Living in the Past

I spent much time at my maternal grandmother’s house in the 1940s. Grandma lived in a small village about 90 miles from my home town, so my visits to her lasted for whole weekends and sometimes for a week or two. I got to know Grandma, her house, and her village quite well — so well that my memories of her and her surroundings are still vivid. When I reflect on those memories I realize that her house, and much of her village, was a throwback to the early 1900s. This was life at Grandma’s house in the 1940s:

There was no indoor plumbing (that came later). Water was drawn at a pump in the backyard. Hands and faces were washed at a basin; baths were taken in a large galvanized tub in the shed attached to the house. The “toilet” was an outhouse tucked behind the garage (which held no automobile).

Where did we heat bath water? On the large, wood-burning range that sat in Grandma’s kitchen. She arose early every morning to fire up the range, on which she cooked all meals.

Central heat? There was none. The wood-burning range and an kerosene stove supplied all the heat Grandma needed. The upstairs bedrooms relied — in vain — on the principle of rising heat.

Air conditioning? Absurd. The only relief on hot summer nights was to stay outside for as long as possible and then to sleep with a window open at each end of the house, in the hope of catching a breeze.

Grandma kept a kitchen garden, where she grew many of the vegetables that we ate with our meals: string beans, green peas, corn, radishes, and cabbages. (Nothing beats the taste of a pea fresh from the pod.) Grandma bought other foodstuffs at local markets, to which she walked three blocks.

She kept perishable items in an icebox. An icebox — for the youngsters out there — consisted of metal compartments encased in wood. The top compartment held a block of ice, which kept the contents of the other compartments cool, but which had to be replenished every few days.

The floors of Grandma’s house were covered in linoleum and the walls were covered in wallpaper — all in a style that dated back to the early 1900s. Most of the furnishings, too, dated from the early 1900s, when she wed my grandfather — who died before I was born.

There was no TV, of course, and no telephone (that, too, came later). When Grandma needed to make a long-distance call to any of the eight of her (ten) children who didn’t live in the village she walked four blocks to the office of the local phone company.

Grandma, herself, was a throwback to the late 1800s. Her vocabulary and attitudes reflected the era of her upbringing. She indulged her grandchildren with sweets and movies. But she expected good behavior and told us, in unmistakable terms, to straighten up when we misbehaved. We obeyed her — and we loved her.

Many (perhaps most) of the other residents of the village lived just as Grandma lived, simply and quietly. The predominant evening sounds were those of crickets and tree toads, not cars and clubs and TVs at high volume. We could see the stars and, on occasion, the Northern Lights. Children could roam, day and night, without fear.

World War II had ended. The Depression had not returned. Life seemed good — even to adults, who enjoyed what they had. Peace reigned, for a short while.

Sixty years on I sometimes retreat to my memories of Grandma, her house, and her village. Those memories take me back beyond my childhood in the 1940s to the even simpler and more peaceful times of a century ago.

Related posts:
The Good Old Days
Reveries
Thinking Back
Ghosts of Thanksgiving Past

My Reference Shelf

You may have gone to Resources, my list of links to various sources of information (and timeless tracts) that are available on the web. I am a frequent visitor.

I am also a frequent visitor to the row of books that sits on a shelf above my computer. The books are arrayed roughly by subject but also (for aesthetic reasons) in “waves” by height (peak-trough-peak-through-peak). Here, from left to right, are the titles on my reference shelf (with links to editions that are available online):

