlawful, practices of this significant agency. Fortunately, we have Shep Melnick to inform our understanding of the tremendous growth in power of the “Civil Rights State.” Melnick discusses the power of the OCR, and how it has established its ability to rule informally, outside of the law, and with little accountability to Congress and the statutes that authorized its existence. Importantly, he provides guidance on how to begin curtailing the OCR’s unlawful edicts.