I was on the Armstrong and Getty program this morning to talk about the Supreme Court--Justice Gorsuch, the Blaine Amendment case, and the possibility of a big Second Amendment case. If you missed it, you can listen online here.
Absolute power is the power to make oneself unpredictable and deny other people any reasonable anticipation, to place them in total uncertainty by offering no scope to their capacity to predict. This power, an extreme that is never reached except in the theological imagination, with the unjust omnipotence of a wicked God, frees its possessor from the experience of time as powerlessness. The all-powerful is he who does not wait but who makes others wait.
Waiting is one of the privileged ways of experiencing the effect of power, and the link between time and power—and one would need to catalogue, and analyze, all the behaviours associated with the exercise of power over other people’s time both on the side of the powerful (adjourning, deferring, delaying, raising false hopes, or conversely, rushing, taking by surprise) and on the side of the ‘patient’, as they say in the medical universe, one of the sites par excellence of anxious, powerless waiting. Waiting implies submission: the interested aiming at something greatly desired durably—that is to say, for the whole duration of the expectancy—modifies the behavior of the person who ‘hangs’, as we say, on the awaited decision. It follows that the art of ‘taking one’s time’, of ‘letting time take its time’, as Cervantes puts it, of making people wait, of delaying without destroying hope, of adjourning without totally disappointing, which would have the effect of killing the waiting itself, is an integral part of the exercise of power—especially in the case of powers which, like academic power, depend significantly on the belief of the ‘patient’ and which work on and through aspirations, on and through time, by controlling time and the rate of fulfillment of expectations (‘he has time’, ‘he’s young or ‘too young’, ‘he can wait’, is sometimes an academic verdict left to speak for itself): an art of ‘turning down’ without ‘turning off’, of keeping people ‘motivated’ without driving them to despair.
Pierre Bordieu, Pascalian Mediations (Richard Nice trans., Stanford, CA: Stanford University Press, 2000), pp. 228-29.
The new issue of The Objective Standard has the third and last of my pieces on the influence of the ancient Greeks and the American Founding Fathers. I was asked to prepare these for the Politismos Museum of Greek History, and I'm grateful for that invitation. This final installment discusses the Greek Revolution, the American Civil War, and the relationship between slavery, freedom, and national self-determination.
The Review's only available to subscribers for now, but here's an excerpt:
The word “crisis” hardly captures the dismal situation in Indian Country. Consider just one statistic: the leading cause of death for Indian boys ages 10 to 14 is suicide. In fact, suicide among Native American youths is more than twice the U.S. average, and in Canada, five to seven times the national average. Last April, eleven members of the Attawapiskat First Nation attempted suicide on a single day. Nine were children.... Unemployment on the Navajo Nation, which is more than twice the size of Massachusetts and home to 175,000 people, is 42%. The average per capita income is $7,269. On the San Carlos Apache reservation, it’s about half that....
Centralized planning on reservations stifles individual initiative, all but forbids construction, and offers still more government programs as virtually the only solution. It has, in the words of the Harvard Project on American Indian Economic Development, “maximized the politicization of investment and employment decisions.” That, in turn, maximizes the power of politicians at the expense of tribal citizens, whose only alternative is often the dole. The moral consequences are a crippling culture of anti-individualism and broken families. Nothing about this is unique to Indians. “The cultural problems on Indian reservations,” Riley concludes, “are really the results of economic and political circumstances that have been foisted upon Indians....
[R]ace-first collectivism isn’t shared by all Native Americans, but it’s common enough to sap the ambition of countless youth and to breed hopeless alienation. And such dogma isn’t just reactionary, it’s fundamentally racist. It classifies Natives as the property of tribal communes—just as imperialists and white supremacists regarded them in past ages—rather than as equal individuals in charge of their own destinies. Whether offered by Jacksonians in the 1830s or race-obsessed activists in 2016, it’s the same old serpent that says the pursuit of happiness is for other people.
Nothing today can undo the Sand Creek Massacre or the Trail of Tears. But it is within our power to open the door of opportunity for our fellow citizens. Doing so requires that they cease to be regarded as a separate people. “[Y]ou ask yourselves, ‘What do they, the Indians, want?’” wrote William Apess. “[Y]ou have only to look at the unjust laws made for them, and say, ‘They want what I want,’ in order to make men of them, good and wholesome citizens.”
In The Permission Society, I argue that permit requirements--whether they be building permits, business permits, gun permits, whatever--are a dangerous way to regulate society, that give bureaucrats tremendous powers over our lives. I argue that, at a minimum, whenever the government requires us to get a permit for something or other, we should have three basic procedural safeguards:
The criteria for getting the permit should be clear, not vaguely worded things like "good cause."