The Heritage Guide to the Constitution, Edwin Meese III (chairman of the editorial advisory board)
The Oxford Guide to United States Supreme Court Decisions, Kermit L. Hall (editor)
The Oxford Dictionary of Quotations
The Great Thoughts, George Seldes (editor)
The Declaration of Independence and the Constitution of the United States of America (published by the U.S. Government Printing Office [GPO], 1972)
The Constitution of the United States of America (footnoted version “presented by” Emmanuel Celler, chairman of the Committee on the Judiciary of the U.S. House of Representatives, GPO, 1972)
Layman’s Guide to Individual Rights under the United States Constitution (prepared by the Subcommittee on Constitutional Rights of the Committe on the Judiciary of the U.S. Senate, GPO, 1972)
FDR’s Folly: How Roosevelt and His New Deal Prolonged the Great Depression, Jim Powell
The Law, Frederic Bastiat
The Constitution of the United States of America (“presented by” Wayne Hays, chairman of the Committee on House Administration, GPO, 1972)
The Declaration of Independence and the Constitution of the United States of America (pocket version published by Cato Institute)
The Summing Up, W. Somerset Maugham
The Great Quotations, George Seldes (editor)
The New American Roget’s College Thesaurus in Dictionary Form
The Elements of Style, William Strunk Jr. and E.B. White
The Federal Reserve System: Purposes and Functions (prepared and published by the Board of Governors, 1961)
The King’s English, H.W. Fowler and F.G. Fowler
A Dictionary of Modern English Usage, H.W. Fowler (revised by Sir Ernest Gowers)
Modern American Usage: A Guide, Wilson Follett
A Manual of Style, University of Chicago Press
Legal Problem Solver (a Reader’s Digest compendium)
Know Your Rights (a Reader’s Digest compendium)
The Timetables of History, Bernard Grun
The Statistical History of the United States: From Colonial Times to the Present (prepared by the U.S. Bureau of the Census, 1976)
Relativity Visualized, Lewis Carroll Epstein
Amo, Amas, Amat and More: How to Use Latin to Your Own Advantage and to the Astonishment of Others, Eugene Ehrlich
Dictionary of Foreign Terms, C.O. Sylvester Mawson
Webster’s New World French Dictionary (concise edition)
21st Century Dictionary of Acronyms and Abbreviations, Diana Ajian (compiler)
The Complete Plain Words, Sir Ernest Gowers
Harbrace College Handbook, John C. Hodges and Mary E. Whitten
Handbook of Mathematical Tables and Formulas, Richard Stevens Burington (compiler)
A Guide to American English, L.M. Myers
Principles of Speech, Alan H. Monroe
The Macmillan Handbook of English, John M. Kierzek and Walker Gibson
The 1,911 Best Things Anybody Ever Said, Robert Byrne
The Plain English Approach to Business Writing, Edward P. Bailey Jr.
The Art of Literary Research, Richard D. Altick
The Basic Patterns of Plot, Foster-Harris
Written Words: A Literary Introduction to English Composition, Arthur Norman and Lewis Sawin

I have many other reference works in other parts of my house. Those listed above just happen to be the ones at hand. I would be grateful for suggestions about other titles that I should keep handy.

The Constitution: Who Has the Last Word?

The American Bar Association questions whether it is up to presidents to interpret the Constitution. (See this Washington Post story about an ABA panel’s report on presidential signing statements.) Others argue that a president is co-equal with Congress and the judiciary when it comes to interpreting the Constitution. My own view is that the Constitution gives the last word to the judicial branch. Here, in relevant part, is what it says about the scope and exercise of judicial power:

ARTICLE III.
Sect. 1. The judicial power of the United States shall be vested in one Supreme Court, and in such Inferior Courts as the Congress may from time to time ordain and establish. . . .

Sect. 2. The judicial power shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting Ambassadors, other public Ministers, and Consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States, between a State and citizen of another State (but only where a suit is brought by a State and not by a citizen of another State), between citizens of different States, between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign States, citizens or subjects (but only where a suit is brought by one of the United States and not by a citizen or subject of a foreign state).

In all cases affecting Ambassadors, other public Ministers and consuls, and those in which a State shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact (except that jury findings of fact are not subject to appellate review), with such exceptions and under such regulations as the Congress shall make. . . .

[Italicized text in the first paragraph of Section 2 reflects changes made by the Eleventh Amendment. Italicized text in the second paragraph of Section 2 reflects the Seventh Amendment and the double-jeopardy clause of the Fifth Amendment.]

There are specific limitations on the scope of judicial power. But those limitations do not apply to the laws of the United States or its treaties.

