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Trump and the Supreme Court

An especially good post by Ilya Somin.

Native American kids aren't dandelions

They're human beings--and American citizens.

Racial discrimination is no "gold standard"

The conversation about the Indian Child Welfare Act is underway at Cato Unbound.

Speaking at Chapman Law School August 29

Southern California friends: I'll be giving a special pre-release presentation about my new book, The Permission Society, at my alma mater, Chapman University School of Law, on August 29 at 5 o'clock. Free to the public. Although the book won't be officially out till September 13, it will be available at the event. Please join us!

My articles on Greeks and America's founders in The Objective Standard

The Objective Standard's fall issue is now available online, and it has the first of my three articles on the influence of the Greeks on America's founding fathers. The first focuses primarily on Thomas Jefferson and Epicurus. The second, in the winter issue, is about how the founders, especially James Madison, learned from the Greeks what not to do. The third, in spring, 2017, involves the Greek Revolution and American Civil War.

Our Republican Constitution

I’m sorry that I wasn’t able to get to Randy Barnett’s new book sooner. Our Republican Constitution is a fantastic contribution to the cause of constitutional freedom, and should be near the top of anyone’s list who wants to learn about the crucial constitutional issues of the day. It’s simultaneously succinct, clear, and thorough, and—if I may be so vain—is an excellent companion to my own book, Conscience of the Constitution. This is particularly because Barnett includes much material that I do not discuss—especially his discussion of Chisolm v. Georgia. When I came to that part of the argument while writing Conscience, I admit that I panicked at the thought of trying to explain it, and decided to just skip it. Barnett manages to cover it in just a few pages, accurately, succinctly, and in a way that gets to the heart of a case that can be pretty rough slogging even for experienced constitutional lawyers.

Another highlight of the book for me was Barnett’s point that the Progressive judges and law professors changed the terminology of judicial protection so that instead of referring to the courts’ “duty” to strike down unconstitutional laws, they came to call it a “power”—and thereby changed our conception of the judges’ role. “Powers can and should be exercised with discretion or ‘restraint,’” Barnett observes, “but we don’t speak the same way of our duties.” That’s right—it was through this reconceptualization that the Progressives were liberated to argue that the courts should decide in an essentially political way whether or not to strike down unconstitutional laws. New Dealers laffed and laffed when the Supreme Court said in United States v. Butler that the judge’s job is to “lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former.” They insisted that the courts are political bodies that ought to ditch that aspiration to objectivity in order to serve higher social goods. But in fact, the Butler Court was right, and by thinking of judicial review as a “power” instead of a “duty,” later generations of judges have helped perpetuate the myth that judicial review is a form of “activism.” 

New review of Conscience of The Constitution

By Tribune columnist Leslee Kulba.

Guest-hosting the Andy Caldwell Show

I'll be sitting in for Andy Caldwell on Thursday, 3-5 pm Pacific, on AM 1440 / AM 1290. My guests will include colleagues and former colleagues from the Pacific Legal Foundation and the Goldwater Institute, to talk about the future of freedom in America. You can listen online here.

Update: If you missed it, you can listen here: Hour 1 / Hour 2.

The impossibility of democracy

A few days ago on Armstrong & Getty I mentioned the Arrow Impossibility Theorem and how a majority vote does not, and typically can not, actually reveal what most people want. I'm afraid I wasn't very good at explaining it briefly on the air. Here's the explanation I like, by Prof. Donald Boudreaux, who taught it to me. The basic idea is this. Let's say there are three people who want to decide what to have for lunch. The possible choices are apples, bananas, and cantaloupe. Tom wants apples. If he can't have apples, he wants bananas. If he can't have bananas, he'll pick cantaloupe. Richard wants bananas first, then canteloupe, then apples. Bob would prefer canteloupe first, and if he can't have that, he'd rather have apples, and if he can't have that, he'd prefer bananas:

Tom: 1. apples, 2. bananas, 3. canteloupe

Richard: 1. bananas, 2. canteloupe, 3. apples.

Bob: 1. canteloupe, 2. apples, 3. bananas.

Now, what does the majority prefer? Well, nothing. There's a 3-way tie. But notice: both Tom and Richard prefer bananas to cantaloupe. Both Richard and Bob prefer cantaloupe to apples. Both Tom and Bob prefer apples to bananas.

Time to vote! They can only pick one, so they'll have a "primary" election first. In the primary, it's apples versus bananas. Tom votes apples. Richard votes bananas. Bob votes apples. So apples wins and moves on to the "general" election, between apples and cantaloupe. Tom votes apples. Richard votes cantaloupe. Bob votes cantaloupe. So...Cantaloupe wins! Yay! That was what the majority wanted, right? But no. Only Bob wanted cantaloupe. The only thing the majority agreed upon was that it did not want cantaloupe.

Now let's switch it up, just for fun, and this time in the "primary" let's do apples versus cantaloupe. Bob votes cantaloupe. Richard votes cantaloupe. Tom votes bananas. Cantaloupe wins! And in the general election, between canteloupe and bananas, Bob votes cantaloupe; Richard votes bananas; Tom votes bananas. Bananas wins! Yay! that was what the majority wanted, right? But no. Only Richard wanted bananas. The majority wanted something else.

But notice something else. We've done two elections now, and they came out differently. But between the two elections, nobody's preferences changed. The only thing that changed was the order in which we ran the "primary" and "general" elections.

This is called the Condorcet ("con-dor-say") Paradox. It's the basis of the Arrow Impossibility Theorem, which explains that there is no way to eliminate this influence between how an election is run and the outcome of that election. So long as there are more than two choices, what matters is what order the "primary" versus "general" elections operate. 

This is only one reason why a pure democratic system does not do what its supporters claim: i.e., demonstrate the "true will of the people." (Another is the difference between stated and revealed preferences. There's also the problem of rational ignorance.)

Update: Back in the 70s, some economics professors, knowing of this phenomenon, used it to rig some elections in their favor. Thanks to Jonathan Wood for the link.

Indian children deserve to be treated as individuals, not "resources"

This month's Cato Unbound focuses on the Indian Child Welfare Act, and its deplorable consequences for America's most vulnerable citizens. The first article is by me; there'll be back and forth from other authors throughout August.