There should be a specific deadline within which you'll get an answer to your permit application.
There should be a real chance for judicial review--a day in court if the government wrongly denies you a permit.
These requirements were specified by the Supreme Court half a century ago, yet they're routinely ignored by government agencies that enforce vague permit criteria, delay and postpone their decisions, and require applicants to go through an administrative process instead of a real judicial hearing, which means that the rules of procedure and evidence that protect individual rights do not apply.
The Arizona Supreme Court announced yesterday that it will hear the lawsuit that challenges the constitutionality of the state's new minimum wage law. The plaintiffs argue that it violates the rule under which any initiative that requires the state to spend more money must identify where the money is coming from. I argue in this article in the Arizona Capitol Times that the law also illegally gives special favors to unions by exempting employers that sign collective bargaining agreements.
Minimum wage laws are laws against jobs. Last year, someone with little experience, who couldn’t compete against other job applicants, could have told a business owner, “hire me for $9 per hour, and let me work my way up to $12.” Prop. 206 makes that illegal....
True, some workers will benefit from Prop. 206. But those benefits come at the cost of people seeking jobs, who find opportunities reduced, and consumers who must pay more for goods and services they need....
Actually, supporters of Prop. 206 are counting on that. Hidden among its back pages is a special loophole that exempts union shops from meeting Prop. 206’s expensive time-off mandates. The reason is obvious: left to their own choices, fewer than 5% of Arizonans join unions. Union labor is often expensive and inefficient, and businesses offer plentiful benefits to non-union workers. By making life harder for non-union companies, and then exempting companies that sign a union contract, Prop. 206 forces non-union companies to cave in. It’s no surprise that unions were the initiative’s loudest backers.
Such political favoritism is a bad idea for a state that wants a dynamic and flourishing economy.
Phoenix friends: I'll be joining Mike Bailey, Arizona Chief Deputy Attorney General, and former New Mexico Attorney General Hal Stratton on Feb. 23 for a conversation about the "Duty to Defend": when should government lawyers refuse to defend the constitutionality of the government's acts?
This morning I talked with Armstrong and Getty about the nomination of Judge Neil Gorsuch to the Supreme Court. If you missed it, you can listen here.
Here is the Gorsuch opinion about "Chevron deference." Good part is toward the back.
I mentioned that Judge Gorsuch has a degree in philosophy from Oxford, where he studied under John Finnis. You can learn more about Finnis and his views of natural law here. I have my differences with Finnis, particularly the notion of "basic goods," and you can get a hint of that disagreement in this review of a book by Hadley Arkes (who's also in the Finnis camp).
Update:Let me add: why is it important that Judge Gorsuch is a good writer? Naive as it might seem in today's political world, our legal and political institutions rest ultimately on deliberation, argument, and persuasion. That is just as true of a Supreme Court decision as of anything else. More true, in fact, because the Supreme Court acts through its orders and opinions. A persuasive Supreme Court opinion is critical to the long-term success of any ideological or political mission. If justices fail to write persuasively and clearly, their work will lose support and ultimately be forgotten. That is why the great writers on the Court, like John Marshall, Oliver Wendell Holmes, Robert Jackson, and Antonin Scalia have had influence sometimes out of proportion to the actual merits of their arguments. (Other justices, including my favorite, Stephen Field, have not always been up to that mark, and their influence has sometimes been muffled as a consequence. Field could write well at times, but he was no Holmes. Consequently, the fact that he was a thousand times the legal thinker Holmes was, the latter gets far more renown today.) Justice Scalia was at times sloppy and over-the-top in his opinions. I'm hopeful his successor will be more on target.
President Trump’s firing of Acting Attorney General Sally Yates came as no surprise: the U.S. Attorney General serves at the President’s pleasure, and nobody could expect the White House to keep an insubordinate employee in office.
But that doesn’t mean Yates was wrong. In fact, government lawyers face tough choices when they believe the government is acting illegally.
Now, the main thing to keep in mind is the pointlessness of it all. Walling out people who are fleeing tyranny won’t win the war. Only victory over the enemy ever wins a war. If we’ve decided not to win, we should openly admit we’ve accepted defeat. But pretending to fight while in reality locking the door and hiding behind the couch is just cowardice. Nothing but plain, old fashioned cowardice, no matter how much His Excellency might like to comb it over and pretend it’s bold.