There are specific limitations on the exercise of judicial power. First, there is the distinction between the Supreme Court’s original and appellate jurisdiction. Second, there is Congress’s ability to limit the appellate jurisdiction of the Supreme Court. But that grant of power to Congress does not enable it to limit the scope of the judicial branch’s power. It remains as stated in Section 2 of Article III. The only question is whether it may be exercised by the Supreme Court or must be exercised by a lower court.

Where does that leave Congress, the presidency, and the courts? Well, Congress can pass unconstitutional laws for as long there are majorities willing to do so. Presidents can sign unconstitional laws for as long as there are presidents who are willing to sign such laws. And presidents can ignore courts when courts find laws unconstitional, or when courts declare that the president has violated the Constitution. (Though presidents try to be subtle about ignoring courts, for presidents traditionally pay lip service to the notion that the final word goes to the courts.) And courts can continue to vest unconstitutional powers in government for as long as there are courts willing to do so — as they have been, in significant ways, from the onset of the New Deal.

All of that is just another way of saying that the Constitution’s “check and balances” and its (notional) grant of judicial supremacy have failed to do what they were supposed to do. They have not checked the enactment of unconstitutional laws. They have not checked judicial rulings that fly in the face of the Constitution. Rather, there has been a “race to the bottom” by the three branches, each vying to outdo the other in the undoing of the Constitution.

That is why I have argued for a changes to the Constitution that would enable Congress to check the judiciary, and enable the States to check the federal government. The three branches of the federal government no longer would be able to go their own way with respect to the Constitution. The imperial judiciary would be subject to rebuke and correction by the people’s elected representatives in Congress, and then all three branches would be subject to rebuke and correction by the people, acting through the States. For the details, read this.

Related posts:
The Erosion of the Constitutional Contract
Unintended Irony from a Few Framers
A Timeless Indictment
When Must the Executive Enforce the Law?
More on the Debate about Judicial Supremacy
Another Look at Judicial Supremacy
Freedom of Contract and the Rise of Judicial Supremacy
Judicial Interpretation
Delicious Thoughts about Federalism
Is Nullification the Answer to Judicial Supremacy?
The Alternative to Nullification
No Way Out?
The Wrong Case for Judicial Review
An Agenda for the Supreme Court
What Is The Living Constitution?
The Supreme Court: Our Last, Best Hope for a Semblance of Liberty
The Case of the (Happily) Missing Supreme Court Nominee(s)
States’ Rights and Skunks
An Answer to Judicial Supremacy?
The Original Meaning of the Ninth Amendment
Substantive Due Process, Liberty of Contract, and States’ “Police Power”
Amend the Constitution or Amend the Supreme Court?
Substantive Due Process Redux?
Hudson v. Michigan and the Constitution
Certain Unalienable Rights . . .
A New Constitution: Revised Again
Advantage: The Constitution
The Bad News about Wal-Mart’s Victory in Maryland
Kelo, Revisited

Kelo Revisited

Larry Kudlow comments about Kelo, in light of two recent decisions by the supreme courts of Oklahoma and Ohio:

Kelo was a dreadful decision.

It had anti-private property rights, anti-capitalist and anti-growth stains all over it, and the political system is repudiating it (as it should) just about everywhere.

Oklahoma’s Supreme Court repudiated it, now comes Ohio’s highest court, in addition to almost twenty states which have passed laws protecting property rights.

To put it simply: Kelo was un-American.

Kelo, in case you need a reminder, was decided by the U.S. Supreme Court in its October 2004 term. A 5-4 majority of the Court (led by Justice John Paul Stevens) upheld the right of the City of New London, Connecticut, to condemn private property for redevelopment. The majority’s rationale, in brief:

  • The city’s redevelopment plan serves a public purpose under the “takings clause” of the Fifth Amendment because the plan enables the city to generate higher tax revenues.
  • The Court should defer to the judgment of the States and their political subdivisions as to what constitutes a public purpose. (The majority wrote that “For more than a century, our public use jurisprudence has wisely eschewed rigid formulas and intrusive scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power.”)
  • In other words, the “takings clause” does not really apply to the States.

Not only is Kelo un-American — in the best, libertarian sense of that term — it is flat wrong. Note, for instance, the logical inconsistency in the majority’s finding. If the propriety of takings really is a matter for States to decide — as the majority would have it — there was no need for the Court to enter a judgment about the compliance of New London’s condemnation with the Fifth Amendment. All the Court needed to do was to upheld the City of New London’s actions, without determining their appropriateness under the “takings clause.”

Some libertarian commentators (e.g., here and here) have gone so far as to argue that Kelo was rightly decided because it upholds the principle of federalism. I wonder how they feel about Dred Scott?

Kelo was wrongly decided, in part, because Barron v. Mayor & City Council of Baltimore (1833), was wrongly decided. In that case, Chief Justice John Marshall opined that the Fifth Amendment is not binding on the States. As I explain here, the Fifth Amendment (all of it) was meant to apply to the States as well as to the federal government. Kelo also was wrongly decided because the meaning of the “takings clause” has been corrupted. As Justice Clarence Thomas wrote in his dissent from the Kelo majority,

. . . I would revisit our Public Use Clause cases and consider returning to the original meaning of the Public Use Clause: that the government may take property only if it actually uses or gives the public a legal right to use the property.

Given all that, it is wrong for the U.S. Supreme Court to defer routinely to the takings of State and local governments, as if those takings are not a matter for federal scrutiny under the Fifth Amendment. Further, it is incumbent on the U.S. Supreme Court to reject takings by State and local governments whenever those takings are not for actual public use of property.

The Kelo majority shirked its constitutional duty when it deferred to the City of New London’s blatant seizure of private property for a private use. The majority’s opinion was nothing but a flimsy pretext to favor the collective over the individual and to flout property rights.

Diagnosing the Left

Thomas Lifson, writing at The American Thinker about a post at One Cosmos, says

I think it is almost unquestionable that the Left’s belief systems have proven incongruent with the real world. Communism didn’t work and only survives as a pretext for despotism in North Korea and China. Welfare is a trap, and poor people’s lot in America has improved since access to it was term-limited. Higher taxes on “the rich” depress economic growth and throw people out of work. The list could go on.

With their gods having failed them, leftists have turned to cant, ritual, and hysterical repetition of their golden oldie playlist of slogans. And most of all, to demoinization of their opponents. It is fairly primitive, and often comic, with tinges of tragedy.

To paraphrase what I wrote here, the Left wants a society that operates according to its strictures. But those strictures are so at odds with human nature and morality that society often (though not often enough) rejects the Left’s agenda. When Leftists cannot satisfy their power-lust in the real world, they compensate by imagining a theoretical world of doom. It is as if they walk around under a thought balloon which reads “Take that!”

The Yates Verdict

This (Yates not guilty by reason of insanity) reminds me of this, this, this, and this. Enough said.

UPDATE: Well, not quite enough said. I must refer you to this commentary, by Mike Gallagher, which examines the broader implications of the willingness to find a guilty person “not guilty.”

An Ideal World

Revised in response to the astute comment by the proprietor of the late, lamented Occam’s Carbuncle.

Thomas Hobbes argued that anarchy would lead to a human condition that is “solitary, poor, nasty, brutish, and short.” If the Gore-Moore-Sheehan axis of stupidity were to prevail, our lives would be collective, poor, primitive, submissive, stupid, and short.

How so? Gore, Moore, Sheehan, and their ilk — that is to say, what remains of the Democrat Party and those to its left — subscribe to an Alice-in-Wonderland view of reality, in which

  • the state knows best (as long as they control the state). (Collective)
  • it is fitting and proper to thwart endeavor and punish success through regulation and taxation. (Poor)
  • technological regress is not too small a price to pay for environmental extremism. (Primitive)
  • our enemies are merely persons with a different world-view, and peace is won by wishing for it, not fighting for it. (Submissive)
  • such things are believed. (Stupid)

Our lives, therefore, would be short because we are poor, primitive, and submissive, and stupid.