Of course admitting people from foreign lands is something with a non-zero risk. Of course it’s possible that some will enter pretending to be refugees who are in fact enemy agents. The solution to that is to defeat the enemy—not to condemn to death or slavery the vast majority of refugees who are fleeing in search of safety. To do the latter is a disgrace to everything that makes this country what it is supposed to be: a refuge and a haven.
Is the Executive Order illegal? Well, it’s definitely constitutional. All that talk about “religious test” is silly—the Constitution only forbids religious tests for holding public office, not all religious tests, and even an order that explicitly blocked all people of one particular religion from entering the country would be constitutional—nothing in the First Amendment prohibits that, since it would leave everyone as free to practice their religion as before. Some are trying to argue that granting preference to Christian refugees violates the Establishment Clause—that just isn’t true. If people are being persecuted because of their religion and the government decides to admit them for that reason, that in no way establishes religion. Even more strongly, it just seems rational to say that the Commander in Chief, in time of war as we are, has the authority to entirely shut down the nation’s borders unilaterally if doing so is, in his opinion, in the national interest.
To emphasize: I think the Executive Order is constitutional. I think it’s stupid and immoral in every other way.
That said, it might still be illegal. Congress is the lawmaker, and Cato’s David Bier argues that the Order violates the Immigration and Nationality Act of 1965. That seems plausible to me. The list of countries that the Order refers to was added after that Act, but that doesn’t change the Act’s prohibition on discriminating against countries in the issuance of immigrant visas. Congress not only sets the naturalization laws (that’s the basis for the Immigration and Naturalization Act, though some have argued that the authority to naturalize does not actually grant Congress power to restrict immigration; a much bigger argument that has to await some other day), but it also sets the limits of the President’s authority during wartime.
It’s quite clear now that the President’s failure to consult legal experts before releasing this bombshell has led to terrible confusion, and apparently it was at the highest level that the determination was made to apply it to green-card holders, which David French rightly calls “madness.” And now that several federal district courts have ordered Customs and Border Patrol to allow travelers who’ve been detained at airports to speak to their attorneys, it appears that a day later, that is still not happening. Someone—and that ultimately must mean Trump—is refusing to obey these court orders. That is totally intolerable.
Incidentally, it’s unlikely that this was done as some clever ploy for PR purposes—Trump and crew aren’t that smart. Rather, he has proven time and again that his vision of leadership is: ordering people to do things, as thoughtlessly and loudly as possible.* Actual leadership, of course—leadership of the George Washington, Dwight Eisenhower variety—is about fostering others and articulating an ideal that merits support. It’s not showy; it’s patient, thoughtful, often boring, and rarely self-aggrandizing. Trump’s not intelligent enough to muster a clever plan to lure lefties into self-defeating acts. He’s just a blowhard, and a blowhard’s gonna blow hard.
Many object that the protestors were silent when Pres. Obama blocked Syrian refugees. Maybe so—although my memory is that people were outraged by that, and said so at the time. I certainly was and did. But so what? If people are now coming to their senses about the dangers of executive power, that’s a good thing, and they should be encouraged—not hooted down because you think it more important to call them hypocrites than to take advantage of an opportunity to push back.
Best of luck to the protestors. And to the fine ACLU lawyers fighting back. I’m proud to be a member of the bar today.
Many supporters and opponents of President Trump's executive order are conflating the terms "immigrant" (which encompasses green card holders), "nonimmigrant," and "refugee."
It's not lawful to ban immigrants because of "nationality, place of birth, or place of residence." This nondiscrimination provision comes from a 1965 law (8 U.S.C. 1152 Sec. 202(a)(1)(A)) that limits the 1952 law (8 U.S.C. 1182 Sec. 212(f)) that the president cites.
It's lawful to ban nonimmigrants for almost any reason. These are people who are temporarily visiting the United States, like tourists or students.
It's lawful to ban refugees for almost any reason. But banning all refugees from particular countries is harsh and unwise. We still should admit well-vetted persons.
Understanding these distinctions is important because supporters of President Trump's executive order continue to wrongly insist that the order is lawful and that President Obama did almost the same thing in 2011. And opponents of President Trump's executive order continue to wrongly insist that banning refugees violates the Constitution or the law.
President Trump's executive order covers not only refugees but also immigrants and nonimmigrants. As noted above, it's not lawful to discriminate in the issuance of an *immigrant* visa because of the person's "nationality, place of birth, or place of residence."
President Obama's action (which wasn't disclosed at the time) covered only refugees and, therefore, did not violate the Constitution or the law, even if one finds it objectionable for other reasons.