Consent of the Governed

A common view among anarcho-libertarians is that the Constitution of the United States is not a binding “social contract” — and never has been — because

  • the Constitution was imposed on many Americans who were not parties to its ratification or who opposed its ratification, and
  • regardless of the circumstances of the adoption of the Constitution, one generation cannot impose a contractual obligation on later generations.

I have addressed those objections before, but I have further thoughts.

As to the first objection: Consensus on any set of complex issues is impossible. But why should that prevent a majority from imposing its rules on a commingled minority whose adherence to the rules is necessary to the attainment of their purpose? If that purpose is to establish a regime which fosters liberty — requiring, among other things, a commitment to mutual defense — it would be foolish for the majority to lessen its commitment to liberty for the sake of assuaging the minority. Opponents of the regime cannot claim to be oppressed if the regime allows them to express their opposition peacefully, which the Constitution does.

Moreover, the original Constitution became effective only when ratified by three-fourths of the signatory States (nine of the twelve States that sent delegates to the Constitutional Convention). And it bound only the ratifying States. The other three States (plus Rhode Island, which did not send delegates to the Constitutional Convention) could have refused to ratify it — as New Hampshire, Virginia, New York, and Rhode Island nearly did — and could therefore have remained outside the Union. (Click here for a chronology of the States’ ratifications.)

As to the second objection: The Constitution allows for amendments. (Click here and scroll down to Article V.) An amendment may be proposed by two-thirds of both houses of Congress or a two-thirds of the delegations of the States meeting in convention. An amendment must be approved by three-fourths of the States. The only matter now beyond amendment is “that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” In other words, the Constitution can be changed by essentially the same process by which it was adopted: three-fourths of the States must agree to an amendment. But, thankfully, the Constitutions cannot be changed easily, in response to whims and passions that might diminish the Constitution’s guarantees of liberty.

So, yes, one may object to the Constitution, one may refuse to concede its legitimacy, and one may object to being forced by the state to abide by it. But here’s the catch: Such objections and reservations are valid only to the extent that the Constitution actually deprives one of liberty. Inasmuch as it does not do that (except in the fevered minds of anarcho-libertarians), and inasmuch as it fosters liberty, such objections are nothing more than irresponsible tantrums masquerading as a political philosophy.

Most of us are glad of the Constitution and accept it as a bulwark of liberty. The anarcho-libertarian alternative is anarchy, which is a way-station to warlordism and dictatorship. I fail to understand why a small (crackpot) minority should be relieved of its false sense of oppression so that all of us might “enjoy” the “benefits” of anarchy.

For more about the impossibility of peaceful, libertarian anarchy, read these posts:

Defense, Anarcho-Capitalist Style
But Wouldn’t Warlords Take Over?
My View of Warlordism, Seconded
The Fatal Naïveté of Anarcho-Libertarianism
Anarcho-Libertarian ‘Stretching’
QandO Saved Me the Trouble

An essential ingredient of anarcho-libertarianism is the non-aggression principle, which I address here:

Libertarian Nay-Saying on Foreign and Defense Policy
Libertarianism and Preemptive War: Part I
Right On! For Libertarian Hawks Only
Understanding Libertarian Hawks
More about Libertarian Hawks and Doves
Sorting Out the Libertarian Hawks and Doves
Libertarianism and Preemptive War: Part II
Give Me Liberty or Give Me Non-Aggression?
More Final(?) Words about Preemption and the Constitution
“Peace for Our Time”
Idiotarian Libertarians and the Non-Aggression Principle

Contrary to anarcho-libertarians, liberty is not an essence that wafts from heaven to imbue our souls. It is a set of compromises about how we live with each other. To more deeply explore the meaning of liberty and the proper role of the state in assuring it, read these posts:

Practical Libertarianism for Americans (links to a series)
The Meaning of Liberty (a series gathered in a single post)
Actionable Harm and the Role of the State

Finally, there is Varieties of Libertarianism, which summarizes and compares the tenets of anarcho-libertariansim (or anarcho-capitalism as it is usually called) and the other main branches of libertarianism.

The Impossibility of a Perfect Game

A “perfect game” in baseball is said to be one in which no batter for one of the teams reaches base safely in the course of nine innings (or more), all of which are pitched by the same pitcher for the other team. A “perfect game,” in other words, is perfect only from the standpoint of one team — the team that does not allow an opposing batter to reach base safely. The pitcher for that team is credited with pitching a “perfect game,” even though the attainment of “perfection” depends as much on the other players on the field as it does on the pitcher.

In sum, the traditional “perfect game” is a mark of defensive success and offensive failure. That strikes me as a wrong-headed way of defining perfection in a sport where the object is to win by outscoring the other side. A perfect offensive game — from the standpoint of one team — would be one in which none of its batters is ever retired. And a doubly perfect offensive game — from the standpoint of both teams — would be one in which no batter from either side is ever retired.

But neither a perfect offensive game nor a doubly perfect offensive game is possible — given the present rules of baseball — because the teams would never complete the first inning. A perfect offensive game might go into the bottom of the first inning, but it could never go beyond that; that is, if the team that bats in the top of the first inning (the visiting team) is retired, the team that bats in the bottom of the first inning (the home team) would never be retired. A doubly perfect offensive game would never reach the bottom of the first inning because the visiting team would never be retired.

A perfect or doubly perfect offensive game is therefore impossible because, under the present rules of baseball, a game isnt’ “a game” unless it lasts at least five innings (four and one-half if the home team is leading after the top of the fifth inning). Or, to put it another way, a perfect or doubly perfect offensive game is a pardoxical concept:

  • Such a game requires that at least one side is never retired.
  • If one side is never retired, the game cannot be completed.
  • If the game is not completed it cannot be counted as a perfect game.

Who’s on first?

Idiotarian Libertarians and the Non-Aggression Principle

There’s an internecine brawl in progress about libertarianism and war. It began with a post by Ilya Somin at The Volokh Conspiracy. It has spread to a post by Jonathan Wilde at Catallarchy, to which I have added my comment. I have written many relevant posts on the subject. (Check out the links here, and see especially this, this, this, this, this, and this.)

A typical “idiotarian libertarian” view of war appears in the first comment about Ilya Somin’s post; viz.:

I don’t actually understand how someone can call themselves libertarian and be pro-war.

Think about it. Being absolutely against war means being against self-defense. What the commenter means, I guess, is that a central principle of libertarianism is non-aggression,

which holds that “aggression” — which is defined as the initiation of physical force or the threat of such upon persons or their property — is inherently illegitimate. The principle does not preclude retaliation against aggression.

The non-aggression principle — in the hands of idiotarian libertarians — puts non-aggression (a means) above the end (liberty). The non-aggression principle works only among those who agree to observe it and to accept an enforceable penalty when they fail to observe it. That’s why it’s barely relevant to domestic affairs and completely irrelevant with respect to international relations.

The Bad News about Wal-Mart’s Victory in Maryland

It’s not news that a federal judge has overturned Maryland’s anti-Wal-Mart law, which would have dictated how much Wal-Mart must contribute to the health-insurance premiums of its Maryland employees. Lost in the celebratory noise, however, is the fact that Wal-Mart’s “victory” is a hollow one for liberty, as I will explain.

First, the Maryland law, which was scheduled to take effect next January 1. Here, from the law firm of McGuireWoods, is a good description of the law’s intended effect and how it was tailored to attack Wal-Mart:

The Fair Share Health-Care Fund Act, Md. Code Ann., Lab. & Empl. § 8.5-101, et seq. (“Fair Share Act”), was enacted in January of this year and was to become effective January 1, 2007. By its terms, the Fair Share Act applies to non-governmental employers of 10,000 or more people in Maryland, but effectively covers only Wal-Mart Stores, Inc. The Fair Share Act requires that a for-profit employer that “does not spend up to 8% of the total wages paid to employees in the state on health insurance costs, shall pay to the Secretary an amount equal to the difference between what the employer spends for health insurance costs, and an amount equal to 8% of the total wages paid to employees in the State.” The Fair Share Act also requires certain reporting and disclosure requirements separate from those required under ERISA.

Only four non-governmental entities employ 10,000 or more in Maryland: Johns Hopkins University, Northrop Grumman Corp., Giant Food, Inc. and Wal-Mart. Johns Hopkins, as a non-profit, meets a lower 6% standard for such institutions set by the Act. Northrop Grumman successfully lobbied for an exclusion for compensation paid above the Maryland median income, thus permitting Northrop Grumman to meet the 8% standard. Giant Food, which actively lobbied for passage of the law, spends well over 8% of wages to Maryland employees on healthcare. Wal-Mart was thus the clear target of this legislation.

Note that Giant Food lobbied the Maryland legislature in an effort to harm a competitor: Wal-Mart. Welcome to the real world of regulation, where “bootleggers and Baptists” collude.

Anyway, Wal-Mart’s “victory” is not a victory for liberty because Maryland’s law (according to the federal judge who overturned it) is preempted by the Employee Retirement Income Security Act of 1974. In other words, neither Wal-Mart nor any other employer or employee in the U.S. has a right to enter into voluntary contracts regarding the terms and conditions of employment. The feds have the final say. Maryland’s “Wal-Mart law” just happened to encroach on the feds’ territory, and so it was chucked out.

Well, the decision is good for Wal-Mart (which is okay) and — if upheld — it does set a useful precedent. Quoting again from McGuire Woods:

The Court’s ERISA analysis, if upheld on appeal, will help employers challenge similar existing and proposed legislation, including the Chicago “big-box” retail store ordinance expected to be voted upon July 26. If adopted, this ordinance would initially raise the local minimum wage to $9.25 per hour, and would also give workers $1.50 per hour in benefits, at stores of at least 90,000 square feet that are owned by retailers having $1 billion in sales.

But that’s not progress toward liberty. Progress would be to get government out of employment relationships, thus honoring the Constitution’s guarantee of liberty of contract. That guarantee was affirmed in Lochner v. New York (1905) but dismissed in Nebbia v. New York (1934), never to be seen since.

Related posts:
An Agenda for the Supreme Court
Substantive Due Process, Liberty of Contract, and States’ “Police Power”
Where’s Substantive Due Process When You Need It?
Substantive Due Process Redux?

What to Do about Liberal Error

A thoughtful reader, who describes himself as a liberal, ends an e-mail with this suggestion:

Instead of berating the media and pointing figures, conservative groups should promote young conservatives to consider careers outside banking, finance, medicine, business and law.

My first reaction is that “berating” and “finger pointing” — aimed at specific journalistic (and academic) instances of error and propagandizing — are a necessary part of the “dialogue” that informs public opinion. It would be a dereliction of duty on the part of conservative-libertarian commentators not to identify and chastise journalistic and academic half-truths, untruths, and improprieties. True, some conservative-libertarian commentators go over the top, just as do some of their liberal counterparts. Neither of the extremes, I think (I hope), is very influential because their excesses are so obvious, their stridency so off-putting. They seem to spend most of their time and energy in talking to each other and working themselves into a rage. If an occasional spark of light emerges from the volumes of heat they generate . . . well, that’s why we have freedom of speech.

But I do agree that more young conservatives and libertarians should be encouraged to take up careers in professions dominated by liberals. There is, to some extent, a temperamental barrier. Some professions (e.g., the dramatic arts) seem to attract few persons of a conservative or libertarian bent. (Hollywood conservatives and libertarians, where you can find them, are notable for their rarity, as are academic conservatives and libertarians.) But there are conservative-libertarian enclaves in academia and journalism. A question then arises as to whether conservatives and libertarians should (a) expand those enclaves, as a draw for aspiring young conservatives and libertarians; (b) encourage the entry of young conservatives and libertarians into the liberal enclaves (by dint of talent and training, of course); or (c) do both.

I think (c) is the right answer. That is, there should be identifiably conservative-libertarian media outlets and academic outposts, and conservative-libertarians should compete with liberals on their own turf, to the extent that they are able to “infiltrate” traditional bastions of liberalism.

But it is incumbent on conservatives and libertarians to attack liberal error, as it arises. The attack, to be effective, must be factual and logical, not merely rhetorical.

The Last(?) Word about Income Inequality

It’s here, in a post by Russell Roberts at Cafe Hayek, and in the linked paper from which he draws. Roberts demolishes, along the way, the lunacies of Paul Krugman, whose Leftism blinds him to economic principles that even he once understood.

Related posts:
Why Class Warfare Is Bad for Everyone
Fighting Myths with Facts
Debunking More Myths of Income Inequality
Ten Commandments of Economics
More Commandments of Economics
Zero-Sum Thinking
On Income Inequality
The Causes of Economic Growth

Current Reading

I am reading The Sea, by John Banville — one of my favorite authors. The Sea won the 2005 Man Booker Prize for Fiction, an honor justly deserved. Last night, I read (and re-read) a paragraph that exemplifies Banville’s command of language and ability to paint word-pictures:

I wonder if other people when they were children had this kind of image, at once vague and particular, of what they would be like when they grew up. I am not speaking of hopes and aspirations, vague ambitions, that kind of thing. From the outset I was very precise and definite in my expectations. I did not want to be an engine driver or a famous explorer. When I peered wishfully through the mists from the all too real then to the blissfully imagined now, this is, as I have said, exactly how I would have foreseen my future self, a man of leisurely interests and scant ambition sitting in a room just like this one, in my sea-captain’s chair, leaning at my little table, in just this season, the year declining toward its end in clement weather, the leaves scampering, the brightness imperceptibly fading from the days and the street lamps coming on only a fraction earlier each evening. Yes, this is what I thought adulthood would be, a kind of long indian summer, a state of tranquillity, of calm incuriousness, with nothing left of the barely bearable raw immediacy of childhood, all the things solved that had puzzled me when I was small, all mysteries settled, all questions answered, and the moments dripping away, unnoticed almost, drip by golden drip, toward the final, almost unnoticed, quietus.

Michigan Condones Self-Defense

From FoxNews:

LANSING, Mich. — Democratic Gov. Jennifer Granholm signed legislation Thursday that supporters say is aimed at strengthening and clarifying self-defense rights in Michigan.

People now will be allowed to use deadly force, with no duty to retreat, if they reasonably think they face imminent death, great bodily harm or sexual assault. They can use deadly force on their property or anywhere they have a legal right to be.

The legislation also protects people from civil lawsuits if they have used force in self-defense.

Is Granholm is running for re-election? Yes.

"Proportionate Response" in Perspective

“Proportionate response,” as it has come to be used lately, means that a nation with more potent military forces than those of than its enemies should give the enemies a “handicap,” just as a better golfer gives a lesser golfer a handicap in a country-club match.

Israel, to name the nation in question, has a potent military force precisely because it is surrounded by enemies who would destroy it. Israel is most decidely not playing a country-club golf match or playing a game of tit for tat. Israel is fighting for its survival. It needs every ounce of military might it possesses, and then some. Proportionality, in this case, should mean the application by Israel of enough of its military might to ensure its survival. Israel cannot afford to err on the side of caution.

What about the civilian casualties that Israel inflicts — incidentally and unwillingly — as it defends itself? Regrettable, yes. But what about the civilian casualties among Israelis if Israel fails to defend itself adequately? Or don’t the lives of Israelis matter? Apparently not, to those who cynically cry “disproportionate response” as Israel defends itself.

About Stem-Cell Research and Vetoes

Putting aside the pro-life and humanitarian aspects of embryonic stem-cell research, I have this to say:

The federal government has no business funding research of any kind, except that which is intended to foster the common defense.

Regardless of the reasons for President Bush’s veto of a bill to provide federal funds for embryonic stem-cell research, he was right to veto it. Now that Bush has found his veto pen, perhaps he will use it more often and on measures of greater fiscal import.